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SMITH, J.
The appellee instituted this action against appellant for damages for personal injuries, and a judgment was rendered in his favor from which is this appeal. The facts are substantially as follows:
The appellee was a section hand in the employ of appellant. He was 57 years of age. On the 3rd day of July, 1917, lie was engaged in the work of repairing appellant’s road bed. There were no others in the section gang at that time except another man and the section boss. The section gang were required to carry along a motor car which was operated by power generated by the explosion of gasoline. The motor car was rolled out and lifted on the railway track. Appellee and the other man started the car. The foreman told the appellee and his fellow servant to get on the other side of the car and start it. Appellee was on one side, and his fellow helper on the other. Appellee put his right side to the car, shoved it slowly and when the engine began to exhaust, he sprang on. In starting the car he went in a trot. They had made three or four stops, each time starting the car in the above manner. Appellee described the manner in which he received his injuries as follows: “I started to speed it up. There was a road crossing there. I crossed the cattle gap and was walking on the end of the ties pushing along, all the time running along with it. As quick as we left the cattle gap, I went to make a spring and noticed the exhaust was sufficient to run, and I did not catch it with my foot. I made the spring with my right foot and threw up my right foot to the edge of the car and it slipped off. I had to gather in close to the car on account of a plank coming down from the cattle gap and I did not get quite high enough. I was expecting my weight to come on it and it slipped off. My foot came down on the rail and the wheel ran across it. ’ ’
Appellee was employed on the morning of the 2nd of July and was on the car operated by the section gang on that day. The car, on that day, was started a half dozen times. It was started the same way every time. There was nothing to keep appellee from looking at the men and from seeing how it was done. On the next day appellee helped to start the car. Appellee’s foreman did not explain to him how to start the car except that he showed appellee where to set his foot. He did not explain to appellee that there was any danger in doing that. Appellee, when he applied for the job, told his foreman that he was inexperienced. There were no running boards or steps on the sides of the car where a man could step on after the car was started. There was no self-starter on the motor. It was about 18 inches or 2 feet between the front wheels and hind wheels of the car. The car is just a plank table that goes out from the wheels for the men to ride on and to put a box of tools on.
The section foreman testified in regard to the injury and the appliance with which appellee was working as follows: “The car is about three feet high, has four wheels with a small four horsepower engine on the center of the car which runs with a belt drive. The body of the car is almost square. The platform of the car does not extend out from the end of the ties. It extends about six inches from the rail. There was a seat about 16 inches above the car made of boards set upon legs. These planks were 10 inches wide and were for seats. The edge of this plank does not come out as far as the edge of the platform of the car. In stepping on the car you held to the car and stepped on the edge of the car. There is no difficulty in stepping on the car except it is a little high. When the car started that started the engine. These motor cars have been used on the Cotton Belt something like six or seven years. The bod/ of the car is like the old section car that was operated by hand, except it uses a gasoline engine instead of levers. It is like the old car except the frame and handle is off; about the same height and width. The company furnished the car and I furnished the motor. I have seen similar cars on the other railroads that were operated in the same way. At the time Mr. Compton got hurt we had only two men that day; one man on each side. Compton was on the right hand side and he, being a new man, I told him to get on the car first, and I would start the engine, and I would start the car without him pushing it. He started to pushing, himself, and when he did start to step on the car, the car had started to move a little bit, and in stepping on it, being a little high, he put his foot on the car and started to put his left foot on the car and missed the car and his back foot got-caught but he took it off the rail. ’ ’ This witness further testified “that the car that injured appellee was a little too high for a man to step on it safely. There was no self-starter to the motor. It had to be moved along at a speed of about 3 or 4 miles an hour to start the motor, and a man would have to go in a little trot to explode it. Two men can start it. When the appellee was injured, the car was going at a speed of about three miles an hour. The car was a little higher than the smallest hand-car. It was not higher than one class of hand-ears. About half the hand-cars are made in the small size and about half in the large size. This car was the large size. ’ ’
The other servant was a step-son of the appellee and he testified substantially corroborating the testimony of the appellee as to the manner of the injury, and he further stated “the section foreman told my father that morning how to get on and off the car. At the time he got hurt he did not tell him. That morning he showed him how to get on the car. He showed him at the section house, and he showed him just like I stated. ’ ’
It was shown that there were five section hands Working on the day before the injury to appellee.
The appellee alleged that the appellant was negligent in not having sufficient men in the gang to properly handle the car, and in not warning the appellee of the danger in starting and getting on the car, and in furnishing the appellee a ear that was not equipped with a self-starter, and that had no steps or platform upon which the appellee could step safely from the ends of the ties to the top of the car. The appellant .denied specifically the allegations of the complaint, and pleaded that the appellee assumed the risk, and that he was also guilty of contributory negligence. The majority having reached the conclusion that the cause must be reversed for another reason, it is unnecessary to determine whether the testimony was sufficient to sustain the verdict on the issues of negligence and contributory negligence; and it may be conceded for the purpose of this decision that the instructions on these issues were correct. Nevertheless, the appellee cannot recover for the reason that he assumed the risk. The undisputed evidence shows that such danger as existed was an open and obvious one which a man of ordinary prudence must have understood and fully appreciated when he entered upon the performance of his duties. Appellee was 57 years of age. He had seen the car started in the same manner a half dozen times on the first day, and on the day that he was injured, appellee had speeded up the car four times or more before he was hurt. The section foreman had shown appellee where to set his foot. The whole operation of starting the car in the manner shown by the proof was so simple and obvious that appellee must he held to have had knowledge of whatever danger there was and to have appreciated such danger. Where the defect is so patent and the danger so obvious that a servant of reasonable intelligence, exercising ordinary care for his own safety in the use of the appliances furnished him, must have had knowledge of and appreciated the danger incident to his work, then he assumes the risk. Such was the case here and in such case the law charges the servant with knowledge of the defect and appreciation of the danger. Fullerton v. Henry Wrape Co., 105 Ark. 437, and cases there cited; Mo. & North Ark. Ry. Co. v. Murphy, 106 Ark. 438; Pekin Stave Co. v. Ramey, 108 Ark. 490 and cases cited. These and other cases are collated in 3 Crawford’s Digest, p. 3441, Sec. 99, et seq.; 2 Sec. 100.
Even though appellee’s foreman was present directing the work, he had shown appellee how to do it, and it could only he done in one way. The height of the car was obvious, and the difficulty of reaching it and the danger from a misstep on the ties while attempting to hoard the car in motion was also obvious, and no man of ordinary intelligence and prudence could have failed to have known and appreciated such danger as existed. There was nothing peculiar in the circumstances to justify the appellee in relying upon the superior knowledge of his foreman as to the defects and dangers. In this respect the case in hand is distinguished on the facts from the cases of Griffin v. St. L. I. M. & S. Ry. Co., 121 Ark. 433; Dickinson v. Mooneyham, 203 S. W. 840, and A. L. Clark Lbr. Co. v. Northcutt, 95 Ark. 291 and other cases cited in appellant’s brief.
For the error in not instructing the jury to return a verdict in favor of the appellant as requested by appellant’s prayer No. 1, the judgment is reversed and the cause is dismissed. | [
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DOUG MARTIN, Judge.
| ¶Appellant Ricky Townley appeals the Arkansas Workers’ Compensation Commission’s determination that he failed to rebut the presumption that an injury he sustained when his right hand was caught in a machine at work was substantially occasioned by his use of marijuana. Townley argues that the Commission’s decision is not supported by substantial evidence. Specifically, Townley maintains that his injury resulted from “defective equipment.” We affirm.
Townley was employed by appellee Georgia Pacific Corporation for thirty-four years. At the time of his accident, Town-ley operated a “twist-and-tuek winder,” which-embossed and perforated toilet paper. With respect to this particular winder, Townley asserted that he had “been around it all [his] life” and was “very familiar” with the machine. Townley acknowledged that Georgia Pacific’s Job Safety Analysis (JSA) contained several instances |2where employees were warned of the dangers inherent with the winder and instructed to keep their hands and fingers away from the moving parts on the machine.
On November 28, 2009, soon after arriving at work that morning, Townley attended a brief safety meeting concerning the prevention of hand injuries. At the beginning of Townley’s shift on the twist-and-tuck winder, the worker on the previous shift told Townley that the winder was “out of time” and that the problem was not resolved. A mechanic was attempting to repair the winder.
Townley testified that he had to press a button on the twist-and-tuck winder to make the machine “jog,” meaning a slow speed calculated to turn the rolls on the winder and gradually increase to full speed. In describing the events leading up to his injury, Townley testified, “Well it got hung up on the roll before it went to the perf head, and I was getting the paper. ... I was trying — I jogged — I got the paper off, and I hit the jog button. When I hit the jog button, it went like that, and my hand went up in it.” According to Townley, the winder moved faster than he had expected and caught him by surprise.
A second mechanic arrived to help the first mechanic repair the winder shortly before Townley’s accident. Realizing Townley’s hand was caught in the machine, the second mechanic reversed the winder, releasing Townley’s hand. Townley was then taken to the safety office, where his hand was examined. The employer also administered a drug test, which revealed that Townley had marijuana in his system. On December 11, 2009, Dr. Rindt diagnosed a fracture with two broken fingers and referred Townley to Dr. Daniels, an orthopedic hand surgeon.
|sAs for the drug-test results, Townley testified, “I made a mistake on Thanksgiving; I am usually not off. We had a little get-together. We were fixing to eat turkey, and Mike passed [a marijuana joint] around. I took a couple hits off of it— some pot.” Townley stated that, on that Thursday — two days before his accident— he smoked marijuana, took Vicodin, and drank a few beers. According to Townley, he had taken Vicodin every day for herniated discs in his low back since 2006 or 2007, including the day of his accident. Townley denied smoking marijuana on Friday and did not remember whether he consumed any beer. Townley insisted that he was not still feeling the effects of the marijuana on Friday and was not impaired in any way on Saturday, the day of his accident.
Mike Cain, an operating mechanic, testified that he and another mechanic were attempting to repair the twist-and-tuck winder when they heard Townley “holler” in pain. Cain used a hand wheel to reverse the winder and release Townley’s hand. Cain testified that there were two jog buttons on the front of the winder and that workers must press both buttons at the same time “to keep you from putting your hands in the nip point.” Cain stated, however, that the winder had only one jog button where Townley’s hand was caught. Cain testified that he did not have enough contact with Townley that morning to have an opinion as to whether Townley was impaired.
Gillespie Shawn Meeks, Townley’s supervisor, described a “nip point” as “just a point on a machine that could either pinch or grab a body part.” Meeks testified that he had often instructed employees not to put their hands in the machines when they were “jogging” them. Also, Meeks stated that the jog speed for the twist-and-tuck winder was thirty-one, meaning |4that the machine rolled thirty-one feet of paper per minute, and that the machines were thereafter slowed to fifteen. Meeks stated, however, that the jog speed on Townley’s winder had been increased to make it “a little faster” because of the maintenance issue. According to Meeks, regardless of the jog speed, employees are not supposed to put their hands in the machines.
According to Meeks, there was only one jog button on the left side of the winder where Townley’s hand was injured. Meeks stated that two jog buttons were later installed and had to be pressed simultaneously in order to make the machine jog and to ensure “that both hands are occupied and not in the machine.”
Meeks further testified that he saw Townley at the safety meeting but that he “couldn’t really tell” whether Townley was impaired. Meeks stated that, if Townley had seemed impaired, he would have sent him home or to human resources. Meeks read from the JSA and noted several points at which employees were instructed to keep their hands clear of the machine and to simply let the paper fall from the nip point. According to Meeks, any employee who put his hand in a machine when he knew it was moving, regardless of the speed, was exercising poor judgment.
Robert Lee Odom, human resources manager, encountered Townley at the safety office shortly after the accident. Odom testified that Townley’s injury looked painful but that Townley appeared “very sleepy, you know, his eyes were kind of like he was about to nod off.” Odom also noticed that Townley’s speech was incoherent. Odom stated that Townley appeared “disoriented,” which caused him “a little concern.” Odom testified that Townley |fiwanted to go home but that Odom “decided it would be a better thing to have him drug tested.” Odom testified that the drug test was administered based on reasonable suspicion of impairment. Odom testified that, following the drug test, Townley told him he took prescription medications. Odom testified that employees were required to notify the employer if their prescription medications warned of drowsiness or other side effects that could impact their ability to operate machinery.
Bradley Stevens Cahn, production leader for tissue converting, testified that he informed employees in March or April 2009 that efforts were underway to reduce jog speeds across the entire department. According to Cahn, the twist-and-tuck winder at issue formerly ran at approximately eighty-two feet per minute. Cahn testified that the machine was originally designed with only one jog button and that the employer subsequently installed dual jog buttons. Cahn stated that, even with two jog buttons, employees were expected to keep their hands out of the machine. Cahn also read from the JSA with respect to the twist-and-tuck winder and noted that employees were repeatedly warned to keep their hands out of the machine. Cahn stated that, when he saw Townley in the safety office, Townley seemed drowsy and was “actually moving his hand quite a bit.”
Cahn testified that a SCAT, or Systemic Cause Analysis Tool, was conducted to discern what had caused Townley’s accident. Townley was asked to specifically describe what happened immediately prior to his injury, and four to six people subsequently evaluated the situation. Cahn related the team’s conclusion that, based on Townley’s description of how the injury occurred, there was nothing that would have required Townley to pull the paper Rout of the winder using his hand. Cahn said, “Typically, if you allow, you know, if you’ve cut it all the way off, if you allow the roll to rotate, it should fall by gravity right down to the floor.”
Cahn opined that it was poor judgment on Townley’s part to have put his hand in the winder while it was jogging. Cahn stated that the machines at Georgia Pacific, including the twist-and-tuck winder, have many nip points and that, as a result, it is important for employees to be “clear headed” when they operate or are around the machines.
Townley denied being drowsy on the day of the accident and testified that, if he slurred his words, it was because he had a broken hand and was in shock. Townley also testified that he had worked on the twist-and-tuck winder “thousands of times” prior to his accident and that, up until April 2009, he was accustomed to operating the winder at a much faster jog speed.
The administrative law judge (ALJ) found that, given the small amount of marijuana in Townley’s system, it was “improbable” that Townley was impaired on the day of the accident; rather, the ALJ found that the accident could not have occurred if safety features had been installed on the winder.
In reversing the ALJ’s decision, the Commission found that Townley’s injury was caused by his poor safety judgment due to impairment, and not because of a “malfunctioning” winder. In reaching this conclusion, the Commission found credible and relied upon 17testimony from Meeks and Cahn that Townley exercised poor judgment in reaching into the winder while it was moving. In denying benefits, the Commission found that Townley failed to rebut the presumption that his accident and injury were substantially occasioned by his use of marijuana.
In reviewing a decision from the Workers’ Compensation Commission, we review the evidence and all reasonable inferences deducible therefrom in the light most favorable to the Commission’s findings and affirm if the decision is supported by substantial evidence. White v. Frolic Footwear, 59 Ark.App. 12, 952 S.W.2d 190 (1997). Substantial evidence exists only if reasonable minds could have reached the same conclusion without resort to speculation or conjecture. White Consol. Indus. v. Galloway, 74 Ark.App. 13, 45 S.W.3d 396 (2001). The issue is not whether the appellate court might have reached a different result from that of the Commission, but whether reasonable minds could reach the result found by the Commission. Tex-arkana Sch. Dist. v. Conner, 373 Ark. 372, 284 S.W.3d 57 (2008). We will not reverse the Commission’s decision unless we are convinced that fair-minded persons with the same facts before them could not have reached the conclusions of the Commission. Cedar Chem. Co. v. Knight, 99 Ark.App. 162, 258 S.W.3d 394 (2007). Questions concerning the credibility of witnesses and the weight to be given to their testimony are within the exclusive province of the Commission, and when there are contradictions in the evidence, it is within the Commission’s province to reconcile conflicting evidence and to determine the true facts. Neal v. Sparks Reg’l Med. Ctr., 104 Ark.App. 97, 289 S.W.3d 163 (2008). The Commission is not required to believe the testimony of the claimant or any other witnesses but may accept and Istranslate into findings of fact only those portions of the testimony that it deems worthy of belief. Id.
Arkansas Code Annotated section 11—9—102(4)(B)(iv) (Supp.2007) provides that “compensable injury” does not include an injury where the accident was substantially occasioned by the use of alcohol, illegal drugs, or prescription drugs used in contravention of a physician’s orders. The presence of alcohol, illegal drugs, or prescription drugs used in contravention of a physician’s orders creates a rebuttable presumption that the injury or accident was substantially occasioned by the use of such substances. Ark.Code Ann. § 11—9—102(4)(B)(iv)(b). “An employee shall not be entitled to compensation unless it is proved by a preponderance of the evidence that the alcohol, illegal drugs, or prescription drugs utilized in contravention of the physician’s orders did not substantially oc casion the injury or accident.” Ark.Code Ann. § ll-9-102(4)(B)(iv)(d).
Prior to the passage of Act 796 of 1993, it was the employer’s burden to prove that an employee’s accident was caused by intoxication or drug use. Express Human Resources III v. Terry, 61 Ark.App. 258, 968 S.W.2d 630 (1998). Act 796 of 1993 now requires the claimant to prove by a preponderance of the evidence that alcohol or drug use did not substantially occasion the injury. Id. Whether a rebuttable presumption is overcome by the evidence is a question of fact for the Commission to determine. Weaver v. Whitaker Furniture Co., 55 Ark.App. 400, 935 S.W.2d 584 (1996).
Townley’s contention before the ALJ was that he injured his hand due to “defective equipment,” but his argument has evolved to include the absence of certain safety features on 13the twist-and-tuck winder. Townley maintains that his injury occurred due to Georgia Pacific’s failure to lower the jog speed and to install two jog buttons on the winder, and not as a result of his use of marijuana. To the extent Townley’s argument is preserved for review, we affirm.
There was evidence that Townley’s injury occurred through no fault of the twist-and-tuck winder. Both Meeks and Cahn testified that Townley’s injury resulted from his poor judgment, regardless of any lack of safety features. Meeks testified that Townley should not have put his hand in the winder, regardless of the jog speed. Cahn testified that, even with two jog buttons, employees were expected to keep their hands away from the moving parts on the machine. The employer’s SCAT team closely examined Townley’s actions leading up to the accident, as described by Townley, and concluded that Townley should not have, under any circumstances, put his hand in the winder while the winder was moving. Cahn explained that it was not necessary for Townley to reach into the machine with his hand because the paper would automatically fall to the ground once it was cut. Further, the employer’s JSA specifically warned employees of nip points and instructed them to keep their hands out of the twist-and-tuck winder. Viewing the evidence in the light most favorable to the Commission’s findings and giving the testimony its strongest probative force in favor of the action of the Commission, we hold that reasonable minds could conclude that Townley failed to rebut the presumption that the accident and injury he sustained on the twist-and-tuck winder were substantially occasioned by his use of marijuana, and therefore, his hand injury was not compensable.
mWe also note Townley’s assertion that Georgia Pacific administered a “defective non-compliant” drug test following his accident. Townley maintains that, according to the Commission’s Rule 099.36 (Rule 36), his drug test should have been reported as negative since the amount of marijuana in his system was below the cutoff levels established by the Department of Transportation.
Although Townley maintains that this issue was raised below and thus preserved for appellate review, Rule 36 appears to have been raised sua sponte by the ALJ in her written opinion and was neither argued by the parties nor ruled upon by the Commission. We note that the evidence does not establish, as a preliminary matter, that Georgia Pacific is indeed a “Rule 36 Employer” enrolled in the voluntary program for drug-free workplaces. We decline to address an issue that was not fully developed for review. Finley v. Farm Cat, Inc., 103 Ark.App. 292, 288 S.W.3d 685 (2008). Further, Townley is raising this matter for the first time on appeal and failed to get a ruling from the Commission, thus preventing our review on appeal. Cooper v. Hiland Dairy, 69 Ark.App. 200, 11 S.W.3d 5 (2000); Jordan v. Tyson Foods, Inc., 51 Ark.App. 100, 911 S.W.2d 593 (1995). Accordingly, we do not address the issue of Rule 36’s application to this case.
| nIn any event, both the Arkansas Supreme Court and this court have held that the presence of drugs or alcohol, established only by metabolites or a slight amount of drugs or alcohol, was sufficient to raise the rebuttable presumption that an injury was substantially occasioned by the use of drugs or alcohol. Flowers v. Norman Oaks Constr. Co., 341 Ark. 474, 17 S.W.3d 472 (2000); Waldrip v. Graco Corp., 101 Ark.App. 101, 270 S.W.3d 891 (2008); Wood v. West Tree Serv., 70 Ark.App. 29, 14 S.W.3d 883 (2000). Notwithstanding the fact that the drug test revealed only a small amount of marijuana in Townley’s system, the mere presence of marijuana triggered the statutory presumption. It was thereafter Townley’s burden to prove that his accident and injury were not substantially occasioned by his use of marijuana. Although Townley claimed he was not impaired, there was evidence to the contrary in that Townley appeared drowsy shortly after his hand was crushed in the winder. Townley failed to call witnesses he had identified to testify that he was not impaired immediately before the accident occurred. The Commission obviously did not believe Townley’s explanation that his accident and injury were caused by either the machine’s malfunction or the employer’s failure to reduce the jog speed and install two jog buttons on the winder. Moreover, the Commission could reasonably conclude that Townley’s poor judgment was consistent with impairment from marijuana. We are not convinced that fair-minded persons with the same facts before them could not have reached the same conclusion as the Commission. We affirm because the Commission’s decision displays a substantial basis for the denial of relief.
|12In light of our holding that Townley’s injury is not compensable, it is unnecessary to address Townley’s arguments concerning his entitlement to temporary total-disability benefits and medical treatment.
Affirmed.
PITTMAN and WYNNE, JJ., agree.
. The Commission also found that there was "no probative evidence" demonstrating that Townley's accident and injury were substantially occasioned by alcohol or prescription drugs used in contravention of a physician's orders.
. Rule 36 pertains to a voluntary program for drug-free workplaces and defines “presence of drugs or alcohol” as levels of drugs, alcohol, or metabolites in the body at or above the cutoff levels established by the Department of Transportation, as published in 49 C.F.R. Part 40 and elsewhere. The Code of Federal Regulations sets forth parameters for drug-testing laboratories and requires the laboratories to use specific cutoff concentrations for initial and confirmatory drug tests. 49 C.F.R. § 40.87(a). The initial test cutoff concentration for marijuana metabolites is 50 ng/mL, and the confirmatory test cutoff concentration is 15 ng/mL. 49 C.F.R. § 40.87(a). The Code further provides that, on an initial drug test, "you must report a result below the cutoff concentration as negative.” 49 C.F.R. § 40.87(b). | [
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DAVID M. GLOVER, Judge.
IjZackery Clement sustained a compen-sable hernia injury on March 12, 2009. Medical expenses and temporary total-disability benefits were paid from the date of his injury until May 10, 2010, and for a second time from July 15, 2010, until August 8, 2010. In the interim, on April 7, 2010, Clement was granted a change of physician.
Clement then filed a claim seeking additional medical treatment for his hernia injury as well as a back injury; an independent medical examination or a second change of physician; temporary total-disability benefits from May 10, 2010, to July 14, 2010, and from August 9, 2010, to a date yet to be determined; and attorney’s fees. The administrative law judge found that there was no medical evidence or lay testimony to support a traumatic work-related back injury and that further medical treatment was unreasonable and unnecessary for his compensable hernia injury; she therefore denied and dismissed Clement’s claim. Clement appealed to the Full Commission, which affirmed 12and adopted the ALJ’s opinion as its own. Clement now appeals to this court, arguing that substantial evidence does not support the Commission’s decision that he is not entitled to additional medical treatment and additional temporary-total disability. We affirm the Commission’s decision.
In Nabholz Construction Corp. v. Gates, 2010 Ark. App. 182, 2010 WL 658563, this court set forth our standard of review in workers’ compensation cases:
In reviewing decisions from the Workers’ Compensation Commission, we view the evidence and all reasonable inferences deducible therefrom in the light most favorable to the Commission’s findings, and we affirm if the decision is supported by substantial evidence. Whitlatch v. Southland Land & Dev., 84 Ark.App. 899, 141 S.W.3d 916 (2004). Substantial evidence is that relevant evidence which reasonable minds might accept as adequate to support a conclusion. K II Constr. Co. v. Crabtree, 78. Ark.App. 222, 79 S.W.3d 414 ([2002] 2004). The issue is not whether we might have reached a different result or whether the evidence would have supported a contrary finding; if reasonable minds could reach the Commission’s conclusion, we must affirm its decision. Geo Specialty Chem., Inc. v. Clingan, 69 Ark.App. 369, 13 S.W.3d 218 (2000).
Arkansas Code Annotated section 11—9—508(a) (Supp.2009) requires an employer to provide an injured employee such medical services “as may be reasonably necessary in connection with the injury received by the employee.” The employee has the burden of proving by a preponderance of the evidence that medical treatment is reasonable and necessary. Stone v. Dollar Gen. Stores, 91 Ark.App. 260, 209 S.W.3d 445 (2005). What constitutes reasonable and necessary medical treatment is a question of fact to be determined by the Commission. Bohannon v. Wal-Mart [Wal-mart] Stores, Inc., 102 Ark.App. 37, 279 S.W.3d 502 (2008).
2010 Ark. App. 182, at 1-2, 2010 WL 653563.
Questions concerning the credibility of witnesses and the weight to be given to their testimony are within the exclusive province of the Commission. Cedar Chem. Co. v. Knight, 372 Ark. 238, 273 S.W.3d 473 (2008). When there are contradictions in the | sevidence, it is within the Commission’s province to reconcile conflicting evidence and to determine the true facts. Id. The Commission is not required to believe the testimony of the claimant or any other witness, but may accept and translate into findings of fact only those portions of the testimony that it deems worthy of belief; this court is foreclosed from determining the credibility and weight to be accorded to each witness’s testimony. Id. The Commission has the authority to accept or reject a medical opinion and the authority to determine its probative value. Poulan Weed Eater v. Marshall, 79 Ark.App. 129, 84 S.W.3d 878 (2002).
When the primary injury is shown to have arisen out of and in the course of employment, the employer is responsible for every natural consequence that flows from that injury. McDonald Equip. Co. v. Turner, 26 Ark.App. 264, 766 S.W.2d 936 (1989). The basic test is whether there is a causal connection between the two episodes. Jeter v. B.R. McGinty Mech., 62 Ark.App. 53, 968 S.W.2d 645 (1998). The determination of whether the causal connection exists is a question of fact for the Commission to determine. Carter v. Flintrol, Inc., 19 Ark.App. 317, 720 S.W.2d 337 (1986).
Clement injured his left lower abdomen on March 12, 2009, when a refrigerator fell on him while he was moving it. He was initially treated by Dr. Lester Alexander at Healthcare Plus; diagnosed with a left groin strain; and taken off work until March 23, at which time he was released to return to light-duty work. Clement was next seen by Dr. Emilio Tirado on April 21, 2009; Dr. Tirado’s impression was a small, reducible left-inguinal hernia. Clement underwent inguinal herniorrha-phy surgery on May 1, 2009, in [4which the hernia was repaired with mesh. Dr. Tira-do then returned Clement to work on June 1, 2009, without restrictions.
Clement continued to have pain and was seen by Dr. John Cone at UAMS on July 23, 2009, for possible intervention due to recurrent left-hernia pain; Dr. Cone noted that there was a well-healed scar in the left-groin area consistent with left-inguinal hernia repair. On August 27, 2009, Dr. Cone scheduled Clement for an MRI of the lumbar spine; the results of this procedure indicated no evidence of recent traumatic injury, although there was minimal disc displacement at L4-5 and L5-S1 without dominant compressive arthopathy. On September 17, 2009, Dr. Cone noted that the plan at that point was to re-explore Clement’s left groin, remove the previously placed mesh, and re-repair the hernia using a biologic material; he also noted that because the pain was “debilitating,” Clement wished to proceed with the procedure, even though it might expose him once again to the risk of herniation. A nerve conduction study and EMG were performed on October 1, 2009, and both were normal and showed no evidence of femoral neuropathy or entrapment of the ilioingui-nal nerve.
On October 6, 2009, Clement underwent a second left-inguinal hernia repair. During this procedure, the synthetic mesh placed during the first surgery was found to be wadded up; it was removed and the hernia was repaired for a second time, this time using a biologic material known as Strattice mesh. On October 8, 2009, Clement returned to UAMS with extreme pain and swelling in his groin area; Doppler images were obtained of his testicles. The left testicle was increased in size but there was no arterial blood flow |,^identified within the left testicle consistent with torsion. On that same day, Dr. John Delk performed exploratory surgery to determine if Clement had an ischemic left testicle; however, postsurgery diagnosis was nonischemic left testicle. During this procedure the scrotum was opened and it was noted that there was no twisting or torsion of the cord in the left testicle. A Doppler was performed, and there was an excellent Doppler pulse in the testicular artery adjacent to the testicle. On October 11, 2009, Clement was readmitted to UAMS due to pain; Doppler results demonstrated minimal blood flow within the left testicle, which was consistent with a left testicular infarct. Dr. Benjamin Davis noted that even though there was a possible testicular infarct and severe post-op swelling, there was no indication at that time for exploration. On October 13, 2009, Dr. David Yarnell noted that the scrotum remained swollen with what appeared to be some hematoma, but that pain was improved on pain medication; that given Doppler findings and findings of previous scrotal exploration, there was no recommendation of further exploration; and that there was need for pain control for an infarcted testicle. In the discharge history on October 14, 2009, it was noted that Dopplers during the exploratory surgery showed blood flow to both testicles, and Dopplers performed bedside also showed that blood flow was present to both testicles.
In a consult note dated October 16, 2009, Dr. Gregory Head, a urologist, recommended a general surgery consultation for evaluation of left-inguinal hernia repair and possible ischemia to left testis from that repair; stated that the genitourinary department (GU) would not manage pain and swelling now that torsion was ruled out nor | (-.would it explore left-inguinal incision to rule out spermatic cord compression from the hernia repair; and stated that GU scrotal exploration was not the original cause of pain and swelling.
Dr. Michael Pollock evaluated Clement on November 13, 2009. He noted that Dr. Tirado had repaired a left-inguinal hernia on May 1; that it was repaired again in October 2009; that two days after the second repair he returned to the UAMS emergency room complaining of left-testicular pain; that there was a concern for left-testicular ischemia and testicular torsion but upon taking him to the operating room, normal blood flow was found; and that Clement returned four days after his second hernia surgery complaining of left-groin pain and was placed on pain medication and discharged. Upon physical exam, Dr. Pollock found a well-healed scar on Clement’s left groin; he also found that the left testicle was of normal size and not tender. Dr. Pollock had no specific therapy to recommend; he was of the opinion that Clement would be fine if he just allowed things to heal.
Clement then saw Dr. Tim Langford on December 14, 2009. Upon physical examination, Dr. Langford noted that the left testis was tender, the upper two-thirds was firm, and it was smaller with an enlarged epididymis. He was of the opinion that the exam was consistent with probable testicular infarction. Dr. Langford explained to Clement that options were observation, with probability that the left testis would atrophy, |7or left orchiectomy (surgical removal of testicle); however, Dr. Langford explained to Clement that he would not be assuming his care.
On January 18, 2010, Clement was again seen by Dr. Alexander. A CT scan was performed on February 5, 2010; there was no evidence of a recurrence of the hernia in the left-inguinal region.
On February 12, 2010, Clement was seen by Dr. David Shirley for complaints of pain in his left testis. Dr. Shirley noted that while Clement was emphatic that his left testis needed to be removed because “several” doctors told him that, Clement did not have any Doppler scans or operation notes. Dr. Shirley noted that he did not feel a hernia pulsation, and was of the opinion that at five months post-op, he would expect more atrophy, leading him to the conclusion that there was a good chance that the testis was not ischemic. Dr. Shirley noted that orchiectomy was unlikely to change Clement’s pain pattern, and in the absence of infection, the only reason to perform an elective orchiectomy would be to try to reduce pain. He saw no benefit in exploration of the scrotum five months out from surgery. Dr. Shirley also found that there was no medical reason why Clement could not resume normal activity at this point, even though he was tender.
After the April 7 change of physician was approved, Clement was seen by Dr. Carl Covey on May 10, 2010, for pain management. Dr. Covey noted that Clement had tested positive for THC, and he refused to write medication prescriptions until Clement |8had a clean drug screen. Clement returned to Dr. Covey on July 28, 2010; however, he was advised that no medications could be written until the urine drug-screen results were verified, which could take up to two weeks. Dr. Covey then wrote a letter, dated August 12, 2010, to Clement withdrawing from further professional attendance.
During this time, a second CT scan was performed on June 9, 2010, that was normal, showing no edema, hematoma, or recurrent hernia. Another CT scan was performed at UAMS on August 16, 2010, that showed postsurgical changes from the left-sided herniorrhaphy but nothing else related to the hernia. A fourth CT scan was obtained at Jefferson Regional Medical Center on September 11, 2010, that was also normal.
On September 15, 2010, Dr. Anna Red-man, Clement’s primary-care physician since 2007, wrote a letter stating that Clement had persistent left-inguinal pain and low-back pain that needed to be further evaluated by a urologist and general surgeon to ascertain the etiology of his pain.
Clement divides his argument into three subparts — an evidentiary objection, additional medical treatment, and temporary total disability.
Evidentiary Objection
The first issue Clement raises in his brief is whether pictures of him that appeared on Facebook and MySpace should have been admitted into evidence. He complains that |9the pictures “are a disgrace to the dignity of the workers’ compensation proceedings and the legal system” and have nothing to do with his medical treatment.
In Bryant v. Staffmark, Inc., 76 Ark.App. 64, 69, 61 S.W.3d 856, 859-60 (2001), this court held:
The Workers’ Compensation Commission has broad discretion with reference to admission of evidence, and its decision will not be reversed absent a showing of abuse of discretion. Brown v. Alabama Elec. Co., 60 Ark.App. 188, 959 S.W.2d 758 (1998). The Commission is given a great deal of latitude in evidentiary matters; specifically, Arkansas Code Annotated section ll-9-705(a) (Repl.1997) states that the Commission “shall not be bound by technical or statutory rules of evidence or by technical or formal rules of procedure.” Additionally, the Commission is directed to “conduct the hearing in a manner as will best ascertain the rights of the parties.” Ark.Code Ann. § 11-9-705(a); Clark v. Peabody Testing Servs., 265 Ark. 489, 579 S.W.2d 360 (1979).
We find no abuse of discretion in the allowance of the photographs. Clement contended that he was in excruciating pain, but these pictures show him drinking and partying. Certainly these pictures could have a bearing on Clement’s credibility, albeit a negative effect that Clement might not wish to be demonstrated to the ALJ or the Commission. We hold that there was not an abuse of discretion in allowing the photographs.
Additional Medical Treatment
Clement sought benefits before the ALJ and the Commission for what he categorized as a work-related back injury, which was denied. We note that in his brief to this court, Clement concedes that substantial evidence supports the Commission’s denial of benefits on this issue and abandons this as an issue on appeal.
linWe turn now to Clement’s second issue, whether he is entitled to additional medical treatment for his left testis. Clement has the burden of proving by a preponderance of the evidence that medical treatment is reasonable and necessary, and it is the Commission’s responsibility to determine what constitutes reasonable and necessary medical treatment. Nabholz, supra. Here, the ALJ found that diagnostic testing had ruled out a recurrent hernia, nerve damage, or inflammation, and Drs. Pollock and Shirley did not consider Clement to be a surgical candidate. While there were conflicting medical opinions, it was the responsibility of the Commission to reconcile conflicting opinions and to determine the weight and credibility of medical opinions. The Commission’s opinion that further medical treatment is not reasonably necessary is supported by substantial evidence.
Additional Temporary Total Disability
Clement’s third issue is entitlement to temporary total disability. Temporary total disability is that period within the healing period in which an employee suffers a total incapacity to earn wages. St. Edward Mercy Med. Ctr. v. Dart, 2011 Ark.App. 583, 2011 WL 4585576. The healing period ends when the employee is as far restored as the permanent nature of his injury will permit. Id. The question of when the healing period has ended is a factual determination for the Commission that will be affirmed if it is supported by substantial evidence. Id.
In Clement was released to return to work on February 12, 2010. As we are affirming the Commission’s determination that Clement is not entitled to further additional medical benefits, the question of additional temporary total-disability benefits is now moot.
Affirmed.
GRUBER and HOOFMAN, JJ„ agree. | [
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JOHN B. ROBBINS, Judge.
_jjAppellant Charles Wayne Hill and ap-pellee Diana Erikson Hill were married on December 23, 1996, and separated on November 24, 2006. Both parties filed for divorce in Washington County Circuit Court, and the trial court entered an order consolidating the cases. On March 9, 2010, the trial court entered a decree of divorce, which granted Mrs. Hill a divorce from Mr. Hill. The divorce decree awarded custody of the parties’ only minor child to Mrs. Hill, divided the parties’ property, and ordered Mr. Hill to pay child support as well as alimony for the next five years.
On January 13, 2011, Mrs. Hill filed a motion to vacate the decree on the basis that her complaint for divorce had been dismissed, that there was no subsequent order reinstating the case, and that the case was not properly before the court. On March 16, 2011, the trial court entered an order that “set aside, vacated, and held for naught” the divorce decree. 12Mr. Hill now appeals from the order setting aside the divorce decree, and argues that the trial court had jurisdiction and abused its discretion in not issuing an order nunc pro tunc reinstating Mrs. Hill’s complaint. Mr. Hill also contends that Mrs. Hill came to court with unclean hands, and he asks this court to set aside the order vacating the divorce decree with instructions that the case be reinstated and the divorce decree enforced. We reverse the trial court’s order that vacated the divorce decree.
The history of the litigation between these parties is a procedural morass. It all began in Saline County Circuit Court. On December 20, 2006, the Saline County Circuit Court entered a decree of separate maintenance. On January 22, 2008, Mr. Hill filed in Saline County a cross-complaint for divorce.
Mrs. Hill filed her complaint for divorce in Washington County Circuit Court on April 8, 2008, and it was assigned case number DR-2008-636-4. On April 28, 2008, Mr. Hill filed a motion to dismiss the complaint. On July 25, 2008, the Washington County Circuit Court entered an order dismissing Mrs. Hill’s divorce complaint pursuant to Ark. R. Civ. P. 12(b)(8) because there was another action pending between the parties arising out of the same transaction or occurrence in Saline County.
On August 6, 2008, the Saline County case was transferred to Washington County Circuit Court and placed in file number DR-2008-636^4 (Mrs. Hill’s dismissed divorce action). On that same day, Mr. Hill filed his complaint for divorce in Washington County, which was given case number DR-2008-1383-6. On August 21, 2008, Mrs. Hill filed in Washington County a motion to set aside the order dismissing her complaint for divorce, pin that motion Mrs. Hill asserted that because there was no longer a case pending in Saline County, the Washington County Circuit Court should set aside its previous order of dismissal so that her case (DR-2008-636-4) may go forward. On August 27, 2008, Mrs. Hill filed a motion to dismiss Mr. Hill’s divorce complaint and for sanctions against Mr. Hill and his attorneys. On October 13, 2008, Mrs. Hill filed an amended motion to set aside the order dismissing her divorce complaint, again requesting that her case be reinstated and go forward.
Both divorce cases came before Washington County Circuit Judge Mary Ann Gunn, and on October 31, 2008, the parties read an agreement into the record. The parties indicated that Mr. Hill’s divorce complaint filed in Saline County was dismissed, but that subsequent motions and petitions transferred to Washington County were still pending. The parties announced the following agreement:
The parties have come to an agreement as to the issue on the motion to reinstate a dismissal of Ms. Hill’s cause of action for divorce, filed in Judge Gunn’s court which was subsequently dismissed. Diana Hill filed a motion to reinstate her cause of action for divorce in DR-2008-636-4 and that complaint will be reinstated. Ms. Hill filed a motion to dismiss a cause of action that was filed by Charles Wayne Hill under DR-2008-1386-6. The parties agree her motion to dismiss will be denied or withdrawn .... The parties have agreed that Mrs. Diana Hill will be the plaintiff, and Mr. Hill will be defendant for all future purposes and all motions and petitions filed from this time forward.
Mrs. Hill’s counsel indicated that the parties agreed to consolidate their complaints into case number DR-2008-636-4, and that she had been ordered by the trial court to prepare an order consistent with the parties’ agreement.
|4On November 3, 2008, the Washington County Circuit Court entered an order that consolidated Mr. Hill’s case filed under case number DR-2008-1383-6 into Mrs. Hill’s case filed under DR-2008-636-4. The case then proceeded under case number DR-2008-636^4. However, the trial court failed to enter an order vacating the dismissal of Mrs. Hill’s divorce complaint or reinstating that action as contemplated by the parties’ verbal agreement. Mr. Hill filed an answer to Mrs. Hill’s complaint for divorce on November 7, 2008.
The trial court held a three-day bench trial on the merged cases. The trial court subsequently held a hearing on November 20, 2009, for the purpose of announcing its rulings. On that day Mrs. Hill, who had been represented by numerous lawyers throughout the proceedings and had at times represented herself pro se, advised the trial court that she wished to relieve her current lawyer from representation and again represent herself. A discussion then ensued regarding the procedural history of the case. The trial court noted that it had previously dismissed Mrs. Hill’s complaint for divorce, that the parties’ cases were consolidated into case number DR-2008-636-4, but that there was never an order entered reinstating Mrs. Hill’s complaint. Mrs. Hill’s counsel suggested that the simplest way to solve the problem would be to enter a nunc pro tunc order reinstating Mrs. Hill’s divorce complaint, and the trial court said, “alright, I don’t have a problem doing that.” The trial court then relieved Mrs. Hill’s counsel from further representation. The trial court advised Mr. Hill’s counsel to draft an order reflecting that the case was reopened on August 21, 2008, and the 1ñ trial court said that it would enter that order nunc pro tunc. The trial court then announced that Mrs. Hill would be granted a divorce.
A nunc pro tunc order reinstating Mrs. Hill’s divorce complaint was never entered. After the hearing Mrs. Hill filed various motions including two motions for mistrial, and the trial court denied these motions in an order entered on March 9, 2010. Also on March 9, 2010, the trial court entered the divorce decree.
On April 7, 2010, Mrs. Hill filed a notice of appeal from the divorce decree, but no appeal was prosecuted. On October 5, 2010, Mrs. Hill filed a petition for removing the parties’ child from the state, modification of visitation, extension of the effective date of the separate maintenance order, and contempt. Judge Gunn entered an order of recusal on December 3, 2010, and the case was transferred to Judge William Storey. Mrs. Hill motioned for a change of venue on December 9, 2010.
On January 13, 2011, Mrs. Hill filed a motion to vacate the divorce decree on the basis that there was never an order entered reinstating her case and thus that the case was not properly before the trial court. Her motion was made pursuant to Ark. R. Civ. P. 60(c)(4), and alleged that a constructive fraud had been perpetrated on the court. On January 18, 2011, Mrs. Hill withdrew her October 5, 2010, petition. On January 19, 2011, Mr. Hill filed motions for contempt and change of custody against Mrs. Hill, wherein he asserted that she violated the divorce decree by removing the child from the state and frustrating his visitation. On January 24, 2011, Mr. Hill filed a response to Mrs. Hill’s motion to vacate the divorce decree, requesting that her motion be denied.
IfiA hearing was held before Judge Sto-rey on February 18, 2011. At that hearing, the respective parties gave arguments in favor of and opposing Mrs. Hill’s motion to vacate the divorce decree. Mr. Hill argued that a nunc pro tunc order should be entered reinstating Mrs. Hill’s complaint. At the hearing, the trial court announced that there was never any order reinstating case number DR-2008-636-4, that the trial court did not have jurisdiction at the time it issued the divorce decree, and that therefore the decree was null and void. In its order filed on March 16, 2011, the trial court vacated the divorce decree.
In this appeal from the March 16, 2011, order vacating the divorce decree in case number DR-2008-636-4, Mr. Hill argues that the trial court had jurisdiction to enter the divorce decree and abused its discretion in not issuing an order nunc pro tunc reinstating that case. He argues that even though there was no written order reopening the case, it was still before the trial court. Mr. Hill notes that Mrs. Hill filed a written motion to reopen her case and then the parties assented on the record to reinstating it. Mrs. Hill’s case was consolidated with Mr. Hill’s case, and he argues that this consolidation with a validly opened case in effect reopened Mrs. Hill’s case. Moreover, the parties proceeded under their agreement through a trial on the merits, and at the conclusion of the trial the trial court indicated that it would enter a nunc pro tunc order reopening her case, although it was never entered.
Mr. Hill argues that this case is similar to Southwestern Tel & Tel. Co. v. Hill, 140 Ark. 328, 215 S.W. 577 (1919). In that ease, the appellant challenged a nunc pro tunc order that reinstated the case, and the supreme court disagreed with appellant’s argument and affirmed the judgment. The supreme court wrote:
17Counsel for appellant question[s] the authority of the court to make the nunc pro tunc order upon the ground that the court was not in session at the time the alleged order reinstating the case was made and insist[s], therefore, that no subsequent order of the court directing the entry, nunc pro tunc, of the reinstating order could validate an order which the court could never in the first instance have made, because it was not in session at the time it was made. This may be true, but it does not follow on that account that the court did not reacquire jurisdiction of the cause. We know of no reason why a cause might not be reinstated at one term after having been dismissed at the preceding term where the parties consent to its reinstatement. It is true the conversation in which the consent was given related to the reinstatement of the cause at the term at which it was dismissed, but subsequently thereto appellant voluntarily appeared in the court below, filed pleadings in the cause, obtained a continuance from one term of the court to another, had a default judgment set aside, and finally participated in a trial before a jury, without having raised any question about its presence in court, and it cannot, therefore, now be prejudiced by the nunc pro tunc order showing the jurisdiction of the court to try the cause, whether that order was properly made or not, because, without reference to it, the court had acquired jurisdiction of the case through the proceedings above mentioned.
Hill, 140 Ark. at 330-31, 215 S.W. at 577. In the present case, Mr. Hill submits that because Mrs. Hill filed a motion to reinstate her case, agreed on the record to reopen it, and fully prosecuted her action under case number DR-2008-636-4, the case was reinstated and the trial court should be directed to enter a nunc pro tunc order reinstating DR-2008-636-4 to make the record speak the truth.
Mr. Hill also argues that the trial court erred in not exercising its equitable powers because Mrs. Hill came to court with unclean hands, and that Mrs. Hill should be estopped from asserting any objection to entry of the divorce decree. The unclean-hands doctrine bars relief to those guilty of improper conduct in the matter in which they seek relief. Poff v. Brown, 374 Ark. 453, 288 S.W.3d 620 (2008). Estoppel arises where, by the fault of one party, another has been induced, ignorantly or innocently, to change his position for the worse in such manner that it would operate as a virtual fraud upon him to allow the party |sby whom he has been misled to assert the right in controversy. Continental Ins. Co. v. Stanley, 263 Ark. 638, 569 S.W.2d 653 (1978). Mr. Hill asserts that because Mrs. Hill fought vigorously to reinstate her action for divorce, acknowledged that it had been reinstated, fully participated in the proceedings, and never objected to the action being properly before the court until after being dissatisfied with the divorce decree, her actions fit the definition of unclean hands and she was estopped from challenging the decree on the basis that her case had not been reinstated. Mr. Hill asks this court to reverse the order vacating the divorce decree, direct the trial court to enter an order nunc pro tunc reinstating case number DR-2008-636-4, and direct the trial court to enforce the existing decree.
We hold that the trial court erred in vacating the divorce decree based on the particular circumstances involved in this case. In Hill, supra, the supreme court held that because the appellant therein fully participated in the action to its final decision without raising any question about its presence in court, the trial court had jurisdiction of the case. Similarly, the trial court had jurisdiction to enter the divorce decree in the instant matter.
The undisputed history of this case demonstrates that Mrs. Hill filed a divorce complaint in Washington County, and after her complaint was dismissed the pending Saline County case was transferred in full to Washington County. Mr. Hill then filed a new complaint for divorce. Thereafter, Mrs. Hill filed motions to reinstate her complaint and agreed on the record to prepare an order reflecting the parties’ agreement to reopen her case and consolidate both divorce actions. An order consolidating the actions was entered forthwith but through inadvertence no order was entered reinstating Mrs. Hill’s action. 19Notwithstanding that fact, both parties fully participated in the consolidated cases that culminated in a three-day trial where all of the issues were litigated and a divorce decree subsequently entered. Far from raising any question as to her presence in court or jurisdiction of the trial court, Mrs. Hill fully participated in all of the divorce proceedings, to include filing multiple motions challenging the trial court’s findings and even filing a notice of appeal from the divorce decree. It was well over a year after the divorce trial and more than ten months after the divorce decree was entered that she moved to vacate the decree under Rule 60(c)(4), but that rule provides no basis for setting aside the decree. We therefore hold that the trial court committed reversible error when it vacated the divorce decree, and we reverse and remand with instructions that the decree be reinstated.
Because we have decided this appeal based upon the rationale set forth above, we need not address Mr. Hill’s nunc pro tunc and unclean-hands arguments.
Reversed and remanded.
HART and ABRAMSON, JJ., agree.
. The order of consolidation mistakenly refers to Mr. Hill’s case number as DR-2008-1383-4. | [
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KAREN R. BAKER, Justice.
| Appellant Centennial Bank, f/k/a Community Bank (“Centennial”), brings this interlocutory appeal pursuant to Arkansas Rule of Appellate Procedure — Civil 2(a)(12) from the Sebastian County Circuit Court’s denial of its motion to compel arbitration. See Advance Am. Servicing of Ark., Inc. v. McGinnis, 375 Ark. 24, 289 S.W.3d 37 (2008) (an order denying a motion to compel arbitration is an immediate ly appealable order). After the appeal was lodged with the court of appeals, appellee Tribuilt Construction Group, LLC (“Tribuilt”), filed a motion to dismiss essentially asserting that the notice of appeal was untimely. The Arkansas Court of Appeals certified the motion to dismiss, and we accepted the motion as a separate case, ordering the parties to file briefs on the issue raised in the motion to dismiss. Because the issue raised is one of first impression, we have jurisdiction to hear the motion to dismiss pursuant to Ark. Sup.Ct. R. 1 — 2(b)(1), (d)(2). We grant the motion and dismiss |athe appeal.
This case arises from the construction in Conway, Arkansas, of a Country Inn & Suites, which is owned by NISHA, LLC (“NISHA”), and is not a party in this appeal. Tribuilt was the general contractor that built the hotel. In order to finance the construction, NISHA entered into a construction-loan contract with Centennial. After Tribuilt completed the hotel and NISHA began operating it, Tribuilt requested payment for change orders and money from the retainage. NISHA refused to make any payments or release any retainage. Tribuilt then requested Centennial to release money from the re-tainage. Centennial refused. Tribuilt sued NISHA for breach of contract and various torts, and Tribuilt sued Centennial for various torts and for Tribuilt’s rights as a third-party beneficiary. The circuit court ordered the NISHA-Tribuilt contract dispute to arbitration after finding that there was an arbitration provision in the contract. Tribuilt’s tort claims against NISHA and Centennial were not ordered to arbitration. Centennial made multiple requests to compel arbitration, which the circuit court denied. Centennial then brought this appeal.
Tribuilt argues that we do not have jurisdiction to hear this appeal because Centennial’s notice of appeal was not timely filed. A timely notice of appeal is essential to this court obtaining jurisdiction. Stacks v. Marks, 354 Ark. 594, 127 S.W.3d 483 (2003). The failure to file a timely notice of appeal deprives the appellate court of jurisdiction. See, e.g., Jefferson v. Ark. Dep’t of Human Servs., 356 Ark. 647, 158 S.W.3d 129 (2004). Arkansas Rule of Appellate Procedure — Civil 4 states that “a notice of appeal shall be filed within thirty (30) |sdays from the entry of the judgment, decree or order appealed from.” Ark. R.App. P. — Civ. 4(a). The timely filing of certain specific motions may extend the time for filing a notice of appeal. Ark. R.App. P. — Civ. 4(a), (b). The only motions that will extend the time are a motion for judgment notwithstanding the verdict under Rule 50(b) of the Arkansas Rules of Civil Procedure, a motion to amend the court’s findings of fact or to make additional findings pursuant to Rule 52(b), a motion for new trial under Rule 59(a), or any other motion to vacate, alter, or amend the judgment made no later than ten days after entry of the judgment. Ark. R.App. P. — Civ. 4(b); Reeve v. Carroll Cnty., 373 Ark. 584, 285 S.W.3d 242 (2008). If a timely motion is filed, the notice of appeal shall be filed within thirty days of the order disposing of the last motion outstanding; however, if the court neither grants nor denies the motion within thirty days of its filing, the motion shall be deemed denied as of the thirtieth day, and the notice of appeal must be filed within thirty days from that date. Ark. R.App. P. — Civ. 4(b),
The relevant chronology of events is as follows:
Filing Date Document/Order/Filed
& Hearing
11-4-2009 Tribuilt files its Complaint
11-24-2009 Centennial moves to dismiss, alleging lack of juris diction due to enforceable arbitration agreement
12-4-2009 Tribuilt files its Amended and Substituted Complaint
[,12-21-2009 Centennial moves to dismiss or stay, alleging that the court should order arbitration
12-28-2009 Court issues order denying all motions
1-4-2010 Centennial files another motion to dismiss or stay, alleging that the court should order arbitration & Answer
1-11-2010 Hearing held on motion to stay pending arbitration
1-12-2010 Court issues order denying Centennial’s motion
1-21-2010 Centennial files a motion for reconsideration
3-19-2010 Court denies Centennial’s motion for reconsideration
3-19-2010 Centennial files its notice of appeal
Tribuilt asserts that the motion to dismiss filed by Centennial on January 4, 2010, constituted a motion for reconsideration because it stated “mindful that the Court has entered its Order denying Centennial’s prior [motion to dismiss but] deems it necessary to reassert such motions.” Tribuilt cites us to Davidson Properties, LLC v. Summers, 368 Ark. 283, 244 S.W.3d 674 (2006) (per curiam), for the proposition that the substance of a motion is determinative — not its label. Centennial responds that the January motion was a new motion as evidenced by the following language from the entire paragraph:
Being mindful that the Court has entered its Order denying Centennial’s pri- or Motions to Dismiss or to Stay Proceedings and to transfer, Centennial, in order to preserve its objections to this Court’s jurisdiction, deems it necessary to reassert such motions to evidence the fact that it is not voluntarily engaging in this litigation and waiving its claim that such matters should be compelled by the Court to be arbitrated. By this pleading, Centennial hereby demands that the plaintiff voluntarily enter into arbitration proceedings with regard to all of its claims for relief contained in its Complaint which are based, in whole or in part, upon the Exhibit “A” construction | ¿contract attached to its Complaint and all alleged breaches of various provisions of same.
Centennial specifically points to the language in the second sentence as proof that it is not requesting reconsideration, modification, or amendment of the December 28, 2009 order. As further proof that the motion is new, Centennial asserts that its motion also included an answer, which asserted a new demand for arbitration as required by statute. Finally, Centennial points to the language in the January 12, 2010 order, wherein the court stated that the January 4, 2010 motion had corrected procedural deficiencies and had requested the court to state the grounds for its denial of the motion — if the court denied the motion. This, Centennial contends, gave it no notice that the court was treating its motion as one for reconsideration.
Centennial asserts that the only motion for reconsideration was the one it filed on January 21, 2010. It contends that the March 19, 2010 order denying the January 21, 2010 motion was timely, and thus, its notice of appeal filed on the same date was timely. Finally, Centennial asserts that even if this court agrees with Tribuilt’s position, such does not prevent it from filing a new motion for a change in circumstances or the trial court from sua sponte reconsidering its prior ruling before entry of a final judgment.
The January 4, 2010 motion is pivotal in determining whether we have jurisdiction to hear Centennial’s appeal. The title given to a document is not controlling, but its effect, character, and sufficiency are to be determined by its substance regardless of what it is called. Thomas v. McElroy, 243 Ark. 465, 420 S.W.2d 530 (1967); see also Davidson Props., LLC, supra. Even the name given to a document by the circuit court is not controlling. Thomas, supra. The substance of a motion is ascertained by what it seeks. Slaton v. Slaton, 330 Ark. 287, 956 S.W.2d 150 (1997). While Centennial argues that its motion was a new one, and Tribuilt argues that it was one for reconsideration, neither party discusses whether the motion was an amendment.
Arkansas Rule of Civil Procedure 15 governs the amendments of pleadings. Our rules of civil procedure distinguish pleadings and motions. See Ark. R. Civ. P. 7. Also, the listing of the types of pleadings permitted under our rules does not include a motion as one of them. See Ark. R. Civ. P. 8. Although a motion is not within the ambit of Rule 15, this court has stated that a posttrial motion can be amended, and that such amendment relates back to the original document filed. See Williams v. Hudson, 320 Ark. 635, 638, 898 S.W.2d 465, 466 (1995). That reasoning is persuasive for this case. The January 4, 2010 motion was an amendment of the motion Centennial filed on December 21, 2009. The December 21, 2009 motion was entitled “Motion to Dismiss or Stay Proceedings or Alternatively, Motion to Transfer to the Circuit Court of Faulkner County, Arkansas and Incorporated Brief.” The January 4, 2010 motion was entitled “Motion to Dismiss or Alternatively, Motion to Transfer to the Circuit Court of Faulkner County, Arkansas, Motion to Stay Proceedings and Compel Arbitration or Alternatively, Answer to Amended and Substituted Complaint.” Both motions contain one paragraph that discusses arbitration, wherein the request for a stay and to compel arbitration was made because the matters in the lawsuit were allegedly subject to arbitration. |7The paragraphs are almost identical. However, the January 4 motion differs from the December 21, 2009 motion because the January 4 motion added that Centennial “deems it necessary to reassert such motions” in order to preserve, or not waive, its claim that the issues raised in the complaint were subject to arbitration. In the motion, Centennial alternatively answered the amended complaint and attached as exhibit “A” an executed copy of “Assignment of Construction Contract.” Centennial asserted that the exhibit proved that Tribuilt was not entitled to receive any funds held by Centennial until all conditions precedent had been satisfied. Centennial averred that the conditions precedent had not been satisfied. Because the January 4, 2010 motion substantively sought to correct procedural defects in the motion of December 21, 2009, its nature was that of an amendment.
An amendment relates back to the date of the original filing when the claim or defense asserted in the amended filing arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original filing. See Williams v. Hudson, 320 Ark. 635, 898 S.W.2d 465 (1995). Here, the circuit court’s order of December 28, 2009, was already entered when the amended motion was filed, and the order entered on January 12, 2010 treated the motion as one for reconsideration, not as an amendment to the motion previously filed on December 21, 2009.
We conclude that the amended motion is not one of the postorder motions that extends the time for filing the notice of ap peal under Arkansas Rule of Appellate Procedure — Civil 4(b). Therefore, as it was a collateral motion, it did not extend the time for ] «filing the notice of appeal. See Ellis v. Ark. State Highway Comm’n, 2010 Ark. 196, 363 S.W.3d 321. To be timely, Centennial was required to file its notice of appeal within thirty days of the order denying the motion to compel arbitration, which was entered on December 28, 2009. Centennial did not file its notice of appeal until March 19, 2010. Because the notice of appeal was untimely, we dismiss this appeal.
Dismissed. | [
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ROBIN F. WYNNE, Judge.
|! Helen Freeman Lynch appeals from a decree of the circuit court in which the court found that Harrell and Vivian Bates owned certain property by adverse possession and vested the property in them. In her brief, appellant argues that the court erred in finding that appellees own the property by adverse possession. We reverse and remand.
The parties own adjoining tracts of land in Faulkner County. At one time, all of the property was owned by a Mr. Mallen. In 1971, Mr. Mallen conveyed appellant’s land to her and her husband Alvan. The land owned by appellees was conveyed by Mr. Mallen to Dale and Amelia Langford in 1975, from Amelia Langford to a couple named Massey in 1992, and to appellees in 1998. Alvan Lynch had a survey of the property performed in August 1998 that showed the fence lines on the property. The survey shows that along the east/west | property line, the fence takes roughly a thirty-degree turn (the parties and the circuit court refer to it as a “jog”), creating a triangle of land that is on appellant’s side of the property line but appellees’ side of the fence. That piece of land forms the basis for this litigation. A survey performed for Mr. Massey and Harrell Bates in June 1998 shows that the jog deviates from the property line.
At some point prior to December 2006, the Lynches sought to rebuild the fence along the property line and without the jog in it. Appellees objected and filed a complaint for injunction in which they sought to enjoin the Lynches from rebuilding the fence until ownership of the disputed property was determined. The Lynches filed an answer and counterclaim to quiet title. In the counterclaim, the Lynches allege that Mr. Lynch and Dr. Langford built the jog in the fence with the knowledge that the new fence would not correspond to the property line.
At the trial, Harrell Bates testified that the jog in the fence was in the same place as it was when he bought the property in 1998. He also testified that he was certain the jog was in the fence when the fence was built by Mr. Mallen. According to Mr. Bates, when he bought the property, he understood that he was getting everything inside the fence and has paid taxes on everything inside the fence. While he has owned the property, Mr. Bates has bushhogged the land enclosed in the jog and has repaired the jog. The first indication he had that anyone else claimed ownership of the disputed property was when appellant attempted to build a straight fence.
[a Roger Bates, who was approximately forty years old at the time of the trial, testified that the jog in the fence was there in the early 1980s when he was twelve or thirteen years old and was in the same place it was at the time of the trial. Terry Bates gave substantially the same testimony. Rocky Lynch, Alvan Lynch’s son, testified that Alvan told him about the unusual offset in the fence and that it was not a big deal to Alvan. Rocky testified that the jog was present in the fence in 1973 or 1974. Rocky further testified that Alvan told him he bought the land with the jog and offset. James Ross, a registered land surveyor, testified that the jog appeared on all of his surveys of the property, the earliest of which was in June 1998.
Carl Woods, who had lived near the property since 1959, testified that Mr. Mal-len put up the fence when he sold part of his property to the Lynches, and the fence was straight at that time. According to Woods, Alvan Lynch and Dale Langford agreed to put the jog in the fence three to four years after Alvan and appellant bought the property after Alvan got a tractor stuck on that part of the property on a couple of occasions. Appellant testified that the agreement to put the jog in the fence was a neighborly one between her late husband and Dale Langford, and that it was done with the understanding that the pre-existing property lines would stay the same.
After the trial, the circuit court entered a letter order in which it found that the jog was incorporated into the fence for convenience and not to relocate the property line, meaning the jog cannot be a boundary line by acquiescence. The court also found that the survey performed for Alvan Lynch in 1998 put him on notice that the property was under the control of appel-lees, thus fulfilling the open, hostile, continuous, and notorious requirements |4for ownership by adverse possession. The circuit court entered a decree granting ownership of the disputed property to appel-lees on October 18, 2010. This timely appeal followed.
We review cases that traditionally sound in equity de novo on the record but will not reverse a finding of the trial court unless it is clearly erroneous. Slaton v. Slaton, 336 Ark. 211, 983 S.W.2d 951 (1999). A finding is clearly erroneous when, although there is evidence to support it, the reviewing court is left with a definite and firm conviction that a mistake has been committed. Id.
Appellant appeals from a finding that appellees acquired title to the disputed property by adverse possession. Adverse possession is governed by both common and statutory law. To prove the common-law elements of adverse possession, a claimant must show that he has been in possession of the property continuously for more than seven years and that his possession has been visible, notorious, distinct, exclusive, hostile, and with the intent to hold against the true owner. Smith v. Smith, 2011 Ark. App. 598, 385 S.W.3d 902; Trice v. Trice, 91 Ark.App. 309, 210 S.W.3d 147 (2005). It is ordinarily sufficient proof of adverse possession that the claimant’s acts of ownership are of such a nature as one would exercise over his own property and would not exercise over the land of another. Id. Whether possession is adverse to the true owner is a question of fact. Id. In 1995, the General Assembly added, as a requirement for proof of adverse possession, that the claimant prove color of title and payment of taxes on the subject property or contiguous property for seven years. See Ark.Code Ann. § 18-11-106 (Supp.2011). Where the original entry on another’s land was amicable or permissive, possession presumptively continues as it began, in the absence of an Inexplicit disclaimer. Terral v. Brooks, 194 Ark. 311, 108 S.W.2d 489 (1937); McWilliams v. Schmidt, 76 Ark. App. 173, 61 S.W.3d 898 (2001).
The circuit court concluded in the letter order that the jog was incorporated into the fence for the convenience of the parties and not as an intention to relocate the property line, thereby defeating appel-lees’ claim of a boundary by acquiescence. That finding has not been appealed. Although the court does not expressly state that it believed the jog was put into the fence by Alvan Lynch and Dale Langford, it appears to credit Mr. Woods’s testimony that the jog was placed in the fence when those two parties owned the respective pieces of property. Despite this, the court goes on to say that the 1998 survey put Alvan Lynch on notice that the property contained in the jog was part of his property but under the control of appellees. According to the court this satisfies the open, hostile, continuous, and notorious requirement to establish ownership by adverse possession.
However, if Alvan Lynch was involved in the construction of the jog, which the court found was constructed for the benefit of the parties, we fail to see what effect the 1998 survey would have. Under these circumstances, Alvan Lynch would have been aware the entire time that the fence was originally straight and was moved to include a portion of his property on the opposing side of the fence. In effect, the circuit court made a ruling based, in part, on a determination that Alvan Lynch was a party to taking a straight fence and rebuilding it to move a portion onto his side of the fence line, but based also in part on the premise that he was unaware that the fence encroached onto his property until 1998. If the fence was | f,constructed when Alvan Lynch owned one of the subject properties, the 1998 survey cannot serve as the act that started the clock running for the purposes of adverse possession.
The circuit court found that the fence was moved in order to benefit both parties with no intent to change the property lines. The record shows that, after the fence was altered, the residents on appel-lees’ side of the fence bushhogged it and ran horses on it for many years without disagreement with the Lynches. The clear implication from the record is that the use of the land by appellees’ predecessors in title was amicable between them and the Lynches. Because the initial use of the property by appellees’ predecessors in title was amicable, possession of the property would continue as it began absent an express disclaimer. Terral, supra. There is no evidence of an express disclaimer by either the Lynches or any of appellees’ predecessors in title. In addition, until the dispute over the fence arose between these parties, appellees used the land in a manner consistent with the original amicable arrangement. Therefore, pri- or to this dispute, there was no notice to the Lynches by appellees or their predecessors in title of an intent to hold the instant property adverse to the Lynches’ interest. Under these facts, we hold that the circuit court’s finding that appellees established title to the subject property by adverse possession is clearly erroneous. The circuit court’s decree is reversed and remanded for the court to enter a decree consistent with this opinion.
Reversed and remanded.
VAUGHT, C.J., and HART, ABRAMSON, and HOOFMAN, JJ, agree.
GLADWIN, J„ dissents.
. Alvan Lynch died during the course of this litigation. | [
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BART F. VIRDEN, Judge
|, This appeal stems from the Crawford County Circuit Court’s denial of Montrevel Billings’s motion for reconsideration. When Doann Billings passed away in 2011, her mortgage with U.S. Bank for 701 South 38th Street in Van Burén was past due. Doann’s son, Montrevel Billings, moved into the home and expressed his interest in assuming the loan. U.S. Bank, the holder of the mortgage, and Billings could not reach an agreement, and the bank proceeded with the foreclosure. U.S. Bank filed a complaint on April 20, 2012, and in it stated that Montrevel might “be claiming a tenancy interest in the subject property.”
U.S. Bank requested to proceed with constructive service via a warning order to bS issued to the unknown heirs of Doann Billings and the occupants of the home. The circuit court granted the request on May 3, 2012. The affidavit for a warning order set forth that cbunsel for U.S. Bank “made diligent inquiry and that it is its information and belief that |aDefendant(s), THE UNKNOWN HEIRS OF DOANN BILLINGS ... are no longer resident at their last-known address of 701 South 38th Street, Van Burén, Arkansas 72956. Plaintiff, by its attorneys, further states that Defendant(s)’ present address(es) are unknown.”
A week later on May 10, 2012, a fax entitled “Doann Billings” and with the message “Petition for Appointment of Personal Representative” was sent from the Booth Law Firm to counsel for U.S. Bank, Scott Goldsholl. The fax was a request for Montrevel to be appointed as the personal representative of Doann’s estate, and it listed his address as “701 S. 38th St., Van Burén, AR 72956[.]” The petition also listed Montrevel as Doann’s son and heir.
Two days later, U.S. Bank placed its warning order in, the Press-Argus Courier, The warning order ran two times, the first publication being on May 12 and the last publication on May 19, 2012. U.S. Bank filed an amended complaint on May 16, 2012, naming Montrevel Billings and his sisters, Madeline Billings and Raachell Billings, as the three known heirs. The affidavit listed their addresses and showed Montrevel’s address as. being that of the home at issue.
U.S. Bank filed another affidavit for a warning order on June 22, 2012, and in it U.S. Bank asserted,that, after a-diligent inquiry, it ascertained that Montrevel Billings was no longer a resident at 701 South 38th Street and that his current address was unknown. The second warning order ran in the Press-Argus Courier on June 27 and again on July 4,2012.
On October 3, 2012, U.S. Bank filed an affidavit of service, claiming that it had properly executed the warning order and that it had also mailed a copy of the warning order |sto the last-known address of Montrevel Billings. ,' The attached copies of the envelopes showed that the letter had been mailed July 5, July 10, and July 20, 2012, and stamped by the post office as “unclaimed.”
On October 15, 2012, the circuit court entered a default judgment in which -it dismissed Montrevel, declared the home to be in foreclosure, and ordered the home to be sold in a commissioner’s sale. Notice of the commissioner’s sale was done by warning order in the Press-Argus Courier on October 20, 2012. On November 8, 2012, U.S. Bank filed a motion to postpone the commissioner’s sale and requested that the sale be reset for December 14, 2012. The motion was granted.
On November 9, 2012, Montrevel filed á motion to vacate the decree of foreclosure. In his motion, he asserted that the decree was void for lack of service. Montrevel argued that he had been living at the home in question since his mother’s death, and that the first notice he had received was on October 26, 2012, in the form of a letter informing him that a commissioner’s sale would take place on November 14, 2012. He asserted that the letter of service was sent to “701 South 3, Van Burén, Arkansas (where I have never resided) on July 5,10, and 20, 2012[.]” Montrevel also alleged in his brief that U.S. Bank was not authorized to do business in Arkansas. ..
, On December 7, 2012, the court suspended the sale of the home until the matter could be settled. The circuit court held a hearing on April 29, 2015. At the hearing, counsel for Montrevel argued that service was not properly made; therefore, the order of foreclosure was void.- The circuit court found that the service was proper and denied the motion to dismiss.
LMontrevel filed a motion for reconsideration on May 1, '2015, that was denied on May 22, 2015. Montrevel filed a timely notice of appeal.
Montrevel raises two points on appeal. First, he asserts that the default judgment should be set aside as void for lack of proper service; second, he argues that U.S. Bank is not authorized to ■ do business in Arkansas. We agree that the default judgment was void for lack of service, and we reverse and remand.
In cases involving an appeal of the grant or denial of a motion to set aside a default judgment, our standard of review depends on the grounds upon which the appellant is claiming the default judgment should be set aside. Scott v. Wolfe, 2011 Ark. App. 438, at 6, 384 S.W.3d 609, 612. Ordinarily, this court applies an abuse-of-discretion standard; however, in cases where the appellant claims that the default judgment is void, .the matter is a question of law, which we review de novo and give no deference to the circuit court’s ruling. Id.
As we have long held, statutory-service requirements, being in derogation of the common law, are strictly construed and compliance must be exact. XTO Energy, Inc. v. Thacker, 2015 Ark. App. 203, at 8, 467 S.W.3d 161, 167. This rule applies equally to the service requirements imposed by rules of the court. Id. at 8-9; Rule 4(f)(1) of the Arkansas Rules of Civil Procedure provides that, if it appears by the affidavit of a party seeking judgment or his attorney that, after diligent inquiry, the whereabouts of a defendant remains unknown, service shall be by warning- order issued by the clerk. Scott, 2011 Ark. App. 438, at 7, 384 S.W.3d 609. A mere recitation in an affidavit that a diligent inquiry was made is not sufficient. See, e.g., Smith v. Edwards, 279 Ark. 79, 648 S.W.2d 482 (1983). The burden is on the moving | sparty seeking constructive service by warning order to demonstrate to the court that he actually attempted to locate the defendant. Ark. R. Civ. P. 4(f); XTO, supra.
In XTO, 2016 Ark. App. 203, at 9-10, 467 S.W.3d 161, our court made it very clear that reciting the words “diligent inquiry” in an affidavit for a warning order is insufficient to show that a diligent inquiry actually occurred:
Simply stated, the affidavit for warning order in the 1984 case was insufficient because it was conclusory, containing no indication of what steps were taken as part of the required “diligent inquiry” as to the whereabouts of N.H. Tarver or his heirs. The Thackers attempted to cure this defect by submitting án affidavit from Dan Stripling, their attorney in the 1984 case, that, although stating that he had no independent recollection of the 1984 case, nevertheless listed thé steps he believed that he would have taken in making a diligent inquiry as to the whereabouts of N.H. Tarver and the other named defendants. However, the facts showing the diligent inquiry were required to be set forth at the time the warning order was issued.
(Citations omitted.) Our holding in XTO demonstrates that the diligent-inquiry requirement must be fulfilled before the warning order issues, and facts supporting the assertion that a diligent inquiry took place must be shown in the affidavit.
In the present case, U.S. Bank presented no facts in either the May or the June affidavit' to support its statement that it made a diligent inquiry into the whereabouts of Montrevel Billings. U.S. Bank’s contention on appeal is that it attempted to mail the warning order to Montrevel Billings at the 38th Street address on July, 5, July 10, and July 2Q, 2012, and that Mon-trevel had avoided service of the warning order; however, statements describing the efforts U.S. Bank made to deliver the warning orders after, they were issued are not, material here. U.S. Bank was required to show what efforts it made, if any, to locate Montrevel before | Bit sought constructive service by a warning order. U.S. Bank did not include any facts in its affidavits for a warning order to show any efforts it may have taken to diligently inquire into Montrevel’s location; therefore, service-by warning order was not properly executed.
Arkansas courts have recognized that judgments by default- rendered without valid service are judgments rendered without jurisdiction and are therefore void. Grand Slam Stores, L.L.C. v. L & P Builders, Inc., 92 Ark. App. 210, 213, 212 S.W.3d 6, 8 (2005). The court may, upon motion, set aside a default judgment previously entered if the judgment is void. Ark. R. Civ. P. 55. We hold that service was not proper; thus, the default judgment is void, and we reverse and remand.
For his second point on appeal, Billings argues that U.S. Bank is not properly registered to do business in Arkansas. This point was not preserved. A party’s failure to obtain a ruling is a procedural bar to the court’s consideration of the issue on appeal. City of Little Rock v. Rhee, 375 Ark. 491, 498, 292 S.W.3d 292, 296 (2009). In Montrevel’s letter to the circuit court to reconsider its ruling, he did not mention the issue or request a ruling on the matter, and the circuit court’s letter order did not address the status of U.S. Bank to do business in Arkansas. Thus, we decline to reach the issue,
Reversed and remanded.
Gladwin, C. J., and Gruber, J., agree. | [
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COURTNEY HUDSON GOODSON, Associate Justice
11Appellant Brian Elam Sims appeals the order entered by the Pulaski County Circuit Court denying his petition for postcon-viction relief pursuant to Rule 37.1 of the Arkansas Rules of Criminal Procedure. For reversal, Sims contends that the circuit court erred in rejecting his seven claims of ineffective assistance of counsel and by denying his petition without a hearing. We affirm on all issues.
I. Factual Background
The prosecuting attorney in Pulaski County charged Sims with the offenses of first-degree murder, second-degree battery, and aggravated assault. Sims’s first trial ended in a mistrial after it was discov: ered that his attorney had been suspended from the practice of law. The record of the second trial reflects that the charges stemmed from an incident that occurred on September 24, 2011, at the Rock City Lounge in Little Rock. According to the testimony, Sims and his wife, Charleena Sims, were at the bar for a birthday celebration with isCharleena’s sister, Hannah Monroe; Hannah’s boyfriend, Chris Mar-tis; and Chris’s aunt and uncle, Michelle and Rodney Brazeal. Robert Cauley was an acquaintance of the bartender, Tina Powell, and Robert arrived at the lounge with his friend, Thomas Jones, at approximately 1:30 a.m. to help Tina close the bar.
At closing time, Robert and Thomas were in the kitchen eating pizza when they heard a commotion outside the bar. By all accounts, Charleena was causing a disturbance. The witnesses described her as “belligerent,” and “out of control” and said that she was yelling and screaming, cussing at everyone, “throwing legs and arms,” beating on the windows, and kicking the door of the bar. Robert, who stood six-feet tall and weighed 258 pounds, approached Charleena from behind and “bear hugged” her. With Hannah’s help, Robert carried Charleena to the Simses’ vehicle and placed her inside. Tina testified that she saw Sims walk down the sidewalk carrying a knife cupped in his hand and held behind his back.
Thomas testified that Robert remained at the Sims’s vehicle in a kneeling position and that he appeared to be conversing with someone inside the car. Thomas stated that Sims approached Robert from the rear and struck Robert on either his shoulder or his neck. Upon seeing this altercation, Thomas ran toward the Simses’ vehicle and found Sims on top of and straddling Robert, as Robert lay on his back on the ground. Thomas testified that Sims was- stabbing Robert, as Robert pleaded for Sims to stop. Thomas intervened, during which time Sims stabbed Thomas. Thomas testified that he placed his left hand on Sims’s shoulder and said that Sims struck upwards twice, hitting Thomas’s hand and his arm.
Rodney also observed Robert in a crouched position beside the Simses’ car. He ^testified that Sims was behind Robert and that he saw Sims swing at Robert, striking Robert in the lower back. Like Thomas, Rodney ran to the area, observed Sims on top of Robert, and saw Sims stabbing Robert. Rodney also testified that Robert was asking Sims to stop stabbing him. Rodney dislodged the knife from Sims’s hand and threw Sims backwards. Rodney secured the knife, and he, Thomas, and others tended to Robert’s wounds.
In her testimony, Hannah stated that she walked to her car after putting Char-leena in the vehicle. She next saw Rodney running in the direction of the Simses’ vehicle. Hannah - said that she did not know who was driving the Simses’ vehicle, but.she testified that the vehicle backed up and stopped before leaving the parking lot. She stated that Sims and Charleena exited the car and that they took turns waving a gun at the crowd. Hannah testified that both Sims and Charleena pointed the gun at her.
Robert died at the hospital days later. Dr. Charles Paul Kokes, the chief medical examiner, testified that the cause of death was multiple stab wounds. Specifically, Robert had been stabbed seven times. He received two stab wounds to the right upper chest; one in the lower left side of the chest; one to the lower left side of the back; another to the middle of the back; one to the back right shoulder; and lastly, one to the back side of the right thigh.
Sims testified and asserted that he had killed Robert, whom he did not know, in self-defense. • Sims said that he noticed a crowd around his vehicle when he walked out of the bar. He denied that he saw Robert carry Charleena to their vehicle. Sims stated that Charleena was seated in the front passenger seat when he reached the car and that he was standing beside the driver’s side door and about to get inside to leave, when someone struck him in the head. |4He testified that the blow knocked him to the ground and that, when he looked up, he saw a “humongous” man coming down upon him. Sims said that he feared for his and his wife’s lives and that he retrieved a knife from his back pocket and began swinging upward. He did not recall anyone else touching him and had no recollection of stabbing Thomas. Sims stated that he was able to roll to the side after the last time he struck Robert and that someone pushed Robert off of him. He said that no one took the knife from him and that he immediately got into his car to leave. Sims denied having a firearm in his hand at any time. ■
A jury in the Pulaski County Cirfeuit Court found Sims guilty as ■ charged of first-degree murder, second-degree battery, and aggravated assault. As a consequence, he received an aggregate term of thirty-three years’ imprisonment. The court of appeals affirmed his convictions and sentences. Sims v. State, 2014 Ark. App. 312, 2014 WL 2013413. Thereafter, Sims filed a timely, verified petition for postconviction relief claiming that he had received ineffective assistance of counsel at trial. In his petition, Sims alleged that counsel’s performance was deficient because he failed to request various jury instructions. He also claimed that his counsel was ineffective with respect to his handling of evidentiary issues. The circuit court entered an order denying the petition without a hearing. Sims now appeals, challenging the circuit court’s findings and the court’s failure to hold a hearing. '
On review, we assess the effectiveness of counsel under the two-prong standard set 1¡¡forth by the Supreme Court of the United States in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Springs v. State, 2012 Ark. 87, 387 S.W.3d 143. In asserting ineffective assistance of counsel under Strickland, the petitioner must show that counsel’s performance was deficient. Williams v. State, 2011 Ark. 489, 385 S.W.3d 228. This requires a showing that counsel made errors so serious that counsel was not functioning as the counsel guaranteed the petitioner by the Sixth Amendment. State v. Rainer, 2014 Ark. 306, 440 S.W.3d 315. The reviewing court must indulge in a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance. Scott v. State, 2012 Ark. 199, 406 S.W.3d 1. The defendant claiming ineffective assistance of counsel has the burden of overcoming that presumption by identifying the acts and omissions of counsel which, when viewed from counsel’s perspective at the time of trial, could not have been the result of reasonable professional judgment. Wertz v. State, 2014 Ark. 240, 434 S.W.3d 895.
In order to satisfy the second prong of the Strickland test, the petitioner must show that counsel’s deficient performance. prejudiced the defense, which requires showing that counsel’s errors were so serious as to deprive the petitioner of .a fair trial. Montgomery v. State, 2011 Ark. 462, 385 S.W.3d 189. In doing so, the petitioner must show that there is a reasonable probability that the fact-finder’s decision would have been different absent counsel’s errors. State v. Harrison, 2012 Ark. 198, 404 S.W.3d 830. A reasonable probability is a probability sufficient to undermine confidence in the outcome of the trial. Adams v. State, 2013 Ark. 174, 427 S.W.3d 63. In assessing prejudice, courts “must consider the totality of the evidence before the judge or jury.” Strickland, 466 U.S. at 695,104 S.Ct. 2052. .There is no reason for a court deciding | fian ineffective-assistance claim to address both components of the inquiry if the defendant makes an insufficient showing on one. Decay v. State, 2014 Ark. 387, 441 S.W.3d 899.
III. Jury Instructions
The first four issues that Sims raises on appeal concern jury instructions. He contends that the circuit court erred in concluding that his trial counsel was not ineffective by failing to offer proper instructions. We address his arguments in order.
A. Fincham and Extreme-Emotional-r Disturbance Manslaughter .
As his first point on appeal, Sims contends that counsel neglected to ensure that a complete instruction on extreme-emotional-disturbance manslaughter was provided to the jury. The circuit court granted Sims’s request, that in addition to instructions on first-and second-degree murder, to give an instruction on the lesser-included offense of extreme-emotional-disturbance manslaughter. A person commits this category of manslaughter if 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. Ark. Code Ann. § 5-A0-104(a)(l)(A) ■ (Repl. 2013).
Sims’s trial took place in the wake of our decision in Fincham v. State, 2013 Ark. 204, 427 S.W.3d 643, where we held that the standard step-down provision of the AMI Crim.2d 301 instruction on lesser-included offenses effectively foreclosed the jury’s consideration of extreme-emotional-disturbance manslaughter. Thus, we agreed with Fincham’s argument that the circuit court should have omitted the following language when instructing the jury:
If you have a reasonable doubt of the guilt of the defendant on the greater offense, you may find him guilty only of the lesser offense. If you have a ^reasonable doubt as to the defendant’s guilt of all offenses, you must find him not guilty.
In so holding, ‘we reasoned that, under the instruction as it was then constituted, the jury was instructed not to consider the lesser-included offense of extreme-emotional-disturbance manslaughter unless it first found reasonable doubt as to greater murder offenses. Yet, a defendant could be found guilty of extreme-emotional-dis-túrbance manslaughter only if the jury had first found him guilty of' murder. Given this conundrum, we said that “the jury should have been instructed to consider manslaughter after it found Fincham guilty of murder.” Fincham, 2013 Ark. 204, at 8, 427 S.W.3d at 648. In concluding the opinion, we urged the Committee on Criminal Jury Instructions to consider revising the instruction so that future juries may be properly instructed when considering extreme-emotional-disturbance manslaughter. '
Sims’s trial took place one month after our decision in Fincham and before the committee had the opportunity to revise our jury instructions. At the instruction conference at Sims’s trial, the court and counsel discussed Fincham and crafted an instruction to follow the ones on first- and second-degree murder. The instruction stated,
If you find Brian Sims guilty of first degree murder or second degree murder, you will then consider the charge of manslaughter.
To sustain this charge, the State must prove beyond a reasonable doubt that: Brian Sims caused the death of Robert Cauley under circumstances that would be murder, except that he caused the death under the influence of extreme emotional disturbance for which there was a reasonable excuse. You should determine the reasonableness of the excuse from the viewpoint of a person in Brian Sims’s situation under the circumstances as he believed them to be.
In his Rule 37.1 petition and in his argument on appeal, Sims contends that the | substruction was incomplete, and thus his counsel performed deficiently, because it omitted his burden that he was only to raise a reasonable doubt in the minds of the jurors. He also claims that counsel was deficient for not elaborating on this point during closing argument. Sims bases this contention on AMI Crim.2d 1004-A, a completely new instruction that was adopted in 2013 after his trial. This new instruction is to be given in conjunction with AMI Crim.2d 1004, the primary instruction on manslaughter, and it reads as follows:
The law provides that if a person commits the offense of murder, but does so under the influence of extreme emotional disturbance for which there is reasonable excuse, that person has committed the offense of manslaughter rather than murder. You must determine reasonableness from the viewpoint of a person in the defendant’s ■ situation under the circumstances as he believed them to be.
(Defendant), in asserting the defense of extreme emotional disturbance, is required only to raise a reasonable doubt in your minds. Consequently, if you believe that this defense has been shown to exist, or if the evidence leaves you with a reasonable doubt as to his guilt of murder rather than manslaughter, you may And him guilty only of manslaughter.
Whatever may be your finding as to this defense, you are reminded that the State still has the burden of establishing the guilt of (defendant) upon the whole case beyond a reasonable doubt.
(Emphasis supplied.)
Sims argues that his counsel was ineffective for not asking for an instruction that contained the italicized language noted above and for not discussing it in closing argument. We cannot agree. In determining whether trial counsel’s conduct is ineffective, the conduct is evaluated from counsel’s perspective at the time of trial. Strickland, supra. The instruction that was given at trial complied with this court’s ruling in Fincham. Although the new instruction, AMI Crim.2d 1004-A, is a product of Fincham, the language Sims now desires |flwas not dictated by that decision. We simply cannot say that counsel was ineffective for not having the foresight to predict all revisions to the instructions that were not directly mandated by our decision. Consequently, we affirm on this point.
B. Reckless Manslaughter
Here, Sims contends that counsel was ineffective because he did not seek an instruction on the lesser-included offense of manslaughter that is committed when .a person recklessly causes the death of another person. See Ark. Code Ann. § 5-10-104(a)(3). This argument is without merit based on our well-established “skip rule,” which provides that when an instruction on a lesser-included offense has been given, and the jury convicts of the greater offense, error resulting from the failure to give an instruction on another still lesser-included offense is cured. Davis v. State, 2009 Ark, 478, 348 S.W.3d 553. The jury in Sims’s trial received instructions on first-degree murder and the lesser-included offense of second-degree murder. Because the jury returned a guilty verdict on the greater offense of first-degree murder, Sims cannot establish that prejudice resulted from counsel’s failure to request an instruction on yet another lesser-included offense. Kennedy v. State, 338 Ark. 125, 991 S.W.2d 606 (1999).
To the extent that Sims’s argument includes the contention that trial counsel should have pursued an instruction pursuant to Arkansas Code Annotated section 5 — 2—614(a) (Repl. 2013), the “imperfect-defense statute,” we note that the circuit court did not provide a ruling on this argument. It is the obligation of an appellant to obtain a ruling from the circuit court in order to preserve an issue for appellate review. Kelley v. State, 2011 Ark. 175, 2011 WL 1522527 (per curiam); McCraney v. State, 2010 Ark. 96, 360 S.W.3d 144 (per curiam); Beshears v. State, 340 Ark. 70, 8 S.W.3d 32 (2000). Arkansas’s rules of procedure provide an avenue for an appellant to obtain a ruling from the circuit court should the court fail to rule • on an issue in its initial order. Ark. R. Crim. P. 37.3 (2009); Beshears, supra. Sims did not avail himself of that procedure. Therefore, the failure to obtain a ruling precludes our. review of this argument on appeal. Huddleston v. State, 347 Ark. 226, 61 S.W.3d 163 (2001).
. C. Justification and Lesser- . Included Offenses
In. this argument, Sims asserts that his counsel rendered deficient performance for not requesting a justification instruction with regard to the charges of second-degree battery and aggravated assault. To show prejudice under Strickland based on trial counsel’s failure to request a specific instruction, the United States Supremé Court has held that an appellant must establish that it was “reasonably likely that the instruction would have made any difference [in the outcome of the trial] in light of all the other evidence of guilt.” Berghuis v. Thompkins, 560 U.S. 370, 390, 130 S.Ct. 2250, 176 L.Ed.2d 1098 (2010). In this casé, the jury rejected Sims’s claim of self-defense. Therefore, it is highly unlikely and most improbable that the outcome of the trial would have been different had counsel requested a justification instruction with respect to those offenses. Because Sims has failed to demonstrate prejudice flowing from this allegation, the circuit court’s decision on this matter is not clearly erroneous.
Sims also argues that counsel was ineffective for not seeking lesser-included-offense instructions with respect to aggravated assault and second-degree battery. Our law is settled that once, an offense is determined to be a lesser-included offense, the circuit court is obligated Into instruct;the jury on that offense only if there is a rational basis for a verdict acquitting the defendant of the offense charged and convicting him of the lesser-included offense. Webb v. State, 2012 Ark. 64, 2012 WL 503885. With regard to aggravated assault, trial counsel was not remiss for failing to seek a lesser-included- offense instruction because Sims’s- defense to that charge was complete denial. Where the evidence clearly shows that the defendant is either guilty of the greater offense charged or innocent, there is no rational basis for giving an instruction on lesser-included offenses. Fudge v. State, 341 Ark. 759, 20 S.W.3d 315 (2000); Brown v. State, 321 Ark. 413, 903 S.W.2d 160 (1995); Watson v. State, 308 Ark. 444, 825 S.W.2d 569 (1992).
As for a lesser-included-offense instruction on the charge- of second-degree battery, Sims’s brief, merely recites the conclusory allegation that counsel’s failure to request such an instruction was ineffective assistance. However, he does not .cite authority in support of that argument, nor does he otherwise develop the issue by referring to any facts contained in the record that would provide a rational basis for an instruction. Sims had the burden of demonstrating that there was a rational basis for the instruction. Mathis v. State, 2014 Ark. 148, 2014 WL 1344427 (per curiam); Davis v. State, 2011 Ark. 433, 2011 WL 4840644 (per curiam). This court does not research or develop arguments for appellants. Hester v. State, 362 Ark. 373, 208 S.W.3d 747 (2005). Bare assertions of ineffectiveness are not enough. Mitchell v. State, 2012 Ark. 242, 2012 WL 1950257. Conclusory statements that counsel was ineffective will not sustain a Rule 37 petition. Anderson v. State, 2011 Ark. 488, 385 S.W.3d 783. Accordingly, we find no merit here.
D. Defense of a Third Party
As his next point on appeal, Sims complains that, although he received an instruction 112on self-defense for defending himself, he contends that counsel neglected to include a justification instruction for the defense of a third party, namely his wife. Sims asserts that he would have been entitled to such an instruction based on his testimony that he feared not only for his own life but also for that of his wife, who was sitting in the car. Once again, we must observe that the jury did not accept his theory of self-defense. Therefore, it is improbable and most unlikely that the jury would have believed that he was acting in defense of his Wife. Thus, Sims has failed to show a reasonable likelihood that the outcome of trial would have been different had this instruction been given.
IV. Evidentiary Matters
Sims’s final three arguments concern claims of ineffectiveness with regard to evidentiary issues. We also discuss these points in turn.
A. Evidence of the Deceased’s Violent .Character
Sims contends that his trial counsel’s performance was deficient because he failed to present evidence of the deceased’s character for violence. In making this argument, he states that Robert had been previously convicted of third-degree domestic battery.
Where it is asserted that counsel was ineffective for failure to make a motion or argument, the petitioner must show that the motion or argument would have been meritorious because the failure to make an argument that is meritless is not ineffective assistance of counsel. Mitchell, supra. Our law is clear that specific instances of a victim’s violent character are admissible only when the acts were directed at the defendant or within his knowledge. Anderson v. State, 354 Ark. 102, 118 S.W.3d 574 (2003); Allen v. State, 2013 Ark. 396, 2013 WL 5595489; Thompson v. State, 306 Ark. 193, 813 S.W.2d 249 (1991); Halfacre v. State, 277 Ark. 168, 639 S.W.2d 734 (1982); Here, Sims did not know Robert. Therefore, the testimony was not admissible, and counsel’s failure to offer this evidence did not fall below an objective standard of reasonableness.
Alternatively, Sims asserts- that, even if the evidence was not initially admissible, the State opened the door for the admission of the testimony when the prosecution elicited -testimony from Rodney that Robert was a “big teddy bear.” Thus, he contends that his- counsel was ineffective for not seizing on the opportunity to admit evidence of Robert’s violent nature. The record does not support this contention. Rodney testified that he knew of Robert as the bartender’s friend but that he did not know Robert, or even his name. More to the point, the prosecutor did not question Rodney about Robert’s character. Instead, the prosecutor asked Rodney to describe Robert’s demeanor when Robert escorted Charleena to her car. Rodney responded, “[L]ike maybe a big teddy bear. Just, you know, everything sweet and nice and stuff like that.” This testimony merely described Robert’s demeanor and thus did not place Robert’s character in issue. Because the prosecution did not open the door, counsel was not remiss for not offering character evidence.
B. References to the Deceased’s Son
Next, Sims contends that he received ineffective assistance when trial counsel failed to seek- an admonition or to move for a mistrial when Rodney testified that, as he and his wife were tending to Robert’s wounds, Robert said to them, “You know, I have a son, and I want you to tell my son that I love him.” Sims points out that Tina gave similar testimony without |uobjection and that the prosecutor referred to the testimony in closing argument.
The record reflects that • Sims’s trial counsel opposed the introduction of statements made- by Robert to others after he had been stabbed, and the circuit court, overruled Sims’s objections. The record also shows that, although counsel maintained a standing objection to Robert’s remarks, counsel raised a specific objection to Rodney’s testimony concerning Robert’s son. In denying Sims’s petition for post-conviction relief, the circuit court found that, although a request for an admonition might have 'been successful, counsel’s choice not to request an admonition was a matter of trial strategy based on the desire hot to call further attention to the' comment. The circuit court also found that the decision not to request a mistrial was also a matter of trial tactics and strategy. Further, the court determined that “considering the prompt objection, the extraordinary nature of mistrials, and the possibility that failure would have drawn further attention to the statement, the court is not prepared to say that the choice not to move for a mistrial was ineffective assistance of counsel.”
We have said many times that the decision not to-request an admonition is largely a matter of trial strategy. Camargo v. State, 346 Ark. 118, 55 S.W.3d 255 (2001); Buckley v. State, 341 Ark. 864, 20 S.W.3d 331 (2000); Catlett v. State, 331 Ark. 270, 962 S.W.2d 313 (1998) (per curiam). Matters of trial strategy and tactics, even if arguably improvident, fall within the realm' of counsel’s professional judgment and are not grounds for a finding of ineffective assistance of counsel. Mister v. State, 2014 Ark. 446, 2014 WL 5494016; Noel v. State, 342 Ark. 35, 26 S.W.3d 123 (2000). Under the circumstances- here, the trial court was not clearly erroneous in finding that the decision was one of trial strategy, or in finding that the decision not to call further Inattention to the remark by seeking an admonition was supported by reasonable professional judgment. Moreover, Sims has not shown that the strategy was outside the bounds of reasonable professional judgment or that there was a ground for a mistrial, which is an extreme and drastic remedy to be resorted to only when there has been an error so prejudicial that justice cannot be served by continuing the trial. Ellis v. State, 2014 Ark. 24, 2014 WL 260991 (per curiam) (citing Green v. State, 2013 Ark. 497, 430 S.W.3d 729). In fact, Sims offers no argument that the testimony was even inadmissible. Once again, we must observe that we do not research or develop arguments on behalf of an appellant. Hester, swpra.
C. Medical Examiner
As his last claim regarding his trial counsel, Sims argues that counsel’s performance was deficient because he failed to confront the medical examiner with differences in his testimony from the first to the second trial. Specifically, he contends that the medical examiner, when considering the pathway of the wounds, appeared to be more certain that the stab wounds were inflicted in a manner consistent with the testimony of the State’s witnesses than the testimony of Sims. In denying this claim, the circuit court found that the substance of the medical examiner’s testimony did not differ because he testified on both occasions that he could not say with complete certainty that the wounds were inflicted in the manner alleged by either party. We cannot say that the circuit court’s finding is clearly erroneous. In so holding, we observe that, trial counsel elicited from the medical examiner on cross-examination that he did not know where appellant was positioned when he stabbed the victim and that both the State’s theory and the defense’s theory were possible. There is |1(isimply no merit to this point.
V. Hearing
Sims also argues that the circuit court erred by not holding an evidentiary hearing on his petition. We disagree. Pursuant to Arkansas Rule of Criminal Procedure 37.3(a), the circuit court has the discretion to deny- relief without a hearing. Stated differently, “the circuit court need not hold an evidentiary hearing where it can be conclusively shown on the record, or the face of the petition itself, that the allegations have no merit.” Mancia v. State, 2015 Ark. 115, at 25, 459 S.W.3d 259, 275 (quoting Bienemy v. State, 2011 Ark. 320, at 5, 2011 WL 3930364). As indicated by our discussions of the issues, the files and records of this case conclusively show that Sims’s allegations that he received ineffective assistance of counsel are not well taken. Therefore, we affirm the circuit court’s denial of the petition without a hearing.
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ROBERT J. GLADWIN, Judge.
| jAppellant Kenneth Joe Barrow appeals his conviction by the Faulkner County Circuit Court on charges of sexual assault and sexual indecency against his stepdaughter, K.B., and the rape and terroristic threatening of his daughter, A.B. He challenges the sufficiency of the evidence supporting the convictions and also argues that the circuit court committed reversible error by failing to (1) determine whether appellant knowingly, intelligently, and voluntarily waived his right to a jury trial; (2) dismiss all charges pursuant to a violation of the speedy-trial rule; (3) impose sanctions against the State for failure to comply with discovery requests. We affirm.
Facts
On February 17, 2009, appellant was tried on charges from two separate infor-mations. The first, filed on July 6, 2007, contained two charges, (1) sexual assault in the second degree, | ¡..alleging that he engaged in sexual contact with his stepdaughter, K.B. and (2) sexual indecency, alleging that he coerced K.B. to expose her sex organs or breast. In the second information, filed on November 14, 2007, appellant was charged with the commission of the offenses of rape and terroristic threatening in the first degree against his daughter, A.B. All charges were consolidated for the bench trial.
Prior to the charges being filed, appellant had served a tour of duty in Iraq as a chemical-control officer in the United States Army. He was married to the mother of the minor children named in the informations. K.B. was not the natural child born to the union of the two, but appellant was the only father-figure in her life, and A.B. was the natural child born to appellant and his wife.
Appellant filed various motions in the cases, including two motions for discovery. He also moved for sanctions against the State, alleging that the State failed to provide information relating to medical and therapeutic treatment received by the victims that was revealed at trial but not previously made available to appellant. It is undisputed that a written waiver of jury trial was signed by appellant; however, there is no verbatim record of any proceeding during which the waiver was confirmed as having been knowingly, intelligently, and voluntarily signed.
K.B., A.B., and two other witnesses provided testimony for the State. Appellant made a general motion for directed verdict with respect to all four charges after the State rested, but the motion was denied. Along with several other witnesses, appellant then testified in his |aown defense, denying that he engaged in the alleged criminal violations or that there were any-observed signs of abuse.
At the conclusion of the trial, the motion for directed verdict was renewed on the same grounds and was again denied. Appellant was found guilty on all charges and sentenced by the circuit court as follows: ten years on the charge of sexual assault; five years on the charge of sexual indecency; twenty years on the charge of rape; and five years on the charge of terroristic threatening. The ten- and twenty-year sentences were ordered to run consecutively, and the five-year sentences concurrently. A timely notice of appeal was filed on February 20, 2009.
I. Sufficiency of the Evidence
When a defendant challenges the sufficiency of the evidence, which serves as the basis for his conviction, the evidence is viewed in the light most favorable to the State and only evidence supporting the conviction will be considered. Thessing v. State, 365 Ark. 384, 230 S.W.3d 526 (2006). Moreover, the courts have also held that the test for determining the sufficiency of evidence is whether the conviction is supported by substantial evidence. Id. Substantial evidence must be forceful enough to compel a conclusion one way or another beyond suspicion and conjecture. Id.
Appellant was charged with violations of Arkansas Code Annotated sections 5-14-125 (Repl.2006); 5-14-110 (Repl.2006); 5-14-103 (Repl.2006); and 5-13-301 (Repl. 2006), against his stepdaughter, K.B., and daughter, A.B. Appellant’s sole argument with respect to this issue is that the State’s case regarding the four charges consisted solely of the ^uncorroborated, and sometimes inconsistent, testimony of KB. and A.B. He notes that, not only was there no medical evidence or therapeutic-counseling evidence presented, the State failed to present corroborating evidence of any kind.
Appellant acknowledges that the law is clear that a person can be convicted upon the uncorroborated testimony of a minor if the testimony satisfies the statutory elements of the offense. Rohrbach v. State, 374 Ark. 271, 287 S.W.3d 590 (2008). He argues that, while in most cases corroboration might not be necessary, it does become an issue when the credibility of the minor children is brought into question as was done in this case. Appellant recognizes that this court will only reverse a credibility determination if the testimony is inherently improbable, physically impossible or so clearly unbelievable that reasonable minds can differ, see Kitchen v. State, 271 Ark. 1, 607 S.W.2d 345 (1980), but he maintains that the testimony in this case is neither credible nor sufficient to support a conviction.
The State responds, and we agree, that appellant’s sufficiency challenge is not preserved for appellate review. A directed-verdict motion is a challenge to the sufficiency of the evidence and requires the movant to apprise the circuit court of the specific basis upon which the motion is made. See Rounsaville v. State, 372 Ark. 252, 273 S.W.3d 486 (2008). Arguments not raised at trial will not be addressed for the first time on appeal, and parties cannot change the grounds for an objection on appeal, but are bound by the scope and nature of the objections and arguments presented at trial. See id.
After the State rested its case, appellant moved to dismiss all the charges against him, arguing,
|J guess it’d be motion for dismissal based on the State’s having failed to prove a prima facie case in this matter with all the elements of all four charges and the jurisdictional elements. The Court certainly has heard all the proof so far, and without going into that ele ment by element, I will let you just weigh — weigh what you’ve heard against what you know the elements to be. I would more so say specifically that, with regard to jurisdiction, you have heard testimony from the witnesses so far about things that have happened, but there is — there is, at best, some doubt and some — some lack of proof on exactly where these things happened and when they happened in those places. You’ve heard testimony that — that things happened between here and Little Rock, or between Guy and Little Rock, or in or around Guy and so forth on dirt roads. And, aside from arguing all the specific elements for the motion for dismissal or directed verdict, I would point out that Guy and Quitman and the road between those places and Little Rock pass through more than one county. We’re talking about Faulkner County, Cle-burne County, and Pulaski County. And, without more specific proof of where these things happened when they happened, I would move for a dismissal on the point of jurisdiction, as well as all the rest of the elements of those charges.
At the conclusion of all the evidence, appellant renewed his motion to dismiss “based on the lack of evidence and the jurisdiction arguments that [he] made earlier.” On appeal, appellant abandons the jurisdictional argument that he made below and argues only that the victims’ testimony about the crimes was so clearly unbelievable that it should be discounted. Appellant’s sufficiency challenge is barred based upon lack of specificity in his directed-verdict motion. Accordingly, we decline to address the merits thereof. See Rounsaville, supra.
II. Waiver of Right to a Jury Trial
A. Standard of Review
The right to a jury trial is guaranteed under the Sixth Amendment to the United States Constitution and article 2, section 7 of the Arkansas Constitution. In order for that right to be abrogated, there must be a showing of a knowing and voluntary waiver made and demonstrated on the record. Ark. R.Crim. P. 31.1 (2010); Medlock v. State, 328 Ark. 229, 942 S.W.2d 861 (1997); Williams v. State, 65 Ark.App. 176, 986 S.W.2d 123 (1999); McCoy v. State, 60 Ark.App. 306, 962 S.W.2d 822 (1998); Duty v. State, 45 Ark.App. 1, 871 S.W.2d 400 (1994).
Rule 31 of the Arkansas Rules of Criminal Procedure provides that, in order for a defendant to waive his right to a jury trial, the circuit court must ensure that the waiver is knowingly, intelligently and voluntarily made. A defendant must either waive his right in writing or in open court, or through his counsel and in the presence of the court. The rule also requires that there must be a verbatim record of any proceedings at which the defendant waives his right in person or through counsel that must be preserved.
B. Discussion
In the instant case, the only record of a waiver of jury trial is a document entitled “Waiver of Jury Trial” that was filed on November 17, 2008, by appellant’s appointed trial counsel, David Hogue. Appellant urges that the record is silent of testimony that he abandoned his substantive right to trial by jury. He submits that there is no evidence of any discussion of the jury waiver, and the circuit court failed to ask whether appellant intended to knowingly, intelligently, and voluntarily waive his right to a trial by jury. Here, the record does not indicate that appellant’s counsel informed the circuit court that appellant would waive a jury trial. Additionally, appellant asserts that he did not inform the circuit court that he had signed the waiver indicating he wanted to waive his right to a jury trial after his attorney had explained that he had that right. There is no evidence that appellant’s attorney informed appellant that his right to a jury trial existed.
17AppelIant urges that, because the record does not give any indication that appellant had sufficient understanding of his right to a trial by jury, the entry of the jury waiver alone simply does not give rise to even minimal awareness of a right to jury trial. He maintains that this court cannot conclude that appellant knew that his right to a trial by jury existed merely from a purported signature on that written waiver. He suggests that the fact that the record is silent raises an irrebuttable presumption that appellant did not waive his fundamental right to a jury trial. See Winkle v. State, 310 Ark. 713, 841 S.W.2d 589 (1992).
Although appellant can raise this claim for the first time on appeal, e.g., Calnan v. State, 310 Ark. 744, 841 S.W.2d 593 (1992), we disagree with the merits of his claim. Under Arkansas Rule of Criminal Procedure 31.1, criminal cases that require a jury trial must be so tried unless (1) waived by the defendant; (2) assented to by the prosecutor; and (3) approved by the circuit court. See Buckley v. State, 349 Ark. 53, 76 S.W.3d 825 (2002). Additionally, Rule 31.2 (2009) requires that
[sjhould a defendant desire to waive his right to trial by jury, he may do so either (l) personally in writing or in open court, or (2) through counsel if the waiver is made in open court and in the presence of the defendant. A verbatim record of any proceedings at which a defendant waives his right to trial by jury in person or through counsel shall be made and preserved.
Ark. R.Crim. P. 31.2 (2010). Aside from waiver through counsel, our supreme court has interpreted Rule 31.2 to mean that the “only way a defendant may waive the jury trial right is by personally making an express declaration in writing or in open court and the open-court proceedings where the defendant waives his or her right must be preserved.” Medlock, supra (citing Calnan, 310 Ark. at 747, 841 S.W.2d at 595).
|ROn November 14, 2008, appellant signed a jury waiver, which stated as follows:
The undersigned defendant, and his undersigned attorney, having been advised by the Court of the defendant’s right to trial by jury, guaranteed by the Constitution of the United States and the Constitution of the State of Arkansas, do hereby expressly waive a trial by jury in the above styled matter, and agrees that this case may be heard by the Court sitting without a jury.
The jury waiver was signed by appellant, his trial attorney, and the prosecutor. The circuit judge also signed the waiver beneath a line stating that “Defendant’s waiver is approved by the Court this 14 day of Nov., 2008.” The jury waiver was filed-marked three days later.
Appellant is under a mistaken assumption that an express declaration in writing, alone, is insufficient to waive the right to a jury trial. Rule 31.2 does not require that a waiver in writing be made in open court. As explained in Medlock and Calnan, a verbatim record should be made only if the, defendant orally waives a jury trial in open court. See Calnan, 310 Ark. at 747, 841 S.W.2d at 595; Medlock, 328 Ark. at 232, 942 S.W.2d at 863. Thus, we hold that appellant’s unequivocal signed writing was adequate to waive his right to a jury trial pursuant to Rule 31.2(1).
III. Speedy Trial Issue
A. Standard of Review
Arkansas Rule of Criminal Procedure 28.1(b) (2010) requires that a defendant must be brought to trial within twelve months, depending on whether he is incarcerated, or the charges may be dismissed with an absolute bar to prosecution. Jones v. State, 347 Ark. 455, 65 S.W.3d 402 (2002). The twelve-month period for bringing an accused to trial begins to run on the date the information is filed, or the date of arrest, whichever occurs first. Id. It |flis the burden of the State and the circuit court to ensure that the defendant is brought to trial within the required period of time so as not to violate defendant’s right to speedy trial. The defendant, on the other hand, is not required to demand a trial to preserve his right to speedy trial. Gwin v. State, 340 Ark. 302, 9 S.W.3d 501 (2000). Once a prima facie case for a speedy trial is established by the accused, the State has the burden of showing that the delay exceeding the twelve-month period was the result of the defendant’s conduct. Scroggins v. State, 312 Ark. 106, 848 S.W.2d 400 (1993).
The circuit court is responsible for the trial calendar, as well as maintaining the records of the criminal proceedings it presides over. Ark. R.Crim. P. 27.2 (2010). Upon request of a party, the circuit court may grant a continuance, but the movant has the burden of showing good cause. David v. State, 295 Ark. 131, 748 S.W.2d 117 (1988). Notwithstanding good cause, the record must properly explicate the rationale for speedy trial to be tolled. Berry v. Henry, 364 Ark. 26, 216 S.W.3d 93 (2005). The circuit court’s decision to grant a continuance will be reversed if a clear abuse of discretion is established. See Barnes v. State, 346 Ark. 91, 55 S.W.3d 271 (2001).
B. Discussion
Appellant argues that the record maintained by the circuit court did not properly explain the basis upon which the five orders of continuance granted by the circuit court tolled the speedy-trial-time period. He submits that when continuances cause delays to exceed the twelvemonth-time period, the circuit court’s failure to properly explain the rationale for granting the continuances violates the defendant’s right to a speedy trial. Appellant asserts that 110he was unavailable for trial for a period of only nineteen days, which cannot be reasoned as the cause of the extraordinary delay.
A contemporaneous objection to the excluded period was necessary to preserve the speedy-trial argument. See, e.g., Gondolfi v. Clinger, 352 Ark. 156, 98 S.W.3d 812 (2003). Pursuant to Arkansas Rule of Criminal Procedure 28.1(f) (2010), an appellant cannot assert a speedy-trial claim unless he moves for dismissal prior to a plea of guilty or a trial. See Gwin, supra. Appellant acknowledges his failure to raise a contemporaneous objection or request for dismissal on speedy-trial grounds to the circuit court, but argues that, because the error is of such magnitude and a substantial violation of his right to a speedy trial, this court should consider the same on appeal. See Wicks v. State, 270 Ark. 781, 606 S.W.2d 366 (1980); see also Winkle, supra.
Specifically, he requests that this court expand the Wicks ruling to allow review for plain or fundamental error on the issue of speedy trial even in the absence of an objection at trial. This court has previously addressed this issue and refused to apply the Wicks doctrine to an alleged speedy-trial violation. See, e.g., Spivey v. State, 25 Ark.App. 269, 757 S.W.2d 186 (1988). Accordingly, we de cline appellant’s request and affirm on this point.
IV. Sanctions for Alleged Discovery Violations
A. Standard of Review
The standard of review for imposing sanctions for discovery violations is whether there has been an abuse of discretion. E.g., Hicks v. State, 340 Ark. 605, 12 S.W.3d 219 (2000). It is within the circuit court’s discretion which sanction, if any, to employ. Id. A mistrial is fyan extreme sanction for a discovery violation and is to be avoided unless the fundamental fairness of the trial itself is at stake. Id. The circuit court’s denial of a defendant’s motion for continuance will not be reversed in the absence of a showing of such a clear abuse of the court’s discretion as to amount to a denial of justice, and the burden rests upon appellant to show such an abuse. Id. Furthermore, a reversible discovery violation will occur only if a defendant is prejudiced by the prosecutor’s failure to disclose. E.g., Robinson v. State, 317 Ark. 512, 879 S.W.2d 419 (1994). In order to show prejudice, an appellant must demonstrate a reasonable probability that the result would have been different had the information been disclosed. E.g., Lee v. State, 340 Ark. 504, 11 S.W.3d 553 (2000). Under these standards, appellant has the burden to show that the omission was sufficient to undermine the confidence in the outcome of the trial. Id.
B. Discussion
It is undisputed that two motions for discovery were filed in advance of trial. The record reflects that discovery was received relating to both cases involving the minors, K.B. and A.B.; however, during the course of cross-examination, it was first determined that KB. had seen a doctor in the Conway Hospital following the alleged incidents and that A.B. was a patient at Lakeland Regional Hospital at the time of trial because of depression and suicidal thoughts related to the alleged molestation. Appellant contends that even though the alleged victims in this case made allegations of sexual misconduct and actual physical contact, the State failed to provide information concerning hospitalization, statements, and reports made in connection with the contact with the alleged victims.
112AppeIIant argues that the information discovered during the trial of this matter could have, if provided to him, resulted in potential cross-examination material or more important, exculpatory information which are both discoverable and basic to appellant’s right to a fair trial. Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972); Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963); Nelson v. State, 274 Ark. 113, 622 S.W.2d 188 (1981). He claims that to be deprived the opportunity to review those records during the course of the proceedings is so dangerous that prejudice is inherent as it relates to the defendant’s right to a fair trial.
Appellant urges that the circuit court, at a minimum, should have granted a continuance when to deny the same prevented the defense from availing itself of the opportunity to present relevant, exculpatory, noncumulative evidence that was discovered at trial. Thus, appellant maintains that the court clearly abused its discretion by not imposing sanctions or at least in not granting a continuance. Brown v. State, 100 Ark.App. 172, 265 S.W.3d 772 (2007).
Appellant argues that pursuant to Rule 17.1 (2010) of the Arkansas Rules of Criminal Procedure, the State was obligated to make such disclosure and failed to satisfy the letter and spirit relating to its obligations to disclose information. He main tains that the prosecutor was in a close relationship with the victims by representing their interests and obtaining information and also had a relationship with police officers who possessed information that is relevant to the case. Appellant urges that such relationships give rise to the conclusion that the knowledge of that information, particularly in a case of this nature, is imputed to the prosecution. He claims that to relieve the prosecutor of this obligation would create a bizarre |Taend that would encourage prosecutors not to ask about information such as medical treatment received by the victim prior to trial. See Lewis v. State, 286 Ark. 372, 691 S.W.2d 864 (1985).
Appellant has failed to preserve his argument for appellate review — this time because he failed to object and apprise the circuit court of the alleged discovery violations at the first opportunity. Objections to discovery violations must be made at the first opportunity in order to preserve them for appeal. Brooks v. State, 76 Ark.App. 164, 61 S.W.3d 916 (2001). Although the medical treatment was revealed during the cross-examination of KB. and A.B., appellant did not object to the testimony or allege a discovery violation at that time. He waited to move for discovery sanctions until after the State rested its case and after he moved to dismiss the charges based on sufficiency of the evidence. Because appellant did not object to the alleged discovery violation at his first opportunity, his argument is procedurally barred.
Alternatively, his claim lacks merit. Arkansas Rule of Criminal Procedure 17.1(d) states that the prosecuting attorney shall “promptly upon discovering the matter, disclose to defense counsel any material or information within his knowledge, possession, or control, which tends to negate the guilt of the defendant as to the offense charged or would tend to reduce the punishment therefor.” Additionally, Rule 17.3 (2010) requires the prosecutor to use diligent efforts to gather information possessed by other state agencies that would be discoverable if the prosecutor possessed the documents. And, under Rule 17.2 (2010), a prosecutor may meet discovery obligations by notifying the defendant that material and information that is described in general terms may be inspected, obtained, tested, copied, recorded or photographed during specified reasonable times.
|14We hold that the State fully met its discovery obligations under Rule 17. Before trial, appellant filed two motions for discovery, requesting, among other things, the results of scientific tests, experiment or comparison, any exculpatory or impeachment matter, and any evidence that might act as a mitigator in the sentencing phase of trial. The State provided discovery to appellant relating to both cases and informed appellant that it maintained an “open-file policy” and that “defense counsel is urged to review defendant’s file in the office of the Prosecuting Attorney at any time during normal business hours.”
Furthermore, if appellant thought that the victims’ medical records might have assisted his defense, he could have conducted his own investigation instead of solely relying on discovery. See, e.g., Stephens v. State, 342 Ark. 151, 28 S.W.3d 260 (2000) (holding that the State could not be held responsible for the defendant’s failure to investigate the evidence, nor was the defendant entitled to rely on discovery alone as a substitute for thorough investigation). On cross-examination, the prosecutor asked appellant if he knew whether K.B. or A.B. was in a psychiatric hospital, to which he replied, “I didn’t know for sure, sir. I’d heard rumors that she was.” This is further indication that he had some idea of the information in question and could have investigated that issue himself.
Appellant cites Giglio, Brady, and Nelson for the proposition that these medical records, if delivered to appellant, could have resulted in potential cross-examination material or, more important, exculpatory information, which are both discoverable and basic to appellant’s right to a fair trial. That argument presupposes that the State had access to and knowledge of the records and their contents, which appellant has failed to demonstrate. To the contrary, the | iSprosecutor informed the circuit court that the State did not possess or have access to the victims’ medical records. Because the medical facilities are not law-enforcement agencies, the prosecutor had no duty to obtain the records under Rule 17.3. In the absence of a showing by appellant that the State had access to the records, no discovery violation occurred.
Finally, even assuming that the State had access to the records and had some duty to provide appellant with the victims’ medical records, appellant has failed to show the prejudice necessary to reverse based on an alleged discovery violation. See Robinson, supra. The medical records were not in evidence at trial, and appellant failed to make a proffer of the allegedly withheld records. Thus, this court cannot ascertain whether any prejudice resulted from the State’s failure to furnish appellant with the records. See, e.g., Thompson v. State, 322 Ark. 586, 910 S.W.2d 694 (1995). Absent prejudice, appellant’s convictions must be affirmed.
Affirmed.
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JOHN B. ROBBINS, Judge.
_JjOn November 15, 2000, appellant Danny Joe Dooly pleaded guilty to two counts of possession of methamphetamine with intent to deliver, and conspiracy to manufacture methamphetamine. For each offense, he was sentenced to twelve years in prison followed by a fifteen-year suspended imposition of sentence. Mr. Dooly was paroled from prison, and on April 12, 2006, he pleaded guilty to possession of methamphetamine. For that offense, Mr. Dooly was sentenced to two years in prison followed by an eight-year suspended imposition of sentence. A condition of appellant’s suspended sentences provided that he shall not violate any federal, state, or municipal law.
The State filed a petition to revoke Mr. Dooly’s suspended sentences on May 12, 2009. In the petition, the State alleged that on April 21, 2009, Mr. Dooly committed the | goffenses of aggravated assault, second-degree battery, and possession of drug paraphernalia. After a hearing, the trial court found that Mr. Dooly violated the terms of his release and revoked his suspended sentences. Upon revocation, the trial court entered a judgment and amended judgment, wherein Mr. Dooly was sentenced to concurrent twenty-eight-year prison terms for the two counts of possession of methamphetamine with intent to deliver and one count of conspiracy to manufacture methamphetamine. This twenty-eight-year term was ordered to run consecutively with an eight-year term for possession of methamphetamine, for an aggregate prison term -of thirty-six years. In order to correct a clerical error, the trial court entered a second amended judgment that was identical to the amended judgment, with the exception that the prison term for conspiracy to manufacture methamphetamine was reduced from twenty-eight to eighteen years. This correction left intact the aggregate thirty-six-year prison term.
Mr. Dooly now appeals from his revocation and sentence, raising three arguments for reversal. First, he argues that the State failed to prove by a preponderance of the evidence that he violated the terms of his suspended sentences. Next, he contends that the trial court erred in failing to notify him of the evidence relied on and the reasons for revoking his suspended sentences. Finally, Mr. Dooly asserts that the trial court abused its discretion when it sentenced him to consecutive prison terms. We affirm.
In revocation proceedings, the burden is on the State to prove a violation of a condition by a preponderance of the evidence. Jones v. State, 355 Ark. 630, 144 S.W.3d 25413(2004). The State’s burden of proof in a revocation proceeding is less than that required to convict in a criminal trial, and thus evidence that is insufficient for a conviction may be sufficient for a revocation. Bradley v. State, 347 Ark. 518, 65 S.W.3d 874 (2002). In order to revoke a suspended sentence, the State need only prove one violation. Stultz v. State, 92 Ark. App. 204, 212 S.W.3d 42 (2005). When the sufficiency of the evidence is challenged on appeal, we will not reverse a trial court’s decision to revoke unless its findings are clearly against the preponderance of the evidence. Leflore v. State, 79 Ark. App. 332, 87 S.W.3d 839 (2002). Because the determination of a preponderance of the evidence turns on questions of credibility and weight to be given testimony, we defer to the superior position of the trial court to decide these matters. Bradley, supra.
Stephen Tibbitts is the alleged assault and battery victim, and he testified for the State at the revocation hearing. Mr. Tib-bitts was working at Sharp’s Body Shop on April 21, 2009, when Mr. Dooly entered the premises and appeared to be intoxicated. Mr. Tibbitts testified that Mr. Dooly had a confrontation inside the office and that James Williams came running into the shop with Mr. Dooly following him, and Mr. Williams said that Mr. Dooly had just tried to rob him. The owner as well as Mr. Tibbitts advised Mr. Dooly to leave the property, but Mr. Dooly refused and threatened to “whoop” Mr. Tibbitts.
According to Mr. Tibbitts, an altercation ensued where “Danny swung on me a couple of times with his bare fists and I swung on him a couple of times.” Mr. Tibbitts | testified that Mr. Dooly hit him in the head, although he denied sustaining any injury and did not see Mr. Dooly wielding a weapon.
James Williams testified that he was working that day and was on the telephone with a client when Mr. Dooly approached him and demanded his watch. Mr. Williams tried to ignore him, but when Mr. Dooly reached into his back pocket Mr. Williams feared that Mr. Dooly was reaching for a weapon. That is when Mr. Williams went into the shop seeking help. Mr. Williams testified that Mr. Dooly “got into it” with Mr. Tibbitts and struck him in the head with his fist. According to Mr. Williams, Mr. Dooly then brought some kind of chain out of his pocket and hit Mr. Tibbitts in the head with the chain. The owner got between Mr. Dooly and Mr. Tibbitts and was able to separate them, and the police were called. Mr. Tibbitts had blood on him, and photographs admitted into evidence showed a cut on his forehead.
Dale Scarmardo was also working in the shop that day, and he testified that Mr. Dooly was wielding a chain-saw blade. Mr. Scarmardo was sure that he saw Mr. Dooly strike Mr. Tibbitts with the blade.
Officer Brian Rice of the Fort Smith Police Department responded to the call from Sharp’s Body Shop. The dispatcher described a disturbance involving weapons. Upon arrival, Officer Rice found Mr. Dooly in a chair in the office and took him into custody. He noted that Mr. Dooly seemed incoherent and under the influence of some type of drug. Officer Rice found a chainsaw blade with a handle next to Mr. Dooly on the floor.
| r,Officer Derek Harwood arrived at the shop after Mr. Dooly was in custody. Officer Harwood searched Mr. Dooly and found several baggies, one of which contained residue. Based on his training and experience, Officer Harwood testified that baggies are used for drugs. He acknowledged, however, that while the baggie containing residue was sent to the crime lab, he did not have a lab report.
For his first argument on appeal, Mr. Dooly argues that the State failed to prove any violation of his suspended sentences. He contends that the proof was insufficient to establish the allegations that he committed aggravated assault, second-degree battery, or possession of drug paraphernalia.
Pursuant to Ark.Code Ann. § 5-13-204(a)(1) (Supp.2009), a person commits aggravated assault if, under circumstances manifesting extreme indifference to the value of human life, he purposely engages in conduct that creates a substantial danger of death or serious physical injury to another person. Mr. Dooly contends that the State failed to establish the above elements. He notes that in his testimony the alleged victim, Mr. Tibbitts, stated that he and Mr. Dooly “slapped back and forth at each other.” Moreover, Mr. Tibbitts did not see a weapon and denied sustaining any injury. Mr. Dooly further asserts that Mr. Tibbitts was equally at fault in causing the confrontation, and he notes inconsistencies among the testimony of the State’s witnesses.
Arkansas Code. Annotated section 5-13-202 (Supp.2009) provides, in pertinent part:
(a) A. person commits battery in the second degree if:
|fi(l) With the purpose of causing physical injury to another person, the person causes serious physical injury to any person; [or]
(2) With the purpose of causing physical injury to another person, the person causes physical injury to any person by means of a deadly weapon other than a firearm; [or]
(3) The person recklessly causes serious physical injury to another person by means of a deadly weapon[.]
Mr. Dooly maintains that the State failed to prove that he committed second-degree battery because Mr. Tibbitts did not suffer a serious physical injury, did not see a chain-saw blade, and merely engaged in a slapping match with appellant.
Mr. Dooly also argues that the State failed to prove that he possessed drug paraphernalia. While Ark.Code Ann. § 5-64-101(14)(A) (Supp.2009) includes in the definition of drug paraphernalia items used to package or contain controlled substances, Mr. Dooly asserts that no controlled substances were found during the search of his person. The State only admitted baggies, one of which contained an unidentified residue, which Mr. Dooly contends was insufficient to establish the offense.
The State need only prove one violation to revoke a suspended sentence, and the trial court’s decision to revoke Mr. Dooly’s suspended sentence was not clearly against the preponderance of the evidence because the State presented ample proof of second-degree battery. In particular, there was evidence from which the trial court could conclude that with the purpose of causing physical injury to Mr. Tibbitts, Mr. Dooly caused physical injury by means of a deadly weapon other than a firearm.
|7It is true that Mr. Tibbitts testified that he did not see a weapon and denied being injured in the altercation. However, both Mr. Williams and Mr. Scarmardo saw Mr. Dooly strike Mr. Tibbitts in the head with a chain, and it was for the trial court to weigh the conflicting testimony. A chain-saw blade with a handle was found on the floor near Mr. Dooly when the police arrived, and both Mr. Williams and Mr. Scarmardo testified that this looked like the weapon used in the assault. A chain-saw blade being swung by a handle is a deadly weapon and, as a result of being struck, Mr. Tibbitts suffered a physical injury in the form of a laceration that left blood on him. As for appellant’s assertion that Mr. Tibbitts was equally responsible for causing the fight, this was belied by the testimony that Mr. Dooly appeared intoxicated or on drugs and chased Mr. Williams from the office into the shop after attempting to steal his watch; that both the owner and Mr. Tib-bitts asked Mr. Dooly to leave the premises so .there would be no problems;- and that Mr. Dooly responded to those requests by threatening to “whoop” Mr. Tib-bitts and then taking a swing at him.
Mr. Dooly’s next argument is that the trial court erred in failing to notify him of the evidence relied on and the reasons for revoking his suspended sentences. Arkansas Code Annotated section 5-4-310(b)(5) (Repl.2006) provides, “If suspension or probation is revoked, the court shall prepare and furnish to the defendant a written statement of the evidence relied on and the reasons for revoking suspension or probation.” In the present case, the trial court revoked Mr. Dooly’s suspended sentences without preparing such written statement, and Mr. Dooly contends that this deficiency requires reversal.
|sWe hold that Mr. Dooly’s second argument is not preserved for review. In Sisk v. State, 81 Ark. App. 276, 101 S.W.3d 248 (2003), we held that where a defendant in a revocation proceeding does not object to the trial court’s failure to provide a written statement of the evidence relied on and the reasons for revoking pursuant to Ark.Code Ann. § 5-4-310(b)(5), he waives his right to a written statement. Because Mr. Dooly did not object to the trial court’s failure to furnish a written statement below, that argument has been waived.
Mr. Dooly’s remaining argument is that that trial court abused its discretion in sentencing him to consecutive prison terms of twenty-eight and eight years. Citing Smith v. State, 354 Ark. 226, 118 S.W.3d 542 (2003), he recognizes that the decision to impose a consecutive or concurrent sentence lies solely within the province of the trial court, and that the appellant assumes a heavy burden of showing that the trial court failed to give due consideration in the exercise of that discretion. However, in this case the trial court pronounced the sentence from the bench giving no explanation for ordering consecutive sentences or such a lengthy prison term, and Mr. Dooly submits that this exhibited a lack of due consideration in the exercise of the trial court’s discretion.
Mr. Dooly cannot now challenge the trial court’s decision to run two of his four sentences consecutively because he raised no objection to the consecutive sentences to the trial court. A contemporaneous objection is required in order to preserve the issue of consecutive or concurrent sentences for appeal. Buckley v. State, 349 Ark. 53, 76 S.W.3d 825 (2002). Nor did he claim below that his aggregate sentence was too harsh, which also must be raised to preserve the point for appeal. See Simmons v. State, 95 Ark. App. 114, 234 S.W.3d 321 (2006). Nonetheless, on the merits Mr. Dooly’s sentencing challenges would fail. The trial court is not required to explain its reasons for running sentences consecutively. Pyle v. State, 340 Ark. 53, 8 S.W.3d 491 (2000). Moreover, the thirty-six-year sentence was within the statutory range of punishment, and the appellate court is not free to reduce a sentence as long as the sentence is within the range of punishment contemplated by the legislature. See Simmons, supra.
Affirmed.
KINARD and BROWN, JJ., agree. | [
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WAYMQND M. BROWN, Judge.
| Appellant Dawn Suggs was found guilty by a Crittenden County jury of theft by receiving and forgery in the second degree. Suggs was sentenced to consecutive three-year sentences and fined $200. Suggs argues on appeal that the evidence was insufficient to support his convictions, and that the trial court erred by refusing a proffered jury instruction. We affirm.
Evidence at trial showed that Suggs was arrested on June 9, 2009, at Regions Bank in West Memphis. Suggs was a passenger in a vehicle driven by Jarvis Cole. Cole’s vehicle pulled up to the drive-thru window located in the middle lane, and a check along with Richard J. Cox’s identification was presented to the teller. The teller became suspicious because she personally knew Cox and knew that none of the individuals in the vehicle were |aCox. A telephone call was made to Cox’s father while the car was still at the bank and the father placed a call to Cox. The bank was informed that no one had Cox’s permission to cash a check drawn on his account, and the police were called. After sitting at the window for quite some time, Suggs told Cole to drive off. As they attempted to leave the bank, the car was blocked by police. Cole was removed from the car and placed under arrest. Officers then made contact with Suggs. Before reaching Suggs, Officer D.J. O’Clare saw Suggs place something between the passenger seat and door. When Suggs was removed from the car a Discover card in Cox’s name was discovered. Suggs was also placed under arrest. There was a third passenger in the car, Jacob Bass, who was questioned and allowed to leave.
Cox testified that in June 2009, he did not know Suggs, Cole, or Bass, and that he did not authorize any of them to use his debit or credit card. Cox stated that he accidently left his wallet in his father’s Ford Ranger on June 8 and called his father so that he could place the wallet in his work truck. Cox said that his driver’s license, Discover card, bank card, and checkbook were in his wallet. According to Cox, he received a phone call from his father on the morning of June 9, and he informed his father that he did not give anyone access to his wallet. Cox also told his father to “go ahead and let the bank know to call the police.” Cox testified that he went to the bank and noticed a white Crown Victoria pulling out just as the police were pulling up. He said that Officer O’Clare questioned the occupants of the vehicle. Cox was later shown a check, which he identified as belonging to him. The check | ¡¡was made out for $400. Cox identified his Discover card; however, he never recovered his debit card or his checkbook.
Cox’s father, Richard L. Cox, testified that when he received the call from Cox concerning Cox’s wallet, he went and placed the wallet in his work truck. He stated that he did not lock the vehicle. He received a call from the bank the following morning and called Cox with his cell phone while still on the phone with the bank. He stated that he asked Cox if he got his wallet out of the truck and when he learned that Cox had not gotten the wallet, he told the “lady at the bank to call the police.” He testified that he went to the bank and filled out a report.
Jocelyn Johnson testified that she worked at Regions Bank as a teller. She stated that she was the teller working the drive-thru window on June 9, 2009. According to Johnson, when she received the check, she looked out to speak to Cox and noticed that he was not in the vehicle. She stated that she asked another teller to get Genita Baker so that she could look. Johnson called Cox’s father and another worker called the police. Johnson stated that she stalled the car in the middle lane and the car in the first lane. She said that when Cole tried to pull off, the police stopped him. On cross, Johnson stated that it was the driver who placed the check and driver’s license in the tube.
Glenita Baker testified that she worked at Regions Bank as a financial services specialist. According to Baker, Johnson summoned her to the drive-thru window to look at |4a check and driver’s license belonging to Cox. She stated that she looked at the items and looked inside the vehicle and noticed that Cox was not in the vehicle. Baker stated that she called the police. She said that the police blocked the car as it attempted to leave the bank. Baker testified that she gave a written statement to the police.
Cole testified that he did not know Suggs but had seen him just the night before the arrest. According to Cole, he was on his way to summer school when Suggs asked him for a ride “to the bank to cash a check.” Cole stated that Bass also wanted to catch a ride that way. Cole said that Suggs told him to go to the Regions Bank by East Broadway. Cole testified that he took Suggs to that particular bank because Suggs promised him gas money. According to Cole, Suggs also told him to drive to the middle lane. Cole stated that Suggs handed him a “check with a card under the check.” Cole said that he did not look at the check or the card before he placed it in the “little machine.” Cole stated:
We were just sitting there. Dawn said the lady must be new or something because usually she doesn’t take this long. I did not think anything about it. He told me to go ahead and leave. Then as we were fixing to leave, the police pulled up in front of us.
I didn’t know what was going on then. Dawn told me to leave. I do not know Richard Cox. I never looked to see how much the check was for. No, I did not look under the check to see what the item was. I just put it in the tube. The police pulled up in front where you exit, they pulled up in front of me and blocked me in. They told me to get out of the car. I did not know what was going on. I didn’t know what was going on until they had told me about it. I didn’t know [sic] nothing to do with it, I was just giving him a ride to the bank.
|sOn cross, Cole testified that he knew Bass from school. He stated that June 9 was the first time he had ever given Bass or Suggs a ride. Cole said that he and Suggs were charged, but that Bass was not.
Bass testified that he was a passenger in Cole’s vehicle on June 9, “when the police showed up at the bank.” He stated that he knew both Cole and Suggs before that date; however, he knew Suggs as “Red.” Bass stated that he caught a ride with Cole because he wanted to go to Sonic to fill out an application. Bass testified that Suggs gave Cole directions to where he wanted Cole to take him. Bass said that when they pulled up at the drive-thru window at the bank, Suggs passed some material to Cole and Cole placed it in the tube. Bass stated that he could not see what Suggs gave Cole. According to Bass, Suggs told Cole to drive off and Cole did. Bass stated that the police pulled in front of them as they were leaving. Both Cole and Suggs were arrested. Bass was questioned and allowed to leave. On cross, Bass stated that he had not had any contact with Cole or Suggs since their arrest on June 9, 2009.
Officer O’Clare testified that he responded to a call at Regions Bank on the morning of June 9, 2009. According to Officer O’Clare, someone was trying to pass a forged check at Regions. He stated that as he pulled up to the bank the vehicle was attempting to leave. Officer O’Clare said that as he approached the vehicle, he noticed Suggs “sticking an | ¿unknown object between the passenger door and his seat.” As he removed Suggs from the vehicle, Officer O’Clare observed a Discover card belonging to Cox. When asked his name, Suggs initially told Officer O’Clare that his name was Tyrone Suggs.
Detective James Turnbow testified that he interviewed Suggs. Detective Turnbow stated that a video was made of the interview. On cross, Det. Turnbow stated that Suggs told him that he did not have anything to do with the check and credit card. Suggs also told him that he did not believe that Bass had anything to do with it either. On redirect, Det. Turnbow said,
I believe Dawn told me that when he noticed the credit card, he just kinda slapped at it or hit at it and it landed on the floorboard by his feet. Right, correct, it was not in his pocket, he just slapped it and it just happened to land over by where he was sitting.
At the conclusion of the evidence, Suggs proffered alternative sentences for both of his charges. Suggs’s attorney argued that due to Suggs’s age, the fact that no violence was involved in any of Suggs’s prior convictions or in the current case, and the fact that Suggs “has been on probation or parole you know since he paroled out and hasn’t been — they haven’t revoked his parole, so he can function under that strict supervision of them.” The court denied the request:
I’m going to let you proffer the, for the record the alternate sanctions, but I’m not going to give it to the jury. I’m going to exercise the court discretion based on Mr. Suggs [sic] prior record, prior terms of incarceration in the Arkansas Department of Corrections [sic] and also even if it is given to the jury, it’s not binding on the court and the court doesn’t have to except [sic] it. For those reasons, I’m going to let you proper [sic] it for the record, give you something to appeal on, if your client is in fact 17convicted, if he’s not, it will be mute [sic] and based on the courts [sic] exercise of discretion I’m not going to read that instruction to the jury.
The ease was submitted to the jury, and Suggs was found guilty of the charges. He was sentenced to an aggregate of six years’ imprisonment and fined $200. This appeal followed.
We first address Suggs’s argument that the trial court erred in denying his motions for directed verdict on the charges of theft by receiving and forgery in the second degree. Although Suggs challenged the denial of his motions in his second point on appeal, double jeopardy concerns require that we review arguments regarding the sufficiency of the evidence first. A challenge to the sufficiency of the evidence asserts that the verdict was not supported by substantial evidence. In reviewing a challenge to the sufficiency of the evidence, this court" determines whether the verdict is supported by substantial evidence, direct or circumstantial. Substantial evidence is evidence forceful enough to compel a conclusion one way or the other beyond suspicion or conjecture. This court views the evidence in the light most favorable to the verdict, and only evidence supporting the verdict will be considered.
A person commits the offense of theft by receiving if he or she receives, retains, or disposes of stolen property of another person knowing that the property was stolen or having |sgood reason to believe the property was stolen. The unexplained possession or control by a person of recently stolen property gives rise to a presumption that the person knows or believes the property is stolen. The offense is a Class C felony if the property is a credit card or credit card account number. A person commits the offense of forgery in the second degree if he or she forges a check. The offense is a Class C felony.
Viewing the evidence in the light most favorable to the State, sufficient evidence supports Suggs’s convictions. Officer O’Clare testified that as he was approaching the vehicle, he saw Suggs place something between the passenger seat and the door. Once Suggs was removed from the vehicle, Officer O’Clare discovered a Discover card belonging to Cox in the exact location. The Discover card was among the items in Cox’s wallet that had been stolen between June 8 and June 9. Sufficient evidence supports Suggs’s conviction of theft by receiving. Sufficient evidence also supports his forgery conviction. Cole testified that Suggs handed him a check along with a card, which he placed in the tube. Bass corroborated Cole’s testimony that Suggs handed Cole the items that Cole placed in the tube. Those items were a forged check and Cox’s driver’s license. Suggs contends that the “only person who says [he] ever possessed the check is the driver. This is the co-defendant who is trying to Ravoid prosecution. Testimony of only the co-defendant is not sufficient to establish possession by [Suggs].” Suggs is mistaken; Cole’s testimony was not the only testimony placing the forged check in his possession. Accordingly, we affirm Suggs’s convictions.
Suggs also argues that the trial court erred by refusing to instruct the jury on alternative sentences. Arkansas Code Annotated section 16-97-101(4) authorizes a trial court to instruct the jury on alternative sentences for which the defendant may qualify. Under the statute, the jury may recommend an alternative sentence, but the recommendation is not binding on the trial court. The actual assessment of probation is a matter that lies exclusively within the discretion of the trial court. Suggs cites to Miller v. State for his position that the trial court erred by not giving the jury the alternative sentencing instruction. This argument is without merit. Miller only requires that the court exercise its discretion in deciding whether to give the instruction based on the facts of each case. Additionally, Ark.Code Ann. § 16-97-101(4) is permissive and does not require a trial court to give an instruction on alternative sentencing. Here, the trial court gave its reason for not offering the instruction to the jury pointing specifically to the facts of Suggs’s case. There was no abuse of discretion; therefore, we affirm.
Affirmed.
VAUGHT, C.J., and GRUBER, J., agree.
. Cox and his father worked at the same place.
. Johnson said she personally knew Cox because Region’s motto is to "know your customers."
. Cole stated that he did not know Suggs’s name until their arrest.
. At the time of Suggs’s trial, Cole still had charges pending.
. Bass was texting at the time.
.The video was played in open court.
. Boldin v. State, 373 Ark. 295, 283 S.W.3d 565 (2008).
. Sales v. State, 374 Ark. 222, 289 S.W.3d 423 (2008).
. Reese v. State, 371 Ark. 1, 262 S.W.3d 604 (2007).
. Id.
. Id.
. Ark.Code Ann. § 5-36-106(a) (Repl.2006).
. Ark.Code Ann. § 5-36-106(c) (Repl.2006).
. Ark.Code Ann. § 5-36-106(e)(2)(B)(i) (Repl.2006).
. Ark.Code Ann. § 5-37-201(c)(l) (Supp. 2009).
. Ark.Code Ann. § 5-37-201(e) (Supp.2009).
. (Repl.2006).
. Stigger v. State, 2009 Ark. App. 596, 2009 WL 2958386.
. 97 Ark. App. 285, 248 S.W.3d 487 (2007).
. Stigger, supra. | [
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RONALD L. SHEFFIELD, Justice.
| Appellant Alcoa World Alumina, LLC, appeals from an order entered by the Pulaski County Circuit Court on April 3, 2009, denying Appellant’s request for a refund of use taxes it paid for purchases of natural gas. The appellee is Richard A. Weiss, in his official capacity as the Director of the Arkansas Department of Finance and Administration (DFA). Appellant maintains that the natural gas it purchased from sellers outside Arkansas is not subject to taxation since it did not “finally come to rest” before consumption in Appellant’s manufacturing facility, pursuant to Ark.Code Ann. § 26-53-106(b) and our holding in Mississippi River Transmission Corp. v. Weiss, 347 Ark. 543, 65 S.W.3d 867 (2002). Appellant also argues that the circuit court erred in failing to find that the gas was in constant motion up until the point of its combustion in Appellant’s facility.
| ^Appellant purchased natural gas from sellers outside of Arkansas between October 1, 2000, and February 28, 2004, for use at Appellant’s plant in Bauxite, Arkansas. The gas was bought pursuant to Transportation Service Agreements, and traveled through interstate pipelines directly to the internal gas lines of Appellant’s plant, and from there to various sites and equipment, located within Appellant’s plant, for consumption. The gas was consumed almost immediately upon receipt; Appellant never stored the gas. Movement of the gas was caused by its pressurization in compression stations along the interstate pipeline. The gas was metered as it left the interstate pipeline and entered Appellant’s gas lines, at which point the Agreements deemed the gas delivered to Appellant.
The DFA imposed a use tax on this natural gas pursuant to Ark.Code. Ann. § 26-53-106 (Repl.1997). Section 26-53-106 states in relevant part:
(a) There is levied and there shall be collected from every person in this state a tax or excise for the privilege of storing, using, distributing, or consuming within this state any article of tangible personal property purchased for storage, use, distribution, or consumption in this state at the rate of three percent (3%) of the sales price of the property.
(b) This tax will not apply with respect to the storage, use, distribution, or consumption of any article of tangible personal property purchased, produced, or manufactured outside this state until the transportation of the article has finally come to rest within this state or until the article of tangible personal property has become commingled with the general mass of property of this state.
|sThe question we are presented with in this case is whether the natural gas came to rest in this state within the context of Ark.Code. Ann. § 26-53-106(b), or whether it was still within the stream of interstate commerce when it was taxed. As such, this case presents an issue of statutory interpretation. We review issues of statutory interpretation de novo, and we are not bound by the trial court’s decision. When considering the meaning and effect of a statute, we construe it just as it reads, giving the words their ordinary and usually accepted meaning in common language. However, when the meaning of a statute is not clear, we look to the language of the statute, the subject matter, the object to be accomplished, the purpose to be served, the remedy provided, the legislative history, and other appropriate means that shed light on the subject. In addition, when we are reviewing matters involving the levying of taxes, any and all doubts and ambiguities must be resolved in favor of the taxpayer. Miss. River Transmission Corp. v. Weiss, 347 Ark. 543, 65 S.W.3d 867 (2002). Further, this court will not engage in statutory interpretation that defies common sense or produces absurd results. Dachs v. Hendrix, 2009 Ark. 542, 354 S.W.3d 95. Finally, we will only overturn the findings of fact of the circuit court if they are clearly erroneous or clearly against the preponderance of the evidence. A finding is clearly erroneous when, although there is evidence to support it, the reviewing court on the entire evidence is left with a firm conviction that an error has been committed. City of Little Rock v. Rhee, 375 Ark. 491, 292 S.W.3d 292 (2009).
14 Appellant argues that its circumstances do not satisfy the “finally come to rest” requirement of Ark.Code. Ann. § 26-53-106 because the natural gas taxed was in continuous motion up until it was combusted in Appellant’s facility. Appellant bases this argument on our reasoning in Mississippi River Transmission Corp. v. Weiss, 347 Ark. 543, 65 S.W.3d 867 (2002). In that case, the Mississippi River Transmission Corporation (MRT) owned gas pipelines passing through Arkansas, along which were compressor stations needed to force the gas to move through the pipeline. In order to fuel the compressor stations, some of the natural gas was diverted from the pipeline and immediately ignited in the compressor’s combustion chamber. The DFA sought to impose a use tax on this compressor gas in accordance with Ark. Code Ann. § 26-53-106. In addressing the issue of whether the compressor gas had come to rest in Arkansas, we noted that, while there were no Arkansas cases directly on point, the Tennessee Supreme Court had addressed the very same issue, and, applying their “come to rest” provision literally, held that the compressor gas had never stopped moving, and was instead a necessary and integral part of interstate commerce. Id. at 551, 65 S.W.3d at 873 (citing Tex. Gas Transmission Corp. v. Benson, 223 Tenn. 279, 444 S.W.2d 137 (1969)). The Michigan Court of Appeals had come to the same conclusion. Id. (citing Mich. Wis. Pipe Line Co. v. State, 58 Mich.App. 318, 227 N.W.2d 334 (1975)). Accordingly, we found that the Arkansas legislature “did not intend for consumption of a product to be the equivalent of its coming to rest. Rather, the statute contemplates that property must first come to rest before it is consumed in order for it to be taxable. Otherwise, | fithe come-to-rest requirement would be meaningless.” Id. at 552, 65 S.W.3d at 874. We concluded that since the compressor gas remained in constant motion until combustion, it had not come to rest and could not be taxed.
While our language in Mississippi River seemingly provides an answer to the issue presented to us in this case, an examination of other cases that have addressed the “come to rest” test is appropriate. The “come to rest” test has its roots in the United States Supreme Court case Helson v. Kentucky, 279 U.S. 245, 49 S.Ct. 279, 73 L.Ed. 683 (1929), as we noted in Mississip pi River. In that case, the Supreme Court struck down a tax on gasoline used to power a ferry that ran between Kentucky and Illinois. It found that this gasoline was a “medium by which such [interstate] transportation is effected,” and therefore could not be taxed. Id. at 252, 49 S.Ct. 279. However, the Court also differentiated property used in interstate commerce, like the gasoline, from property having a situs within a state, which could be taxed. Several years later, the Court revisited the issue in Henneford v. Silas Mason Co., 300 U.S. 577, 57 S.Ct. 524, 81 L.Ed. 814 (1937). Washington State sought to tax the use of construction machinery, which had been bought in a state that did not impose sales or use taxes, and had subsequently been transported into Washington. In upholding this tax, the Supreme Court noted, “a tax upon the privilege of use or storage when the chattel used or stored has ceased to be in transit is now an impost so common that its validity has been withdrawn from the arena of debate.” Id. at 583, 57 S.Ct. 524.
The “come to rest” test was adopted by the Arkansas legislature in 1949 with the passage of the Arkansas Compensation Tax Act, now codified as Ark.Code Ann. § 26 — 53-tL06(b),R requiring that any tangible piece of personal property not subject to sales tax be subject to a use tax, as long as the property had come to rest within Arkansas. As we discussed in Mississippi River, the United States Supreme Court jurisprudence on the “come to rest” test was implicitly integrated into this Act, and continues to be dispositive. In addition, since adoption of the Act, this court has applied the “come to rest” test in a few cases. In Pfeiffer v. State, 226 Ark. 825, 295 S.W.2d 365 (1956), the appellant bought several cases of cigarettes in St. Louis and transported them into Arkansas. Not long after he crossed the border into Arkansas, while he was still driving on the highway, he was arrested for violating a statute that prohibited the possession of cigarettes for sale or consumption where a tax had not been paid on the cigarettes. We noted that “[i]t appears that all of the cases upholding the levy of a tax by a State, where an interstate commerce question is involved, base the constitutionality of the tax on the fact that the transported property had come to rest at a destination.” Id. at 828, 295 S.W.2d at 368. We then found that since the appellant was arrested while still transporting the cigarettes in interstate commerce, the cigarettes had not come to rest in Arkansas and could not be taxed.
In American Television Co., Inc. v. Hervey, 253 Ark. 1010, 490 S.W.2d 796 (1973), the appellant television station contracted with parties outside Arkansas to broadcast films and other programs. The parties would send the tapes to the appellant, who would return them after broadcasting. Arkansas levied a tax on the use of these video tapes under Ark. Stat. Ann. § 84-3105 (Repl.1960) (now codified as Ark. Code Ann. § 26-53-106). In upholding the |7tax, we found that “the tapes, films, etc. have finally come to rest as far as the purpose in sending them here is concerned; that is, they have ‘come to rest’ for the use intended.” Id. at 1020, 490 S.W.2d at 802. Similarly, in Martin v. Riverside Furniture Corp., 292 Ark. 399, 730 S.W.2d 483 (1987), an Arkansas-based furniture manufacturer purchased advertising materials from an out-of-state company; the materials were delivered to the manufacturer’s office in Arkansas for distribution to its sales representatives outside of Arkansas. As in American Television, supra, Arkansas levied a use tax on these materials. We found that the materials had come to rest in Arkansas, since the manufacturer had retained them in Arkansas in order to prepare them for dispersal.
As is clear from the reasoning in the above cases, for purposes of the “come to rest” test, what is important is not that the property to be taxed actually stopped moving, but that its transportation in interstate commerce had ceased. Under Ark.Code Ann. § 26-53-106(b), property comes to rest in Arkansas when it reaches a point where it can satisfy the purpose— whether for use, storage, distribution or consumption — for which it was put in interstate commerce and sent to Arkansas. With this finding, we wish to clarify our holding in Mississippi River. In holding that the compressor gas could not be taxed because it had remained in continuous motion until combustion, we did not mean that because the gas particles had not literally ceased to move, they had not come to rest. Rather, the compressor gas had not ceased its transportation within the stream of commerce before combustion, and the act of combustion did not remove it from the stream. Indeed, the only purpose that the | ^compressor gas ever served was as an instrument of interstate commerce. Thus, the gas never came to rest in Arkansas.
In the case before us now, the gas at issue was not combusted in order to facilitate interstate commerce. Yet, Appellant wishes us to find that it was not taxable because the gas was in constant motion up until the point of combustion. Such a finding would be absurd and contrary to our rules of statutory interpretation. Gas by its very nature never ceases moving. John C. Kotz & Paul M. Treichel, Jr., Chemistry & Chemical Reactivity (5th ed.2003). If the benchmark were only whether the property to be taxed was in constant motion, as Appellant maintains, then, by the language of Ark.Code Ann. § 26 — 53—106(b), Arkansas would never be able to tax natural gas. The Arkansas legislature would never have contemplated such a result. Instead, though the gas at issue continued to move through Appellant’s gas lines, once it had left the interstate pipeline, it had effectively been delivered to Appellant and had left the stream of interstate commerce. As soon as the gas was metered, it came under the control of Appellant and could be used by Appellant for the purpose for which the gas was in interstate commerce at all, namely, to fuel various pieces of equipment |9within Appellant’s facility. Thus, once the gas passed into Appellant’s lines, it had “finally come to rest,” and could be taxed.
Affirmed.
. The 2003 amendment to this statute does not affect our analysis.
. The circuit court declined to find that the gas was in constant motion, and we do not hold now that the circuit court erred in any way on this point. The circuit court found that the gas moved through the interstate pipeline, entered Appellant’s internal gas lines, and then continued to move through the gas lines to locations within Appellant's plant where the gas could be combusted. This language is sufficient to describe the circumstances of this case. It is clear to us that Appellant only sought a finding that the gas was in constant motion in order to complement its argument that Mississippi River is directly on point. | [
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ROBERT L. BROWN, Justice.
|,Appellant Brandon Eugene Lacy was convicted of capital murder and aggravated robbery during a jury trial that began on April 28, 2009 and concluded on May 13, 2009. Lacy appeals the judgment against him for capital murder and aggravated robbery and the sentences of death and life, respectively. He raises multiple points on appeal. We affirm.
On August 30, 2007, Melissa Lacy (Brandon Lacy’s estranged wife) and her boyfriend, David Weaver, went to visit Randy Walker at his home on Beaver Hollow Road in Garfield, Arkansas, and discovered that there had been a house fire. They entered Walker’s residence and found what was later determined to be Walker’s burned body in the bedroom. They called 911 and reported the fire and their finding of Walker’s body. The Northeast Benton County Fire Department and the Benton County Sheriffs Department, including Investigator Greg Hines, Investigator Richard Feast, and Fire Marshall William Hanna, arrived at Walker’s residence to investigate. Investigator Hines interviewed and took the statements of Melissa |2Lacy and David Weaver and then began a tour of the residence with Investigator Feast. Upon investigating the scene, Investigator Hines classified Walker’s death as an unexplained fire death and Walker’s body was sent to the State Medical Examiner for an autopsy. After investigating the scene on the night of August 30, 2007, Investigators Hines and Feast harbored some suspicion as to the cause of Walker’s death, but the scene that night was determined to be a suspicious fire death and was not considered a crime scene.
Fire Marshall Hanna was also at the scene on August 30, 2007 to investigate the cause and origin of the fire. He determined that the fire originated in the bedroom and that the fire eventually self-extinguished due to lack of oxygen. Fire Marshall Hanna was able to rule out accidental causes of the fire because there was no indication that the fire was caused by a faulty space heater or electrical wiring and because he discovered what appeared to be a melted, red plastic gas can next to the bed. He also viewed Walker’s body and noticed some unusual marks or avulsions on the back of his neck.
After viewing Walker’s body at the scene, Fire Marshall Hanna was suspicious that the death could have been a homicide but did not definitively reach this conclusion because of the condition of the body and the extent of the burns. Samples of burned fabric, burned debris, burned cardboard, and Walker’s burned clothing were submitted to the State Crime Lab for testing. The melted plastic container found on the carpet in Walker’s bedroom was also submitted to the lab for testing. The results of these tests, contained in a report issued November 20, 2007, revealed a residue of gasoline on each of these items and identified the |splastic container as a red fuel container with a partially burned paper in the spout. Once Fire Marshall Hanna received these results, he concluded that the fire was caused by an ignitable liquid, gasoline, that had been poured around the area of the bed in the master bedroom.
Walker’s family members, many of whom lived in Kansas, were notified of his death on August 30, 2007, by Megan Wright, Melissa Lacy’s sister. Randall Walker, Randy Walker’s son, Randall’s two grandmothers, and his fiancee left Kansas for Arkansas early in the morning on Friday, August 31, 2007. On that same day, Randall spoke with Detective Feast of the Benton County Sheriffs Office, who told Randall that they had gotten all of the evidence from Walker’s residence and that Walker’s family could try to salvage what was left. Randall and his fiancee returned to Walker’s residence on Saturday, September 1, 2007 with a U-haul truck and began removing some items from the residence. Several items that did not fit in the U-haul truck were moved into the garage. When Randall returned to his father’s residence a few days later, there were detectives inside Walker’s home who told Randall that they received new evidence and had new leads in the investigation of his father’s death. Randall was not permitted to remove additional items from his father’s home.
On September 2, 2007, Brandon Lacy called the Rogers Police Department and told police officers to pick him up at the Hi-D-Ho Restaurant in Rogers, Arkansas, because he had murdered someone. When the police arrived, they discovered that Lacy was intoxicated, and they arrested him for public intoxication. The Rogers Police Department contacted the Benton County Sheriffs Office to report that they had someone in custody claiming to have |4murdered Randy Walker. Once Lacy arrived at the Benton County Jail, Investigator Hines made the decision to wait to question him until the morning, to allow Lacy to become sober.
The next morning, Septembér 3, 2007, after properly Mirandizing Lacy, Investigator Hines began the first of several interviews with him. During this interview, Lacy admitted that he had participated in the murder of Randy Walker. Lacy further admitted to hitting Walker over the head with a fire place poker and forcing Walker to open the safe in his bedroom. Lacy also admitted to going out to the garage, getting a gas can, and setting a fire in Walker’s bedroom. Lacy repeatedly stated that he was unable to remember all of the details of that night. He informed the police officers that one of his friends was also with him that night, and that his friend had hit Walker over the head with a weight bar. In a subsequent interview the same day, Lacy identified his friend as Brody Laswell.
Laswell was arrested and admitted to being involved in Walker’s murder. Las-well admitted that he hit Walker with the weight bar, but claimed that it was only after Walker showed a gun. Laswell claimed that a struggle ensued. Laswell took the police investigators to the location where he and Lacy had disposed of the evidence from the night of the murder, including their clothes and a knife.
In later interviews, Lacy admitted to stabbing Walker in the chest with a fire place poker and slitting his throat with a knife. He said that he thought Walker was “pretty much gone” after Laswell hit him over the head with the weight bar, but he stabbed him and slit |shis throat to make sure. Lacy admitted that he took a .22 caliber gun from Walker’s residence and hid it at his cousin’s house.
Dr. Frank Peretti, the associate medical examiner, determined that Walker’s causes of death were blunt force trauma to both the head and torso, stabbing wounds to the chest, and cutting wounds to the neck. Krista Hall, a serologist at the State Crime Lab, identified Walker’s blood on both Lacy’s and Laswell’s shoes.
Lacy was charged with premeditated capital murder, felony capital murder, and aggravated robbery. Following the guilt phase of the trial, he was convicted by a jury of capital murder and aggravated robbery. Following the sentencing phase of the trial, he was sentenced to death and life imprisonment, as already stated in this opinion. It is from these convictions that he brings this appeal.
I. Sufficiency of the Evidence
Although in his brief on appeal, Lacy challenges the circuit judge’s denial of his motion for directed verdict as his last point on appeal, this court determines challenges to the sufficiency of the evidence before addressing other points on appeal due to double-jeopardy concerns. See Hunter v. State, 330 Ark. 198, 201, 952 S.W.2d 145, 146 (1997).
The issue of sufficient evidence is preserved by a motion for directed verdict, and this court’s standard of review for such motions is well settled:
On appeal, we treat a motion for directed verdict as a challenge to the sufficiency of the evidence. See Johnson v. State, 375 Ark. 462, 291 S.W.3d 581 (2009). We will affirm the circuit court’s denial of a motion for directed verdict if there is substantial evidence, either direct or circumstantial, to support the jury’s verdict. See id. This | (¡court has repeatedly defined substantial evidence as “evidence forceful enough to compel a conclusion one way or the other beyond suspicion or conjecture.” Id. (quoting Hoyle v. State, 371 Ark. 495, 501, 268 S.W.3d 313, 318 (2007)). Furthermore, this court views the evidence in the light most favorable to the verdict, and only evidence supporting the verdict will be considered. See id.
Page v. State, 2009 Ark. 112, at 6, 313 S.W.3d 7, 10 (2009). In order for circumstantial evidence to be sufficient, it must exclude every other reasonable hypothesis consistent with innocence. See Carter v. State, 324 Ark. 395, 398, 921 S.W.2d 924, 925 (1996). That determination is a question of fact for the fact finder to decide. Id.
Credibility of the witnesses is always an issue for the fact-finder to resolve and not this court. See Baughman v. State, 353 Ark. 1, 5, 110 S.W.3d 740, 743 (2003). The trier of fact is free to believe all or part of any witness’s testimony and may resolve all questions of conflicting testimony and inconsistent evidence. Id. Unless the evidence does not meet the required standards, leaving the jury to speculate and conjecture in reaching its verdict, the jury may choose to believe the State’s account of facts rather than the defendant’s. Id. at 6, 110 S.W.3d at 743.
In the instant case, as noted previously, Lacy was charged with capital murder and aggravated robbery. “A person commits robbery if, with the purpose of committing a felony or misdemeanor theft ... the person employs or threatens to immediately employ physical force upon another person.” Ark.Code Ann. § 5-12-102(a) (Repl.2006). A person commits aggravated robbery if he commits robbery as defined above and inflicts or attempts to inflict death or serious physical injury upon another person. Ark.Code Ann. § 5-12-103(a)(3) (Repl.2006). A person commits capital murder if, acting alone or with one or more other |7persons, the person commits aggravated robbery and in the course of or in furtherance of the aggravated robbery, the person or his accomplice causes the death of a person under circumstances, manifesting extreme indifference to the value of human life. Ark. Code Ann. § 5 — 10—101 (a)(1) (Supp.2007).
Lacy contends that the circuit judge erred in denying his motion for directed verdict because the State failed to prove (1) that a robbery occurred; (2) that Lacy had the purpose or conscious object to commit theft; and (3) that Lacy inflicted significant injuries, in furtherance of the robbery, that resulted in Walker’s death. Lacy further claims that the only evidence of a robbery presented by the State was the testimony of Lacy’s cousin, Zach Fender. Lacy maintains that he told police officers that he did not take any money from Walker’s wallet, that he burned the money along with the wallet, and that the only thing he took of value from Walker’s residence was the gun, which was still registered to Lacy and which Walker pulled on him.
At trial, the State first presented testimony from Zach Fender that Lacy told him about what had happened the night that Walker was killed. Fender testified that Lacy and Laswell were over at Walker’s house drinking and visiting and that something came up which led to an argument between Laswell and Walker. Lacy, according to Fender, told him that Walker pulled a gun on Laswell and him and then Lacy hit Walker over the head with a fire poker. Lacy next told Fender that Las-well hit Walker with a weight bar, after which Walker quit moving. Lacy gave Fender a gun that he had taken from Walker’s home. Lacy told Fender |sthat the gun was his and that Lacy had sold it to Walker a few years ago. Lacy added that he and Laswell had taken a little bit of change and some money from Walker.
The State also presented testimony from Investigator Greg Hines, who at the time of Lacy’s arrest, was with the Benton County Sheriffs Office. Investigator Hines testified that he interviewed Lacy the morning after Lacy called the Rogers Police Department to turn himself in. At this time in the trial, the State played for the jury the September 3rd recorded interview of Lacy conducted by Investigator Hines. In that interview, Lacy admitted to going over to Walker’s house around one or two o’clock in the morning on August 30, 2007, and waking Walker up. He told Investigator Hines that he did not know how all of this happened but that he did remember hitting Walker on the head with a fireplace poker. Lacy said that Walker did not fall down the first time he hit him and that Walker kept asking Lacy “why?” Lacy also stated that he made Walker go into his bedroom and open his safe but that there was nothing in the safe. Lacy revealed to Investigator Hines that he knew Walker had a safe in his bedroom because he had seen it before. Lacy also revealed that he expected to find some money or something of value in the safe. Once in the bedroom, Lacy said that Las-well hit Walker over the head with the weight bar, and after that, Walker was “pretty much done.”
| sWhen asked about whether Walker had a gun, Lacy told Investigator Hines that Walker used to have a .22 that Lacy had sold him three or four years ago and that he hoped Walker still had that gun because it was still registered in Lacy’s name. When asked if Walker pulled that gun on Lacy, Lacy stated that he did not see any gun; that if Walker had pulled the gun out, he probably would have shot Lacy; and that Lacy was glad a gun was not involved. Lacy also described how, after hitting Walker with the poker, he removed a fan from the living room window so he could shut the window because did not want anyone to hear Walker cry out.
Investigator Hines testified that he interviewed Lacy a second time on September 3, 2007. The State played the second-recorded interview with Lacy from September 3rd for the jury. In that interview, Lacy stated that he took a gun from Walker’s house and hid it in the bedroom closet at Fender’s (his cousin’s) house. Lacy also admitted to slitting Walker’s throat with a knife, although he said that Walker was probably already “done” when he did that. Lacy further admitted to stabbing Walker in the chest with the poker. Lacy stated that he remembered removing the fireplace set from the home, including the poker and shovel, because it had evidence on it. When asked why Lacy had left out some of these details in his first interview, Lacy said that he had been trying to forget about a lot of it.
11 nBased on the testimony and evidence offered at trial, we hold that there was substantial evidence to support the jury’s verdict that Lacy committed aggravated robbery and capital murder. The State offered proof of Lacy’s own statements to police investigators that he hit Walker over the head with the poker and then forced him to open the safe. Lacy admitted that he knew about the safe because he had seen it before and that he expected there to be money or something of value in the safe. After discovering that there was nothing in the safe, Laswell hit Walker over the head with the weight bar. It is unclear what happened next, but Lacy admitted to stabbing Walker in the chest with the poker and slitting his throat with a knife. Lacy declared he believed Walker to be already “gone” when he did that, but he was just trying to make sure.
These statements all substantiate that the robbery and the murder took place very close in time. The evidence presented by the State was that Lacy knew about the safe, hit Walker over the head with the poker, and then forced him to open the safe. Lacy also admitted that he expected there to be money or something of value in the safe. This was all ample circumstantial proof that Lacy intended to commit a robbery. Moreover, the statements from Lacy’s cousin, Fender, that Lacy took the .22 caliber gun and some money from Walker’s house support the jury’s conclusion that a robbery did in fact occur. The fact that a robbery ludid not occur until after Walker was dead is unimportant. See Grigsby v. State, 260 Ark. 499, 509, 542 S.W.2d 275, 281 (1976).
In sum, the evidence supports the conclusion that the death of Walker occurred during a robbery under circumstances manifesting extreme indifference to the value of human life. The additional fact that Lacy set fire to the trailer confirms that conclusion. Substantial evidence abounded, and the trial judge properly denied Lacy’s motion for directed verdict.
II. Evidentiary Challenges
It is well settled that challenges to the admissibility of evidence are left to the sound discretion of the circuit judge, and a judge’s ruling on these matters will not be reversed unless there has been an abuse of discretion. See Grant v. State, 357 Ark. 91, 93, 161 S.W.3d 785, 786 (2004). The abuse-of-discretion standard “is a high threshold that does not simply require error in the trial court’s decision, but requires that the trial court act improvidently, thoughtlessly, or without due consideration.” Id.
Lacy claims that the circuit judge abused her discretion, and thus violated Lacy’s constitutional rights to present a defense under the 5th, 6th, and 14th Amendments to the United States Constitution by prohibiting the following evidence and testimony: (1) Dr. Curtis Grundy’s testimony; (2) Rebecca Chaddoek’s testimony; (3) the dash cam video recordings of Lacy at the Hi-D-Ho Restaurant after he turned himself in; (4) Jeff Tillot-son’s testimony; (5) Margaret Brown’s testimony as to the authenticity of Dr. Donnie Holden’s medical records; and (6) Ramon Againeses’ testimony. By excluding this testimony and [^evidence, Lacy asserts that the trial court thwarted his attempts to put on evidence of the following defenses: (1) that the prosecutor overcharged him; (2) that he did not have the requisite intent to commit capital murder and aggravated robbery; (3) that critical evidence had been lost or tampered with due to the law enforcement officers’ failure to preserve the crime scene properly; (4) that due to chronic alcoholism and Alcohol Amnestic Disorder, he could not remember all of the events that occurred the night of the incident; (5) that Brody Laswell was the one who killed Walker, and Lacy’s participation in the crime was minor; and (6) that at the time of the murder, he was acting under unusual pressures or influences. The State, in counterpoint, maintains that the circuit judge did not abuse her discretion by excluding evidence that was irrelevant, hearsay, or cumulative.
A. Dr. Curtis Grundy
Dr. Curtis Grundy testified at a pre-trial hearing on Lacy’s competency and in connection with a motion from the defense for the circuit judge to order the Arkansas State Hospital to treat Lacy’s amnesia. He testified at the hearing that Lacy was competent to stand trial; that he had received the diagnosis of Alcoholic Amnestic Disorder from Dr. Donnie Holden in 2005; that Lacy was able to recall some of the events in question, but not all of the details; and that there was some indication that Lacy was acquiring things as memories that he was supposedly told.
A few days into trial, in response to the defense placing Dr. Grundy’s name on its witness list, the State moved in limine to exclude expert testimony regarding Lacy’s intent or | ^mental state at the time of the crime. The circuit judge ruled that any testimony by a psychologist or other expert concerning the effect of alcohol on criminal intent would be excluded, as this appeared to be an attempt to circumvent the prohibition against raising voluntary intoxication as an affirmative defense to a criminal charge. Lacy posits that this ruling by the circuit judge ignores the fact that this testimony also rebuts the State’s claim that Lacy was intentionally refusing to disclose the details of his involvement in the crime. The State contends, on the other hand, that the circuit judge properly excluded such testimony because the arguments advanced by Lacy were not preserved for appeal, and even if they were, the testimony was properly excluded as irrelevant and cumulative.
It is well settled that this court has precluded appellants from raising arguments on appeal that were not raised before the circuit judge because the circuit judge has not had the opportunity to rule on them. See Callaway v. State, 368 Ark. 412, 414, 246 S.W.3d 889, 890 (2007); Tavron v. State, 372 Ark. 229, 232-33, 273 S.W.3d 501, 503 (2008). Additionally, appellants are limited by the scope and nature of the arguments and objections presented at trial and may not change the grounds for an objection on appeal. Callaway, 368 Ark. at 414-15, 246 S.W.3d at 890.
|uAt the pre-trial hearing where Dr. Grundy testified, Lacy was not seeking to introduce his testimony at the guilt phase of the trial. Instead, Lacy was using his testimony to persuade the judge to grant his motion to have his amnesia due to alcohol treated at the state hospital. This motion was denied by the court. Further, when the circuit judge granted the State’s motion to exclude expert testimony concerning the effect of alcohol on criminal intent, the defense counsel made no objections or arguments in opposition to this. Defense counsel merely stated that the motion was filed the morning of the hearing and that the defense was not able to prepare for the hearing. Finally, Lacy attempts to persuade this court that the argument in question, that Dr. Grundy’s testimony would rebut the State’s assertion that Lacy was intentionally failing to disclose details, was in fact raised during a conference with the trial judge held during a recess in the trial and outside of the presence of the jury concerning the admissibility of Dr. Holden’s medical records referencing the Alcohol Amnestic Disorder.
Lacy is correct that this argument concerning Lacy’s failure to disclose was raised during that conference in relation to the admissibility of Dr. Holden’s records, but it was not raised in connection with Dr. Grundy’s testimony. In fact, Dr. Grundy was not even mentioned at all during this discussion. Because the defense did not raise this argument in connection with Dr. Grundy’s testimony or in response to the State’s motion to exclude such evidence, Lacy has failed to preserve this issue for appeal, and we will not consider it. See Callaway, 368 Ark. at 414-l5, 246 S.W.3d at 890.
|15B. Rebecca Chaddock
Lacy also sought to introduce testimony from Rebecca Chaddock at both the guilt and sentencing phases of the trial. Chaddock, according to defense counsel, would have testified that while she was incarcerated in the Benton County jail, Laswell sent her notes in which he told her that the altercation started after Lacy and Walker got into a fight and that Walker pulled a gun on them. She further said that Laswell “was the one that beat Walker down.” The circuit judge concluded that Chaddock’s statement qualified as hearsay but did not fit within the hearsay exception of a statement against interest due to the lack of corroborating circumstances which would support the trustworthiness of the statement.
Lacy now asserts that the circuit judge wrongly based her ruling on the lack of corroboration of the events surrounding the receipt of the evidence rather than on the corroboration of the statement itself. In response, the State argues that the statement-against-interest-hearsay exception did not apply because Laswell’s statement did nothing to exculpate the accused, as is required.
The State is correct. Arkansas Rule of Evidence 804(b)(3) reads as follows:
Statement Against Interest. A statement which was at the time of its making so far contrary to the declarant’s pecuniary or proprietary interest, or so far tended to subject him to' civil or criminal liability ... that a reasonable man in his position would not have made the statement unless he believed it to be true. A statement tending to expose the declarant to criminal liability and offering to exculpate the accused is not admissible unless corroborating circumstances clearly indicate the trustworthiness of the statement. A statement or a confession offered against the accused in a criminal case, made by a codefendant or other person implicating both himself and the accused, is not within this exception.
| if,It is clear from this rule that to be admissible, a statement against interest must expose the declarant to criminal liability as well as exculpate the accused. See also Branstetter v. State, 346 Ark. 62, 75, 57 S.W.3d 105, 114-15 (2001). Here, the statement made by Laswell to Chad-dock does nothing to exculpate Lacy. All the statement says is that Laswell “beat Walker down.” Laswell never says anything about who hit Walker over the head with the fire poker, who stabbed him in the chest, who slit his throat, and who burned down the trailer. These are all things to which Lacy has admitted. Further, Lacy told police officers and his cousin, Fender, that Laswell hit Walker over the head with a weight bar. This statement corroborates Lacy’s story but in no way exculpates him. Because Laswell’s statements do not fit within the clear wording of the statement-against-interest exception to the hearsay rule, the circuit judge did not abuse her discretion in excluding this testimony.
C. Dash Camera Recordings
Lacy sought to introduce the dash-camera-video recordings from Officer Leslie’s and Officer Wiens’s vehicles depicting the encounter at the Hi-D-Ho Restaurant. They were the first police officers who responded to the Hi-D-Ho Restaurant after Lacy called the Rogers Police Department to turn himself in. The defense argued at trial that these videos were admissible under Arkansas Rules of Evidence 803(3) and 803(4), the hearsay exceptions for then existing mental, emotional, or physical condition, and for statements for purposes of medical diagnosis or treatment, respectively. The circuit judge, however, found that these videos were not statements made by a party opponent and asked defense counsel if he had 117any case law to support his arguments that they fell within the rehed-upon exceptions, to which he , responded negatively. The circuit judge ruled, accordingly, that the videos were inadmissible.
On appeal, Lacy now contends that the circuit judge erred in excluding these videos because they were not being offered for the truth of the matter asserted, as required by Arkansas Rule of Evidence 801(c), but instead were offered to show Lacy’s demeanor, tone, and mental state. However, Lacy again does not offer any case law to support this argument.
As already set out in this opinion, appellants are precluded from raising arguments on appeal that were not raised before the trial court. Callaway, 368 Ark. at 414, 246 S.W.3d at 890. Further, this court will not consider conclusory arguments with no supporting authority. See Zachary v. State, 358 Ark. 174, 176, 188 S.W.3d 917, 919 (2004). Lacy’s counsel manifestly did not argue before the circuit judge that these videos were not hearsay because they were not being offered for the truth of the matter asserted. The only statement made by defense counsel at trial was that the videos fit within either the hearsay exception for then existing mental condition or statements made for the purpose of medical diagnosis or treatment. Moreover, Lacy did not offer any supporting case law or authority, here or- before the trial court, for his contention that these video tapes are admissible under either relied-upon exception to the hearsay rule. Because Lacy did not make the truth-of-the-matter-asserted argument before the circuit judge and because he offers no support for his general | ^argument that the videos are admissible under an exception to the hearsay rule, we will not consider the argument on appeal.
D. Jeff Tillotson
Lacy attempted to offer the testimony of Jeff Tillotson, an apparent acquaintance of both Lacy and Laswell, at trial. Tillotson, according to defense counsel, would have testified to statements made by Laswell that Walker was the first aggressor in the fight and that he pulled a gun on Lacy and Laswell. The day that Tillotson was supposed to appear in court on a subpoena to testify at trial, he was too intoxicated to do so and failed to appear. Tillotson, in addition, had made a prior conflicting statement under oath to the prosecution. He had said that Laswell had told him that he did something bad but made no reference to Walker’s pulling a gun or being the first aggressor.
Defense counsel requested a short delay at trial after Tillotson failed to appear so that Tillotson could sober up and be called to give his testimony before the court. The circuit judge found that the defense counsel’s proffer of Tillotson’s testimony was moot because Tillotson was unable to take the witness stand. Further, the circuit judge ruled that Tillotson’s testimony was an attempt to introduce Laswell’s statements through Tillotson without giving the State the opportunity to cross examine Laswell. Therefore, the circuit judge refused to grant the request and Tillotson did not testify.
Lacy does not explain on appeal why or how the circuit judge abused her discretion in refusing to allow Tillotson to testify. Furthermore, defense counsel made no argument at 113the trial or on appeal addressing why Tillotson’s testimony would have been admissible under any exception to the hearsay rule. The only arguments presented by Lacy on appeal are that this evidence was probative as to whether the victim was the first aggressor and whether Lacy went to Walker’s house to rob him, as well as being probative as mitigating evidence that Lacy was a minor participant and was remorseful. These arguments are supported by no authority as to how the circuit judge abused her discretion. Lacy does make a passing reference to Lacy’s right to present a defense pursuant to the 5th, 6th, and 14th Amendments to the United States Constitution. This court, however, will not consider eonclusory arguments with no supporting authority. See Zachary, 358 Ark. at 176, 188 S.W.3d at 919. Accordingly, we will not address the merits of Lacy’s argument concerning the admissibility of Tillotson’s testimony.
E. Margaret Brown
Lacy attempted at trial to introduce testimony from Margaret Brown, the records keeper at Vista Health, a psychiatric hospital in Fayetteville that provides inpatient and outpatient mental health services. Brown, according to defense counsel, would have authenticated the records of the psychiatric evaluation and diagnosis of Lacy by Dr. Donnie Holden. Dr. Holden diagnosed Lacy with Alcoholic Amnestic Disorder in 2005 and received a subpoena on April 6, 2009 to testify at Lacy’s trial. In a letter dated April 15, 2009, Dr. Holden indicated that he would be unavailable to testify at trial because he had been ordered to active duty in Iraq by the U.S. Army. The circuit judge concluded that although these | ¡^records were records regularly kept in the course of business activity, this testimony and the records were not admissible because defense counsel had failed to take adequate steps to secure Dr. Holden for testimony or inform the court that he was not available. The judge also ruled the records inadmissible because the information that the medical records would reveal was cumulative in that ample evidence had already been introduced concerning Lacy’s alcohol addiction and abuse.
The question before this court on appeal is whether the circuit judge abused her discretion by excluding this evidence. Arkansas Rule of Evidence 803(6) reads as follows:
(6) Records ' of Regularly Conducted Business Activity. A memorandum, report, record, or data compilation, in any form, of acts, events, conditions, opinions, or diagnoses, made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity, and if it was the regular practice of that business activity to make the memorandum, report, record, or data compilation, all as shown by the testimony of the custodian or other qualified witness, unless the source of information or the method or circumstances of preparation indicate a lack of trustworthiness.
At trial, Brown testified that she is the records keeper at Vista Health and that these records are kept during the course of regular business activity. She also testified that she did not participate in the creation of these records, that she had no knowledge of what might support the basis for the diagnosis contained in the records, and that her job was to document what the physician documented. Regardless of whether these records were kept pursuant to regularly conducted business activity, the circuit judge excluded the evidence of Dr. Holden’s medical records, after finding that the evidence sought from those medical records (Dr. Holden’s 2005 diagnosis of Lacy with Alcohol Amnestic Disorder) was cumulative. Arkansas Li Rule of Evidence 403 allows evidence, even though it is relevant, to be excluded because of its cumulative effect.
The following people testified at trial as to Lacy’s alcohol abuse or his intoxicated state: his cousin, Fender; Lacy himself in his statements to Investigator Hines; his uncle; his grandmother; three police offi cers; and his stepfather. There was additional evidence introduced that Lacy had been admitted to Decision Point, a recovery center for alcohol and drug treatment in Bentonville, and a second center for rehabilitation within the last year.
Based on this evidence, Lacy clearly abused alcohol and was drinking the night of the murder. Moreover, the circuit judge had already ruled that alcohol abuse could not be used as a defense to a criminal charge. We hold that the circuit judge did not abuse her discretion by excluding the evidence of these records on the basis of its cumulative effect.
F. Ramon Againeses
Lacy attempted to introduce testimony from Ramon Againeses during the sentencing phase of the trial. Ramon Againeses was married to Virginia Lacy, Lacy’s aunt. Againeses was convicted of molesting his daughters, Jennifer Hubbard and her sister Theresa. About seventeen to eighteen years ago, prior to Againeses’ arrest, Jennifer and her sister Theresa were removed from their parents’ home and placed with the Arkansas Department of Human Services (DHS). Jennifer and Theresa told DHS caseworkers that Lacy had molested them. An investigation was conducted, but Lacy was never charged with molesting Jennifer and Theresa. Againeses was later convicted and sentenced to prison for molesting his daughters.
|22The defense counsel expected Againeses to testify that he had pressured his daughters into blaming Lacy for the molestation. Yet, when Againeses was brought into court to proffer this testimony, he told the circuit judge that he did not tell his girls to blame anything on Lacy. He further claimed that he did not know that Lacy was investigated for molesting his daughters. The court ruled that the defense could not introduce this evidence because it was not relevant.
Lacy argues that by excluding Againes-es’s testimony, he was not allowed to present mitigating evidence and that the court erred in excluding this evidence because the rules of evidence do not apply to the presentation of mitigating circumstances. While Lacy is correct that the Rules of Evidence are inapplicable to mitigating evidence under Arkansas Code Annotated section 5-4-602(4)(B)(i), the mitigating circumstances must still be relevant to the issue of punishment or to the defendant’s character, background, or history. See Ark.Code Ann. § 5-4-602(4)(B)(ii).
We conclude that the circuit judge did not err in deeming that this testimony not to be relevant. Againeses was not testifying to anything relating to Lacy’s character or background. In fact, he had nothing to say about Lacy. He merely denied forcing his daughters to accuse Lacy of molesting them and denied having any knowledge that Lacy was investigated in connection with the molestation. Moreover, Lacy presented the mitigating testimony of his cousin, Jennifer Hubbard, who presented the exact testimony that Lacy was | ¡^attempting to elicit from Againeses. The circuit judge did not abuse her discretion by excluding Againeses’ testimony.
III. Brady Violations
Lacy next contends that the prosecution repeatedly failed to disclose poten tially exculpatory evidence and impeachment evidence throughout the discovery process and the trial. He points to several pieces of evidence that the prosecution failed to turn over to the defense, including: (1) a video interview with Jeff Tillot-son in which Tillotson professed to know information concerning the Walker murder after speaking with Laswell; (2) reports from a dive-team that recovered the fire place tools from the lake; (3) recorded interviews with Melissa Lacy and David Weaver, the two people who discovered Walker’s body; (4) the log of those at the crime scene on the day the fire was reported; (5) three photographs taken by Fire Marshall Hanna at the crime scene; (6) a complete audio tape of Officer Wien’s interaction with Lacy the day he turned himself in; (7) criminal histories on Jackie Amos (Walker’s ex-wife) and Randall Walker, Jr. (Walker’s son); (8) victim-impact letters that were read to the jury during the sentencing phase; and (9) the names of three witnesses that were not on the State’s sentencing witness list.
l^tLacy maintains that the cumulative effect of these violations prejudiced him because had the evidence been disclosed, there was a reasonable probability that the result of the trial would have been different. The State argues that Lacy has failed to show that he has been so prejudiced by these alleged violations that they raised a reasonable probability that the outcome of the trial would have been different. The State also argues that even if these alleged errors occurred, they were harmless in light of the overwhelming evidence presented of Lacy’s guilt.
The United States Supreme Court has held that “suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material to guilt or punishment, irrespective of the good faith or bad faith of the prosecution.” Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). The Court later defined the test for material evidence in the context of a Brady violation as being “... if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would be different.” Strickler v. Greene, 527 U.S. 263, 280, 119 S.Ct. 1936, 144 L.Ed.2d 286 (1999). See also Smith v. State, 354 Ark. 226, 250, 118 S.W.3d 542, 556 (2003) (stating that prejudice can be demonstrated where there is a reasonable probability that, had the evidence been disclosed, the result of the proceeding would have been different).
The Court in Strickler set out three components for a Brady violation: (1) the evidence must be favorable to the accused, either because it is exculpatory, or because it is impeaching; (2) that evidence must have been suppressed by the state, either willfully or inadvertently; and 1 ¾(3) prejudice must have ensued. 527 U.S. at 281-82, 119 S.Ct. 1936. This court has recognized that the reasonable-probability standard should be applied “ ‘collectively, not item by item,’ such that the ‘cumulative effect’ of the suppressed evidence, and not necessarily each piece separately, must be material.” Newman v. State, 2009 Ark. 539, 354 S.W.3d 61 (citing Kyles v. Whitley, 514 U.S. 419, 436-37, 115 S.Ct. 1555, 131 L.Ed.2d 490 (1995)).
Rule 17.1 of the Arkansas Rules of Criminal Procedure requires the prosecuting attorney to provide to the defense counsel, upon request, certain information and material which is, or may come into, the possession, control, or knowledge of the prosecuting attorney. Ark. R.Crim. P. 17.1(a) (2009). This rule further requires the prosecutor to disclose promptly to the defense counsel “any material or information within his knowledge, posses sion, or control, which tends to negate the guilt of the defendant as to the offense charged or would tend to reduce the punishment therefor.” Ark. R.Crim. P. 17.1(d) (2009). The prosecutor has a duty to learn of any favorable information known by others acting on the government’s behalf, including the police. See Newman, 2009 Ark. 539, 354 S.W.3d 61 (citing Strickler, 527 U.S. at 281, 119 S.Ct. 1936). This court has said that “the key in determining if a reversible discovery violation exists is whether the appellant was prejudiced by the prosecutor’s failure to disclose.” Bray v. State, 322 Ark. 178, 180, 908 S.W.2d 88, 89 (1995). The burden is on the appellant to prove that the discovery violations were sufficient to undermine the confidence in the outcome of the trial. Id. Even if a discovery violation has occurred, this court will not reverse, if the error is harmless. See, e.g., Mosley v. State, 323 Ark. 244, 252, 914 S.W.2d 731, 735 (1996).
|;,fiThe principal piece of evidence, in this court’s opinion, that the prosecution failed to turn over to defense counsel that could have constituted a Brady violation was the audio recording of the telephone interview ■with Jeff Tillotson. Tillotson had apparently called the Benton County Sheriffs Office, intoxicated, about a week after Lacy’s arrest and spoke with Investigator Hines. During this conversation, Tillot-son claimed that Laswell had told him that Walker had pulled a gun on Lacy and Laswell, which is why Laswell hit Walker over the head with the weight bar. In a later interview conducted by defense counsel after receiving this recording and before the trial, Tillotson also made statements alleging that Laswell had possibly indicated that Walker was the initial aggressor. The defense counsel argued that this information was valuable to Lacy’s trial preparation because he could have possibly pursued a defense that Lacy was not the initial aggressor. At trial, the circuit judge found that the defense had failed to show prejudice because defense counsel had access to this recording before the trial and spoke with Tillotson in a sober state to determine what he had heard from Laswell.
While this recording was inadvertently withheld by the prosecutor since he did not know that Investigator Hines had spoken with Tillotson and had a recording of that conversation, we note that Tillotson had also given testimony pursuant to a prosecutor’s |27subpoena that contradicted the statements he made in Investigator Hines’s recording and those given to the defense. As already explained in this opinion, Tillotson was subpoenaed to trial and was expected to appear before the court to proffer his testimony, but apparently he was too intoxicated to do so. Defense counsel offered no reason why Tillotson’s testimony should have been admitted, and the circuit judge concluded that it seemed only to be a device for getting Laswell’s testimony into evidence without giving the State the opportunity to cross-examine him. Lacy did not offer an adequate reason or cite authority supporting how the circuit judge abused her discretion in excluding Tillotson’s proffered testimony. Furthermore, other testimony was presented to the jury, including Fender’s, that Walker drew a gun and pointed it at Lacy and Laswell, and, thus, was the first aggressor. We find that the requisite element of prejudice is lacking on this point.
With regard to the remainder of the evidence, which allegedly, when accumulated, constituted a Brady violation, Lacy has not adequately shown that he was prejudiced by the State’s failure to disclose, such that there is a reasonable probability, that had the evidence been disclosed, the outcome of the trial would have been different. As to some of the asserted evidence, like the complete audio recording of Officer Wien’s interaction with Lacy, Lacy has failed to show that the evidence was favorable and exculpatory to him. As for the photographs and the crime scene log, Lacy claims that this information would have supported his argument that the police officers failed to secure the crime scene adequately and that evidence was lost. But, a general argument that the police failed to secure the crime scene | ¡^adequately, when viewed in light of the overwhelming amount of evidence of Lacy’s guilt, including his statements to police officers, his stepfather, and his cousin, certainly would not have had a significant impact on the outcome of the trial. Hence, there was an insufficient showing of prejudice.
As for the criminal histories of two witnesses, Lacy argues that these criminal histories could have been used to impeach the witnesses and undermine their credibility. Yet, as was the case with the photographs and crime-scene log, Lacy has failed to show that by impeaching two witnesses, the outcome of the trial would have been different. In short, we hold that these asserted discovery violations did not prejudice Lacy to such an extent that they would have changed the outcome of the trial.
IV. Prosecutorial Abuse
Lacy contends that the circuit judge erred in failing to conclude that the prosecutor abused his subpoena power. At trial, while the prosecutor was questioning Douglas Barnhill, Lacy’s stepfather, concerning statements made by Lacy after he admitted to participating in Walker’s murder, the prosecutor brought up the fact that Barnhill gave a statement on September 10, 2007, under oath, pursuant to a prosecutor’s subpoena. The defense counsel | ^objected, arguing that the prosecutor abused this power when Barnhill was sworn in by a deputy prosecutor, but then essentially was only questioned by Investigator Hines. The circuit judge overruled defense counsel’s objection.
On appeal, Lacy maintains that the prosecutor misused the subpoena power by allowing the police officer to do all the questioning for the purposes of a police investigation. Lacy further argues that the subsequent testimony that was given after defense counsel’s objection was overruled was prejudicial to Lacy because it was used to persuade the jury that Lacy only turned himself in after his stepfather threatened to turn him in. In response, the State maintains that there is nothing that requires questions asked pursuant to a prosecutor’s subpoena to be asked only by the prosecutor, if the prosecutor is present. The State asserts that this was a joint investigation between the prosecutor and law enforcement, and that the prosecutor complied with the statute because he administered the oath and was present throughout the entire proceeding.
The apposite statute allows prosecuting attorneys and their deputies to “issue subpoenas in all criminal matters they are investigating and may administer oaths for the purpose of taking the testimony of witnesses subpoenaed before them.” Ark. Code Ann. § 16-43-212. In describing the prosecutor’s subpoena power, this court has said:
|anIt was designed to take the place of questioning by a grand jury. The emergency clause to the statute states that it was enacted to enable prosecutors to ‘properly prepare criminal cases.’ The prosecutor may use the subpoena power to investigate and prepare for trial as long as the power is not abused. However, we will reverse a case in which a prosecutor abuses the subpoena power.
Anderson v. State, 357 Ark. 180, 208, 163 S.W.3d 333, 349 (2004) (citing Echols v. State, 326 Ark. 917, 936 S.W.2d 509- (1996) (internal citations omitted)).
This court has further said that it is illegal to use the prosecutor’s subpoena power “to obtain the presence of a witness for questioning by a police officer, absent the prosecutor. ” Foster v. State, 285 Ark. 363, 367, 687 S.W.2d 829, 831 (1985) (emphasis added). The abuse of the prosecutor’s subpoena power can lead to exclusion of evidence, see State v. Shepherd, 303 Ark. 447, 453-54, 798 S.W.2d 45, 48-49 (1990), but should not result in a reversal of conviction where the abuse does not produce any evidence upon which the conviction is based. See Duckett v. State, 268 Ark. 687, 690-91, 600 S.W.2d 18, 20-21 (Ark.App.1980).
It is not clear from the record in the instant case if the prosecutor asked Barn-hill any questions during the interview, or if he just swore him in and remained present, albeit silent, while Investigator Hines questioned him. In Stephens v. State, 98 Ark. App. 196, 254 S.W.3d 1 (2007), a case cited by Lacy, the court of appeals interpreted the subpoena statute to mean that the prosecutor is the person who is supposed to take the testimony, not a police officer. The State, in contrast, argues that there is nothing in the express language of the statute prohibiting participation by a police officer.
|aiThis case is arguably different than the Foster case, where the witness was told the prosecutor wanted to see her but then was taken to the police station and questioned by police officers without the prosecutor present. 285 Ark. at 368, 687 S.W.2d at 831. In the case at hand, the prosecutor issued a subpoena, placed Barnhill under oath, and was present throughout the entire proceedings while Investigator Hines questioned Barnhill. We are reluctant to strike Barnhill’s testimony on grounds of prosecutorial abuse under these facts and, specifically, without more information about the prosecutor’s participation, or lack thereof, during the interview. Furthermore, we do not view Barnhill’s testimony as integral to Lacy’s conviction.
The record in this case has been reviewed for reversible error pursuant to Arkansas Supreme Court Rule 4 — 3(i), and none has been found. We have, in addition, conducted a mandatory review of the record as required by Rule 10(b) of the Arkansas Rules of Appellate Procedure— Criminal and considered:
(i)pursuant to Rule 4-3(h) of the Rules of the Supreme court and Ark.Code Ann. § 16-91-113(a), whether prejudicial error occurred;
(ii) whether the trial court failed in its obligation to bring to the jury’s attention a matter essential to its consideration of the death penalty;
(iii) whether the trial judge committed prejudicial error about which the defense had no knowledge and therefore no opportunity to object;
(iv) whether the trial court failed in its obligation to intervene without objection to correct a serious error by admonition or declaring a mistrial;
(v) whether the trial court erred in failing to take notice of an evidentiary error that affected a substantial right of the defendant;
laa(vi) whether the evidence supports the jury’s finding of a statutory aggravating circumstance or circumstances; and
(vii) whether the sentence of death was imposed under the influence of passion, prejudice, or any other arbitrary factor.
No reversible error was determined to exist under these factors. Affirmed.
. The transcript of the September 3, 2007 interview was also shown to the jury for demonstration purposes but was not entered into evidence.
. The transcript of the second September 3, 2007 interview was also shown to the jury for demonstration purposes but was not entered into evidence.
. Though charged with premeditated capital murder and capital felony murder, the general verdict form used by the jury does not distinguish between the two. Our conclusion on the sufficiency point is based on the evidence submitted for capital-felony murder which we hold was clearly substantial. See Taylor v. State, 2010 Ark. 372, 372 S.W.3d 769 (citing Williams v. State, 347 Ark. 728, 67 S.W.3d 548 (2002)).
. Although once permitted to be raised as a defense, this court has consistently held in recent years that voluntary intoxication is no longer a defense in criminal prosecutions. See, e.g., White v. State, 290 Ark. 130, 717 S.W.2d 784 (1986); Cox v. State, 305 Ark. 244, 808 S.W.2d 306 (1991).
. Jennifer Hubbard testified at the sentencing phase that her father, Ramon Againeses, told her sister Theresa and her to accuse Lacy, their cousin, of molesting them. She also testified that this was a lie and that Lacy understood that she was pressured by her father into accusing him. She further testified that Lacy helped her deal with her pain and the difficult times after it was revealed that her father was the one who molested her.
. Investigator Hines testified that he recorded his conversation with Tillotson but that this recording was not turned over to the prosecutor until after Hines left the Benton County Sheriff's Office in March of 2009. Investigator Hines also testified that he had not turned it over because he did not consider Tillotson’s testimony relevant since he did not believe Tillotson had any new information.
. The trial testimony was as follows:
Prosecutor: Now, Mr. Barnhill, back on that September 10th of 2007 day you were sworn in?
Barnhill-, (nodding affirmatively)
Prosecutor: You knew you were by giving a statement under oath?
Barnhill: Yes.
Prosecutor: And you did, in fact, say in that statement that I said to Brandon you’ve got very few minutes before I get on the phone and call 911, then you quoted him as saying you’re not going to turn me in, then you said yes, I am going to turn you in. If you don’t turn yourself in, I will turn you in. Now, you did say that to us under oath.
Barnhill: Okay, then I said that.
. Rule 4-3(h) is now Rule 4-3(i) of the Rules of the Supreme Court. | [
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KAREN R. BAKER, Judge.
11 This is a probate case in which one of the decedent’s heirs appeals from an order authorizing the sale of real estate and another order confirming the sale and partially distributing the estate. We affirm both orders.
Victor Rice, aged eighty-six, died on April 12, 2006, survived by his three daughters, appellant RaeEvelyn Rice, ap-pellee Eunita Rice Seals, and appellee Vicki Rice McGhee. After a hearing, the court appointed appellees co-administrators in May 2007 with appellant’s consent. On January 7, 2008, appellant filed a petition to compel the co-administrators to file an inventory of the estate’s assets. On February 22, 2008, appellees filed an inventory that included their father’s homestead in Pine Bluff, along with several parcels of farm land and city lots. They listed the total value of the real estate as $230,650; household goods and personal 12effects with a value of $3,500.00; some tools valued at $200.00; a checking account with Bank of America containing $2,304.31; a checking account at Simmons First National Bank containing $1,939.04; and fifty shares of stock valued at $1,250.00.
On April 15, 2008, appellant filed a petition to require appellees to file a “true and complete inventory and to render account and/or be removed.” She stated that the inventory contained certain deficiencies, such as omitting real and personal property; listing inaccurate values; and including some items that the decedent did not own. Appellant stated that she had not been provided with any record of income to the estate or expenditures from its assets, and suggested wrongdoing by appellees.
On May 29, 2008, appellees filed a petition for authority to sell four parcels of farm land because there were outstanding claims against the estate. They stated that the property had been appraised and valued at $104,000; that an offer to purchase the property for $106,000 had been tendered; and that a private sale at that price, rather than a public auction, might be advantageous under present market conditions. Appellees asked the court to authorize the private sale of the real estate on those terms or to offer the land for public sale to the highest bidder. Appel-lees attached an “appraisement” valuing the parcels at $103,750 to the petition. This “appraisement” was signed by three individuals, and contained the following caveat: “This is a Broker’s price opinion not an appraisal.” Appellees also attached a letter from an attorney to the estate’s counsel, which stated that his client “has authorized me to offer on his behalf $106,000 for the referenced acreage.”
|3On June 13, 2008, appellant filed an objection to the sale, stating that appellees had not yet responded to her petition for a true and complete inventory and accounting, and that, “[bjarring breach of fiduciary duty or other foul play there should be sufficient cash assets in decedent’s estate to cover any justly due claim(s) against the Estate without exhausting it.” Appellant said that appellees had failed to state the amount or establish the validity of any outstanding claims against the estate, and that she was not interested in selling her interest in the property. After a hearing on July 16, 2008, the trial court ordered appellees to file another inventory within thirty days and a first accounting within sixty days.
On August 1, 2008, appellees filed a second petition for authority to sell the land at a private sale for $106,000. Appellant filed another objection to the proposed sale, asserting that the petition did not comply with Arkansas Code Annotated section 28-51-301(b) because it did not adequately set forth the terms of the contract for sale, and it did not describe the co-administrators’ bond. She also alleged that it did not comply with subsection (a)(l)’s requirement that the property be appraised by three disinterested persons “who are well informed concerning the value of real property in the vicinity.”
Appellees filed an amended inventory on September 15, 2008. It listed a value of $249,850 for the real estate; household goods ($3500); tools ($500); car ($500); Bank of America checking account ($21,-991.80); Simmons checking account ($6,261.11); corporate stock ($1,250); and Met Life stock ($1,927.50). Appellees filed an accounting on September 19, 2008, which reflected $14,650 rental income to the estate, and stated that the outstanding | pliabilities were the estate’s attorney’s fees and costs (which were undetermined); the co-administrators’ fees (which were undetermined); and reimbursement to the co-administrators for their personal funds expended to maintain the estate’s assets, pay real and personal property taxes, the decedent’s last expenses, and claims against the estate (which were undetermined).
On September 29, 2008, the court entered an order, nunc pro tunc, denying the petition and finding that three parcels of real property in Altheimer and the income from rentals of the real property were not assets of the estate. It asked appellees to provide appellant with a report of rents and expenditures, as well as “a concise statement explaining the facts upon which the Inventory and Accounting are based” with supporting documents. The court stated that, if appellees filed a new or amended petition within thirty days, it could be decided upon the proof given at the July 16 hearing.
The court held another hearing on October 27, 2008, at which appellant voiced her objections to the sale. Appellee Seals testified that she had spent her own funds and the rental income maintaining the real estate; had purchased insurance; had brought the property “up to code”; had paid property taxes; and had maintained the lawns. She said that appellant had refused to help, and that the rental income was not sufficient to pay for all of the necessary repairs and expenses. She also testified about the offer to purchase the property. On October 30, 2008, the court entered an order granting the petition to sell the property at a private sale within sixty days for at least the appraised value of $104,000, for cash, finding it in the best interest of the estate. Appellees filed a memorandum supporting the inventory and accounting Ron December 23, 2008. They included a detailed listing of expenses paid for the decedent’s final medical bills and burial and for maintaining and repairing the real property.
Appellees filed a report of sale, stating that Maurice and his wife Emma Kelley had purchased the real property for $106,000, and filed a petition for authority to make a partial distribution of the estate’s assets. They stated that the proceeds of the sale had been deposited with the clerk; that their attorney had asked for attorney’s fees and costs of $4,817.57 (36.65 hours at $150.00 per hour, plus costs of $70.07, less a payment of $750.00); and that the co-administrators requested fees and costs. They asked that, after deducting those fees and expenses, the court distribute the remaining assets to the heirs. They also said that appellant was indebted to the estate for rent and for her share of the decedent’s final expenses.
Appellant filed an objection to confirmation of the sale on April 2, 2009. She asserted that the sale of the real property was not necessary or in the best interest of the estate; that the petition for authority to sell did not set forth the terms of the contract or a description of the administrators’ bond; that appellees had not had the property properly appraised before the sale, as required by Arkansas Code Annotated section 28-51-302; that appellees had not properly accounted for the rental proceeds; that some of the property should have been rented; and that she was willing to accept the title to the homestead. Appellant also filed an objection to appel-lees’ petition for distribution.
The court held another hearing on April 6, 2009. Appellee Seals testified that the sale had occurred, and that the proceeds had been deposited in an account at Pine Bluff National | (¡Bank. She asked the court to approve the sale. On cross-examination, appellant asked her about the income from the rental property. The court sustained the estate’s objection to appellant’s questions about the cost of preserving the estate’s assets. Appellant again voiced her objection to the sale on the ground that it was not necessary. Stating that it could not preside over this case forever, the court asked appellees to petition for authority to “sell everything associated with this estate. That’s the only way that you’re going to get this matter settled.”
The court entered an order confirming the sale and granting appellees’ petition on April 6, 2009. It directed that $1,000 be paid to each appellee for prior expenditures for the decedent’s funeral; that $4,817.57 be paid to the estate’s attorney; that appellees retain $3,000 in the estate account; and that the balance of the account (which held the proceeds of the sale) be paid to the heirs. It denied appellees’ request that appellant pay rent on the homestead.
On April 29, 2009, appellant filed a notice of appeal from the orders entered on October 27, 2008, and April 6, 2009. She raises five points on appeal, with several subpoints. Probate cases are reviewed de novo on appeal, and we will not reverse the trial court’s findings of fact unless they are clearly erroneous. Williams v. Hall, 98 Ark.App. 90, 250 S.W.3d 581 (2007). We will not reverse a trial court’s confirmation of a judicially ordered sale if the trial court did not abuse its discretion. Id.
Appellant argues that the sale of the real property was not necessary because it produced sufficient income to cover the needs of the estate. Title to real estate of an intestate vests in his heirs at law upon his death, subject to the widow’s dower and sale for payment of debts, ^preservation or protection of assets of the estate, the distribution of the estate or any other purpose in the best interest of the estate. Doss v. Taylor, 244 Ark. 252, 424 S.W.2d 541 (1968). In determining what property shall be sold for distribution of an estate or for any other purpose in the best interest of the estate of an intestate, there is no priority as between real and personal property and it is not necessary that one class of property be exhausted before resort is had to the other for these purposes. Id.; Ark.Code Ann. § 28-51-101 (Repl. 2004).
When real property has become an asset in the hands of an administrator or when the trial court finds it necessary for the preservation of the property, for protection of rights and interests of persons having interests therein or for the benefit of the estate, the personal representative may collect rents, pay taxes, make repairs, maintain and preserve the property, protect it by insurance and maintain or defend an action for possession or to determine or protect the title, until the property is sold or delivered to the distributees or until the estate is settled. Doss v. Taylor, supra. Arkansas Code Annotated section 28-51-103(a) (Repl.2004) provides:
Real or personal property belonging to an estate may be sold, mortgaged, leased, or exchanged under court order when necessary for any of the following purposes:
(1)For the payment of claims;
(2) For the payment of a legacy given by the will of the decedent;
(3) For the preservation or protection of assets of the estate;
(4) For making distribution of the estate or any part thereof; or
(5) For any other purpose in the best interest of the estate.
|sWe hold that the trial court’s decision to authorize the sale was more than adequately supported by appellee Seals’s testimony at the October 2008 hearing.
Appellant also asserts that appel-lees’ petition for authority to sell the real estate did not contain the terms of the contract or a description of their bond as required in Arkansas Code Annotated section 28-51-801(b) (Repl.2004), which states:
The petition shall set forth the reasons for the application and describe the property or right or interest involved and the terms of the contract, conveyance, or transfer for which authority is sought and shall include a description of the bond of the personal representative and a statement of the facts essential to determine its sufficiency.
Appellant, however, waived the issue of the bond because she did not object to the trial court’s statement in the order appointing appellees as co-administrators that no bond would be required. Because appellant has raised this issue for the first time on appeal, we do not address it. See Simpson Housing Solutions, LLC v. Hernandez, 2009 Ark. 480, 347 S.W.3d 1. Although the terms of the contract described in the petition could have been more specific, they were adequate. In any event, appellant has failed to demonstrate any prejudice in this regard.
Appellant further argues that appellees failed to comply with the statuto ry requirement that the property be appraised by three disinterested persons who were well-informed of the value of real property in the vicinity. Arkansas Code Annotated section 28-51-302 (Repl.2004) provides in relevant part: “(a)(1) Before a personal representative shall sell real property, he or she shall have it appraised by three (3) disinterested persons, selected by him or her, unless appointed by the court, who are well informed concerning the value of real property in the vicinity.” The failure of an administrator to have land appraised before selling it does not render |athe sale void. Bell v. Green, 38 Ark. 78 (1881). In Apel v. Kelsey, 47 Ark. 413, 2 S.W. 102 (1886), the supreme court stated that an administrator’s failure to have land viewed and appraised by three disinterested householders in that county or to advertise the sale were mere irregularities cured by the confirmation of sale. In fact, confirmation of the sale cures all errors not jurisdictional or clearly violative of some fundamental right secured through the provisions of the probate code. Hamilton v. Northwest Land Co., 223 Ark. 831, 268 S.W.2d 877 (1954). The appellate court will follow the “better public policy of sustaining judicially-directed sales unless imperative reasons are shown for avoidance.” 223 Ark. at 837, 268 S.W.2d at 881. This policy is consistent with our often-stated rule that error is no longer presumed to be prejudicial; unless the appellant demonstrates prejudice, we will not reverse. McWilliams v. Schmidt, 76 Ark. App. 173, 61 S.W.3d 898 (2001). Although appellees did not strictly conform to the statute’s requirements about the appraisals, appellant has presented no evidence of how the lack of three appraisals, rather than an “appraisement” by three brokers, actually prejudiced her. Thus, we do not reverse on this issue.
Appellant also contends that the trial court erred in limiting her time to present her objections at the October 27, 2008 hearing. A trial court has broad discretion in fulfilling its requirement to “exercise reasonable control over the mode and order of interrogating witnesses and presenting evidence so as to (1) make the interrogation and presentation effective for the ascertainment of the truth, (2) avoid needless consumption of time, and (3) protect the witnesses from harassment or undue embarrassment.” Ark. R. Evid. 611(a) (2009). We will only reverse the trial court on such matters if it has abused its discretion. Hanna v. Hanna, 2010 Ark.App. 58, 377 S.W.3d 275. Given the number of lengthy written objections filed by appellant, in addition to her appearances at the hearings, she was afforded more than sufficient opportunity to make her position clear.
Additionally, appellant argues that the trial court violated her constitutional right to due process by limiting her time to present her case. We disagree. Due process requires that one be given a meaningful opportunity for a hearing, appropriate to the nature of the case and preceded by notice, before he is deprived of any significant property interest, except where some valid, overriding state interest justifies postponing the hearing until after the event. Williams v. Hall, supra. The fundamental requirement of due process is the opportunity to be heard at a meaningful time and in a meaningful manner. Id. The concept of due process requires neither an inflexible procedure universally applicable to every situation nor a technical concept with a fixed content unrelated to time, place, and circumstance. Id. What process must be afforded is determined by context, dependent upon the nature of the matter or interest involved. Id. The October 2008 hearing was held almost five months after appellees filed their petition. During that interval, appellant filed her written objections and attended the July 2008 hearing. We hold that she received all of the process that she was due.
Appellant also complains about the leading questions that appellees’ counsel asked of appellee Seals on direct examination at both hearings. Because appellant has raised this issue for the first time on appeal, we do not address it. See Simpson Housing Solutions, LLC v. Hernandez, 2009 Ark. 480, 347 S.W.3d 1. Without citation to authority, appellant also contends that the |ntrial court abused its discretion in ordering appellees to retain $3,000 in the estate account. We will not address arguments if they are insufficiently developed and lack citation to authority. Id.
Appellant further asserts that the trial court abused its discretion in ordering her to pay any portion of the estate’s attorney’s fees. She argues that it was not necessary for the estate to hire an attorney; that his representation was inadequate; and that his request for fees was not supported by documentation. Unless otherwise contracted with the personal representative, heirs, or beneficiaries of an estate, compensation for an attorney who performs legal services for the estate is governed by Arkansas Code Annotated section 28-48-108(d)(2) (Supp.2009), based on the total market value of the real and personal property reportable. However, under subsection (d)(3), the court can determine that the schedule of fees is either excessive or insufficient under the circumstances and allow the attorney a fee commensurate with the value of the legal services provided. While there is no fixed formula in determining the excessiveness or insufficiency of attorney’s fees, courts should be guided by certain recognized factors including the following: the experience and ability of the attorney; the time and labor required to properly perform the legal services; the amount involved in the case and the results obtained; the novelty and difficulty of the issues; the customary fees for similar legal services in the locality; whether the fee is fixed or contingent; the time limitations imposed by the client; and the likelihood, if apparent to the client, that the employment will preclude other employment by the lawyer. Rollins v. Rollins, 94 Ark.App. 65, 224 S.W.3d 554 (2005). The reviewing court will usually defer to the superior perspective of the trial court in assessing the applicable factors. Id. The value of attorney’s fees rendered to an estate is primarily a factual determination to be |12made by the trial court, and we will not reverse its decision where it is not clearly erroneous. Id. A fee award for services rendered to an estate is a matter within the discretion of the trial court, and we will not reverse in the absence of an abuse of discretion. Morris v. Cullipher, 306 Ark. 646, 816 S.W.2d 878 (1991); Rollins v. Rollins, supra. In light of appellant’s consistent opposition to almost every act appellees took or asked permission to take, we cannot say that the trial court abused its discretion in awarding attorney’s fees to the estate.
Appellant ends her brief by claiming that the trial court abused its discretion in directing appellees to take the steps necessary to close the estate. The essence of appellant’s impassioned argument in this point is that the trial court should let this proceeding remain on the probate docket indefinitely while the parties resolve their problems. In light of the fact that Mr. Rice died four years ago, this argument is utterly without merit.
Affirmed.
PITTMAN and HART, JJ., agree.
. Appellant lives in the homestead. | [
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Lawson Cloninger, Judge.
The appellant, Jan Blay-lock, has appealed a decision of the Arkansas Board of Review which found that appellant was ineligible for unemployment benefits under the provisions of § 4 (c) of the Arkansas Employment Security Act, Ark. Stat. Ann. § 81-1105 (c) (Repl. 1976), in that she was not fully available for work.
Appellant attends nursing assistant school at Springdale Memorial Hospital, and the sole issue addressed in the briefs filed on this appeal is whether she is attending a “State vocational school” as that term is used in the Employment Security Act.
We hold that appellant is not attending a State vocational school and the decision of the Board of Review is affirmed.
Since the Employment Security Act was first enacted by Act 391 of the Acts of 1941, § 4(c) has basically provided, as it now does, that a worker is unemployed within the meaning of the Act if physically and mentally able to perform suitable work and is available for such work.
By Act 93 of the Acts of 1963 a sentence was added to § 4 (c) of the original Act, which stated:
Provided, however, that an unemployed individual who is enrolled in a short-term vocational training or retraining course, supported by an appropriation made by the Congress of the United States, to which he was referred by the Employment Security Agency of the State in which he resides shall be considered eligible for work and making a reasonable effort to secure work so long as his attendance and progress in the course are satisfactory and he does not refuse to apply for or accept suitable work when directed to do so by the Employment Security Agency.
The foregoing provision was deleted by Act 35 of the Acts of 1971, and a provision was added providing that no otherwise eligible worker would be denied benefits by reasons relating to availability for work while in training with the approval of the Administrator of the Employment Security Division. Factors to be considered by the Administrator in granting or denying approval for training are set out in the amendment, and include a necessity that the claimant’s skills must be either obsolete or for some other reason such as employment in that labor market is minimal and not likely to improve.
The Employment Security Act was further amended by Act 1083 of the Acts of 1975 (extended session) to provide that:
Persons who are on layoff and who are attending a State vocational school for the purpose of upgrading or improving their job skills shall be considered available for employment so long as they make reasonable efforts to secure employment; unless, or until, they refuse suitable employment, or referral or recall to suitable work.
We are not persuaded that the legislature intended that the scope of the phrase “State vocational school,” as used in the 1975 amendment, be interpreted, as argued by the appellant, to include any vocational school within the state attended for the purpose of upgrading or improving the worker’s job skills. We believe, and hold, that it was intended to include only the state-sponsored, tax-supported, vocational schools provided for by Ark. Stat. Ann. § 80-2502 (Repl. 1980) which states that “within each of the . . . districts there shall be established two (2) vocational schools, each to be known as a State school of vocational education.” Training in any other institution would require the prior approval of the Administrator of the Employment Security Division.
The decision of the Board of Review is affirmed.
Cooper and Glaze, JJ., concur. | [
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Lawson Cloninger, Judge.
Claimant, Gary Jeffreys, was disqualified for unemployment benefits by a decision of the Arkansas Board of Review under the provisions of Section 5 (b) (1) of the Arkansas Employment Security Act, Ark. Stat. Ann. § 81-1106(b) (1) (Repl. 1976), upon a finding that he was discharged from his last work for misconduct in connection with his work. Claimant’s maximum potential benefits were also reduced eight times his weekly benefit amount under Section 3 (d) of the Act, Ark. Stat. Ann. § 81-1104 (d) (Supp. 1981). Claimant appeals the decision of the Board, charging that most of the employer’s testimony was hearsay, and that there is no substantial evidence to support the decision of the Board.
We find no error and the decision of the Board is affirmed.
At the hearing before the Appeal Tribunal, a representative of the employer appeared, and a portion of her evidence was read from a statement prepared by another employee. However, the representative present, Patsy Van Asten, knew some of the facts relative to claimant’s discharge from personal knowledge, and claimant himself testified to facts from which misconduct could be inferred.
It is uncontroverted that claimant was a desk clerk at the Crescent Hotel in Eureka Springs and that he worked a shift from 4:00 p.m. to midnight. He had been discharged in August, 1981 for excessive absenteeism, but was rehired the next month with the warning that unexcused absences and tardiness would not be tolerated. The act which prompted claimant’s discharge occurred on December 4,1981, at which time claimant was four hours late for his shift.
In Parker v. Ramada Inn, 264 Ark. 472, 572 S. W.2d 409 (1978), the Arkansas Supreme Court stated:
A single incident of missing work has ordinarily been considered misconduct within the meaning of the Employment Security Laws when the failure to report and appear for work involves a disregard of standards of behavior which the employer has a right to expect.
In addition to the one incident of being four hours late for his shift, the employer representative at the hearing testified that claimant had “ . . . been an actor with the Passion Play a great deal of his time away from his duties at the hotel,” and at the hearing the following exchange took place:
Van Asten: What happened to the two weeks in August that you were laid off because of absenteeism?
Claimant: Because of one day missed. Correct?
Van Asten: That’s your statement.
Claimant: Is that not right?
Van Asten: No, it isn’t right, Gary.
The situation presented a question of fact for the Board of Review, and it is the responsibility of the Board, not this court, to interpret the facts. There was substantial evidence to justify the Board in finding that claimant’s conduct involved a disregard of standards of behavior which the employer had a right to expect.
The decision of the Board of Review is affirmed. | [
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George K. Cracraft, Judge.
Wilbert Johnson was charged with first degree murder. He was found guilty of second degree murder and sentenced to a term of 20 years imprisonment. The homicide resulted from wounds to the victim’s neck, proved and admitted to have been inflicted by the appellant. He appeals from that judgment, advancing four points of error. We find no merit in any of them and affirm the conviction.
After the homicide the appellant left the scene, but within an hour he called a police officer in whom he had confidence and offered to turn himself in. After he was taken into custody he was read his Miranda rights, acknowledged that he understood them, signed a waiver and gave a statement describing the circumstances under which the homicide occurred. The appellant first contends that his pre-trial statement was improperly received. At a Denno hearing he testified that he did remember the officer’s reading him his rights but he was so intoxicated and sleepy that he did not fully comprehend. The officers, on the other hand, testified that before questioning, appellant was fully advised of his Miranda rights, stated that he understood them and freely executed a written waiver. The officers stated that although the appellant had been drinking, he was not so intoxicated that he did not know what he was doing and was responsive to all questions propounded to him.
Because it was known that he had been drinking he was given a chemical breath analysis which registered 0.19 percent. A reading of 0.10 is the point at which a presumption of being under the influence of intoxicating liquor arises under our motor vehicle laws. Ark. Stat. Ann. § 75-1031.1 (3) (Repl. 1979). One of the officers testified that because the appellant had been drinking he discussed this matter with the prosecuting attorney. As a result of that discussion he returned the following day when the appellant was completely sober and again informed him of his Miranda rights and obtained a reaffirmance of all of the contents of his statement given the evening before. Several of the officers participated in the investigation and interrogation of the appellant. All of them agreed that while it was obvious that he had been drinking and was under the influence of alcohol, he was not so incapacitated that he was unaware of what he was doing or saying. To the contrary they all testified that he was fully capable of understanding and aware of what he was saying and doing.
Whenever the voluntariness of confession is disputed on constitutional grounds this court makes its own determination of whether the statement was freely and voluntarily given. This independent determination is based on a review of the totality of the circumstances surrounding the making of the statement, and the findings of the trial court in ruling the statement admissible will not be set aside unless this court can say that its ruling was clearly erroneous. Sumlin v. State, 266 Ark. 709, 587 S.W.2d 571 (1979); Chambers v. State, 275 Ark. 177, 628 S.W.2d 306 (1982).
The fact that an accused has been drinking at the time of his confession does not in and of itself invalidate his incriminating statement subsequently given. The test is whether he had sufficient mental capacity at the time he waived his constitutional rights to know what he was doing and voluntarily did it. Kennedy v. State, 255 Ark. 163, 499 S.W.2d 842 (1973). It isior the trial court to determine the credibility of the witnesses and it is not required to give the appellant’s testimony greater weight than that of the police officers. Hunes v. State, 274 Ark. 268, 623 S.W.2d 835 (1981); Hayes v. State, 274 Ark. 440, 625 S.W.2d 498 (1981). We cannot say that the trial court’s finding that the waiver of constitutional rights was freely and voluntarily executed was clearly erroneous.
Even if we assume that the statement given by the appellant on the night of his arrest was constitutionally infirm due to intoxication, it does not follow that his reaffirmation of that statement twenty-four hours later was deficient as a matter of law. One who makes a confession which is involuntary on constitutional grounds is not perpetually disabled from making a voluntary one after the conditions of abuse have been effectively removed. Whether the abuse and its continued effect upon the voluntariness of a subsequent confession have been removed is to be determined by a conclusion as to whether at the time the second statement was made the accused was fully informed and had that mental freedom to confess or deny his participation in the crime. Matthews v. State, 261 Ark. 532, 549 S.W.2d 492 (1977); Woodard v. State, 261 Ark. 895, 553 S.W.2d 259 (1977).
At the time appellant reaffirmed his initial statement he was “cold sober.” The officers testified that they again fully informed him of all of his constitutional rights and that he understood them. They testified that he thereafter freely and voluntarily made the same statement he had made twenty-four hours earlier. The court could find that any infirmity which might have existed from intoxication was clearly removed.
For the foregoing reasons we find that the trial court did not err in admitting the written statement.
The appellant next contends that the trial court never expressly ruled that the statement was made voluntarily. He contends that this violates a requirement that a judge’s conclusion that a confession is voluntary must appear from the record with unmistakable clarity as required in Harris v. State, 271 Ark. 568, 609 S.W.2d 48 (1980). While not abstracted by appellant, the appellee points out to us and the record does reflect that at the conclusion of the Denno hearing the court stated “The motion is denied. The statement is held to be voluntary and admissible, both of them.”
The appellant next contends that the trial court erred in refusing to give his proffered instruction on voluntary intoxication as a defense. We find no merit to this contention for several reasons.
The appellant has not set out in his abstract the other instructions which the court did give. The State argues that under these circumstances the appellate court assumes that the jury was properly instructed. Ellis v. State, 267 Ark. 690, 590 S.W.2d 309 (Ark. App. 1979); Moser v. State, 262 Ark. 329, 557 S.W.2d 385 (1977).
Furthermore Ellis points out that while voluntary intoxication remains a defense to crimes in which an element is that thé act be done knowingly and purposely, the defendant has the burden of proving that defense by a “preponderance of the evidence.” In Ellis the instruction which the court held to be defective contained no provision on the burden of proof and was not specifically directed to whether the required degree of intoxication existed, at the time the crime was committed. In the case under review, while the instruction did recite the proper burden of proof, it did not define “preponderance of the evidence.” The party may not complain of the refusal of the trial court to give an instruction which is only partly correct as it is his duty to submit a wholly correct instruction. Jackson v. State, 92 Ark. 71, 122 S.W. 101 (1909).
We find no error in the trial court’s refusal to give the instruction for still another compelling reason. While there was evidence that appellant had been drinking and that he was intoxicated when arrested an hour or more after the incident, there was no evidence from which a jury might find that he was intoxicated to such a degree as to be unable to form the requisite intent to commit the crime at the time it was committed. Bailey v. State, 263 Ark. 470, 565 S.W.2d 603 (1978).
The appellant next contends that the trial court erred in refusing to give his proffered instruction on justification or “self-defense.” This instruction would have told the jury that if appellant reasonably believed that the deceased was about to commit a felony with force or violence or was about to use unlawful and deadly force he would be authorized to use such force as was reasonably necessary. That instruction also contained the following conclusion:
Wilbert Johnson, in asserting this defense, is required only to raise a reasonable doubt in your minds. Consequently if you believe that this defense has been shown to exist, or if the evidence leaves you with a reasonable doubt as to his guilt of murder in the first degree then you must find him not guilty.
The State argues that the instruction was defective in several respects. However, assuming that the instruction was a proper one, we find no prejudice to have resulted from the failure of the court to give it. This instruction was offered only as a defense to the crime of first degree murder. The jury did not find him guilty of that offense. Its verdict found him guilty of a lesser included offense of second degree murder and fixed his punishment accordingly. No other instruction on self-defense as to any lesser included offense was offered.
The appellant finally contends that the trial court erred in making remarks about the probationary system to a member of the jury out of the presence of the other members of the panel while it was in deliberation. We do not address the question because there is nothing in the record. The only reference to such a statement is contained in a motion for a new trial in which it was alleged that the court misinformed the jury as to their sentencing responsibility when he informed them that parole cannot be considered in sentencing. Absent anything in the record before us regarding any conversations which might have taken place between the court and member of the panel, we can make no determination that the court did not properly overrule the motion for new trial.
Affirmed.
Glaze, J., dissents. | [
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Donald L. Corbin, Judge.
This is an unemployment compensation case in which appellant has appealed from the denial of benefits by the Board of Review. Appellant was denied benefits under the provisions of Ark. Stat. Ann. § 81-1106 (a) for the reason that he voluntarily quit his last job without good cause connected with the work. We affirm.
The record reveals no dispute as to the controlling facts as found by the Board of Review. On January 13, 1982, the appellant gave his notice that he would resign as of January 22, 1982. Appellant stated that he submitted his resignation because he had been convicted of a felony and needed $750.00 to continue his defense. He was attempting to obtain the money by resigning in order to receive payment for accrued vacation time. On January 18, 1982, the court hearing his criminal case found claimant to be an indigent and ordered that state funds be used to continue appellant’s appeal thereby removing appellant’s necessity to resign. Appellant informed his employer that he wanted to withdraw his resignation but the employer refused. The employer informed claimant that his resignation had been accepted.
“In appellate review under Ark. Stat. Ann. § 81-1107 (d) (7) making the findings of the Board of Review, as to the facts, conclusive, if supported by evidence and in the absence of fraud, and confining judicial review to questions of law, we must give the successful party the benefit of every inference that can be drawn from the testimony. We are required to view the testimony in the light most favorable to the successful party, if there is any rational basis for the board’s findings based upon substantial evidence.” Harris v. Daniels, 263 Ark. 897, 567 S.W.2d 954 (1978), Rose v. Daniels, 269 Ark. 679, 599 S.W.2d 762 (1980).
The sole question to be addressed here is one of first impression in this state. The issue is whether an employee who voluntarily resigns his employment without good cause connected with the work is entitled to unemployment benefits if he attempts to withdraw his resignation prior to his last day of employment with that employer.
Our research has disclosed that this issue has been addressed in other jurisdictions. The Supreme Judicial Court of Maine in Guy Gannett Publishing Co. v. Maine Employment Security Commission, 317 A.2d 183 (1974), summarized the decisions in the states of Pennsylvania, Connecticut and Louisiana on this issue. Additionally, we note that New Jersey has also decided this question in Nicholas v. Board of Review, 171 N.J. Super. 36, 407 A.2d 1254 (1979).
Although the Arkansas Employment Security Law is remedial in nature and must be liberally construed, Harmon v. Laney, 239 Ark. 603, 393 S.W.2d 273 (1964), the Act must be given an interpretation in keeping with the declaration of state policy, Little Rock Furniture Mfg. Co. v. Commissioner of Labor, 227 Ark. 288, 291, 298 S.W.2d 56 (1947). Ark. Stat. Ann. § 81-1101 (Repl. 1976) sets forth the State’s public policy of setting aside unemployment reserves to be used for the benefit of persons unemployed through no fault of their own. We cannot say that appellant has become unemployed through no fault of his own since it was appellant’s own action of resignation which set in motion the chain of events which ultimately resulted in his unemployment.
We adopt the reasoning of the Supreme Judicial Court of Maine in Guy Gannett Pub. Co. v. Maine Employment Security Commission, supra, which stated:
A resignation, when voluntary, is essentially an un conditional event the legal significance and finality of which cannot be altered by the measure of time between the employee’s notice and the actual date of departure from the job. An employer who accepts an unequivocal notice of resignation from an employee is entitled to rely upon it, to the extent of preparing in one manner or another for the employee’s absence, unless, of course, the employer chooses to return to status quo by rehiring the employee, or accepting a retraction of the notice.
Absent such action by the employer, however, we are unable to say that a resignation matures only upon the final, physical exit of the worker from the job site. Were this the case, the employer would be unable to hire a replacement or otherwise adjust his work force except at his peril, subject to the wishes of an indecisive employee.
We affirm the decision of the Board of Review. | [
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Melvin Mayfield, Chief Judge.
This is an appeal by an uninsured employer from an award of the Arkansas Workers’ Compensátion Commission.
In an opinion filed June 11,1980, an administrative law judge held that appellee Atha Lee Kirker sustained an accidental injury on January 26, 1979. The law judge held that appellee was temporarily totally disabled through May 25,1979, and had sustained a permanent partial disability of at least 10% to the body as a whole. All reasonable medical expenses were ordered paid and determination with regard to additional disability was held in abeyance pending the results of an evaluation for possible vocational rehabilitation. This award was not appealed.
Another hearing was held in April of 1981 and on November 5, 1981, an administrative law judge filed an opinion on that hearing. The opinion held that due to the appellant’s failure to timely pay the benefits allowed by the opinion of June 11, 1980, a 20% penalty should be imposed pursuant to Section 19 (f) of the Workers’ Compensation Law, Ark. Stat. Ann. § 81-1319 (f) (Repl. 1976). The opinion also found that appellee had sustained a permanent partial disability of 35% to the body as a whole. (This was a 25% disability allowance added to the 10% allowed in the opinion of June 11, 1980:)
Appeal was taken from the November 5, 1981, award and the Full Commission affirmed and adopted that award on February 9,1982. It is from the February, 1982, decision of the commission that this appeal comes.
The appellant, Smith’s Store, first contends that the 55% permanent partial disability award is in error. In that regard, the appellee, Mrs. Kirker, testified that she had a partial ninth grade education, and no particularized skills. She said that her injury resulted in surgery for the removal of a herniated disc and that when her doctor released her to return to work on May 25, 1979, she did not return to work for Smith’s Store, but worked six to seven weeks as a cashier at a club, a month at a garment factory, and four days at a shoe factory, before being forced to quit in each instance by continued back and leg pains. Because of pain and discomfort she was unable to perform certain household tasks and social activities that she was able to perform prior to the injury.
Concerning vocational rehabilitation, Mrs. Kirker testified that she had difficulty in meeting with her counselor regularly due to her physical condition and inclement weather, but they had discussed retraining for a bank teller’s position. She indicated she was pursuing a bank teller’s position at minimum wage in the Salem, Missouri, area for on-the-job training, and stated she felt she would be able to do this work within the limitations of her physical condition and that hopefully the teller job would be offered to her soon.
It is well settled that the commission’s award of permanent partial disability for loss of use of the body as a whole is to compensate the injured employee for functional or anatomical disability and loss of the use of the body to earn substantial wages, Glass v. Edens, 233 Ark. 786, 346 S.W.2d 685 (1961). The functional or anatomical loss percentage is fixed by the commission based on the medical evidence in the record, Arkansas Best Freight System, Inc. v. Brooks, 244 Ark. 191, 424 S.W.2d 377 (1968). In the instant case, Mrs. Kirker’s doctor said her anatomical loss was 10% to the body as a whole.
The wage loss disability — or the degree to which the injury affects the ability to obtain or hold employment — is fixed by the commission based on a consideration of the employee’s age, education, experience, and other matters affecting wage loss. Oller v. Champion Parts Rebuilders, 5 Ark. App. 307, 635 S.W.2d 276(1982). In the instant case, the commission fixed Mrs. Kirker’s wage loss disability at 25% to the body as a whole.
Appellant has argued that, because appellee may secure a teller’s position at a salary higher than her previous wage with appellant, appellee has not suffered a wage loss. This ignores the fact that 25% of the 450 weeks which the compensation law assigns to the body as a whole amounts only to 112.5 weeks, and at the time of the April, 1981, hearing the appellee had already suffered a substantial wage loss during the two years since her May, 1979, release to return to work. In addition, while appellee testified she hoped to be offered the teller’s position, there was no assurance she would actually obtain the position. Considering all the evidence in the record, we cannot say the commission, having the advantage of its own superior knowledge of industrial demands, limitations, and requirements, erred in awarding appellee 35% permanent partial disability, Oller, supra.
The appellant also contends that the commission erred in granting the appellee a 20% penalty on the benefits not timely paid pursuant to the June 11, 1980, award. (This appeal does not involve any penalty for failure to pay the additional 25% disability fixed by the November, 1981, award.)
The June 11, 1980, award ordered the payment of temporary total disability from injury on January 26, 1979, through the end of the healing period on May 25, 1979, and 10% permanent partial disability to the body as a whole. The first payment of any of these items was on September 22,. 1980, when appellee’s attorney was paid $500.00 by appellant. At that time all the items ordered paid by the June, 1980, award were much more than 15 days past due. Section 19 (f) of the Workers’ Compensation Law, Ark. Stat. Ann. § 81-1319 (f) (Repl. 1976) provides:
If any installment, payable under the terms of an award, is not paid within fifteen (15) days after it becomes due there shall be added to such unpaid installment an amount equal to twenty (20) per centum thereof ....
In view of the above statute and the fact that the payments provided by the June, 1980, award were past due before any payment was made, the commission had the authority to assess a 20% penalty on the benefits allowed by the J une, 1980, award. The penal ty, however, as fixed by the November 5, 1981, opinion of the law judge and affirmed by the commission applies only to the temporary total disability and the 10% permanent partial disability. The penalty allowed by Ark. Stat. Ann. § 81-1319 (f) does not apply to medical bills and attorney fees. Model Laundry & Dry Cleaning v. Simmons, 268 Ark. 770, 596 S.W.2d 337 (Ark. App. 1980); Frank J. Rooney, Inc. v. Pitts, 268 Ark. 911, 597 S.W.2d 120 (Ark. App. 1980).
The record reveals that the entire amount owed on the June, 1980, award was listed in a writ of execution issued by the Jackson County Circuit Clerk pursuant to Ark. Stat. Ann. § 81-1325 (c) (Repl. 1976). By agreement, some payments were paid on that amount and appellant argues that appellee forfeited or waived her right to ask for the penalty when she agreed to allow appellant to make those installment payments. This contention might warrant further consideration if appellant had timely paid the installments as agreed, but payments were not made as promised. The writ of execution was eventually levied and the award was finally paid shortly before the second hearing in April of 1981.
Appellant calls our attention to adverse economic conditions in the farming industry between June 11, 1980, and April 8, 1981, and says that Smith’s Store, a farm supply business, was also adversely affected. Contending that both this court and the commission have the discretionary power to refuse to assess the penalty, appellant says that, in fairness and equity, it should not be assessed.
If it is a matter of discretion, we find no abuse in that regard by the commisson and, since the evidence supports the commission’s decision, we find no reason why it should not be affirmed.
Affirmed.
Glaze, J., concurs. | [
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Melvin Mayfield, Chief Judge.
The issue in this case is whether the chancery court erred in refusing to enjoin the Arkansas State Highway Commission from placing concrete posts on its right-of-way to close a commercial access to a state highway.
The history of this case starts in 1966 when the Highway Commission condemned property in Conway County for the construction of the Blackwell Interchange to connect State Highway 64 and Interstate Highway 40. The crossover road between these highways is a controlled access facility and the road, and a fence barring access to the road, were in place by November of 1976. Construction of the road bisected property owned by appellants’ predecessors in title and left two residual triangles of land abutting Highway 64 and the crossover road to 1-40.
Appellant Medlock purchased the eastern residual of 2.2 acres in 1971. It was then unimproved pasture land. In 1973 appellant Goodall obtained an option to purchase that property with the intention of constructing and operating a liquor store on it. In 1980 a retail liquor permit was obtained and construction of the store building began in March of 1981. The land was subsequently conveyed to 101, Inc., a corporation, which is one of the appellants here, along with Medlock, and with Goodall and Robert Bell, who are, apparently, the owners of 101, Inc.
In 1976 the appellants applied for an access driveway permit to the crossover road and it was denied. In 1980 a permit was requested for an access driveway to Highway 64 and it was turned down. On September 5, 1980, the appellants filed suit against the commission asking for an order restraining the commission from preventing access to the crossover road and to Highway 64. This complaint was answered but no trial was held until October of 1981. In the meantime, construction of the store building was completed and traffic from Highway 64 to the store began. When highway department personnel attempted to place concrete posts on its right-of-way to close the driveway the public was using, the appellants obtained a temporary restraining order, but on October 8, 1981, after trial, the court held it was without power to enjoin the commission and the temporary injunction was dissolved.
Appellants argue on appeal that (1) because all of the owners of the land involved were not made parties to the original suit for condemnation, the order of condemnation for the crossover road right-of-way is void as to the omitted parties, and (2) immediately after the commission attempted to block appellants’ access to Highway 64, a suit for injunction was filed and it should have been granted unless and until just compensation was paid for the taking of appellants’ right of access.
In Bryant v. Ark. State Highway Comm’n, 233 Ark. 41, 342 S.W.2d 415 (1961), the court held that where the Highway Commission was threatening to take private property without making provision for compensation, the landowner was entitled to enjoin the commission from the taking until an amount sufficient to constitute just compensation had been deposited in court. The court said this would not be regarded as a suit against the state, but where the owner stood by and permitted the commission to take, occupy, and damage his land, he could not maintain a suit for damages because that would be a suit against the state. Other cases have reaffirmed this principle. See Ark. State Highway Comm’n v. Flake, 254 Ark. 624, 495 S.W.2d 855 (1973) and Ark. State Highway Comm’n v. Rice, 259 Ark. 190, 532 S.W.2d 727 (1976).
So, assuming that appellants owned an interest in the land involved and that they were not made parties to the condemnation suit, it is nevertheless clear that the crossover road and the fence barring access thereto, have been constructed and used too long for appellants now to obtain an injunction against the commission on the first basis they assert.
As to access to Highway 64, we think the trial judge’s action was correct though perhaps not for the reason he gave.
Under Ark. Stat. Ann. § 76-201.5 (m) (Repl. 1981), the Highway Commission is required:
To adopt reasonable rules and regulations from time to time for the protection of, and covering, traffic on and in the use of the State Highway System and in controlling use of, and access to, the highways, except that no provision contained herein shall be construed as repealing the existing “rules of the road.”
Pursuant to that statutory authorization, the Highway Commission adopted its Regulations for Access Driveways to State Highways (1976). Regulation B (1) (c) states:
[Ajccess driveways shall be prohibited for a sufficient distance from the intersection to preserve the normal and safe movement of traffic through it, and in no case shall the distance be less than the intersecting street return radius.
In the hearing before the chancellor the appellees introduced evidence that appellants’ entire driveway lies within the return radius of the intersection. There was testimony as to the number of vehicles entering and leaving through the driveway and a traffic safety engineer testified that the commercial use of the driveway presented a hazardous traffic condition.
The commission’s regulations for access driveways were upheld as constitutionally valid exercises of the police power of the state in Ark. State Highway Comm’n v. Hightower, 238 Ark. 569, 383 S.W.2d 279 (1964). Here, the appellants had reason to know that they would have a problem obtaining an access' driveway permit and they accepted that risk when they built their building without such a permit. We hold that the evidence supports a finding that the commission’s exercise of its authority was reasonable and supports the trial court’s order refusing to enjoin the commission’s action.
Although we affirm the result of the trial judge’s decision, we do not agree that he was without jurisdiction to grant the injunction as to the Highway 64 access. We hold, therefore, that he did not err in refusing to enjoin the commission from closing the commercial driveway from appellants’ property to Highway 64. We note, however, that the trial court’s order does not affect the right of noncommercial ingress and egress to and from appellants’ property and Highway 64.
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Tom Glaze, Judge.
Claimant appeals the Board of Review’s denial of benefits and its finding that he was discharged from his last work for misconduct in connection with the work. The question we must decide is whether there is substantial evidence to support the Board’s decision.
The relevant facts are not disputed. Claimant was discharged for violation of company rules. The company álleged that he falsified a doctor’s statement in order to get an early paycheck. Claimant had advised company officials that he had a dental appointment in the office of Dr. Sam Harris on May 22, 1981. Claimant testified that on this date the receptionist for the company informed him that his sister had called to remind him of the appointment. The receptionist never testified, but a phone-o-gram, made a part of the record, reflects confirmation of the appointment by Dr. Harris’ office. Why the receptionist completed the phone-o-gram in this fashion was never made clear. The claimant received his payroll check early, before leaving work to go to the dentist. Apparently, he found Dr. Sam Harris’ office was closed so he went to another dentist, Dr. W. L. Malette. Sometime on May 22, a company representative called the office of Dr. Harris and found it closed. Based on this information, the company discharged the claimant on June 2, 1981, the day he returned to work after his vacation. Although he possessed a $10 receipt and certificate to return to work which were signed by Dr. Malette on May 22, 1981, claimant testified the employer did not allow him an opportunity to show these documents. Claimant alleges that he was fired, in reality, because of his pro-union activities and because he had filed charges against the employer with the EEOC several months earlier.
From the record, we fail to find any evidence to support the Board’s decision to deny benefits. Claimant was discharged for falsifying a doctor’s statement in order to get an early paycheck. We have searched the record and nowhere can we find any doctor’s statement, false or otherwise, which could have been used to obtain an early paycheck. The phone-o-gram previously mentioned is the only document we can find that the Board may have considered to be a “false statement,” and it was prepared by the company’s receptionist, who never testified. This document, by itself, does not rebut claimant’s testimony that he had a dental appointment on May 22, that the receptionist told him his sister called to remind him of the appointment and that he obviously misunderstood Dr. Harris’ appointment secretary regarding the May 22 date.
The evidence shows the claimant did see a dentist on May 22,1981. The fact that he went to see Dr. Malette instead of Dr. Harris has no relevance. Nothing in the record reflects that the claimant would have been denied his paycheck if his original appointment had been with Dr. Malette rather than Dr. Harris. The fact is that, for whatever reason, he was unable to keep the appointment with Dr. Harris, but he did see Dr. Malette on May 22. Consistent with the Appeal Tribunal’s decision in this case, we find that the evidence overwhelmingly supports the fact that he was discharged from work for reasons other than misconduct. Therefore, we reverse and remand this cause with directions to reinstate benefits to the claimant.
A second issue is raised in this appeal. The Agency had found the claimant ineligible to receive benefits from the week ending May 30, 1981, through the week ending June 13, 1981, because he was not fully available for work as required under Ark. Stat. Ann. § 81-1105 (c). The Appeal Tribunal upheld the Agency decision, finding claimant was not available for work because of car problems. The Board affirmed that decision, but extended the ineligibility to June 20, 1981. We cannot agree.
The record reflects that the claimant missed a benefit rights interview at the Agency which was scheduled for June 17, 1981. Apparently, both the Appeal Tribunal and the Board of Review agree that he did not attend that interview because his car was inoperable. However, he did go to the Agency’s office on the 17th after he repaired his car, only to find the interview and benefits film had been shown. We can find nothing in the record that shows the claimant was to appear at the Agency’s office at a scheduled time of the day. He was directed by Agency personnel to come back on another day. He later viewed the benefits film on June 24, 1981.
The facts in this case fail to support the Board’s conclusion that the claimant was not physically available for work during the period it found him ineligible to draw benefits. We are not unmindful of Lanoy v. Daniels, 271 Ark. 922, 611 S.W.2d 524 (1981), wherein the Supreme Court held that claimants must be available for work or in the labor market during the entire week for which they claim benefits in order to be eligible for unemployment benefits for that week. In Lanoy, the claimant had been laid off the first four days of the week and on Friday she returned to work. However, after working one hour and forty-five minutes, she left work because her brother died. Here, nothing in the record shows that claimant had any employment to leave or that he was offered any. If he had been offered employment, there is no reason to believe he could not have accepted and been available to work. The most the evidence shows is that the claimant appeared at the Agency’s office too late to participate in the interview and the benefits film. Although he experienced mechanical car problems on June 17, he promptly had his car repaired and made himself available to the Agency.
We reverse the Board’s decision on this point and remand with directions to reinstate benefits for the claimant.
Reversed and remanded.
Mayfield, C.J., and Cloninger, J., dissent. | [
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Melvin Mayfield, Chief Judge.
The parties to this appeal were divorced in March of 1980, and a property settlement agreement was approved by the court and made a part of the decree. The agreement contained a provision that "The defendant will pay to the plaintiff the sum of $400.00 per month as alimony as long as she remains single and living as a single person.”
Several months later the defendant, Frank Stracener, was cited for contempt for failing to make the alimony payments and he filed a response alleging the plaintiff was not living as a single person as required by the settlement agreement and asked that he be relieved from the obligation of making the payments. The court held that the agreement was not subject to modification by the court but was subject to interpretation; that it had been breached; and that alimony should cease effective April 1, 1981.
The appellant, Gracie Stracener, argues that the chancellor’s findings are contrary to the law and the evidence.
Mrs. Stracener and her eighteen year old daughter and twenty-one year old son testified. They all agreed that before April 1, 1981, a man moved into appellant’s house and was still living there at the time of the hearing in this case. These witnesses also agreed that he sleeps in bed with appellant; has a key to the house; comes and goes as he pleases; parks his car in the driveway; eats with appellant and her children, and uses the washer and dryer and telephone.
The appellant testified that she first rented this man her son’s room at a time when the son was living elsewhere but when the son moved back she desperately needed the money so she let the man move into her room. She denied a sexual relationship with him while in her house but admitted that they dated and had sex on occasion before he moved in with her.
Appellant’s son testified that the man was not a "room and board” person; that his mother had told him that she and. the man loved each other; and he characterized the man as an “unmarried spouse.”
From appellant’s brief and her reliance upon the cases of Drummond v. Drummond, 267 Ark. 449, 590 S.W.2d 658 (1979) and Byrd v. Byrd, 252 Ark. 202, 478 S. W.2d 45 (1972), it appears the real force of her argument is that sexual immorality alone does not justify the termination of alimony and that having sexual relations is not the same as being married. Those cases, however, did not involve the phrase “living as a single person” which is contained in the settlement agreement in this case. Although we have not been cited to a case construing that phrase, Civil Procedure Rule 52 (a) provides that we do not set aside the trial judge’s factual finding unless it is clearly against the preponderance of the evidence and we think the evidence in this case amply supports the judge’s decision.
Appellant also argues that the court remitted past due alimony payments contrary to the decision in Bethell v. Bethell, 268 Ark. 409, 597 S.W.2d 576 (1980), but we do not agree. Appellee’s contempt hearing was originally set for April 1, 1981, but the alimony question was passed and not heard until September 22, 1981. At that time the court held the defense filed by appellee prior to April 1 st relieved him of alimony obligation as of April 1st. The record, however, contains a judgment in appellant’s favor for all unpaid alimony up to that date.
We find no error and the decision of the trial court is affirmed.
Glaze, J., not participating. | [
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James R. Cooper, Judge.
This is a workers’ compensation case. Appellee was chairman of the Board of Trustees of the Fraternal Order of Eagles in Midway, Arkansas. As a trustee and chairman, he was required to attend meetings, oversee the general business activity of the lodge, and to take care of the lodge building. He was paid $1.00 per year. Appellee was injured on March 19, 1980, when he suffered a high voltage electrical shock while he was inspecting the roof of the lodge building for leaks. The administrative law judge found that the activity that appellee was doing at the time he was injured was expected and routine, and was an important part of the successful operation of the lodge. He further found that the injury arose out of and in the course of appellee’s employment. The full Commission affirmed the administrative law judge’s opinion, adopting it as their own. From that decision, comes this appeal.
On appeal, the appellants argue that there is no substantial evidence to support a finding that appellee was an employee at the time of the injury, or that the injury was causally connected to the incident.
In workers’ compensation cases, the claimant has the burden of proving by a preponderance of the evidence that his claim is compensable. Ark. Stat. Ann. § 81-1323 (c) (Supp. 1981); Hughes v. Hooker Bros. & McKenzie Road Service, Inc., 237 Ark. 544, 374 S.W.2d 355 (1964). The Workers’ Compensation Act, Ark. Stat. Ann. § 81-1301 et seq. (Repl. 1976) is remedial legislation that is to be liberally construed in favor of the claimant. It is the Commission’s function to determine where the preponderance of the evidence lies, but in doing so, doubtful cases are to be resolved in favor of compensation. Aluminum Co. of America v. Henning, 260 Ark. 699, 543 S.W.2d 480 (1976); McGehee Hatchery Co. v. Gunter, 237 Ark. 448, 373 S.W.2d 401 (1963); Williams v. National Youth Corps, 269 Ark. 649, 600 S. W.2d 27 (Ark. App. 1980). The rule of liberal construction applies to the factual determination of whether the injured person is an employee. Liggett Const. Co. v. Griffin, 4 Ark. App. 247, 629 S.W.2d 316 (1982).
On appeal, we are required to review the evidence in the light most favorable to the Commission’s decision and to uphold that decision if it is supported by substantial evidence. In order to reverse a decision of the Commission, the appellate court must be convinced that fair-minded persons, with the same facts before them, could not have reached the conclusion arrived at by the Commission. Office of Emergency Services v. Home Ins. Co., 2 Ark. App. 185, 618 S.W.2d 573 (1981); Bunny Bread v. Shipman, 267 Ark. 926, 591 S.W.2d 692 (Ark. App. 1980).
Arkansas Statutes Annotated § 81-1302 (a) (Repl. 1976) defines “employer” as any individual, partnership, association, or corporation carrying on any employment. “Employment” is defined according to whether the employer has the minimum number of employees in order to subject that employer to the requirements of the Workers’ Compensation Act. Ark. Stat. Ann. § 81-1302 (c) (Repl. 1976). Arkansas Statutes Annotated § 81-1302 (b) (Supp. 1981) defines “employee” as:
[A]ny person, including a minor, whether lawfully or unlawfully employed in the service of an employer under any contract of hire or apprenticeship, written or oral, expressed or implied, but excluding one whose employment is casual and not in the course of the trade, business, profession or occupation of his employer. The term “employee” shall also include a sole proprietor or a partner who devotes full time to the proprietorship or partnership and who elects to be included in the definition of “employee” by filing written notice thereof with the Division of Worker’s Compensation ....
Ordinarily, whether a person is an “employee” can be determined by the position that person occupies and its relationship to the alleged employer. However, in those cases where a person occupies more than one position, it becomes necessary to consider the type of work that was actually being done by that person at the time of his injury. See, Brook’s Inc. v. Claywell, 215 Ark. 913, 224 S.W.2d 37 (1949).
In IB A. Larson, The Law of Workmen’s Compensation § 54.21 (1979), Professor Larson discusses the circumstances under which a corporate officer can be found to be an employee and then states:
With very little difficulty, the courts also extended coverage to corporation officers when their duties were of a supervisory character, such as those of a foreman, superintendent of construction, superintendent of a department, and even, with near unanimity, a general manager, since these are all jobs that, in ordinary circumstances, would make the holder an employee. [Emphasis added.]
This Court has quoted the above section with approval in Continental Ins. Co. v. Richard, 268 Ark. 671, 596 S.W.2d 332 (Ark. App. 1980), and Benefield Real Estate v. Mitchell, 269 Ark. 607, 599 S.W.2d 445 (Ark. App. 1980).
We believe that the standard we have applied to corporate officers is likewise applicable to the executive officers of associations, at least where the sole question is whether the officer is an “employee”.
At the time of injury, appellee and the roofer were on the roof of the lodge building attempting to find a leak in the roof. While examining the roof, appellee came in contact with an air conditioning unit. The appellee suffered an electrical shock from the unit, and immediately left the roof. The type of work that appellee was performing at the time of his injury, is generally associated with the duties of a general manager. Therefore, we affirm the Commission’s decision which finds that the appellee was an employee.
Appellants next argue that there is no substantial evidence that appellee’s injury was causally connected to the incident. This argument is primarily based on the testimony of Dr. Claude Cooper, a specialist in internal and cardiovascular medicine. He indicated that he was not sure exactly why the mitral valve in appellee’s heart malfunctioned when it did. He indicated that he believed that there was a possibility that it was related to the electrical shock that appellee received. Dr. Cooper also testified that a number of things could cause the mitral valve to malfunction, and that appellee had a preexisting disease of the mitral valve.
Our scope of review on this issue is limited to a determination of whether substantial evidence exists to support the Commission’s decision. When the testimony of Dr. Cooper is considered, along with the lack of previous symptoms and the time sequence of events, we cannot say that fair-minded persons could not arrive at the conclusion the Commission reached. See, American Can Company v. McConnell, 266 Ark. 741, 587 S.W.2d 583 (Ark. App. 1979). Even if there were a clear conflict in the medical testimony, which is not present in the case at bar, the resolution of such conflicts is for the Commission, not this Court. Jones v. Scheduled Skyways, Inc., 1 Ark. App. 44, 612 S.W.2d 333 (1981).
Affirmed.
Cracraft, J., concurs.
We realize that the liability of members in a partnership and an association are similar in some ways, and that a partner cannot be an “employee” of a partnership, unless an election has been made to be included as such under the definition. See, Brinkey Heavy Hauling Co. v. Youngman, 223 Ark. 74, 264 S.W.2d 409 (1954); Ark. Stat. Ann. § 81-1302 (b) (Supp. 1981). However, it is not argued before this Court that the appellee cannot be an “employee” of the association because at once he is an employer and an employee, and thus a contradiction of liability. It should be pointed out that the Youngman case was decided by the Arkansas Supreme Court in 1954, with four justices in the majority and three justices dissenting.
The only argument presented in this Court against appellee’s status as an employee, was that he was performing executive or supervisory duties at the time of his injury. No question has been raised as to the existence of a "contract of hire.” | [
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George K. Cracraft, Judge.
Jimmy M. Baugh appeals from an order of the chancery court directing him to specifically perform a contract under which he agreed to purchase farm lands belonging to Royce O. Johnson and Neale M. Bearden at a price of $275,000.
The appellees, Johnson and Bearden, were the owners of approximately 180 acres in Lincoln County. The tract consisted of the Southeast Quarter (SE 1/4) of Section Eight (8), Township Eight (8) South, Range Seven (7) West, and 20 acres in the Southwest Quarter of that section lying east of Bayou Bartholomew. The Bayou made a horseshoe bend in the Southwest Quarter of that section. Ten acres of the lands owned by the appellees lay northeast of the Bayou in the Northeast Quarter of the Southwest Quarter, and the balance lay southeast of the Bayou in the Southeast Quarter of the Southwest Quarter.
In January of 1981 the appellees listed the farm for sale with Robert Harper, a realtor in Star City. Harper was familiar only with the general location of the property and was not then furnished with a copy of the legal descriptions of the lands.
On January 26, 1981 Harper contracted with Baugh for the sale of the property for $275,000. At the time the sale was negotiated Harper located the lands on a county ownership map which indicated that the appellees’ 20 acre tract lay wholly within the South Half of the Southwest Quarter of Section Eight. The west 10 acres of that shown on the property map and described in the contract did not in fact belong to appellees. This map did not show appellees as owners (which they in fact were) of the 10 acres lying northeast of the Bayou in the Northeast Quarter of the Southwest Quarter.
Harper then prepared a contract of sale which described the lands as shown on the county ownership map. At the time of the negotiations Baugh mentioned that he was aware that one Ryall was planting wheat on a portion of the farm and asked that the contract contain the stipulation “buyer to have 1981 crop.” Such a provision was included in the contract which further provided that the seller would deliver possession of the property to the buyer within ten days after the closing date. No closing date was specified. At that time appellant was assured that possession could be delivered within the time specified in the contract.
According to the findings of the chancellor the mistake was not detected until February 11th when the abstract of title was delivered to Harper. On that date he again met with Baugh and pointed out to him the error in the description. According to Harper no protest was made by appellant concerning the improper description. Appellant again indicated that Ryall was still in possession and appeared to be going on with the wheat crop. He was then assured by appellees’ attorney that Ryall had no lease for 1981 and would vacate the premises on the date specified in the contract. The chancellor found that at that meeting and thereafter no further protest was made by appellant as to either the error in the description or the continued possession of Ryall.
On conflicting evidence the chancellor further found that Harper and appellant met again ten days later at which time appellant informed Harper that he had elected to rescind the contract because he found that there was “more land in the highway that divided the 160 acre tract and in the bayou than I thought.” The chancellor accepted Harper’s testimony that at that time no mention was made either of the erroneous description or of the continued presence of Ryall. At the time the election to rescind was communicated appellant stated to Harper that he would purchase the land for $230,000. This was communicated to appellees who informed appellant that they would accept no less than $250,000 or suit for specific performance would immediately follow. Appellant refused to do so and this suit was immediately instituted.
Appellant answered asserting that he had a right to rescind the contract because there had been a material misrepresentation as to the acreage and location of the land and a breach of the condition that he was to have “the 1980 crop.” He averred that Ryall continued to possess the land and cultivate his wheat crop. By subsequent amendment he further contended that appellees’ title to a portion of the land was not merchantable due to adverse possession of others. The chancellor found all issues against appellant and this appeal followed.
The appellant advances several points for reversal, each of which will require a recital of additional facts deemed pertinent to an understanding of our decision. The parties are not in substantial dispute as to the law governing each of these points. They differ only as to the applicability of those rules to the facts of the case. One cardinal rule, however, is applicable to all points. While chancery cases are reviewed de novo on the record, the findings of a chancellor will not be disturbed on appeal unless clearly against a preponder- anee of the evidence and in making the determination we give due regard to the superior position of the trial court to judge the credibility of the witnesses and the weight to be given their testimony. Rule 52 (a), Arkansas Rules of Civil Procedure; Andres v. Andres, 1 Ark. App. 75, 613 S.W.2d 404 (1981).
I
THE TRIAL COURT DID NOT ERR IN HOLDING THAT THERE WAS NO MUTUAL MISTAKE OF FACT WHICH WOULD ENTITLE APPELLANT TO RESCIND HIS OFFER TO PURCHASE.
It was not disputed that Harper was appellees’ agent and that he represented to the appellant that appellees owned and were contracting to sell 20 acres of land lying in the South Half of the Southwest Quarter of Section Eight. Harper located the 20 acre tract on a county ownership map which did show appellees as the owner of 20 acres adjoining the Southeast Quarter and lying south of Bartholomew Bayou. Nor was it disputed that the acreage owned by appellees in the South Half of the Southwest Quarter was only 10 acres and that the remaining 10 acres owned by them in the Southwest Quarter actually lay in the North half. In other words the appellees did not own 10 of these acres that Harper represented they owned at the time the contract was made. The appellant contends that the chancellor erred in not directing a rescission of the contract based on that mistake as to the quantity of land sold and its relative position to other lands. We do not agree.
Our courts have held that mistake standing alone is not sufficient to warrant rescission of a contract. It must appear further that the mistake involved a fact material to the inducement to the making of the contract. Beaty v. Griffin, 235 Ark. 389, 360 S.W.2d 126 (1962); Blythe v. Coney, 228 Ark. 824, 310 S.W.2d 485 (1958); Wright v. Boltz, 87 Ark. 567 (1908); Yeates v. Pryor, 11 Ark. 58 (1850). It must also be shown that the relative position of the parties and their means of information was such that the vendee must necessarily be presumed to have contracted upon the faith he placed in the statements of his vendor. McCormick v. Daggett, 162 Ark. 16, 257 S.W. 358 (1924) and Yeates v. Pryor, supra.
The agent Harper was not at all familiar with the property and knew only its general location. He had to refer to a county property ownership map to determine its acreage and location. The appellant, having lived in the immediate area all of his life, was thoroughly familiar with the appellees’ farm. His home was less than half a mile from it; he farmed land owned by his father which has a common corner with appellees’ farm. He was familiar with who had worked the farm in prior years and was aware that appellees’ tenant Ryall had planted wheat on parts of it. He also knew that the Brown brothers were farming part of the land south of the Bayou. Appellant was informed of the error but did not complain of it or base his request for rescission on it. The chancellor expressly found that appellant’s position and his means of information with respect to the property was far superior to Harper’s and the court also found that neither the quantity of acres nor the erroneous description was a controlling factor in the consummation of the contract. We cannot conclude that these findings were clearly erroneous.
II
THE TRIAL COURT DID NOT ERR IN HOLDING THAT THE APPELLEES HAD NOT BREACHED A SPECIAL CONDITION IN THE OFFER AND ACCEPTANCE WITH RESPECT TO THE 1981 CROP.
The appellant next contends that the trial court erred in holding that there had been no breach of a special condition that appellant would have the 1981 crop. We do not agree.
At the time the contract was executed the appellant asked for, and Harper inserted, this special condition in the contract. It was not disputed that at the time the contract was executed appellant knew that Ryall had planted wheat on 20 acres in the Southeast Quarter and was in possession of the farm on the date of trial. On February 11th the appellant talked to Harper about the Ryall wheat crop and received assurances from the appellees’ attorney that Ryall had no lease on the property for 1981 and that possession of the farm would be delivered at the time specified in the contract. Ryall testified that at the time he talked to the attorney on February 13 he would not have interfered with the sale of the property. There was testimony that after this assurance was given the question of the wheat crop never again came up between the parties. Harper testified that at a subsequent meeting on February 28th the possession issue was not mentioned but that appellant had then stated he would not perform the contract because “there were more acres in the highway and bayou than he had thought.” Ryall further stated that he did not elect to cultivate the rest of the lands until he learned of appellant’s renunciation of the contract.
The trial court found that the appellant contracted for the purchase of the property with full knowledge of Ryall’s possession and wheat crop and that the appellees had worked out an understanding with Ryall under which appellant could have had possession within ten days of the date of closing as provided in the contract. The court expressly found that Ryall would have been agreeable either to the surrender of possession or to any other arrangement satisfactory to appellant, and that he “would not have been difficult to deal with at all.” The court further found that there was no way for the appellant to know on the date he elected to rescind that possession of the farm could not be delivered to him within ten days of the date of closing. There was no provision in the contract which required the appellees to have Ryall vacate the premises or place the appellant in possession of the property before the date specified. The appellant’s obligation to perform on the specified day was not contingent on prior performance on the part of the appellees in this respect. In the absence of a provision in the contract making appellant’s obligation to perform contingent on prior performance by appellees of all of the provisions of the contract, such a provision cannot be read into the contract by the court. Knox v. Knox, 337 Michigan 109, 59 N.W.2d 108 (1953).
We cannot say that the findings of the trial court on this point are clearly erroneous.
Ill
THE TRIAL COURT DID NOT ERR IN HOLDING THAT THE DEFECTS IN APPELLEES’ TITLE DID NOT WARRANT RESCISSION OF THE CONTRACT.
The appellant next contends that the chancellor erred in allowing specific performance because it was proved that the appellees’ title to the entire tract was not merchantable. It was proved appellees had no title to 10 acres described in the contract that one Halford resided on and claimed ownership of approximately 5 acres of woodland located in the Southeast Quarter and that Brown was cultivating 2.2 acres of appellees’ land in the Southwest Quarter. There was evidence that the adverse claims had been maintained for more than the statutory period. We agree that the appellees did not have merchantable title to those areas. We also agree that a vendee in a contract to purchase real estate ordinarily cannot be compelled to accept a title which is not merchantable and can only be required to accept a title that he can hold without reasonable apprehension of being assailed and which is free from reasonable doubts that might affect its value or interfere with its sale. Holt v. Manuel, 186 Ark. 435, 54 S.W.2d 66 (1932); Leroy v. Harwood, 119 Ark. 418, 178 S.W. 427 (1915). Even though a portion of appellees’ title was defective, we do not agree that the chancellor erred in his application of the law with respect to such titles to the fact which he found in this case.
Early in our j udicial history our court declared the rules applicable to the rights of parties to contract for the purchase of real estate where a portion of the title contracted to be sold is found to be defective. Yeates v. Pryor, supra, recognized a distinction between the rights of a vendor and of his purchaser in such cases. The vendor may not rely on defects to a portion of his tendered title to relieve him of his obligation under the contract. The vendee in such cases may elect to take the entire title in its defective condition or only that part of it to which the vendor may show merchantable title. In either event he has a right to seek an abatement of the purchase price as to the deficiency. Of course a vendee is not required to do either and may elect to rescind the entire contract, retrieving any earnest money paid. This right of complete rescission, however, was limited in Yeates as follows:
There can be no doubt that the defect in the quantity sold may be of such a nature, or of such an extent, as to entitle the vendee to a recision [sic] of the contract. On the other hand, it may be so small, or of such a nature as to afford no solid objection to the specific execution of the contract. It is difficult to lay down any general rule upon the subject; each case must, of necessity, depend on its own peculiar circumstances. Reynolds v. Vane, 4 Bibb. 215. Cumins v. Boyle, 1 J.J. Marsh, 481. Bollock v. Wilson, 3 Dana 26. Buck v. McCantry, 5 Mon. 230. McCorn v. Delany, 3 Bibb. 48. Moredock v. Rawlings, 3 Mon. 76, are cases where specific performance was, under various circumstances, decreed, although it appeared that the vendee could not get the benefit of his whole contract. The court, in these cases, seems to have been mainly influenced by the consideration that the deficit was so small or unimportant as not very materially to affect the interest of the parties.
In this case, the vendee asks that he may be relieved from the whole contract, and we think it clear that he is entitled to the relief sought, unless the quantity to which the vendor is unable to make title should be so small and unimportant as, in a matter of conscience, to forbid that he should capriciously insist upon his contract.
Whether the part of the tract to which the defect pertains is too small or inconsiderable in comparison to the value as a whole to warrant rescission under this limitation is a question of fact for the chancellor to determine. The area occupied by Halford was separated from the main tract of appellees’ land by a bayou and woods. It was not accessible from any other lands owned by the appellees. It was wild, unimproved timber land which was not suitable for that purpose unless and until access could be provided. Halford did not appear to have the portion claimed by him under fence and, due to the nature of the land his claim of possession might easily be limited to that which he actually occupied with his residence.
The chancellor found that most of the lands lying in the 20 acre tract in the Southwest Quarter was in woods. Of the 10 acres to which the appellees had no title only 5.4 acres were cultivatable. Of the 10 acres to which appellees had record title, only 2.2 acres were adversely claimed. The chancellor found from all of the attending circumstances that the quantity of acres was not such a material inducement to the making of the contract to warrant rescission. He could and did find that the deficit was so small and unimportant that it did not materially affect the interest of the parties and applied the limitations on rescission set forth in Yeates. We cannot say that these findings of the chancellor or his application of the law to those findings was clearly erroneous.
IV
THE TRIAL COURT DID NOT ERR IN HOLDING THAT THE CONTRACT CALLED FOR A SALE IN GROSS AND THAT THE RECITAL OF ACREAGE IN THE DESCRIPTION WAS NOT OF THE ESSENCE OF THE CONTRACT.
In support of his contention that the court erred in holding that the contract was a sale in gross and not by the acre, appellant advances two apparently inconsistent arguments. The main thrust of appellant’s argument insists that the trial court was required to find that there was a sale by the acre and not in gross because “the appellees specifically contracted to sell appellant 20 acres in the Southwest Quarter of Section Eight and could deliver only 10 acres.” He argues that as the lands in the Southwest Quarter were not described by metes and bounds or definite lines but by enumerating acres, delivery of the specified acreage was of the essence of the contract. We cannot agree.
The contract described the lands to be sold as all of the Southeast Quarter of Section Eight and “20 acres located in the South Half of the Southwest Quarter of that section.” While the description in the contract did not specify the number of acres contained in the Southeast Quarter, the general land office surveys, except in unusual situations, provide that a quarter section contain 160 acres. The general description of the two tracts was followed by the phrase “containing 180 acres, more or less.”
It is well settled that where a description contains words of qualification such as “more or less” or words of similar import, a statement of quantity of acres is a mere matter of description and not of the essence of the contract. In such cases a mention of quantity is not a covenant; nor does it afford grounds for breach even though the stated number of acres falls short of that mentioned in the contract, unless there is fraud or the shortage is of such magnitude that the contract would not have been consummated if the facts had been known. Hays v. Hays, 190 Ark. 751, 81 S.W.2d 926 (1935). The chancellor expressly found that the purchase price was computed not on a per acre basis or upon the number of tillable acres, but for the farm. He further found that the shortage was not of that magnitude required in Hays.
Appellant alternatively asserts that those rules applicable to sales in gross or by the acre envision a merchantable title to lands within a definite description but which, due to gross mistake, contain substantially less acreage than agreed upon by the parties in their contract. He submits that where, as here, the shortage did not result from mistake or misstatement of the quantity of lands embraced within the agreed description but to failure of title to a part of it, the rules governing sales in gross have no application. While we are inclined to agree with this statement of the law, we find no error in the court’s action. The court’s discussion of sales in gross was not the basis for his decision in this case. He recognized the shortage due to defects in title but found the deficiency too small in comparison to the whole to warrant rescission.
V
THE TRIAL COURT DID NOT ERR WHEN IT REFUSED TO RECEIVE PROFFERED EVIDENCE OF THE APPELLANT’S NEW OFFER AND AP-PELLEES’ COUNTER-OFFER.
During the course of the trial the appellant made a proffer of proof that at the time he notified Harper that he would not perform, he proposed a new offer of $230,000. He proffered that appellees rejected that offer but made a counter-offer of $250,000. The appellant contends that it was error for the court to exclude that testimony as it tended to prove a mutual rescission and the reopening of negotiations for a new contract. The chancellor ruled that one cannot unilaterally disavow a contract freely entered into and that appellant had no valid grounds for rescission. He found that the counter-offer made by appellees was an effort to compromise and settle the dispute. The evidence fully supports such a finding. Evidence of conduct or statements made in compromise negotiations is not admissible on the issue of liability. Rule 408, Uniform Rules of Evidence. We find no error.
Affirmed.
Glaze and Corbin, JJ., dissent.
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DOUG MARTIN, Judge.
LThe Pope County Circuit Court terminated the parental rights of appellant Amanda Andrews to her three children (N.A. born June 20, 2008; O.A. born November 14, 2006; and H.A. born February 12, 2005). Andrews argues on appeal that the trial court erred in declining to hear testimony regarding placement of the children with their maternal grandmother because it was relevant to the trial court’s consideration of whether it was in the children’s best interests to terminate Andrews’s parental rights. We affirm.
On January 15, 2010, the Arkansas Department of Human Services (DHS) filed a petition for emergency custody of Andrews’s children, alleging that they were dependent-neglected. The petition was supported by the affidavit of family service worker Melissa Waldo, who attested that, on January 12, 2010, at approximately 10:15 p.m., she responded pto a report that a one-year-old child was admitted to St. Mary’s Hospital for a possible drug overdose. Waldo learned that an officer with the Pope County Sheriffs Department had responded to a domestic disturbance at the child’s home earlier that evening between Andrews and her male friend. The officer informed Waldo that Andrews had recently been released from the Pope County Detention Center and that the children’s father was currently incarcerated at the detention center. Waldo interviewed Andrews, who told her that a friend was supposed to be “watching” her three children at the home but that the friend had gone outside, leaving the children unattended. Andrews claimed that the children had spilled what she initially believed to be sugar on the kitchen floor but that she soon realized the “sugar” was actually green powder, which she tasted and recognized as a narcotic, from a pill that had been crushed on the floor. Andrews first telephoned a friend, who advised her to observe the child and take him to the emergency room if he appeared drowsy or had dilated pupils. Andrews eventually became concerned and took the child to the hospital where Dr. David Stills confirmed that the pill containing green powder was oxycodone. Waldo’s observation of Andrews during the interview led Waldo to believe that Andrews was under the influence of some unknown substance because Andrews was “fidgety,” seemed nervous, and had dilated pupils. Andrews, however, denied having taken any intoxicating substance and agreed to submit to a drug test. Andrews tested positive for methamphetamine, opiates, and benzodiazepines. Andrews then stated that she had “messed up.” Waldo determined that | (¡placing a seventy-two-hour hold on the children was necessary due to Andrews’s substance abuse, inadequate supervision of the children, and domestic disturbances in the home.
On January 15, 2010, the trial court found probable cause to believe Andrews’s children were dependent-neglected. Andrews was ordered to submit to random drug screens; attend and complete parenting classes; obtain and maintain stable and appropriate housing; obtain and maintain stable and gainful employment; attend Narcotics Anonymous/Alcoholics Anonymous (NA/AA) meetings; submit to and successfully complete inpatient drug treatment; and watch a video called “Clock is Ticking.”
Following a hearing on February 14, 2011, the trial court entered a permanency-planning order on April 4, 2011, in which the trial court changed the goal of the case from reunification to parental termination and adoption. Also, the trial court ordered that a home study be conducted on the residence of the children’s maternal grandmother, Barbara Berry, upon Berry’s notifying DHS in writing within thirty days of the February 14, 2011 hearing that she had a home to be studied.
At the termination hearing, Andrews testified that she had lived at five or six homes since the DHS case was opened and that her current living arrangement with her sister was not permanent. Andrews stated that she had a few jobs of short duration but that she was currently unemployed. Andrews testified that she completed parenting classes and inpatient |4drug rehabilitation. Andrews conceded, however, that she subsequently tested positive for benzodiazepines and was discharged from outpatient drug rehabilitation for failure to comply with the treatment plan.
Angel Deal, a caseworker for the Division of Children and Family Services (DCFS), testified that, because Andrews moved so often, only one random drug test was administered in a six-month period. Deal testified that she was able, however, to test Andrews weekly prior to visitation with the children and that Andrews tested positive eight times and had positive drug screens from Freedom House (an alcohol- and-drug-treatment center in Russellville) as well. Deal stated that Andrews offered various implausible excuses for testing positive for drugs. According to Deal, Andrews did not follow recommendations from inpatient drug rehabilitation and did not provide DHS with any documentation with respect to her attendance at NA/AA meetings and outpatient counseling. Deal described Andrews’s children as “adorable” and testified that the likelihood of adoption was “very high.” Deal further testified that, although O.A. was currently in therapeutic foster care, DHS’s plan was for all three children to be adopted as a sibling group.
Teresa Hamilton, the therapeutic foster-care coordinator with Community Service, testified that O.A. was responding well to treatment and had demonstrated significant improvement. Hamilton stated that O.A. likely would be discharged soon from therapeutic foster care, so the plan for adoption could proceed.
Angela May, program assistant for DCFS, testified that Andrews missed nineteen out of sixty-six visits with her children. May stated that twelve of the missed visits were due to Rfailed drug screens; a couple of visits were missed because Andrews was in jail; and a couple of visits were missed because Andrews could not provide a urine sample for testing. According to May, the visits initially “went pretty smooth” but had “sort of gone downhill.” May asserted that this deterioration in the quality of visitation primarily was due to O.A.’s misbehavior and Andrews’s reluctance to discipline O.A.
On redirect examination, Andrews testified that she was “finished messing around with pills.” With respect to outpatient drug rehabilitation, Andrews stated that she “got sick of’ being told that she was still using drugs. Andrews denied avoiding Deal in her attempts to visit Andrews at her home. Andrews testified that, approximately two weeks after the permanency-planning hearing, her mother bought a house. According to Andrews, a home study was conducted on Berry’s new home but “[t]hey denied it because they said that my mom did not make enough money and that they were worried about me coming around after she had got the kids.” Andrews asked the trial judge to place her children with Berry rather than terminate her parental rights. She testified that Berry would care for the children and that her family would help. Andrews added that she would “stay away if [she had] to.”
Barbara Berry testified that she had lived at her home in Russellville for three months and that she bought the house because the trial court ordered that a home study be conducted. Berry stated, however, that she had “flunked” the home study and that DHS did not recommend that the children be placed with her.
[(A-t that point in Berry’s testimony, the attorney ad litem objected, arguing that Berry’s testimony was irrelevant at a hearing on termination of parental rights. Andrews’s attorney responded that, given that the trial court had previously ordered a home study, it stood to reason that the trial court would consider the home study at the termination hearing. The trial court ultimately agreed with the attorney ad litem, ruling that alternative placement was not relevant at a hearing on a petition for termination of parental rights but that the matter could be relevant at another hearing. The court noted that permanency-planning hearings were often held after termination hearings, “so even if the court were to grant the petition to terminate here today, the court can still consider alternative placements, alternative goals later at other hearings.”
Berry continued with her testimony and expressed both her love for the children and her concern that her relationship with them was in jeopardy in the event the trial court terminated her daughter’s parental rights. Berry testified that, before the children were taken into DHS custody, she saw the children four or five days each week and often babysat them. Berry testified that she missed the children and was willing to do whatever it took to get the children back, including taking a second job.
On April 28, 2011, the trial court entered an order terminating Andrews’s parental rights to her three children on the following two grounds: (1) the juveniles were adjudicated dependent-neglected due to Andrews’s drug abuse and inadequate supervision and had continued out of Andrews’s custody for twelve months and, despite a meaningful effort by the depart ment to rehabilitate Andrews and correct the conditions that caused removal, the |7conditions had not been remedied by Andrews, and (2) subsequent to the filing of the original petition for dependency-neglect, other factors or issues arose which demonstrated that return of the juveniles to Andrews’s custody was contrary to the juveniles’ health, safety or welfare and, despite the offer of appropriate family services, Andrews had manifested the incapacity or indifference to remedy the subsequent issues or factors or rehabilitate her circumstances which prevented the return of the juveniles to her custody. Specifically, the court noted that, with respect to the second ground for termination, Andrews had an unresolved drug problem; had not obtained stable housing; and had not maintained gainful employment. The trial court noted that there was a high likelihood that the children would be adopted based on the undisputed testimony of Deal and Hamilton.
On appeal, Andrews argues that the trial court erred in refusing to consider, as an alternative to terminating her parental rights, evidence that Berry was willing to provide the children with a good home because it was relevant to the overall issue of the children’s best interests. Andrews contends that, while the legislature’s goal for permanency “inexplicably places adoption over a placement with a loving relative,” the legislature did not intend to foreclose consideration of other alternatives in appropriate situations.
We review termination-of-parental-rights cases de novo. Meriweather v. Ark. Dep’t of Human Servs., 98 Ark.App. 328, 255 S.W.3d 505 (2007). In eases where the issue is one of termination of parental rights, there is a heavy burden placed upon the party seeking to terminate the relationship. Trout v. Ark. Dep’t of Human Servs., 359 Ark. 283, 197 S.W.3d 486 (2004). Termination of parental rights is an extreme remedy in derogation of the natural rights |sof the parents. Id. Nevertheless, parental rights will not be enforced to the detriment or destruction of the health and well being of the child and must give way to the best interest of the child when the natural parents seriously fail to provide reasonable care for their minor children. Camarillo-Cox v. Ark. Dep’t of Human Servs., 360 Ark. 340, 201 S.W.3d 391 (2005). Pursuant to Arkansas Code Annotated section 9-27-341(b)(3) (Repl.2009), 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. Camarillo-Cox, supra. We do not reverse a termination order unless the trial court’s findings are clearly erroneous. Id. A finding is clearly erroneous when the appellate court is, on the entire evidence, left with a definite and firm conviction that a mistake has been made. Id. In deciding whether a finding of the trial court is clearly erroneous, we give great deference to the superior opportunity of the trial court to observe the parties and judge the credibility of witnesses. Id.
Pursuant to Arkansas Code Annotated section 9-27-341(b)(3)(A), an order terminating parental rights must be based on a finding that termination is in the child’s best interest, which includes consideration of the likelihood that the juvenile will be adopted and the potential harm caused by returning custody of the child to the parents. Also, an appropriate permanency-placement plan is a prerequisite to the circuit court’s consideration of a termination petition. Ark.Code Ann. § 9-27-341(b)(1)(A). In addition, the proof must establish at least one of several statutory grounds set forth in Arkansas Code Anno tated section 9-27-341(b)(3)(B), which provides in relevant part:
|n(i)faj That a juvenile has been adjudicated by the court to be dependent-neglected and has continued to be out of the custody of the parent 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 parent.
(vii)faj That other factors or issues arose subsequent to the filing of the original petition for dependency-neglect that demonstrate that return of the juvenile to the custody of the parent is contrary to the juvenile’s health, safety, or welfare and that, despite the offer of appropriate family services, the parent has manifested the incapacity or indifference to remedy the subsequent issues or factors or rehabilitate the parent’s circumstances that prevent return of the juvenile to the custody of the parent.
Andrews does not argue that the statutory grounds supporting termination of her parental rights were not proved by clear and convincing evidence. Rather, she challenges the trial court’s best-interest analysis. Andrews’s argument on appeal has evolved from the issue she raised at the termination hearing. A party cannot change her argument on appeal and is bound by the scope of her arguments made to the circuit court. Holiday Inn Franchising, Inc. v. Hospitality Assocs., Inc., 2011 Ark. App. 147, 382 S.W.3d 6. Even in termination cases, we will not address arguments raised for the first time on appeal. Lyons v. Ark. Dep’t of Human Servs., 2009 Ark. App. 271, 2009 WL 1017710.
Even assuming that Andrews’s arguments were preserved, we would not disturb the trial court’s decision. At the termination hearing, Andrews argued that the trial court should consider the home study on Berry, and the trial court’s denial of the argument was an evidentiary ruling. This court reviews evidentiary rulings under the abuse-of-discretion standard. Myers v. Ark. Dep’t of Human Servs., 2011 Ark. 182, 380 S.W.3d 906. The trial court has broad discretion in its evidentia-ry rulings; hence the trial court’s findings will not be 110o ver turned on appeal unless there has been a manifest abuse of discretion. Id. We cannot say that the trial court abused its discretion in limiting Berry’s testimony because alternative placement was irrelevant at the termination hearing. Andrews’s argument on appeal, which has expanded to include that the trial court erred in terms of the best-interest analysis by not considering alternative placement with Berry, is not persuasive because the statute Andrews cites and relies upon on appeal does not apply to hearings on termination of parental rights.
Arkansas Code Annotated section 9-27-355(c)(1) (Repl.2009) provides that “a relative of a juvenile placed in the custody of the department shall be given preferential consideration for placement if the relative caregiver meets all relevant child protection standards and it is in the juvenile’s best interest to be placed with the relative caregiver.” Andrews’s reliance on this statute is misplaced because it applies to the initial placement of a juvenile after being taken into DHS custody. See, e.g., Dubois v. Ark. Dep’t of Human Servs., 2011 Ark. App. 401, 2011 WL 2140375. The termination statute, Arkansas Code Annotated section 9-27-341, does not contain a similar provision.
Despite the trial court’s ruling to limit testimony concerning placement of the children with Berry, the evidence, including testimony by both Andrews and Berry, revealed that Berry’s home was an unsuitable placement at that time. Our de novo review does not leave us with a definite and firm conviction that the trial court made a mistake in terminating Andrews’s parental rights.
Affirmed.
HART and GLOVER, JJ., agree.
. The father's parental rights to the children were terminated at the same time; however, he is not a party to this appeal.
. Waldo included in the affidavit that a CHRIS (County Health Reporting Information System) search revealed unsubstantiated reports of inadequate supervision and striking of a child in July 2008; inadequate supervision in April 2009; and environmental neglect and inadequate clothing in August 2009.
. A CASA (Court Appointed Special Advocates) report in the record indicates that Berry's home was vandalized by a man that Andrews had dated and that windows that were broken as a result of the vandalism had not been replaced. | [
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ROBERT J. GLADWIN, Judge.
| Appellants St. Joseph’s Mercy Medical Center and Sisters of Mercy Health System claim that the Arkansas Workers’ Compensation Commission erred by awarding appellee Jimmie Redmond additional benefits and ignoring the change-of-physician rules found at Arkansas Code Annotated section 11-9-514 (Repl.2002). This is a second appeal following remand by this court, see St. Joseph’s Mercy Health Center v. Redmond, 2010 Ark. App. 629, 2010 WL 3685823, which directed the Commission to make factual findings for the application of the change-of-physician rules. The pivotal issue presented is whether, on remand, the Commission erred by not admitting and considering evidence proffered by appellants. We hold that the Commission did not err in denying the admission of evidence and affirm the award of additional benefits to Redmond.
As stated in our previous opinion, Redmond worked as a housekeeper for St. Joseph’s hospital in Hot Springs, Arkansas. On April 15, 2008, he fell on a tile floor while at work. _[¿The evidence is uncontroverted that Redmond suffered a compensable injury to his right shoulder during the course and scope of his employment. He was treated at St. Joseph’s on the date of the injury by Dr. Larry Ramsey, who diagnosed Redmond with a right-shoulder strain. Dr. Ramsey again saw Redmond on April 23, 2008, when he reaffirmed the diagnosis and noted that it was not resolving. Dr. Michael Atta, a physician in the same clinic, later examined Redmond and ordered an MRI. The MRI revealed a focul-full-thickness, partial-width distal supraspinatus tendon tear. Dr. Atta referred Redmond to an orthopedic surgeon and returned him to work with restrictions until he was able to see a surgeon.
Dr. Bruce Smith, an orthopedic surgeon, diagnosed Redmond with severe impingement and a possible rotator-cuff tear prior to surgery. Dr. Smith performed acromio-plasty of the right shoulder on May 20, 2008. The postoperative diagnosis was a severe impingement of the right shoulder. Redmond returned to see Dr. Smith on May 30, June 16, June 30, July 14, and July 22, 2008. At the July 14, 2008 appointment, Dr. Smith determined that maximum benefit had been received and released Redmond to return to work without restrictions.
Redmond returned to see Dr. Smith on July 22, 2008, still having pain and difficulties with his shoulder. At this appointment, Dr. Smith noted that Redmond was not happy about being released to return to work and that he appeared unable to actively flex his elbow. Dr. Smith stated, “[W]e need to consider getting a second opinion and we will defer this to workman’s comp, pending their approval, etc.” At this point, appellants controverted the claim, including Dr. Smith’s recommendation.
IsRedmond testified at the hearing that after being released to return to work, he complained continually to the human-resources department at St. Joseph’s regarding his problems with his shoulder. He also testified that HR informed him that he would have to prove that he needed additional medical treatment beyond Dr. Smith’s treatment, and told him to go to his own doctor. Redmond stated at the hearing that he sought approval from appellants to see Dr. Tucker. Appellants argue that by the time the approval was sought, Redmond had already changed physicians.
On July 22, 2008, Redmond went to see a physician of his choosing, Dr. Roy Puen. Dr. Puen’s examination found that Redmond had a frozen shoulder, and he referred him to Dr. Paul Tucker. On August 8, 2008, Redmond saw Dr. Tucker, who observed that Redmond had swelling and thickening in his right hand and could not straighten his elbow. He also noted that Redmond had a nodule at the base of his thumb and some serious problems remaining in his right shoulder. Dr. Tucker restricted Redmond to light-duty work. Redmond testified that he spoke with both HR and his manager, and they informed him that no light-duty work was available. Dr. Tucker saw Redmond again on September 12, 2008, when he noted visually apparent differences in Redmond’s shoulders and hands. Dr. Tucker noted that Redmond suffered from rotator-cuff syndrome and kept him on light-duty work only. Dr. Tucker referred Redmond to Dr. Arthur for injections, but Redmond did not seek further treatment due to the expense.
In the October 7, 2009 order, the administrative law judge (ALJ) set forth the following findings of fact and conclusions of law:
|41. There was an April 15, 2008 com-pensable injury.
2. The temporary total disability rate is $403.
3. The claimant has proven by a preponderance of the evidence that the additional medical [treatment] he requested is reasonable and necessary.
4. Respondents are liable for the reasonable and necessary medical benefits.
5. The claimant has proven by a preponderance of the evidence that he remained in his healing period and unable to earn wages from August 8, 2008, through a date to be determined.
The Commission affirmed and adopted the ALJ’s opinion.
On appeal, we held that this conclusion lacked sufficient findings of fact for us to determine whether substantial evidence supported the decision to approve additional medical benefits. Redmond, supra. We stated that there was no question on appeal whether Redmond sought approval of a change-of-physician request: he did not. Id. Rather, we stated that the issue was whether an exception to the change-of-physician rules applied in this case. Id. We noted that, while there is an exception to filing the change-of-physician forms under Arkansas Code Annotated section 11-9-514, when the claim has been controverted, this is governed by subsection (f) of the statute. Id. We held that the ALJ made no findings to support the application of this exception.
On remand before the ALJ, appellants sought to supplement the record with new evidence of a signed AR-N form, which was not presented at the initial hearing held | .¡¡September 11, 2009. By an opinion filed December 3, 2010, the ALJ denied appellants’ request, finding that the opportunity to present evidence and make a record was the date of the initial hearing. The ALJ further found that appellants failed to prove that Redmond was provided the change-of-physician (AR-N) form after the compensable injury occurred and that, based on this, Redmond was not required to file a change-of-physician petition to treat with a competent physician. Finally, the ALJ found that appellants were liable for Redmond’s reasonable and necessary medical benefits; that Redmond proved by a preponderance of the evidence that he was entitled to temporary-total-disability benefits because he remained in his healing period and unable to earn wages from August 8, 2008, through a date to be determined; and that Redmond’s attorney should receive the maximum statutory attorney’s fee.
Appellants appealed to the Full Commission, which issued its opinion on April 27, 2011, affirming the ALJ’s decision. In its own lengthy opinion, the Commission found that appellants did not prove that the employer or carrier delivered to Redmond a copy of a notice explaining his rights and responsibilities concerning a change of physician. The Commission opined:
[ ]The respondents on appeal assert that “it is beyond dispute that a signed ARN is found in the Commission file.” The Commission’s file contains no such signed Form AR-N. Following the September 22, 2010 remand order and mandate from the Court of Appeals, the respondents proffered a Form AR-N, Employee’s Notice of Injury. The proffered exhibit was not received by the Commission until November 16, 2010, and there has previously been no such exhibit in the record before the Full Commission or in the Commission’s file.
Ark.Code Ann. § 11 — 9—705(c)(1)(B) (Repl.2002) provides that each party shall present all evidence at the initial hearing. With regard to the issue of whether or not Rto allow submission of newly-discovered evidence, the Arkansas Supreme Court has set out the following prerequisites: “(1) Is the newly discovered evidence relevant? (2) Is it cumulative? (3) Would it change the result? (4) Was the movant diligent?” Haygood v. Belcher, 5 Ark.App. 127, 633 S.W.2d 391 (1982), citing Mason v. Lauck, 232 Ark. 891, 340 S.W.2d 575 (1960). In the present matter, the respondents seek to submit into the record what can only be characterized as newly-discovered evidence, a Form AR-N not received by the Commission until November 16, 2010. The Full Commission is unable to find that the respondents were diligent in proffering this evidence. The Full Commission therefore is constrained to find that the respondents did not deliver to the claimant a notice explaining the claimant’s rights and responsibilities concerning change of physician. Since the evidence of record shows that the respondents failed to give the claimant the change-of-physician form after his injury, the claimant was not required to petition the Commission in order to be treated by a competent doctor. See Stephenson v. Tyson Foods, Inc., 70 Ark. App. 265,19 S.W.3d 36 (2000).
Based on our de novo review of the entire record currently before us, and in accordance with the mandate from the Arkansas Court of Appeals, the Full Commission finds that treatment provided by Dr. Puen and Dr. Tucker was reasonably necessary in accordance with Ark.Code Ann. § ll-9-508(a) (Repl. 2002). The claimant proved that he was entitled to at least one treatment evaluation by Dr. Arthur, as recommended by Dr. Tucker. The change of physician rules do not apply in the present matter, because the respondents did not prove that the claimant was furnished a copy of a notice explaining the claimant’s rights and responsibilities concerning change of physician. Th'e claimant proved that he was entitled to temporary total disability benefits beginning August 8, 2008 until a date yet to be determined.
From this decision, appellants filed a timely notice of appeal, and this appeal followed.
When reviewing a decision of the Commission, we view the evidence and all reasonable inferences deducible therefrom in the light most favorable to the findings of the Commission and affirm that decision if it is supported by substantial evidence. Redmond, 2010 Ark. App. 629, at 4, 2010 WL 3685823. Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Id. The issue is not whether we might have reached a different result or whether the evidence would have supported a contrary 17fínding; even if a preponderance of the evidence might indicate a contrary result, if reasonable minds could reach the Commission’s conclusion, we must affirm its decision. Id.
Arkansas workers’ compensation law provides that an employer shall promptly provide for an injured employee such medical treatment as may be reasonably necessary in connection with the injury received by the employee. Ark.Code Ann. § 11 — 9— 508(a) (Supp.2009). The employer has the right to select the initial treating physician. Ark.Code Ann. § 11 — 9— 514(a)(3)(A)(i). However, an employee may request a one-time change of physician. Ark.Code Ann. § 11 — 9—514(a)(2)(A), (a)(S)(A)(ii), (iii). When a claimant seeks a change of physician, he must petition the Commission for approval. Stephenson, supra (citing Ark.Code Ann. § 11 — 9— 514(a)(2)(A) (Repl.1996)). Treatment or services furnished or prescribed by any physician other than the ones selected according to the change-of-physician rules, except emergency treatment, shall be at the claimant’s expense. Ark.Code Ann. § ll-9-514(b) (Repl.2002).
The change-of-physician rules do not apply unless the employer satisfies the following condition:
(c)(1) After being notified of an injury, the employer or insurance carrier shall deliver to the employee, in person or by certified or registered mail, return receipt requested, a copy of a notice, approved or prescribed by the commission, which explains the employee’s rights and responsibilities concerning change of physician.
Ark.Code Ann. § 11 — 9—514(c)(1). Any unauthorized medical expense incurred after the employee has received a copy of the notice shall not be the responsibility of the employer. Ark.Code Ann. § 11-9-514(c)(3). If, however, after notice of injury, the employee is not furnished a copy of the notice after an injury, the change-of-physician rules do not apply. Ark. |sCode Ann. § ll-9-514(c)(2); Stephenson, 70 Ark.App. at 272, 19 S.W.3d at 40-41 (holding that if an employer fails to give a claimant the Form AR-N after an injury, the claimant is not required to petition the Commission in order to be treated by a competent doctor).
We are to strictly construe the workers’ compensation statutes, see Ark. Code Ann. § 11 — 9—704(c)(3) (Repl.2002), and strict construction requires that nothing be taken as intended that is not clearly expressed. Hapney v. Rheem Mfg. Co., 341 Ark. 548, 26 S.W.3d 771 (2000).
I. Admission of Evidence
Appellants first contend that the Commission erred by refusing to admit and consider the form AR-N that had been executed by appellee and offered into evidence on remand. Appellants argue that this court remanded the case with a limited mandate to make findings of fact on particular issues that had not been addressed in the Commission’s first decision. These issues, appellants maintain, lacked factual findings in the Commission’s decision because the parties did not contest them at the original hearing — hence the need for remand.
Appellants argue that this court concluded in the first appeal that the Commission lacked factual findings on whether an exception to the change-of-physician rules would apply. Appellants claim that there was never any question as to the existence of the executed form AR-N, whether Redmond was aware of his right to request a change-of-physician, or even whether the treatment was unauthorized. Specifically, they argue that Redmond never denied receiving the form AR-N. They maintain that the issue was whether an exception applied.
| ¡Appellants contend that when the case was remanded, the Commission refused to hear evidence on the form AR-N issue, holding that appellants did not prove that a form was delivered to Redmond. Appellants argue that Commissioner McKinney points out in her dissent that it is not true that a form AR-N was never provided to Redmond and that it was not argued by Redmond that he did not receive the form. Thus, appellants assert that the Commission ignored clear evidence and denied them their right to be heard on the issue, citing Arkansas Louisiana Gas Co. v. Grooms, 10 Ark.App. 92, 661 S.W.2d 433 (1983), where we stated:
We fully recognize that the function of the Commission is to conduct a fair and impartial hearing in a manner that will best ascertain the rights of the parties and that pleading and practice before the Commission is less formal and not governed by the stricter rules of procedure applicable to courts. Ark. Stat. Ann. § 81-1327 (Supp.1983). Subject to its own rules the Commission is given great latitude in this area. We do not mean to imply otherwise but we hold only that the Commission erred under the circumstances of this case when it based its decision on a finding of fact which was clearly not in issue or developed by the evidence without notice to the parties of its intent to do so and no opportunity to offer proof on that issue was afforded.
Id. at 101, 661 S.W.2d at 438-39.
Appellants argue that “[t]he Commission should be liberal, rather than stringent, about the admission of evidence.” Steak House v. Weigel, 101 Ark. App. 81, 84, 270 S.W.3d 365, 367 (2007). Appellants contend that it is no error to admit relevant, probative evidence even after an initial hearing. Id. “The Commission is not bound by technical rules of evidence or procedure, but may conduct the hearing in a manner as would best ascertain the rights of the parties.” Brewer v. Tyson Foods, Inc., 10 Ark.App. 88, 90, 661 S.W.2d 423, 424 (1983); see also Steak House, supra. “The Commission must adhere to basic rules of fair play, such as | ¡¡¡recognizing the right of cross-examination and the necessity of having all the evidence in the record.” Steak House, 101 Ark.App. at 85, 270 S.W.3d at 367. Appellants argue that the Commission’s approach to this issue was stringent and effectively denied them the right to be heard.
Redmond points to the law relied on by the Commission in denying admission of the form AR-N. Arkansas Code Annotated section ll-9-705(c)(l)(B) (Repl. 2002) provides that each party shall present all evidence at the initial hearing. And Haygood v. Belcher, supra, sets forth the prerequisites for allowing submission of newly discovered evidence: (1) Is the evidence relevant? (2) Is it cumulative? (3) Would it change the result? (4) Was the movant diligent?
We note that the Commission has broad discretion with reference to the admission of evidence, and its decision will not be reversed absent a showing of abuse of discretion. Coleman v. Pro Transp., Inc., 97 Ark.App. 338, 249 S.W.3d 149 (2007). Because appellants had ample opportunity to offer proof to support their case at the initial hearing before the ALJ and the evidence was not proffered until this court remanded the case on appeal, we hold that the Commission’s determination, that appellants were not diligent, is not an abuse of discretion.
Appellants also contend that the Commission should have, at the very least, taken judicial notice of the executed form AR-N as advocated by Commissioner McKinney. The law of judicial notice is a part of the law of evidence, see Ark. R. Evid. 201 (2011), and the Arkansas Supreme Court has recognized the general applicability of the rules of judicial notice |nin proceedings before the Commission. See St Paul Ins. Co. v. Touzin, 267 Ark. 539, 592 S.W.2d 447 (1980). A judicially noticed fact must be one not subject to reasonable dispute. Ark. R. Evid. 201(b).
Appellants claim that there is and was no reasonable dispute as to the form AR-N or the fact that Redmond received that form and was on notice of the change-of-physician rules. Therefore, appellants argue that the Commission erred by refusing to take judicial notice of this crucial piece of evidence proffered by them, and this warrants reversal of the Commission’s decision. However, as the Commission stated in its April 27, 2011 opinion, its file “contains no such signed Form AR-N.” This court remanded for further findings pertaining to Arkansas Code Annotated section 11-9-514, changing physicians. Based on the record before it, the Commission made those findings.
Appellants’ request on appeal for the Commission to take judicial notice is similar to the argument made by the employer in St. Edward, Mercy Medical Center v. Phipps, 2011 Ark. App. 497, 2011 WL 3925370. There, while the employer/appellant conceded that there was no form AR-N in the record on appeal, they argued that reversal was warranted because the signed form AR-N could be found in the Commission’s file. Id. at 4. However, employer/appellant did not introduce the form into evidence; it did not incorporate the form by reference; it did not ask the Commission to take judicial notice of the form; and it did not ask the claimant if she received and/or signed the form or whether she was advised of her right to seek a change of physician. Id. Further, there was no evidence of employer/appellant requesting the | ^Commission to take judicial notice of the form. Id. Likewise, the appellants in the instant case failed to make their record on this issue at the initial hearing before the ALJ.
II. Additional Benefits
The employer shall promptly provide for an injured employee such medical treatment as may be reasonably necessary in connection with the injury received by the employee. Ark.Code Ann. § ll-9-508(a). The burden is on the employee to prove by a preponderance of the evidence that additional medical treatment is reasonably necessary. Fayetteville Sch. Dist. v. Kunzelman, 93 Ark.App. 160, 217 S.W.3d 149 (2005). What constitutes reasonably necessary medical treatment is a question of fact for the Commission. Hamilton v. Gregory Trucking, 90 Ark.App. 248, 205 S.W.3d 181 (2005). To be entitled to temporary-total-disability benefits, the claimant must remain in his healing period and be unable to earn wages. Ark. State Hwy. & Transp. Dep’t v. Breshears, 272 Ark. 244, 613 S.W.2d 392 (1981).
The award of additional benefits and temporary-total-disability benefits is affirmed. Relying on the Commission’s evi-dentiary ruling disallowing admission of the form AR-N, the evidence of record shows that appellants failed to give Redmond the change-of-physician form after his injury; thus, Redmond was not required to petition the Commission in order to be treated by a competent doctor. After Redmond sustained the compensable injury on April 15, 2008, an acromioplasty of his right shoulder was performed on May 20, 2008. Dr. Smith pronounced maximum medical improvement and released Redmond on July 14, 2008, but, one week later, Dr. Smith noted that Redmond was unable to flex his right elbow. However, further medical treatment was controverted by appellants, and Redmond presented 113on his own to Dr. Puen. Redmond continues to be able to perform work only with his left hand. Based on this evidence before the Commission, substantial evidence supports its finding that additional medical treatment is reasonably necessary and that he remains within his healing period and unable to earn wages after August. 8, 2008.
Affirmed.
VAUGHT, C.J., and BROWN, J., agree.
. The written notice most often utilized by employers is a Workers' Compensation Commission document entitled, “Form AR-N, Employer’s Notice to Employee.” The AR-N form, among other things, is a written notice to employees from employers outlining the employees' rights and responsibilities concerning a change-of-physician request. | [
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RAYMOND R. ABRAMSON, Judge.
In this child-custody case, appellant Terri Metz argues that the trial court erred (1) in finding that appellee proved a material change in circumstances demonstrating that a modification of custody was in the best interest of the child and (2) in denying appellant’s petition for permission to remove the child. We reverse and remand.
Metz and appellee Thomas Steele had a son, E.S., born out of wedlock on June 25, 2003. An order establishing paternity was entered in May 2004. The order placed custody with Metz and set support payments and visitation; however, the parties continued to live together until February 2009. In July 2009, Metz filed a petition for permission to remove E.S. from the state, alleging that a “material change in circumstances has occurred that required] the Plaintiff to relocate to York Town, Virginia.” Appellant filed a second petition 12in August 2009, this time explaining that she had no ties with Arkansas and wanted to move to Virginia to be near her daughter, who was in the military. Appellant stated that her daughter would provide housing and other benefits and could assist her in the event her Crohn’s disease flared up. Appellee responded in opposition to the petition.
On October 1, 2009, appellee filed a petition for change of custody. He alleged that he had exercised all visitation allowed under the previous order, plus had been allowed additional visitation; that appellant had been spending the night with an undisclosed romantic partner in the presence of the minor child; and that appellant had arbitrarily stopped his four-day-a-week visitation. Appellant answered, denying all allegations. In a second amended petition for change of custody, appellee included allegations that appellant received Social Security disability benefits and did not file a tax return, and that he should be allowed to claim the parties’ minor child as a dependent for income-tax purposes. The minor child was appointed an attorney ad litem in May 2010.
Appellee filed a third amended petition for change of custody in June 2010. In this petition, he alleged that the minor child had reported being dressed as a girl and given girls’ toys to play with; that the school counselor had made a referral; and that the child was in counseling and appel-lee wished to be included in the counseling.
A hearing on the petitions was held on November 30 and December 7, 2010. E.S.’s counselor testified that she was not initially his counselor, but she testified regarding the master treatment plan and diagnostic assessments done at the initial interview. The presenting-problem survey noted “anger/aggression” and “anxiety/panic/phobia.” She believed that the | ^mother stated that the presenting problems were obsessions and occasional opposition, mostly since returning from visits with the father. It was also noted that E.S. liked to play dress-up. The Global Assessment Process (GAP) score of 81 to 90 reflected a “pretty well functioning person.” The initial intake GAP score of 60 was on the higher end of functioning— typically not needing counseling. On cross-examination, the counselor stated that she saw the child three times and discharged him in October 2010 because all goals had been met and there were no additional services needed. E.S. was well adjusted, and his only need was not to be involved with parental conflicts.
Appellant testified next. She stated that after appellee moved out of their home in February 2009, he saw E.S. “whenever he wanted but there was not an exact schedule.” She stated that she filed the petition to remove the child because she had no ties to Arkansas and had moved here only to be with appellee. She testified that her twenty-six-year-old daughter had adequate housing for her and E.S. (a two-bedroom apartment); that they would share housing expenses, and her daughter would assist when she had flare-ups of Crohn’s disease; and that certain benefits would be available to her if she lived in the home with her daughter— including medical insurance, college tuition, and military discounts on housing and air fare. At the time of the hearing, appellant was covered by Medicaid and E.S. was covered under Arkids and insurance from appellee. Appellant testified that she was hospitalized for her Crohn’s disease on several occasions in 2005, in January, March, April, and October 2006, and on July 19, 2007. She was hospitalized again in July 2008. Appellant’s Crohn’s disease prevented her from doing many everyday activities, including working, but she was able to |4make it to most of E.S.’s school functions and extracurricular activities. Appellant stated that she did not have a boyfriend. She first testified that she had never used marijuana, cocaine, or methamphetamine, but upon questioning from the court, appellant testified that she had tried marijuana in middle school but had not used drugs since.
Appellant testified that since she posted on Facebook in February 2009 that she and her boys would be moving to Virginia, she had done some research. She stated that E.S. would go to the York Town School District, which she had not visited but had been recommended to her by friends. She did not know whether the children would go to school all year, but she claimed to have looked up “the population, crime rate and scholastics.” Appellant went on to testify that appellee was not listed as an emergency contact for E.S. because he would not answer the call or get the message; she instead listed friends. She stated that she had told E.S. that he would still get to see his dad. She did not know the mileage or how many hours it took to get to her proposed new home in Virginia.
As for her finances, appellant stated that her expenses exceeded her income. She did not pay taxes; she was able to keep her disability payments and receive up to $900 a month. She denied having ever picked E.S. up by the hair or cursing him, or telling him that he could not make a birthday card for his father. When she was gone to Chicago for over a month for testing and surgery, appellee kept both of appellant’s children, although they spent the night with babysitters because he had to be at work early. Appellant stated that appellee was fired from his job in 1996 for using drugs. While she had worked two jobs when she was first pregnant because appellee had been laid off, he otherwise worked outside the home while the | .^parties were together. Appellant had not worked outside the home since 2005, when she began receiving Social Security disability benefits. Appellant stated that she did not have a problem with appellee’s new wife, although she did have a problem with Ms. Steele interrupting or stating her opinion when she and appellee were discussing E.S. Appellant stated that appel- lee’s trailer was not big enough for his wife and two kids and E.S. As for the counseling sessions, appellant stated that she requested that E.S. see the school counselor due to difficulties at visitation times and problems at school. She remembered telling the counselors that appellee was concerned about him being “a little more feminine” but denied wanting a girl or having primarily girls’ toys in his room. Appellant believed that appellee blew out of proportion the fact that E.S. played with a few feminine toys. After E.S. expressed to her that his father was “giving him a lot of grief’ about the girls’ toys, appellant talked with E.S. and they decided that he was too big for those toys and that he should start second grade “fresh.” They threw out the girls’ toys together.
Michelle Farris testified that appellee moved in with her and her husband when the parties broke up. She testified to appellee being an involved father; seeing appellant smoke marijuana and do “coke” on one occasion in 2008; and witnessing appellant pick E.S. up by his hair one time in 2007.
Gregory Mostecky testified that he had known appellee for about twenty-five years and met appellant through him. Before Mostecky was diagnosed with lung cancer four and a half years earlier, he and the parties did methamphetamine together on several occasions. He had not seen any drug use by the parties since their separation.
IfiAppellee Thomas Steele testified regarding his life with appellant and his visitation after their split. He stated that they agreed that he would have E.S. on Tuesdays and Thursdays for two to three hours and all day Saturday through Sunday evenings. After he and his current wife moved in together, appellant told him that he would have to go back to the court-ordered visitation of every other weekend. Appellee admitted past drug use (using methamphetamine as recently as twenty-two months prior) but stated that he had passed all random drug screens he took at work for the past several years. He denied ever threatening appellant’s older son. He discussed his concerns about E.S. playing with girls’ toys. Appellee also stated that appellant was a good mother, and he had no problems with the way she cared for E.S. He did not want E.S. to move to Virginia because he would not be able to see E.S. as much.
E.S.’s school principal and several of appellant’s friends (including appellee’s sister) testified that E.S. was a well-adjusted little boy and appellant was a good mother. Appellant’s ex-husband testified that appellant used drugs when they were together.
Finally, the attorney ad litem recommended that custody remain with appellant and that her petition to relocate be denied “because ... nothing has been shown why it would be in the best interest of this child to take him and relocate him in Virginia where it would not be in his best interest to be separated from his father.”
The judge ruled in a letter order that appellant’s request to remove the child to another state was denied. The court found that the proposed move was “primarily for the benefit of the mother without regard for the child’s best interest,” citing appellant’s stated desire for a 17“fresh start” and inability to provide credible details regarding the available schools. The court also cited “inconsistencies” and “lies” in appellant’s testimony, such as her statement that she had not used drugs at any time since middle school despite testimony from appellee otherwise. Further, the court stated that appellant had a history of inconsistency with regard to visitation, allowing liberal visitation until unilaterally altering the parties’ agreement to the detriment of the child. As for ap-pellee’s petition to change custody, the court found both the required material change in circumstances and that it was in the best interest of the child. The material change of circumstances found by the trial court was that the mother fostered a relationship between father and son until the parties separated and she “stopped that relationship for no good reason other than her perceived authority to do so.” An order was entered on June 22, 2011, and appellant filed a notice of appeal on July 1, 2011.
I. Change of Custody
This court has set forth the standard of review in child-custody modifications as follows:
The standard of appellate review governing custody modifications is well settled. In child-custody cases, the primary consideration is the welfare and best interests of the child involved; all other considerations are secondary. Custody will not be modified unless it is shown that there are changed conditions demonstrating that a modification is in the best interest of the child. In cases involving child custody and related matters, we review the case de novo, but we •will not reverse a trial judge’s findings in this regard unless they are clearly erroneous. Although there is evidence to support it, a finding is clearly erroneous when the reviewing court is left with the definite and firm conviction that a mistake has been made. Because the question of whether the trial court’s findings are clearly erroneous turns largely on the credibility of the witnesses, we give special deference to the superior position of the trial judge to evaluate the witnesses, their testimony, and the child’s best interests.
Walker v. Torres, 83 Ark.App. 135, 137-38, 118 S.W.3d 148, 150 (2003) (citations omitted).
Here, we must determine whether the trial court’s finding of changed circumstances demonstrating that a modification is in the best interest of the child is clearly erroneous. According to appellant, appellee’s proof of a material change of circumstances centered on appellant’s alleged drug use and concern over E.S. playing with girls’ toys. However, the court did not explicitly find that appellant’s drug use or the issue of E.S. playing with girls’ toys constituted a material change. Instead, the court found in its letter order that appellee had proved a material change in circumstances in that appellant fostered a relationship between father and son until the parties separated and she “stopped that relationship for no good reason other than her perceived authority to do so.” Nonetheless, appellant argues that her alleged drug use is not a material change in circumstances warranting a change in custody, and we agree. The court found that appellant’s “denial of use of drugs any time subsequent to middle school flies in the face of reason and is inconsistent with the credible testimony of the father to the contrary.” The only evidence of drug use by appellant indicated that it was in the past and that appellee had also used drugs. According to appellant, the other proof of material change was the concern over E.S. playing with girls’ toys. According to E.S.’s counselor, this was not an issue, and appellee himself testified that he had no concern about appellant’s parenting skills.
For a change of custody, the trial judge must first determine that a material change in circumstances has occurred since the last order of custody. When the petition to change custody was filed, the parties were undisputedly following the court’s paternity/custody order, which set visitation. We do not believe that following the visitation schedule previously |aordered by the court constituted a material change in circumstances. Because the court erred in finding that a material change in circumstances occurred, we reverse the change of custody without reaching the best-interest issue.
II. Relocation
The factors a trial court must consider when determining whether to grant a petition to relocate were set out in Hollandsworth v. Knyzewski, 353 Ark. 470, 109 S.W.3d 653 (2003). These factors include (1) the reason for relocating; (2) the educational, health, and leisure opportunities available in the new location; (3) the effect of the move on the visitation and communication schedule of the noncustodial parent; (4) the effect of the move on extended-family relationships in Arkansas and the new location; and (5) the children’s preferences, considering the ages and maturity level of the children and the reasons given for the preference. Hollandsworth, 353 Ark. at 485, 109 S.W.3d at 663-64. Even when these factors are considered, the polestar remains whether it has been established by a preponderance of the evidence that a proposed relocation would serve the child’s best interest. Sill v. Sill, 94 Ark.App. 211, 228 S.W.3d 538 (2006). A presumption exists in favor of relocation for custodial parents with primary custody, with the burden being on a noncustodial parent to rebut the presumption. Id. Therefore, a custodial parent is not required to prove a real advantage to herself or himself and to the children in relocating. Id.
Here, the trial court did not specifically address the above factors or the presumption in favor of relocation. The only finding that the court made was that appellant was thinking of giving herself a “fresh start” and was not thinking of her child in making the decision to |inmove. Thus, it appears that the trial court shifted the burden of proof to the custodial parent, which constitutes reversible error. See Hartsell v. Weatherford, 2012 Ark. App. 164, 2012 WL 559951. Reversed and remanded for further proceedings consistent with this opinion.
HART, GRUBER, GLOVER, and BROWN, JJ., agree.
PITTMAN, J., dissents.
. Metz also has another son and an adult daughter. | [
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Tom Glaze, Judge.
This is a workers’ compensation case. Appellant’s sole argument for reversal is that the Commission erred in finding appellee incurred a back injury while he was within the scope and course of his employment. We believe the Commission’s finding is supported by substantial evidence, and therefore we affirm.
On June 28,1980, appellee, a truck driver, was making a delivery to a bakery in Natchez, Mississippi. In order to back his tractor-trailer rig into the bakery, appellee had to leave the tractor to find someone to open a large door which was apparently the entranceway to the loading platform. It was dark and as he was walking, appellee inadvertently stepped into a hole and fell. He braced his fall but not before wrenching his right knee. After appellee’s return home, Dr. William Y. Oh treated appellee’s knee injury, and in July, 1980, the doctor performed a menisectomy. After this surgery, appellee continued to complain of pain radiating down his right leg extending into the big toe, so Dr. Oh referred appellee to Doctors Giles and Jouett. Giles, a neurosurgeon, diagnosed a disc herniation at the L5-S1 interspace and did a laminectomy which appellee stated stopped the pain in his leg that extended into the toe. He said that another type pain remained immediately below the knee.
The Administrative Law Judge found that appellee’s disc problem was causally connected with his knee injury and awarded benefits accordingly. In a two-one decision, the Commission affirmed the Law Judge’s decision.
The Supreme Court recited the following rule in Hall v. Pittman Construction Co., 235 Ark. 104, 357 S.W.2d 263 (1962), which we find applicable here:
If the claimant’s disability arises soon after the accident and is logically attributable to it, with nothing to suggest any other explanation for the employee’s condition, we may say without hesitation that there is no substantial evidence to sustain the commission’s refusal to make an award. Clark v. Ottenheimer Bros., 229 Ark. 383, 314 S.W.2d 497. But if the disability does not manifest itself until many months after the accident, so that reasonable men might disagree about the existence of a causal connection between the accident and the disability, the issue becomes one of fact upon which the commission’s conclusion is controlling. Kivett v. Redmond Co., 234 Ark. 855, 355 S.W.2d 172 (Emphasis supplied).
Id. at 105-06, 357 S.W.2d at 264.
Appellant forcefully argues that appellee indicated that he neither knew when nor how he hurt his back. At pne time, appellee claimed he hurt it prior to the knee injury. Additionally, no doctor gave an opinion which specifically stated the knee injury caused or contributed to the back injury. On the other hand, appellee testified that he never had a back problem before the night he suffered the knee injury. In fact, he has never experienced any back pain even though it is undisputed that he had a herniated disc. The pain he did describe was of two different but distinct types, one which radiated down his leg into his big toe and a second which was localized at a spot below the knee. The pain extending into the toe was completely eliminated after his back surgery. No evidence was presented that showed that appellee suffered any injury between the time of the knee incident on June 28, 1980, and the disc problem which was diagnosed in November, 1980.
In sum, this case turns on a question of fact. There is evidence that appellee’s pain commenced when he injured his knee and that the major part of this pain was alleviated because of his back surgery — not the meniscectomy. On these facts we may have found the knee and back injuries unrelated, but this was the Commission’s decision to make. We believe its decision is controlling and based on substantial evidence.
Affirmed. | [
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Tom Glaze, Judge.
Appellant filed a suit to cancel a deed and bill of sale executed by the deceased, Ms. Homa McClinton, to the appellees, Charles Wilburn and Leona Wilburn, his wife. The bases of the suit included allegations of Ms. McClinton’s mental incapacity, undue influence and overreaching by Charles Wilburn and inadequate consideration paid by appellees. The chancellor dismissed appellant’s complaint for want of equity. The primary issue on appeal is whether the chancellor’s findings are clearly against the preponderance of the evidence. We find they are not and affirm.
Charles Wilburn was the nephew of Ms. McClinton. Ms. McClinton was a strong-willed woman who lived 89 years. At different periods, Wilburn assisted his aunt in her personal and business affairs. For instance, he looked after her from 1963 until 1973, at which time she became angry with him. At Ms. McClinton’s urging, Wilburn resumed assisting her in May, 1979, and continued until she died on November 21, 1979. On May 25, 1979, Ms. McClinton executed a deed and bill of sale in Wilburn’s favor. It is this deed that appellant, the executor of Ms. McClinton’s estate, seeks to set aside.
I. MENTAL CAPACITY
In Pledger v. Birkhead, 156 Ark. 443, 455, 246 S.W. 510, 515 (1923), the Supreme Court stated the following test of mental competency to execute a deed:
If the maker of a deed, will, or other instrument has sufficient mental capacity to retain in his memory, without prompting, the extent and condition of his property, and to comprehend how he is disposing of it, and to whom, and upon what consideration, then he possesses sufficient mental capacity to execute such instrument.
Appellant had the burden to show that Ms. McClinton lacked the mental capacity to execute the May 25 deed by a clear preponderance of the evidence. Watson v. Alford, 255 Ark. 911, 503 S.W.2d 897 (1974). Like the trial court, we believe appellant failed to meet that burden. In fact, one of appellant’s witnesses was an attorney who drew a will for Ms. McClinton three months after she executed the deed. He testified that she was in good physical and mental condition and that “she had a very bright mind.” The attorney also related that he recalled her reciting poetry at length from memory and that she was “totally competent at that point.” Another witness, Gordon Broome, stated that he read the deed to Ms. McClinton and asked if it was her desire to convey her property. Broome testified that she said it was, and he then signed and notarized a Bill of Sale. A third witness, Dr. J. S. Andrews (a neuropsychiatrist) testified by deposition. Andrews had examined Ms. McClinton on May 24, 1979, and his opinion was that she would have understood that she conveyed her property by signing and delivering the May 25 deed. The county sheriff, Marlin Surber, testified that he saw Ms. McClinton in the hospital shortly before her death. He said, “I thought she was comparatively as sharp as she ever was.... In characterizing her business wise, I would think that she took care of her business pretty well.” We conclude that the evidence strongly supports the trial court’s holding that Ms. McClinton possessed the required mental capacity when she executed the deed.
II. FRAUD OR UNDUE INFLUENCE
When it is contended that a deed was obtained by duress or fraud, the law requires that the proof be clear, cogent and convincing before the deed can be set aside. Davidson v. Bell, 247 Ark. 705, 710, 447 S.W.2d 338, 340 (1969). See also Baker v. Helms, 244 Ark. 29, 423 S.W.2d 540 (1968) (especially when fraud is alleged, evidence must be clear, strong and conclusive, or clear, cogent and convincing, or clear, unequivocal and decisive). Here, the trial court rejected appellant’s contention of undue influence, and found that Ms. McClinton was a very strong-willed person, not the type who would by any means be a victim of undue influence, overreaching or fraud. We believe there is sufficient evidence to support the trial court’s finding.
John Hainen, an attorney who had assisted Ms. McClinton in years past, testified that she was “very strong-willed” and “[s]he had seen the world pretty rough, and she was able to face it.” In fact, the evidence reflects that she exercised a great deal of independence from others, including Mr. Hainen and her nephew. Ms. McClinton initially became upset with her nephew, Wilburn, in 1973, after he had cared for her personal and business affairs for ten years. She then looked after her own affairs until 1979. However, she engaged her attorney, Mr. Hainen, to assist her by placing his signature on her bank accounts. In 1979, while she was residing in the DeQueen Nursing Home, she apparently became upset with Mr. Hainen and removed his name from her bank accounts. She called Wilburn for help and told him she wanted to leave the nursing home. However, before any arrangements were made, she became ill and was hospitalized. While in the hospital, she signed the deed conveying her property to Wilburn and tore up a will that had been prepared previously by Mr. Hainen. After being dismissed from the hospital, she moved into the Four States Nursing Home in Texarkana, Texas. She became disenchanted with her stay in this nursing home and informed a visiting friend, Mr. Paul Millwee, that she needed his help. She advised Millwee that she did not want Wilburn to receive anything, evidencing her anger against Wilburn once again.
From the foregoing evidence, the trial court concluded that Ms. McClinton frequently changed her mind and attempted to play one person against another in an effort to get her way. We believe such a conclusion fairly could be reached by the court in view of the evidence presented. On the other hand, we fail to see how such evidence could in any way show that Ms. McClinton was unduly influenced or overreached when she deeded her property to Wilburn. The proof shows that the deed was prepared and executed at the insistence of Ms. McClinton. Mr. Broome, the notary, assured himself that she knew what she was doing when she executed the deed and that it was her desire to convey the property to Wilburn. In sum, Ms. McClinton was in no way dominated by anyone. The record reflects she was a strong-willed, mentally competent person who normally prevailed on others to conduct many of her personal and business affairs. On these facts, we are unable to say the court erred in finding that Ms. McClinton was not unduly influenced in the execution of the May 25 deed to Wilburn.
III. INSUFFICIENT CONSIDERATION
The owner of property who is compos mentis has absolute dominion over his property and may dispose of it as he sees fit, so long as he does not interfere with the existing rights of others. Absent fraud, accident or mistake, no one can question another’s disposition of his own property. O’Connor v. Patton, 171 Ark. 626, 640, 286 S.W. 822, 827 (1926). When a conveyance is voluntary and absolute on its face, then the question of consideration is immaterial. Id,.; see also Szklaruk v. Szklaruk, 251 Ark. 599, 608, 473 S.W.2d 853, 858 (1971) (chancellor’s holding that question of consideration for deed immaterial held not against preponderance of evidence). Inadequacy of consideration does not afford grounds for setting aside a voluntary conveyance. Leake v. Garrett, 167 Ark. 415, 420, 268 S.W. 608, 609 (1925).
In the deed which Ms. McClinton executed, the recited consideration was as follows:
Services and expenses already performed and incurred, Love and Affection and Ten and No/100 ($10.00) Dollars, paid by Charles R. Wilburn and Leone V. Wilburn, his wife.
At the time the deed was executed, Ms. McClinton was also presented with a letter in which Mr. Wilburn promised to care for his aunt in the future. The testimony of Mr. Wilburn and others indicated that he had performed numerous acts for his aunt both before and after the deed was executed. He testified that he intended to pay expenses for nursing home maintenance for his aunt if and when Ms. McClinton’s own funds were depleted.
Support deeds are unquestionably valid in Arkansas. Wood v. Swift, 244 Ark. 929, 940, 428 S.W.2d 77, 82 (1968). When consideration for a deed is a promise to support, then a grantee’s intentional failure to support is grounds for a grantor or his executor to bring an action to cancel the deed for failure of consideration. The basis of such action is that the grantee’s intent was fraudulent from the outset; the deed was literally without consideration because the grantee presumably never intended to support. Id.
The facts at bar do not show that Mr. Wilburn failed to carry out his part of the bargain either intentionally or otherwise. The testimony indicated that he was solicitous of his aunt’s needs and wishes during her stay at the Four States Nursing Home. In fact, the periods during which Mr. Wilburn did not see to his aunt’s needs, specifically 1973 to 1979, were at her instance. During that time, she relied upon Mr. Hainen and others to help her handle her business affairs.
We cannot say that the trial court’s finding that adequate consideration existed for the conveyance from Ms. McClinton to Mr. Wilburn was against the preponderance of the evidence.
IV. THE TAPE RECORDING
The appellant alleged that the chancellor erred in refusing to admit at trial a tape recording of Ms. McClin-ton’s statement to Sheriff Marlin Surber made on the morning before her death. The appellant contends that the recording should have been admitted under Rule 803 (3) of the Uniform Rules of Evidence to show Ms. McClinton’s then existing state of mind with regard to her transferring her property to Mr. Wilburn. The tape recording was made six months after the conveyance to Mr. Wilburn. Sheriff Surber himself testified to virtually the same facts as are contained on the tape.
Ms. McClinton’s state of mind at the time of her death is not at issue in this case. Rather, her state of mind at the time she executed and delivered a deed to Mr. Wilburn is important. The chancellor’s decision not to admit the tape is within his sound discretion, and we cannot find that his exercise of that discretion was erroneous.
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George K. Cracraft, Judge.
Richard D. Bailey received a compensable injury while working as a carpenter for Henry Wright in the construction of a dwelling on lands owned by Doug Simmons and Brooks Griffin. He contended that at the time of his injury Wright was an uninsured subcontractor of the appellees and that the appellees were therefore liable to him under the provisions of Ark. Stat. Ann. § 81-1306 (Repl. 1976). The Full Commission, reversing the findings of the Administrative Law Judge, found that Wright was not a subcontractor of the appellees but was an independent contractor and solely liable to the appellant under the Act. In reaching this conclusion the Commission ruled that before an independent contractor could be found a “subcontractor” within the meaning of § 81-1306, it must first be established that the one sought to be held liable as “prime contractor” was contractually obligated to a third person for the work being performed by the independent contractor. Appellants Bailey and Wright do not seriously contend that Wright was not an independent contractor. The main thrust of their argument is that the Commission did not apply the correct rule in determining that he was not also a “subcontractor.” We do not agree.
In determining whether one is an independent contractor there are many factors to be considered. Whether or not one stands in that status is a question of fact to be determined by the trier of fact. We cannot say that the findings of the Commission are not supported by substantial evidence or that reasonable minds could not have reached that same conclusion.
The evidence was not seriously disputed. The appellee Simmons is a banker and Griffin is a farmer. They jointly purchased a tract of open land and developed it into a subdivision known as Brookwood in the City of West Helena. All of the lots but two had been sold to other individuals. Houses were built on some lots by their owners and other lots were still vacant. Appellees then determined to build houses on the two remaining lots for sale. They contracted with Henry Wright to build and paint the houses. Appellant Bailey was working for Wright on one of the houses when he was injured. The house had not been sold when the injury was sustained.
Under the contract Wright was to supply the labor and, although he selected the materials to be used, they were paid for by appellees. Wright was to be paid an agreed price based on square footage. The price was fixed in the contract and the time taken in completion would not affect it. Wright determined the hours and days that he and his employees would work and he hired and paid all of his employees. Each week he would collect a draw on his contract in order to pay his workers. He and his employees supplied all of their own tools. Wright was free to leave the job at any time and was permitted to have other jobs in progress. He testified that Griffin would come to the site on occasion and could have made recommendations as to changes in the plans but there was no evidence that Griffin attempted to supervise Wright or his employees in any manner.
Bailey testified that he was employed and paid by Wright who also furnished his tools. He had seen Simmons and Griffin at the site but they never gave him any instructions. The testimony of Bailey’s father, also an employee of Wright, was substantially the same.
These facts would amply support the finding of the Commission that Wright was an independent contractor rather than a subcontractor unless, as appellant contends, the Commission applied an erroneous rule of law. In reaching its conclusion the Commission stated that under our decisions, in order to have a subcontractor arrangement, the person sought to be charged as “prime contractor” must have been contractually obligated to another for the work being done at the time of the injury.
Ark. Stat. Ann. § 81-1306 (Repl. 1976) in partinent part is as follows:
Subcontractor. — Where a subcontractor fails to secure compensation required by this Act . . . the prime contractor shall be liable for compensation to the employees of the subcontractor.
The Supreme Court in Hollingsworth & Rockwood Ins. v. Evans, 255 Ark. 387, 500 S.W.2d 382 (1973) recognized the distinction between a subcontractor and an independent contractor:
There is, of course, a considerable difference between a subcontractor and an independent contractor. In Black’s Law Dictionary a subcontractor is defined as:
“One who takes portion of a contract from principal contractor or another subcontractor. # # * One who has entered into a contract, express or implied, for the performance of an act with the person who has already contracted for its performance.”
In Gaydos v. Packanack Wood Dev. Co., 166 A.2d 182, at page 184, the New Jersey Court defined a subcontractor in a workmen’s compensation case as follows:
“A subcontractor is one who enters into a contract with a person for the performance of work which such person has already contracted to perform. In other words, subcontracting is merely ‘farming out’ to others all or part of work contracted to be performed by the original contractor.”
In the case now under review the Commission found that the appellees were constructing these houses to offer them for sale. It also found that at the time appellees contracted with Wright they were under no contractual obligation to deliver to a buyer a home which conformed to agreed plans and specifications. They were not farming out to Wright any part of work they were contractually obligated to perform. Had they contracted with Wright pursuant to a developer-vendor contract with a third person to erect a specific house the issue would be quite different. Clendening v. London Assurance Co., 206 Tenn. 601, 336 S.W.2d 535 (1960).
We conclude that this is the distinction made by the Supreme Court in its supplemental opinion on rehearing in Lofton v. Bryan, 237 Ark. 376, 373 S.W.2d 145 (1963) (Supplemental Opinion on rehearing in 237 Ark. 642, 375 S.W.2d 221 [1964]). In the Lofton case Dierks Forrest, Inc. contracted with Bryan to cut and deliver pulpwood from certain lands owned by Dierks. Bryan was paid a stipulated price per cord, was expected to furnish his own labor and equipment and was permitted to perform the contract without any supervision or control by Dierks. Lofton, an employee of Bryan, was injured while cutting the pulpwood. The Supreme Court affirmed the decision of the Commission, finding that Bryan was an independent contractor and not a subcontractor of Dierks. On motion for rehearing it was contended that the case was controlled by Huffstettler v. Lion Oil Company, 208 Fed.2d 549. The court in its opinion on rehearing made the following distinction between the two cases:
There it was held that the operator of a bulk plant who distributed Lion products to retailers who had contracted with Lion to sell the company’s products, was not an independent contractor but a subcontractor
In the case at bar it is not shown that Dierks had any contract with a third person in connection with the timber, and therefore, it cannot be said that one who is getting out the timber for Dierks is a subcontractor.
In its discussion of Huffstettler the court referred to its earlier decisions of Hobbs-Western Co. v. Craig, 209 Ark. 630, 192 S.W.2d 116 (1946) and Brothers v. Dierks, 217 Ark. 632, 232 S.W.2d 646 (1950), pointing out that in both those cases on which Huffstettler was based the court had found the “prime contractor” to be contractually bound to perform the work in which the subcontractor’s employee was engaged at the time of the injury.
The Commission found that Simmons and Griffin were not contractually bound to any third person in connection with the work being done by Wright and his injured employee and exercised no control over either of them. We conclude that both findings are supported by substantial evidence and that the Commission properly applied the law as previously declared by our Supreme Court to those facts.
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George K. Cracraft, Judge.
The guardians of the person and estate of Agnes Bauer brought this action to recover from Stanley and Anna Lucich personal property and monies alleged to have been obtained from their ward either during a period of time when she was mentally incompetent or by undue influence and duress at times when, due to advanced age and mental infirmity, she did not possess the requisite mental capacity to make valid gifts. The value of these gifts exceeded $161,000. Appellees admitted receipt of gifts beginning in 1974 and ending November 3, 1977 but denied that Ms. Bauer was incompetent, did not have the mental capacity to make gifts, or that they were obtained by undue influence. The chancellor filed an exhaustive memorandum opinion in which he made specific findings of fact. The decree dismissing the complaint for want of equity contained the following findings and conclusions:
FINDINGS OF FACT
1. Agnes Bauer’s mental condition was normal for a person her age and she had sufficient mental capacity to make valid gifts during the “gift period”.
2. There is no substantial evidence that Stanley and Anna Lucich defrauded, coerced or took undue advantage of Agnes Bauer or otherwise exercised any undue influence and, to the contrary, all of the gifts were intelligently, deliberately and freely given.
3. The relationship between Agnes Bauer and the defendants was not the sort of “confidential relationship” which raises a legal or evidentiary presumption of invalidity of gifts.
CONCLUSIONS OF LAW
1. The plaintiffs have failed to sustain their burden of proving that Agnes Bauer lacked sufficient mental capacity to make valid gifts during the time period involved in this lawsuit.
2. The plaintiffs have failed to sustain their burden of proving that any of the gifts were obtained as a result of undue influence, fraud, duress, overreaching or by any other means condemned by the law.
3. The plaintiffs have failed to sustain their burden of proving that the relationship between Agnes Bauer and Stanley and Anna Lucich was such as to raise a presumption that the gifts were obtained by abuse of that relationship or to shift the burden of proof on this point.
Appellants maintain that the trial court erred in each finding and conclusion. We do not agree and address each point of reversal after a recital of those facts deemed necessary to an understanding of our decision.
Agnes Bauer, a wealthy widow, was born in 1900 and had entered into three childless marriages. Her third husband, Frank Bauer, died suddenly and unexpectedly in 1974. She grieved extensively over his death. All of the witnesses testified that after his death she was lonely, frightened and depressed.
Shortly after Mr. Bauer’s death James H. Gray, a stepson of her second marriage, moved into Mrs. Bauer’s home to assist her in her adjustment. He stayed only a short time, explaining that he had moved out because of her peculiar actions and the hours she kept. She then moved two houses west of her house into the home of the appellees who had been neighbors and friends for some time. Appellees changed their living arrangement, purchased additional furnishings and installed additional doors in order to provide Mrs. Bauer a private bedroom and bath. For months she spent nights in appellees’ home, returning to her own house during the day. Monsignor James E. O’Connell who had been living in appellees’ home for seven years continued to reside there during this period. Monsignor O’Connell had been a close friend of both Mr. and Mrs. Bauer for over twenty years and had known Mrs. Bauer since the 1930’s when she resided in Fordyce during her first marriage.
The friendship and association which Mr. and Mrs. Bauer had maintained with appellees continued to grow after his death. For the first year or more after the death of Frank Bauer, Stanley Lucich spent a great deal of time helping Mrs. Bauer get her affairs in order and trying to get her to relax and get her mind on other things. She would bring these problems to him or send for him. He testified that he suggested the custodial and trust arrangements with Union National Bank in order to achieve that result. Thereafter all her financial matters were handled by the bank and most of her bills sent to its trust officer, Henry E. McCord. Appellee’s advice to her thereafter was limited to explanations of those communications from the bank which he could understand but she could not. All other questions were referred to Mr. McCord.
Mrs. Bauer was left with two Cadillac automobiles and offered one as a gift to Stanley Lucich who had evidenced kindness and attention to her from the time she had moved into the neighborhood. He selected the older one. In 1976 he traded that car for a new one and financed the balance of some $7,000. When Mrs. Bauer learned of the transaction she paid the trade-in difference as a gift over his protest.
From the gift of the used Cadillac to the 7th day of November, 1977, Mrs. Bauer, with ever increasing frequency, gave to the Luciches at least eighty-six separate gifts of clothing, furs, jewelry, silver, china and money, amounting, in the aggregate, to a sum in excess of $161,000. The largest of these gifts was a cashier’s check for $25,000 given to the Luciches in July 1976 at a time when it was contemplated that they would purchase a lot next door to Mrs. Bauer and build a home on it. Both Mr. and Mrs. Lucich testified that the gifts were received over their protestation, a fact which was corroborated as to many of those gifts by Monsignor O’Connell who was present when they were received.
In support of the allegation of mental infirmity and incapacity, the appellants offered lay testimony that in 1974, immediately after the death of Frank Bauer, Mrs. Bauer became extremely nervous, depressed, forgetful, disoriented, repetitious and unable to properly identify persons and relatives. They stated that she referred on several occasions to her deceased husband and other relatives as still living. It was their testimony that this condition existed as early as 1974 and worsened continuously until the present time.
Gaston Williamson, a prominent Little Rock attorney and witness for appellants, testified that Mrs. Bauer made changes in her will in 1974 and again in 1975. He said that at those times she was fully competent and had the mental capacity to execute the instruments. In 1974 she executed a custodial agreement with Union National Bank of Little Rock under which the bank would act as her agent in collecting all dividends and interest on her securities and investments and place them in her checking account. In August of 1976 Mrs. Bauer executed a revocable trust agreement, transferring all of her assets, including title to her home, to Union National Bank for her use and benefit during her lifetime, with remainder to her nieces and nephews after her death. Mr. Williamson, the drafter of the trust agreement, and Mr. McCord, trust officer of the bank, both of whom were present when it was discussed and executed, each testified that she was mentally competent to execute the instrument.
At the time the trust agreement was executed Mrs. Bauer had already made substantial gifts totalling approximately $50,000 to the Luciches. A month prior to that date Mr. McCord had delivered to Mrs. Bauer a cashier’s check for $25,000 which she had told him she was giving to the Luciches as a gift. Mr. McCord testified that he had ascertained that there had been no coercion by the Luciches. He stated that Mrs. Bauer had led him to understand that the Luciches’ friendship had been “important to her and they had been helpful to her. I had no doubt in my mind that she was telling the truth about that.”
A year later in August, 1977 Mr. McCord noticed overdrafts in Mrs. Bauer’s accounts and called her about them. He testified that she stated she didn’t remember executing the checks which caused the overdrafts. He stated that during this time she would call him several times on the same day inquiring about her bank balances. Concerned by these actions, he invited her to lunch with him and his superior. Both officers of the bank testified that during lunch she was extremely nervous and repetitious.
As a result of their observations McCord and Williamson, the bank’s attorney, called on Mrs. Bauer to discuss these overdrafts with her. They testified that she at first denied writing one of the checks payable to appellees and then recalled it, and that she did not recall writing the other two checks which they questioned. Both concluded then that she was incapacitated and that a guardianship would be required. Steps to initiate guardianship proceedings were taken immediately.
Dr. Alfred Kahn, Jr., Mrs. Bauer’s personal physician since 1955, was requested to execute a medical affidavit affirming her incompetency. Dr. Kahn was hesitant to do so. He wanted to go to court, “state what her medical history was and let the j udge make his own determination regarding her competency.” He was informed that the probate judge would prefer a medical opinion, and upon assurance that her heirs would not sue him, Dr. Kahn “reluctantly” executed the affidavit. The guardians were appointed on November 7,1977. No gifts to appellees were made after that date.
Dr. Kahn testified that he had been Mrs. Bauer’s physician since 1955. In 1974 in conducting a two day examination for neck pains, he found her to be “reasonably vigorous for a person seventy years of age.” In October of 1975 his examination report reflected “she stated her health was stable but she had been emotionally upset at the death of her husband.” At that time Dr. Kahn noted nothing suggesting neurological disease. Her memory seemed to be intact. He felt that there were some changes “which occur with aging in the brain” which he felt was the cause of her depression. He prescribed medication to increase blood flow.
He saw her again on September 19, 1977 “for intermittent rectal bleeding.” At that time he noted some “decrease in mentation,” meaning that her mental processes were slowing down and she was somewhat forgetful. He observed nothing descriptive of incapacity.
Dr. Kahn saw her again in February of 1978 after the guardian was appointed. At that time he noted no change in her mental process. On April 11, 1979 he saw her and noted marked deterioration. He concluded that “Sometime between September 1977 and April 1979 she became incompetent, but I cannot give you an exact date.”
Dr. Alma Faye Houston, a psychiatrist who had not seen Mrs. Bauer, stated that she read Dr. Kahn’s medical reports and the deposition of James H. Gray as to Mrs. Bauer’s actions, nervousness and forgetfulness. She opined that Mrs. Bauer had been in a weakened mental state from as early as 1974 and that such a person is “more easily manipulated than others.” Decreased mentation and forgetfulness are not descriptive of incompetency and she found no description of incompetency in these documents until Mrs. Bauer was declared incompetent in November of 1977. “I think you could say she became more and more disoriented and confused to where she was incompetent . . . going on the basis of Dr. Kahn’s records.” Dr. Travis Tunnell, a clinical psychologist associated with Dr. Houston, agreed with her analysis.
The appellees offered the testimony of a large number of Mrs. Bauer’s close neighbors, friends and servants who saw her on an almost daily basis. Others of Mrs. Bauer’s friends of many years’ standing who saw her frequently also testified. None noticed any indication of incompetency or undue influence during the period in issue. Most of them had some knowledge of the gifts in question from Mrs. Bauer herself and some had even been present when the gifts were presented or discussed by Mrs. Bauer. Though they were not aware of the extent of the gifts given appellees, based on their knowledge of the relationship and the characteristic generosity of Mrs. Bauer, they were not shocked that these gifts totalled such a large amount.
All witnesses were in complete agreement that there was a very close and friendly association between Mrs. Bauer and the appellee?. All agreed that the appellees were most solicitous of her, giving up a lot of their own life to see that she was cared for and her emotional needs met, taking her whenever and wherever she wanted to go. Some witnesses referred to the relationship as “mutual adoration” and a “loving relationship.” Most witnesses agreed that this developed because Mrs. Bauer was lonely and Mrs. Lucich was a kind person. Monsignor Francix X Murphy testified that he had known both donor and donees for many years. He described the relationship as “two women who had great respect for each other . . . [TJhey both showed empathy toward each other and Anna would do anything she could to make Agnes’ life more pleasant. She went out of her way to be helpful to Agnes. . . . Before the guardianship Agnes was very clear, very sharp and knew what she was doing —there was no indication that she did not know what she was doing before the guardianship.” Monsignor O’Connell described it as a very close and friendly relationship which evidenced much concern and care on the part of each for the other. He testified as follows:
I knew at the time she was arranging to make a gift of $25,000 to Anna and Stanley Lucich. In my opinion at the time she was mentally competent and did not demonstrate to me any lack of knowledge of what she was doing. She demonstrated to me that she was doing it of her own free will and there was no question in my mind about it. It did not surprise me in the least the way she was doing this because she wished to demonstrate her affection for Anna in some way, in my opinion, to express appreciation for all the things Anna had done for her. Anna had been very kind to her indeed.
During the entire time that I have known Agnes Bauer and up until the time the guardian was appointed for her she did not ever give any indication to me that she was mentally incompetent.
I have been present when Mrs. Bauer had made gifts to Mrs. Lucich. On many occasions the gifts would have been made and then she would tell me about it in their presence. The one particular one that I mentioned in the deposition that I made was a diamond necklace and a set of earrings, a matching set. Agnes came in with the box wrapped and opened it up in the presence of Anna and me ... .In view of my presence at the time and my knowledge of the circumstances, in no way was the gift solicited. I have never known an occasion in which Anna or Stan solicited a gift from Agnes.
Monsignor O’Connell himself had been the object of her bounty on three occasions. She had given him a set of golf clubs, paid a balance in excess of $4,000 owed on his automobile and had given him a check for $50,000 which he told her he would not accept. She insisted that he retain the check, which he never cashed. He stated that he did not accept this gift because she had earlier expressed a desire to make a gift of $100,000 to Christ the King Catholic Church. He felt it improper to accept the gift for some other purpose and was hopeful that she would make the larger gift later.
Dr. David Miles, a neurologist who resided in Mrs. Bauer’s neighborhood and saw her on frequent visits during the period in issue, observed no indication of mental weakness or incompetence. He stated that during his observation of the relationship between the parties he “did not see at any time any indication that Mrs. Lucich was trying to take advantage of Mrs. Bauer. I had knowledge of many kindnesses of Mrs. Lucich to Mrs. Bauer.” He described Mrs. Lucich as “a very kind, warm and helpful individual... that thinks primarily of other people before she thinks of herself.” He described Mrs. Bauer as “a very outgoing person, very friendly. She was accustomed to having things going her own way, the way she liked for them to go. She was a very friendly, cordial individual but she was a strong-minded person.” There was no evidence that Mrs. Bauer was not a strong-willed, determined person.
Most of the witnesses characterized her as “very generous,” and none noticed any change in that characteristic during the period in issue. Almost all of the witnesses had at one time or another been the object of her generosity. She was known to give substantial gifts to relatives, friends, employees and even to those she did not know but whose need was made known to her. One acquaintance of over forty years stated that she was “embarrassingly generous and never accepted a favor or invitation without making a corresponding gift. Any time Agnes was a guest she came bearing gifts. I think she equated loving and giving in the same term. It was difficult to refuse her any of the things she offered.”
There was testimony from her relatives corroborating this generosity. It was shown that she had purchased automobiles for nephews, made gifts to several of them as down payments on homes, checks in the amount of $3,000 to three children of one of her relatives and smaller gifts on a regular basis. It was testified that she had paid $2500 on the funeral expense of one sister and had in the early 1950’s begun a monthly gift of $300 to her other sister and $100 a month to one of the nephews. There was also testimony that she had made a $5,000 business loan to one of her stepchildren and subsequently forgave repayment.
The appellees testified that each of the gifts was given freely and voluntarily, not only without solicitation, but in spite of their protest, and that each time Mrs. Bauer was mentally alert and knew what she was doing. The trial court candidly stated that due to the inconsistencies in the statements of the appellees that his conclusions were not based upon their testimony except where it was corroborated by other testimony.
It would unduly lengthen this opinion to attempt to recite all of the testimony heard by the court during this five day hearing. This recital is intended merely as a brief resume to point out the conflicts and general tendency of the testimony on which the chancellor based his decision.
The law governing the validity of gifts inter vivos is well settled. The donor must be of sound mind, must actually deliver the gift with the intention to vest immediate title, and the gift must be accepted by the donee. The delivery with that intention must be done freely and voluntarily without undue influence and duress/Ordinarily the burden is upon one who attacks such a gift to prove that the donor lacked the capacity to give the gift or was unduly influenced. A different burden of proof arises when it is shown that a confidential relationship existed between the donor and a dominant donee. Where special trust or confidence has been shown, a gift to the dominant party is presumed to be void. The burden then rests upon the dominant recipient to show that he has not overreached the giver. Gillespie v. Holland, 40 Ark. 28 (1892); Young v. Barde, 194 Ark. 416, 108 S.W.2d 495 (1937); Norton v. Norton, 227 Ark. 799, 302 S.W.2d 78 (1957); Jamison v. Duncan, 233 Ark. 780, 348 S.W.2d 709 (1961); Donaldson v. Johnson, 235 Ark. 348, 359 S.W.2d 810 (1962); Barrineau v. Brown, 240 Ark. 599, 401 S.W.2d 30 (1966); Dunn v. Dunn, 255 Ark. 764, 503 S.W.2d 168 (1973).
It is also well settled that although chancery cases are reviewed de novo on the record we do not reverse a decree unless the chancellor’s findings are clearly against a preponderance of the evidence. Since the question of preponderance turns heavily on the credibility of the witnesses, we defer to the superior position of the chancellor in this regard. Andres v. Andres, 1 Ark. App. 75, 613 S.W.2d 409 (1981); Rule 52 (a), Arkansas Rules of Civil Procedure.
The appellants first contend that the trial court erred in holding that Agnes Bauer was mentally competent during the period in issue and that the evidence did not establish a discernable date on which she lacked capacity to make valid gifts.
The chancellor concluded that there was no basis for a finding of incompetency prior to August of 1976 on which date she executed the trust agreement with Union National Bank. All witnesses agreed that she was capable of executing it and had the mental capacity to do so. There was lay testimony that she was incompetent and incapacitated in September 1977 when her lawyer and banker discussed overdrafts with her. There was contradicting lay testimony, corroborated by Dr. Miles, that she was mentally competent to make a valid gift even after the guardianship was established in November, 1977. Dr. Kahn testified that she was not incompetent in September 1977 when he examined her and that she became incompetent on some date “after September 1977 and before April 1979.” He could not fix the date. On the conflicting evidence we cannot say that the findings of the trial court were clearly erroneous or clearly against a preponderance of the evidence.
Appellants next maintain that the chancellor erred in holding that the relationship between these parties was not of such a character as would raise a presumption of invalidity and that he improperly placed the burden of proving undue influence on appellants. They argue that the clearly established relationship of close affection and repose was sufficient to make the gifts prima facie void and the burden of showing the contrary was upon appellees. We agree that the evidence does establish a very close relationship based on mutual affection and that relationships of friendship may be properly classed as “confidential.”
In Gillespie v. Holland, supra, Young v. Barde, supra, Norton v. Norton, supra, the court stated that such relationships are not limited to legal control but are supposed to arise “whenever there is a relation of dependence or confidence; especially that most unquestioning of all confidences which springs from affection on one side and a trust in reciprocal affection on the other.” While a close friendship based on mutual affection may be deemed a confidential relationship, we find no error in the chancellor’s finding and conclusion that this relationship, standing alone, was insufficient to raise the presumption of invalidity.
It is not the mere existence of a relationship of confidence which causes the gift to be deemed prima facie void. It is only when the testimony further shows that the donee occupied such a superior position of dominance or advantage as would imply a dominating influence over his donor that this presumption arises. Donaldson v. Johnson, supra. In Dunn v. Dunn, supra, in discussing the application of this rule in earlier cases the court declared:
Of course, the confidential relationship based on faith and repose as well as the dominant position must be supported by testimony before the presumption of coercion will arise. (Emphasis supplied)
In Gillespie, Young, Norton and Jamison where the court found both confidential relationships and dominant donees the presumption was indulged. In Barrineau, Donaldson and Dunn where the confidence was clearly established but it was not shown that the donee occupied a position of dominance in the relationship, the presumption was found inapplicable.
We find no evidence, and none has been pointed out to us, which would lead to the conclusion that the appellees occupied a position of dominance in the relationship. To the contrary there is an abundance of testimony that Mrs. Bauer was a strong-willed and dominant person who wanted things to go her way and that it was extremely difficult to refuse any gifts she offered.
The chancellor in his conclusions made the following observations:
The many hours of thought I have given to this problem leads me to a conclusion I cannot resist. Agnes Bauer was wealthy and knew it. She was growing old and knew it. When Frank Bauer died she faced the stark reality that she had no one on this earth that seemed to really love her enough to give her the care and attention she craved and whom she could rely on to take care of her in the event she became incompetent. She was lonely, frightened and depressed and had no one to turn to. She could buy diamonds, Cadillacs, furs and the things her heart desired, and not deplete her assets (which were in safe hands in the Union National Bank), and yet all of her wealth had brought her to the last stage in life with no one else she could say generally loved her enough to do these things for her and would really attend to her welfare when she needed it — all she had to look forward to were hired hands whom she did not want.
Into this picture entered the Luciches. They demonstrated to her that they would attend to her needs night and day, they were willing to, and did abandon their way of life and subject their time and attention to her wishes, and were her willing, pleasant and obedient companions. While I think the Luciches in a sense occupied a relation of confidence to Agnes Bauer, I do not think it is that kind of relationship contemplated in law that warrants interference in planned, deliberate sane acts of a 74-77 year old person. The Luciches were good, close friends of Agnes Bauer. She found she could rely upon them to give her loving care and attention at all times. At that point in life and conscious of the kind of help she would need in the not too distant future, I conclude that she intelligently decided to buy, in the guise of gifts, that love and care and attention she craved ... [I]t may sound sordid, to suggest that love, care and attention is to be put on a monetary basis, but I do not think this is unusual for wealthy, childless, septuagenerians; and it may be that some may conclude that it was a bad deal for Agnes Bauer, or immoral, or anti-social, or even evil, but once it is found that the donor is competent and acted with full knowledge and without undue restraint or fraud, the result of the act is not the concern of the law. The motive of the donor, whether virtuous or not, is not the interest of the law except as an explanation in a search for the truth. All that is needed is that the gift be the free and voluntary act of á mind having proper capacity. With the morals or justice of such gifts the court cannot deal. (Emphasis supplied)
The chancellor found that Mrs. Bauer had the mental capacity to give the gifts, gave them freely and voluntarily and not as the result of the dominance of appellees. We cannot say that these findings are clearly erroneous or that he did not apply the proper burden of proof.
Affirmed. | [
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Tom Glaze, Judge.
Appellant was convicted of second degree murder and sentenced to three years imprisonment. She raises two issues on appeal: (1) that the trial court erred in admitting into evidence the testimony of two doctors who performed physical examinations on her, and (2) that the court erred in denying her motion for a directed verdict of acquittal because there was insufficient evidence to sustain a conviction. We need not decide appellant’s first argument because even when we consider the doctors’ testimonies, the State’s evidence fails to show appellant committed murder.
On appeal we review the evidence in the light most favorable to the appellee and affirm if there is substantial evidence. Substantial evidence means that the jury could have reached its conclusion without having to resort to speculation and conjecture. The fact that evidence is circumstantial does not render it insubstantial. Wrather v. State, 1 Ark. App. 155, 613 S.W.2d 601 (1981).Butin orderfor circumstantial evidence to be sufficient to support a finding of guilt in a criminal case, it must exclude every other reasonable hypothesis consistent with innocence. Smith v. State, 264 Ark. 874, 575 S.W.2d 677 (1979).
Viewed in the light most favorable to the State, the evidence proved that the body of a black female infant was retrieved from the Bayou Mason in Desha County on May 17, 1981. On May 19, 1981, the State Medical Examiner, Dr. Fahmy Malak, performed an autopsy on the body and concluded it was a black, female infant resulting from a nine-month pregnancy. Malak stated that the baby had been born alive and died from being struck on the head. The baby had been dead at least four days before the autopsy was performed.
On June 11, 1981, appellant consented to separate physical examinations conducted by Dr. Virgil Hayden and Dr. Rodger D. House. Both doctors testified that their examinations revealed a substantial likelihood that appellant had recently been pregnant and delivered a child. Dr. House testified that appellant told him that she had never been pregnant and never had an abortion or a spontaneous loss. House estimated that appellant had been pregnant and delivered a baby more than six weeks prior to his examination on June 11. Other witnesses included a school teacher who saw appellant in April and May of 1981, and who believed appellant was pregnant at the time. Another woman, Hattie Johnson, testified that she saw appellant in May or June or 1981 and that she looked pregnant.
The State concedes that the evidence is far from overwhelming but argues there was sufficient evidence for the jury to conclude that appellant gave birth to the deceased infant and that she was responsible for the baby’s death. In sum, the State contends the evidence shows that (1) appellant was pregnant but denied it, and (2) she had a baby but concealed that fact from others. These two conclusions, the State argues, lead logically to a third: appellant disposed of — murdered — the baby under circumstances designed to conceal its birth. Such a conclusion is clearly speculative and one in which we cannot indulge.
It is the duty of this Court to set aside a judgment based upon evidence that did not meet the required standards, left the fact finder only to speculation and conjecture in choosing between two equally reasonable conclusions and merely gave rise to a suspicion of guilt. Smith v. State, supra. Here, there is no evidence that even tends to prove the deceased baby was appellant’s. Nor did the evidence establish that she had anything to do with the baby’s death. The most the evidence shows is that appellant was pregnant, she delivered a baby, and she did not reveal the baby’s whereabouts. Even these conclusions are left open to doubt by the medical evidence. Dr. House said that although his medical opinion was that she had been pregnant, he still had some doubt. House stated his uncertainty was due to appellant’s faiure to emit a discharge, called lochia, a normal occurrence for about six weeks after a pregnancy. Neither Dr. House nor Dr. Hayden could testify that appellant had a full-term pregnancy, assuming she had been pregnant. The only evidence which may have possibly connected appellant as the deceased infant’s mother became unavailable when the baby’s body was lost. Apparently, the State Medical Examiner’s office had planned to have a test performed in Washington, D.C., which, at least, could have excluded appellant as being the baby’s mother. Before those plans could be acted upon, whoever had possession of the body lost it and it was never found.
Because the medical evidence tended to show that appellant was pregnant and that she denied it, perhaps it could be concluded that a logical suspicion arose that appellant was the newly found baby’s mother. However, a suspicion is all it remained. There are young women who often times have their own reasons for never disclosing or admitting a pregnancy to others. We certainly cannot conclude from that fact alone that appellant or any other woman was responsible for the sad, unfortunate loss of life found in the Bayou Mason. We must reverse and dismiss.
Reversed and dismissed. | [
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Lawson Cloninger, Judge.
In this workers’ compensation case appellant, Dulsa R. Pulcher, contends that her husband, Frank Pulcher, now deceased, suffered a com-pensable injury while working as a custodian for appellee, the University of Arkansas. The Arkansas Workers’ Compensation Commission found that appellant had failed to meet her burden of proof by a preponderance of the evidence.
The issue on appeal is not whether this court would have reached the same result as the Commission, or whether the record would have supported a finding contrary to the one made, but rather the issue is whether the record supports the finding which the Commission did make. Herman Wilson Lumber Company v. Hughes, 245 Ark. 168, 431 S.W.2d 487 (1968).
When we view the record in the light most favorable to the decision of the Commission, which we must do on appeal, we must hold that there is substantial evidence in the record to support the conclusion of the Commission.
Mr. Pulcher worked as a custodian in Ozark Hall, and arrived for work at 5:00 p.m. on June 27, 1980. At 7:00 p.m. he was observed by a co-worker sitting in the supply room drinking coffee and rubbing his head. In response to questions, Mr. Pulcher said that he had taken aspirins for a headache, and that he had not fallen or bumped his head. At 7:30 p.m. Mr. Pulcher was seen by another co-worker on the second floor of the Science Engineering Building, across the street from Ozark Hall, staggering and holding onto a water fountain. He stated that he wanted to use the phone which was located in the office and was there for the workers to use.
Mr. Pulcher’s co-workers believed he had a heart attack and they attempted to revive him with CPR. After some delay an ambulance was called and Mr. Pulcher was taken to a hospital. His condition was diagnosed as an Acute Subdural Hematoma. Surgery was performed to remove the hematoma and clip a bleeding artery. Mr. Pulcher died on October 4, 1980, without regaining consciousness.
Dr. Vincent B. Runnels, who performed the surgery, testified that Mr. Pulcher died as a result of a fall, and ruled out a heart attack or a stroke as a cause of the fall. Dr. Runnels testified that the fact that there were no visible marks or bruises on Mr. Pulcher was of no significance; that a scalp can be cut to pieces and have no brain injury, and that the converse is also true. Dr. Runnels, of course, could not say what caused the fall or that the fall was job-related.
Appellant had the burden before the Commission of establishing affirmatively by a preponderance of the evidence that her husband sustained an accidental injury arising out of and during the course of his employment. The testimony of Dr. Runnels that Mr. Pulcher’s death was caused by trauma is convincing, but there is no other evidence of a fall or a blow to the head, and there is a total absence of evidence that Mr. Pulcher’s injury was job-related.
The decision of the Workers’ Compensation Commission is affirmed.
Corbin and Cooper, JJ., dissent. | [
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Tom Glaze, Judge.
Appellant was convicted of second degree murder. He contends the court erred in finding that his confession was voluntarily made, and in so finding, the court failed to apply the proper legal tests relative to presumption and burden of proof. Appellant also argues that the court erroneously excluded his proffered instruction which was premised upon Ark. Stat. Ann. § 41-514 (Repl. 1977), a statute which provides if force is recklessly or negligently employed, the defense of justification is unavailable. After considering the three issues raised by appellant, we find the trial court was correct in each instance.
First, the trial court held a Denno hearing. Appellant never objected to the court’s adverse ruling nor did he raise any question that the court was not following the correct law regarding any applicable legal presumption or burden of proof. It is presumed appellant has been accorded a fair trial and that the judgment of conviction is valid. He had the burden of showing either prejudicial error in the record or that the record is so inadequate that he is unable to show such error. See Butler v. State, 264 Ark. 243, 570 S.W.2d 272 (1978).
Secondly, we find the evidence sufficient to show that appellant’s confession was voluntary. In reviewing the voluntariness of a confession, we make an independent determination based upon the totality of the circumstances, with all doubts resolved in favor of individual rights and safeguards, and we will not reverse the trial court’s holding unless it is clearly erroneous. Harvey v. State, 272 Ark. 19, 611 S.W.2d 762 (1981). The evidence was conflicting on the voluntariness issue. However, any conflict in the testimony of different witnesses is for the trial court to resolve. Id. In sum, appellant argues that his physical and mental conditions were diminished when he confessed because, among other things, he (1) had previously been shot, (2) was in pain, (3) was on medication, (4) had drunk a can of beer and (5) had been threatened and given promises in exchange for a confession. The State’s evidence showed appellant appeared normal and quite able to understand the proceedings against him. The police officers were aware of appellant’s injury but did not observe that he was in pain or on medication. Although the entire interview of appellant was not taped, his statement of confession was recorded. The court heard the tape and was able to hear appellant’s manner of speaking and to detect any difficulty he may have had in communicating. The officers denied that they had threatened appellant or promised him anything for his confession. A psychologist, who was not present at appellant’s interview, testified that the contents of the confession itself negated any probability of appellant’s intoxication. The psychologist said that appellant’s statement was cautious, logical and goal-directed, indicating he was in touch with reality. Considering the total circumstances, we cannot say the trial court was clearly erroneous in finding appellant’s confession voluntary.
Finally, appellant urges the trial court erred in excluding the following proffered instruction:
THE DEFENDANT’S REQUESTED INSTRUCTION NO. 2
If you find that Kerry Kendrick believed that the use of force was necessary in defending himself or a third person from the use or imminent use of force by Darryl Gooden, but was reckless or negligent either in forming that belief or in employing an excessive degree of force, then Kerry Kendrick may not rely upon such defenses as to the lesser included offenses of Manslaughter and Negligent Homicide, as Manslaughter and Negligent Homice [sic] require reckless and negligent conduct, respectively.
However, if you find that Kerry Kendrick was reckless or negligent in forming that belief or in employing an excessive degree of force, then you must find Kerry Kendrick not guilty of Murder in the First Degree and Murder in the Second Degree.
You are reminded that the defendant, in asserting these defenses, is required only to raise a reasonable doubt in your minds. Consequently, if you believe that these defenses have been shown to exist, or if the evidence leaves you with a reasonable doubt as to his guilt, then you must find him not guilty.
Paragraph 2 of appellant’s proffered instruction is a misapplication of the justification law set forth in Ark. Stat. Ann. § 41-514 (Repl. 1977). Section 41-514 states:
41-514. Justification — Reckless or negligent use, of force — Reckless or negligent injury or risk to third parties. — (1) When a person believes that the use of force is necessary for any of the purposes justifying that use of force under this chapter [§§ 41-501 — 41-514] but the person is reckless or negligent either in forming that belief or in employing an excessive degree of physical force, the justification afforded by this chapter is unavailable in a prosecution for an offense for which recklessness or negligence suffices to establish culpability.
(2) When a person is justified under this chapter in using force but he recklessly or negligently injures or creates a substantial risk of injury to a third party, the justification afforded by this chapter is unavailable in a prosecution for such recklessness or negligence toward the third party. [Acts 1975, No. 280, § 514, p. 500.]
In a concurring opinion in Martin v. State, 261 Ark. 80, 547 S.W.2d 81 (1977), Justice Fogleman accurately stated that the Arkansas Criminal Code provides that there is no justification if the belief that the use of force is necessary is arrived at recklessly or negligently or the force is excessive. Here, the trial court gave AMCI 4105, a justification instruction based upon Code provision Ark. Stat. Ann. § 41-507 (Repl. 1977). This provision provides the defense of justification to the person defending himself or a third person from what the actor “reasonably believes” to be the imminent use of deadly physical force. The actor must have a “reasonable belief” that the situation necessitates the defensive force employed. In addition, the defense is available only to one who acts reasonably in administering such force. See Commentary to § 41-507, supra. “Reasonably believes” or “reasonable belief” means the belief that an ordinary, prudent man would form under the circumstances in question and one not recklessly or negligently formed. Ark. Stat. Ann. § 41-115 (18) (Repl. 1977).
To accept appellant’s instruction and interpretation of § 41-514 would render meaningless the requirement of reasonableness found in the basic Code justification provisions. This obviously is the reason the Committee responsible for our criminal jury instructions deemed it unnecessary to draft one based upon § 41-514.
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George K. Cracraft, Judge.
On November 18, 1980 a decree was entered in the Chancery Court of Union County granting George Franklin Elerson a divorce from Etta M. Elerson and approving a written property settlement agreement between the parties. The decree was entered on testimony taken in open court and on the appellant’s written entry of appearance in which specific reference to the property settlement agreement as a complete settlement was made.
On December 3, 1980 appellant filed a motion seeking to set aside the decree and property settlement, contending that because the appellee had led her to believe that the divorce action had been dismissed the decree was fraudulently procured. She further contended that during the pendency of the action the parties had become reconciled and lived together as husband and wife under such circumstances as would effect condonation of all marital offenses and abrogation of their settlement. She brings this appeal from the chancellor’s order dismissing her petition for want of equity.
According to the record these parties had been having marital difficulties for some period of time prior to their decision in the latter part of June 1980 to obtain a divorce. They then entered into a full and complete property settlement agreement and a suit for divorce was filed in the chancery court by appellee. Appellant’s entry of appearance and the property settlement were also filed that same day. The parties had previously agreed that the appellant would move to Milwaukee where she had arranged for a job transfer with her present employer. Under the property settlement agreement appellee would retain the family residence. The parties agreed that the appellant would remain in that residence for two weeks in order to make her moving arrangements. During that period appellee went on vacation visiting with relatives.
The appellant testified that during that two week period she spoke with appellee on the telephone and the parties agreed to a reconciliation. She testified that he then returned to El Dorado and they resumed their marital relationship until November 19th when she was informed that the decree had been entered. She testified that during the period of reconciliation divorce was never again discussed and that appellee agreed to arrange with the attorney to stop the divorce proceeding, leading her to believe that he had done so as a result of their reconciliation. She testified that she was not aware that the divorce action had not been dismissed until the decree was entered by the court.
The testimony of the appellee was in direct conflict as to the events during this period. He testified that they had ceased to have a marriage long before their separation. Their problems came to a head when it was discovered that their seventeen year old unmarried daughter was pregnant. He testified that appellant became enraged because he would not order the child out of the home. When he refused to do so she left the home and the divorce proceedings were then initiated. The appellee denied that he had ever agreed to a reconciliation. He testified that while he was on vacation after the complaint and agreement had been filed he received word from one of his children that the appellant was in bad emotional condition and was hysterical. At the suggestion of his daughter he called appellant. She informed him that the pregnant daughter had gotten married and that as a result she had developed an emotional problem and thought she was having a heart attack. She informed him that she had changed her plans about moving to Milwaukee and that she was going to the hospital. He stated that he refused her overture toward reconciliation in that conversation.
Upon his return to El Dorado he found that she was still in the house sleeping in one of the extra bedrooms. He denied having agreed at any time to a reconciliation but stated that he only permitted her to remain in the residence because of her physical and mental condition. He admitted that they did share the same bedroom for a “short period” and admitted to having sexual relations with her. He stated that she initiated both the return to his bedroom and the intercourse and that he had consented only because of her severe emotional crisis for which she was then receiving psychiatric treatment. He testified that he had no feelings for her and that when she fully realized this she stormed out of the bedroom and slept elsewhere, subjecting him to the same treatment that had caused them to seek the divorce. He denied ever telling her that he was going to dismiss the lawsuit or that abrogation of the property settlement agreement was ever discussed. He stated that prior to instructing the attorney to proceed with the divorce he had asked her if her emotions were in such a state that she was ready to go through with the divorce. He testified that she responded “Why not?” He stated that he told her when the divorce was going to be submitted and she knew the date. He further testified that on the date the decree was entered he gave her a copy of it and she asked him when he expected her to move.
Appellant first contends that the chancellor should have set the divorce decree aside because the appellee had fraudulently led her to believe that the divorce proceeding had been terminated and that they had become reconciled. In support of her position she relies on Seay v. Seay, 239 Ark. 1115, 396 S.W.2d 838 (1965) which holds that such conduct does constitute fraud which would justify the vacating of a decree. In Seay the court upheld a finding of the chancellor that such fraud was indeed practiced. Here the chancellor made a contrary finding.
While we review chancery cases de novo, it is well settled that we will not set aside the findings of a chancellor unless clearly against a preponderance of the evidence, and in making that determination we give due regard to the superior opportunity of the trial court to judge the credibility of the witnesses. Rule 52 (a) Arkansas Rules of Civil Procedure; Andres v. Andres, 1 Ark. App. 75, 613 S.W.2d 494 (1981). We cannot say that the chancellor’s finding is clearly against a preponderance of the evidence.
Appellant next contends that the trial court erred in not setting aside the decree because the return to the marital bed had effected a condonation of all grounds for divorce set forth in the appellee’s complaint. Continued cohabitation after acts constituting marital misconduct have been committed is evidence of condonation, but standing alone this is not conclusive. There are exceptions where the health of one of the parties is involved or where cohabitation is continued in hope of receiving better treatment from the other party. Weber v. Weber, 256 Ark. 549, 508 S.W.2d 725 (1974); Shirey v. Shirey, 87 Ark. 175, 112 S.W. 369 (1908). Condonation is a conditional rather than absolute remission of the offense, the implied condition being that the offense will not be repeated and that the guilty party shall not in the future commit any other marital offense or, as it is frequently expressed, that the offender will treat the injured party with conjugal kindness. Coffey v. Coffey, 223 Ark. 607, 267 S.W.2d 499 (1954); Bridwell v. Bridwell, 217 Ark. 514, 231 S.W.2d 117 (1950); Longinotti v. Longinotti, 169 Ark. 1001, 277 S.W. 41 (1925). If the testimony of appellee is believed, and the chancellor did believe it, he would be justified in applying either of the two exceptions to the rule of con-donation. We cannot conclude that his findings are clearly against a preponderance of the evidence.
The appellant next contends that the continued cohabitation after the property settlement agreement at least had the effect of abrogating it. In Carter v. Younger, 112 Ark. 483, 166 S.W. 547 (1914) and Dennis v. Younts, 251 Ark. 350, 472 S.W.2d 711 (1971) our court declared the applicable rule as follows:
Where the parties to a valid separation agreement afterward come together, and live together as husband and wife, where their conduct toward each other is such that no other reasonable conclusion can be indulged than that they had set aside or abrogated their agreement of separation, then such agreement should be held as annulled by the parties to it, and their marital rights determined accordingly.
Our conclusion on the preceding point is dispositive of this argument. The burden of proving the conduct of these parties towards each other was such that no reasonable conclusion could be indulged except that they had set aside their agreement was upon the appellant. The chancellor correctly concluded that the only evidence here which might fit the requirements of that rule was the admission by the appellee that he had sexual relations with appellant during this period. He found, however, no evidence of an agreement to resume the marital relation of husband and wife or to abrogate that settlement. He recalled no testimony from the wife to that effect and none has been pointed out to us. The appellee denied that there had been any reconciliation or an agreement to resume the marital relation. We cannot say that the chancellor’s finding was clearly against a preponderance of the evidence.
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Tom Glaze, Judge.
This probate case involves the liability of a surety, appellant J. B. Harrison, Jr., on a bond filed in the guardianship of Lillie B. Beckwith, an incompetent. The bond provided that Harrison and A. D. Parsons, as sureties, were jointly and severally obligated for the lawful administration of the ward’s estate by her guardian, Edward Elmore. Unfortunately, Elmore unlawfully withdrew $12,900 for his personal use, and Beckwith’s family subsequently petitioned to remove him. A successor guardian, Benton State Bank (Bank), was appointed in his stead. Elmore later filed his first and final accounting to which the Bank objected. At a hearing on the Bank’s objections, the court found the amount owed the estate by Elmore was $12,250 and it entered judgment against Elmore, Parsons and Harrison in that amount. Harrison appealed from that judgment, and we reversed for a reason not relevant here. On remand, a new trial was held and a judgment was again entered against Elmore, Parsons and Harrison for $8,417.11. The second judgment was less than the first because Elmore and Parsons paid $3,832.89 after the first judgment was entered, thereby reducing the amount owed the estate.
In this second appeal, Harrison first argues that he was excused from his obligations on the bond because a plea bargain agreement was consummated in a criminal proceeding brought against Elmore for theft, a charge resulting from his wrongful withdrawal of funds from the Beckwith’s estate. The essence of the plea bargain was that Elmore would reimburse the estate by making periodic payments to the Bank and in return, Elmore would receive a suspended sentence. Apparently, the prosecuting attorney obtained the Bank’s approval before the plea bargain agreement was entered. Harrison contends this plea bargain agreement was a novation which discharged his obligation to pay the monies owed the estate. He also cites Continental Insurance Companies v. Rowan, 250 Ark. 724, 466 S.W.2d 942 (1971), and argues that as a surety, he cannot be liable to the estate in a greater amount or “in any way differently from the way” in which the principal, Elmore, is liable, Harrison’s argument is a misstatement of the rule in Rowan.
In Rowan, the successor guardian filed an action directly against the surety without first proceeding against and establishing the liability of the principal/initial guardian who had been removed. The court held that before the successor guardian could sue the surety, he was required to obtain a settlement or accounting from the principal and an order directing the principal to pay over the sum found due the estate. In recognizing the soundness of this procedure, the court noted the rule, on which Harrison now relies, that the surety’s liability is derivative and ordinarily does not exceed that of the principal.
Here, the Bank proceeded against Elmore, established his liability to the estate in the sum of $8,417.11 and obtained a judgment against Elmore, Parsons and Harrison. The judgment also directed that after Harrison has paid the $8,417.11 he must be reimbursed by the estate from any money it receives from Elmore. The rule in Rowan limits Harrison’s liability to the amount Elmore owed the estate. The rule does not, however, discharge Harrison’s liability merely because he is required to pay the debt owed the estate in a different way (in a lump sum) from that required of Elmore (in periodic payments).
Nor can we agree with Harrison’s argument that the plea bargain agreement was intended as a novation to extinguish his surety obligation. The court in Barton v. Perryman, 265 Ark. 228, 577 S.W.2d 596 (1979), stated that a novation is the substitution by mutual agreement of one debtor, or of one creditor, for another, whereby the old debt is extinguished, or the substitution of a new debt or obligation for an existing one, which is thereby extinguished. We find no evidence that shows the parties intended, by their plea bargaining, to extinguish the judgment debt owed by Harrison. The judgment against Harrison, Parsons and Elmore remains unchanged and unsatisfied. The evidence clearly shows that Elmore consented to the plea bargain agreement to keep from going to the penitentiary — not to relieve Harrison of his obligation to the estate.
Aside from the parties’ lack of intent to enter a novation, the facts here simply do not come within the definition of a novation as that term is set forth in the Restatement of the Law on Contracts. Section 424 of that Restatement provides:
A novation ... is a contract that
(a) discharges immediately a previous contractual duty or a duty to make compensation, and
(b) creates a new contractual duty, and
(c) includes as a party one who neither owed the previous duty nor was entitled to its performance. [Emphasis supplied].
Obviously, Elmore owed a duty to pay the subject debt to the Beckwith estate; it was his breach of guardianship duties that obligated him, Parsons and Harrison. In fact, he remains liable on that debt as is evidenced by the judgment still pending against him and his sureties. In sum, we affirm the trial court’s finding that no novation existed and that, contrary to Harrison’s contention, the action against him on the debt was not premature or dischargeable under any rule contained in Rowan.
Harrison next contends that the court erred in finding that he was mentally competent at the time he signed the bond. On this point, we adopt the rule that a surety, like other parties to a contract, must have the requisite contractual capacity if he undertakes a personal obligation of suretyship. Doty v. Mumma, 305 Mo. 188, 264 S.W. 656 (1924); and 74 Am. Jur., Suretyship § 9; see also Kelly’s Heirs v. McGuire, 15 Ark. 555, 597 (1854). The Supreme Court in the landmark case of Kelly’s Heirs v. McGuire discussed the relative law regarding the mental capacity to contract as follows:
[T]he party to be charged in a contract, must not only express his assent that he will be bound, but he must be endowed with such degree of reason and j udgment as to enable him to comprehend the subject. The assent, which is requisite to give validity to a promise, supposes a free, fair, and serious exercise of the reasoning faculty. Chitty on Contracts 134. The law presumes there is full capacity to contract, and mental incapacity forms an exception to the general rule; which must be shown by those who would set aside the contract. Id. 135.
It would be wholly impracticable to lay down any exact general rule as to incapacity to contract; because each case will be found influenced by its own peculiar circumstances. But it may be freely admitted that mere weakness of understanding, is not, of itself, sufficient to invalidate a contract, if the person is capable of comprehending the subject. [Emphasis supplied].
The circumstances in this case support the chancellor’s finding that Harrison had the capacity to contract at the time he signed the surety bond. Harrison suffered and was treated for a stroke on July 15, 1978, forty-four days prior to his signing the bond on August 28, 1978. His family physician testified that he had no doubt that thirty days after the stroke Harrison was not capable of making rational judgment decisions and that he seriously doubted he could three months after. However, the doctor candidly admitted that, neurologically, Harrison had difficulty in pronouncing words but that no other neurological defects were observed. When the doctor saw him on August 31, 1978, Harrison had recovered his ability to speak, had no other signs or symptoms or any further strokes and was instructed to discontinue taking medication.
Harrison and his wife owned two businesses, a furniture store and a funeral home. Mrs. Harrison testified that shortly after her husband’s stroke and subsequent release from the hospital, she had him sign checks and conduct certain business transactions. In fact, he executed a retail contract on August 24, 1978, four days before he signed Elmore’s bond. Mrs. Harrison related that the doctor never stated that her husband was incompetent or lacked comprehension although she gave her opinion that he did lack comprehenson. She further testified that her husband “never refused to sign anything that I put in front of him between July, 1978, and the first of 1979.” In sum, Mrs. Harrison, an experienced businesswoman, obviously did not believe her husband’s mental capacity was diminished to the extent that he could not perform all the business matters she presented him. On these facts, we cannot say the chancellor was clearly erroneous in finding Harrison mentally competent when he signed Elmore’s bond.
Finally, Harrison argues that the bond was not enforceable because it was not accompanied with qualifying affidavits, and it was not supported by consideration. He cites no legal authority and offers no real argument for either proposition. Therefore, we do not consider these two issues because they are not supported by convincing argument or authority. Shannon v. Anderson, 269 Ark. 55, 598 S.W.2d 97 (1980).
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Melvin Mayfield, Chief Judge.
Both parties agree that this appeal involves the construction or interpretation of a property settlement agreement incorporated in their divorce decree.
The agreement provided that the wife would be entitled to the exclusive use and possession of a house (owned by the parties as tenants by the entirety) for a period of ten years or until certain contingencies occurred. Upon the occurrence of any named contingency the house would be sold and the proceeds divided equally after each party received his and her original contribution to the purchase price.
During the wife’s use and possession the husband was to pay to her one-half of the monthly mortgage payments and the agreement provided: “In the event of default by the husband for a period in excess of sixty days, the wife may treat the husband’s default as a breach of this Agreement and thereby fix his equity in the property pursuant to the above formula as of the date of the default.”
Shortly after the decree was entered the husband failed to pay his portion of a mortgage payment and after he missed another payment a motion was filed by the wife asking that the husband be held in contempt and that she have judgment against him for his past due payments.
The controversy centers around the meaning of the word “may” in the sentence set out above. At the hearing before the trial court, it was the husband’s contention that this sentence meant he could make the payments and thus build up his equity in the house, but that he was not locked into doing so and if he stopped making the payments his equity would be fixed at that time. It was the wife’s contention that the sentence gave her the option to treat the husband’s default as a breach of the agreement and fix his equity at that time or to treat the agreement as continuing and seek to enforce the payment provision.
The trial court agreed with the wife and gave her judgment for the amounts found due and the husband appeals. The issue on appeal is raised by appellant’s contention that the trial court erred in refusing to allow him to introduce evidence to show his understanding of the meaning of the sentence involved. Contending that the trial court was wrong in holding the settlement agreement clear and unambiguous and in construing it from the four corners of the document, the appellant cites Corbin, Interpretation of Words and the Parol Evidence Rule, 50 Cornell L.Q. 161, 164 (1965) that:
[N]o man can determine the meaning of written words by merely gluing his eyes within the four corners of a square paper . . . when a judge refuses to consider relevant extrinsic evidence on the ground that the meaning of written words is to him plain and clear, his decision is formed by and wholly based upon the completely extrinsic evidence of his own personal education and experience.
Our problem is somewhat complicated by the nature of the hearing below. The attorneys stated their contentions to the j udge and he told them that, in his opinion, the meaning of the agreement was clear and the word “may” unambiguous and since there was no argument over the amount, he would enter judgment against appellant for the amount due. Thus there was actually no proffer of evidence which the court refused to allow appellant to introduce. Before the Uniform Rules of Evidence became effective such a proffer was necessary but under Uniform Evidence Rule 103 (a) (2) error may be predicated upon a ruling excluding evidence if “the substance of the evidence was made known to the court by offer or was apparent from the context within which questions were asked.”
Although no witness was questioned, it does appear that the “substance of the evidence” which appellant wanted to introduce was apparent to the trial court. The record, of course, must also reveal that evidence to this court before we can review the trial court’s action. What the record shows in that regard is that appellant’s counsel stated to the trial court that he wanted to put on evidence of the appellant’s “understanding” of the agreement which was “that he could escape from it by defaulting, by not making payments in excess of sixty days, and thereby fix his equity and at some time in the future, when the house is sold, get his money out of the house.”
We do not think the quotation from Professor Corbin supports appellant’s contention that his “understanding” of the agreement was admissible in evidence. We agree that in determining the intention of the parties to a contract evidence is admissible in order that the court may acquaint itself with the parties and circumstances involved in the making of the contract. Barrett Real Estate v. Land Mart of America, 3 Ark. App. 70, 621 S.W.2d 889 (1981). But this is not what the appellant wanted in evidence. He wanted to show his understanding of what the word “may” meant. Another quotation from Professor Corbin applies to that contention:
15. If one party asserts an interpretation that accords with the linguistic education and experience of the court, and the other party asserts an interpretation that does not so accord and offers no relevant evidence that the first party knew or had reason to know the latter interpretation, the first party’s interpretation will prevail.
3 Corbin on Contracts § 572 (B) (Supp. 1971).
The appellant says that the word “may” is sometimes construed as “shall” or “must” and cites Ark. Rock and Gravel Co. v. Chris-T-Emulsion, 259 Ark. 807, 536 S.W.2d 724 (1976) where the court said “the Spring of ’74” was ambiguous because dictionaries recognize it is popularly considered to be the months of March, April, and May, but scientifically considered to be the period from the vernal equinox (about March 21) to the summer solstice (about June 21). But that case also said:
It is true that when the language of a contract is ambiguous, proof of oral negotiations is admissible to show that the language was intended to have “any particular meaning that the words will reasonably bear.” Kerr v. Walker, 229 Ark. 1054, 321 S.W.2d 220 (1959). But the rule does not allow a party to prove by oral testimony that clear and unambiguous words were subjectively intended to have a meaning not fairly attributable to them. (Emphasis added.)
The case of Countryside Casualty Co. v. Grant, 269 Ark. 526, 601 S.W.2d 875 (1980) is cited by appellant as a case where parol evidence was allowed to “explain the true intentions of the parties.” Here, however, the appellant did not tell the court that he wanted to introduce evidence to show what the parties intended by the use of the word “may.” We do not believe the appellant has demonstrated that the court refused to hear any evidence which would show that the parties intended any meaning other than that found by the trial court. As the Countryside Casualty case holds, the intention of the parties is a question of fact. We do not reverse factual findings unless the trial court is clearly in error, Civil Procedure Rule 52 (a). We find no error in this case.
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LARRY D. VAUGHT, Chief Judge.
| Appellant Lynn Burkett appeals the decision of the Workers’ Compensation Commission vacating the opinion of the Administrative Law Judge that ordered an independent medical examination (IME) and reserved the issues of compensability and additional benefits. The Commission further found that Burkett failed to meet her burden of proving that reflex sympathetic dystrophy (RSD) was a compensable consequence of her compensable right-hand injury. Burkett raises four issues on appeal: (1) the Commission erred in determining that the ALJ had no authority to order an IME; (2) the Commission erred in determining issues that had been reserved by the ALJ; (3) the Commission erred in failing to make findings of fact before it denied the claim; and (4) the Commission’s denial of the claim is not supported by substantial evidence. We affirm in part and reverse |2and remand in part.
On July 15, 2006, Burkett, an employee of appellee Exxon Tiger Mart, Inc., was asked by her assistant manager to change the gas prices on the sign in front of the station. Burkett used a flexible extension rod with a suction cup on the end to remove and replace the numbers. While performing this task, one of the numbers (consisting of thin plastic, measuring one foot by one-and-a-half feet, and weighing approximately two ounces) fell twenty to twenty-five feet and struck the top of her right hand. Burkett immediately felt pain, reported the incident to Tiger Mart, and sought medical treatment. This incident was accepted as compensable by Tiger Mart and initial benefits were paid to Burkett.
At the emergency room, Burkett was diagnosed with a right-hand contusion. Four days later, on referral from the emergency room, Burkett was seen by Dr. Robert May. Dr. May noted a lack of objective findings of an injury to Burkett’s right hand; however, he diagnosed RSD based on her complaints of pain. At the request of Tiger Mart, Burkett was seen by Dr. David Rhodes on August 10, 2006. He recommended a triple-phase bone scan, the results of which failed to support the presence of RSD. On August 21, 2006, Dr. Rhodes’s physical examination of Burkett failed to demonstrate objective findings supporting RSD.
In late August 2006, Burkett was seen by Dr. Michael Westbrook, who noted swelling in her right hand and stated that tendinitis or carpal tunnel syndrome were possible ^diagnoses. Thereafter, Burkett returned to the emergency room for treatment, where the physician noted swelling and redness in her right hand. He suspected cellulitis. Burkett returned to Dr. Westbrook with continued complaints, and he noted that her right hand was warm and swollen. He diagnosed cellulitis and possible RSD. He referred her to Dr. James E. Kelly, who diagnosed Burkett with RSD and recommended “fairly aggressive treatment.”
When Tiger Mart denied the RSD treatment recommended by Dr. Kelly, Burkett filed a claim with the Commission. She sought the determination that her RSD was a compensable consequence of her compensable injury and that she was entitled to additional benefits. After a hearing on these issues, the ALJ issued an opinion wherein he stated:
I am concerned about the discrepancies in the objective findings that formed the basis for the diagnosis of RSD.... After consideration of all the evidence presented, it is my opinion that to insure a fair and just result to all parties concerned, the claimant should be evaluated for her hand complaints by a qualified medical doctor that specializes solely in injuries and conditions involving the hand, including RSD.
After ordering an IME, the ALJ reserved the issues of compensability and additional benefits.
Tiger Mart appealed, and the Commission reversed the ALJ’s opinion. The Commission found that while the ALJ had the authority to order an IME under Arkansas Code Annotated section 11 — 9— 511(a), it was inappropriate to exercise that authority once the parties actually presented their case. The Commission vacated the ALJ’s order for the IME and further found that “the claimant has failed to prove by a preponderance of the evidence that she has developed [RSD] for which she is entitled to additional medical and indemnity benefits.” Burkett timely appealed from the Commission’s decision.
|4The first point raised by Burkett is that the Commission erred in determining that the ALJ had no authority to order an IME. She argues that authority to order an IME was granted to the ALJ pursuant to Arkansas Code Annotated sections 11-9-511(a) (Repl.2002) and 11-9-811 (Repl. 2002). The ALJ did not cite either sec tion 11-9-511 or 11-9-811 as authority for ordering the IME. The Commission only referred to section 11-9-511 in its decision. It acknowledged that section 11-9-511(a) authorized the Commission to direct a claimant to submit to a physical examination. However, it found that it was inappropriate to exercise that authority after the parties had already litigated their case.
We do not interfere with the actions of the Commission unless we find that it has acted without or in excess of its authority. Gencorp Polymer Prod. v. Landers, 36 Ark.App. 190, 820 S.W.2d 475 (1991). To determine whether the Commission erred in finding that Rthe ALJ exceeded his authority, we must interpret the applicable workers’ compensation statutes. We review issues of statutory construction de novo, as it is for this court to decide what a statute means. Lewis v. Auto Parts & Tire Co., Inc., 104 Ark.App. 230, 290 S.W.3d 37 (2008).
The plain language of sections 11-9-511(a) and 11-9-811 does not authorize the Commission to, sua sponte, order an IME after the parties have litigated com-pensability and additional benefits. These statutes do not give the Commission authority to reserve making determinations on compensability and additional benefits when those were the only issues litigated by the parties. As such, we hold that the Commission did not err in finding that the ALJ exceeded his authority when he ordered an IME.
We further hold that the Commission, in vacating the law judge’s IME order, properly relied upon our holding in Landers. There, the ALJ and Commission reserved the issue of the claimant’s entitlement to temporary indemnity benefits, finding that the record was not sufficiently complete to allow a determination that would be fair and just to all parties concerned. There, we stated:
It is the duty of the Workers’ Compensation Commission to translate the evidence on all issues before it into findings of fact. Sanyo Manufacturing Corporation v. Leisure, 12 Ark.App. 274, 675 S.W.2d 841 (1984). The Commission’s statutory obligation is to make specific findings of fact and to decide the issues before it by determining whether the party having the burden of proof on an issue has established it by a preponderance of the evidence. White v. Air Systems, Inc., 33 Ark.App. 56, 800 S.W.2d 726 (1990); Ark.Code Ann. § 11-9-705(a)(3) (1987). ...
| sArk.Code Ann. § ll-9-705(e)(l) provides that all evidence shall be presented to the Commission at the initial hearing on the controverted claim. The burden of proving a case beyond speculation and conjecture is on the claimant. Bragg [v. Evans-St. Clair, Inc.], supra [15 Ark. App. 53, 688 S.W.2d 956 (1985) ]; 3 Arthur Larson, The Law of Workmen’s Compensation, § 80.33(a) (1952).
By reserving the issue of whether the appellee was entitled to temporary total disability benefits for the period from February to June 1989, the Commission simply declined to say that the appellee failed to meet her burden of proof on this issue. This constitutes error on the part of the Commission as our workers’ compensation statute states that the evidence shall be weighed impartially, and without giving the benefit of the doubt to any party. Ark.Code Ann. § 11-9-704(c)(4). The Commission has allowed the appellee a “second bite at the apple” by giving her another opportunity to present evidence substantial enough to carry her burden. Though we do not interfere with the actions of the Commission unless we find it has acted without or in excess of its authority, Allen Canning Company v. McReynolds, 5 Ark.App. 78, 632 S.W.2d 450 (1982), disregarding its duty to find the facts in order to give the appellee the benefit of the doubt is not within the Commission’s authority.
Landers, 36 Ark.App. at 194-95, 820 S.W.2d at 477-78. Based on Landers, the Commission in the instant case found that the ALJ abused his discretion by ordering the IME and reserving a decision on the issues the parties litigated.
Landers supports the Commission’s decision to vacate the IME ordered by the ALJ. In this case, it was the statutory obligation of the Commission to make findings of fact and to decide the issues of compensability and additional benefits by determining whether Burkett met her burden of proof. Landers, supra. Here, the ALJ failed to perform these duties when he reserved the issues and ordered the IME. As such, the Commission was correct in finding that this constituted error.
Burkett insists that her case is distinguishable from Landers. She argues that the ALJ in her case had statutory authority to order the IME, which had the effect of reserving a |7decision on the merits, whereas the Commission in Landers did not. First, we are mindful that the ALJ did not rely upon statutory authority in ordering the IME. Nevertheless, under the particular facts of this case, sections 11-9-511 and 11-9-811 did not extend authority to the ALJ to order the IME. Because the Commission properly relied upon Landers in concluding that the ALJ exceeded his authority in ordering the IME and reserving the meritorious issues, we affirm the Commission on this point.
Burkett next argues that the Commission erred in determining issues that had been reserved by the ALJ. The Commission hears workers’ compensation claims de novo. Amaya v. Newberry’s 3N Mill, 102 Ark.App. 119, 282 S.W.3d 269 (2008). It is the Commission’s statutory obligation to make specific findings of fact and to decide the issues presented to it by determining whether the party having the burden of proof has established it by a preponderance of the evidence. Landers, supra. Therefore, once the Commission reversed the decision of the ALJ, it had the statutory obligation to determine the issues that the parties litigated. Accordingly, we affirm on this point.
The third point raised by Burkett is that the Commission did not satisfy its duty to make findings of fact before it denied her claim. While the Commission had the obligation to determine the issues litigated below, we hold that the Commission failed to fulfill its duty in this case. After the Commission vacated the ALJ’s opinion ordering the IME, it summarily found that “the claimant has failed to prove by a preponderance of the evidence that she has developed [RSD] for which she is entitled to additional medical and indemnity benefits.” Neither the Commission nor the ALJ made any factual find ings on the issues ^presented and litigated by the parties.
A determination of the issues in this case is solely within the province of the Commission as fact finder. Bagwell v. Falcon Jet Corp., 8 Ark.App. 192, 649 S.W.2d 841 (1988). It is beyond the power of an appellate court to make findings of fact. Id. As such, we reverse the Commission’s denial of Burkett’s claim and remand the case to the Commission for a determination, based upon factual findings, of the issues that were litigated by the parties below.
Burkett’s fourth and final point is that substantial evidence fails to support the Commission’s denial of her claim. Because we are reversing and remanding this case to the Commission for a decision on compensability and additional benefits, we do not reach the merits of this point.
Affirmed in part; reversed and remanded in part.
GLADWIN and KINARD, JJ, agree.
. Section 11-9-511 (a) provides:
An injured employee claiming to be entitled to compensation shall submit to such physical examination and treatment by another qualified physician, designated or approved by the Workers’ Compensation Commission, as the commission may require from time to time if reasonable and necessary.
Arkansas Code Annotated section 11-9-811 provides:
Upon its own initiative at any time where compensation payments are being made without an award, the Workers’ Compensa- lion Commission may and in any case where the right to compensation has been controverted or where payments of compensation have been suspended, or where an employer seeks to suspend payments made under an award, or on application of an interested party, the commission shall make such investigation, cause such medical examination to be made, hold such hearings, and take such further action as the commission deems proper for the protection of the rights of all parties.
. We note that neither party at the hearing before the law judge requested relief under sections 11-9-511 or 11-9-811. As such, no evidence was presented in favor of or against the appropriateness of an IME. To the contrary, the only evidence presented by the parties related to the issues of compensability and additional benefits. | [
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HUMPHREYS, J.
Appellant instituted suit against appellee in the circuit court for the Western District of Carroll County, to recover damages for an injury received through the alleged negligence of appellee while alighting from its street car in Eureka Springs. The allegation of negligence in the complaint insisted upon for recovery is the charge that appellee failed to furnish her a safe place to alight in this, that upon reaching her destination, appellee stopped its car at a point on the line of its railway where the ground was uneven and washed out until the step was too high for her left foot to reach the ground, so that in attempting to get off she fell and fractured her ankle.
Appellee made a specific denial of the allegation of negligence relied upon by appellant for recovery, and all other allegations of negligence complained of in the complaint, and, by way of additional defense, pleaded contributory negligence on the part of appellant for the alleged reason that she was familiar with the ground where the car stopped, and in the exercise of ordinary care, should have observed and avoided the dangers incident to alighting.
The cause was tried upon the pleadings and evidence, and at the conclusion thereof a directed verdict was returned by the jury in favor of appellee.
An appeal has been properly prosecuted to this court.
The only question to be determined on -appeal is whether the trial court erred in directing a verdict. In testing the correctness of a directed verdict, this court has adopted the following rule:
“In determining on appeal the correctness of the trial court’s action in directing a verdict for either party, the rule is to take that view of the evidence most favorable to the party against whom the verdict is directed. And where there is any evidence tending to establish an issue in favor of the party against whom the verdict is directed, it is error to take the case from the jury. ’’ Jones v. Lewis, 89 Ark. 368.
It is also well settled that the strongest probative force must be given the evidence of the losing party in construing on appeal the correctness of an instructed verdict. Williams v. St. L. & S. F. Rd. Co., 103 Ark. 401.
The undisputed evidence in the case .disclosed that appellant took passage on appellee’s street car, on the 17th day of March, 1916, at 3 o’clock p. m., from Harding’s Spring to Dunkinson’s house; that the car was' stopped by the motorman in front of Dunkinson’s house for her to get out; that the car was an open summer car with a running foot-board on each side about ten inches below the floor, for passengers to step on and off the car; that hand-holds were attached to uprights on each side of the car between the seats; that the seats ran clear across the car; that passengers were permitted to get on and off on either side of the car; that the foot, or running board extended out over the ends of the ties; that the ground where the cars stopped sloped down from the track and down from the sidewalk; that the sidewalk on the left hand side was four or five feet from the track; that the surface water had cut a small gulley five inches deep about one foot from the end of the ties; that the ground on the right side was level and about eighteen inches below the running board; that on the left side the ground was sloping and ranging from 25 to 33 inches below the running board; that appellant got off the car on the left side and, in doing so, fell and sustained a compound fracture of her ankle.
With reference to leaving the car, Mrs. Beach testified, in substance, as follows: When the car stopped for her to get off, two women were sitting on the same seat to her right and that, on that account, she got off on the left side; that in getting off, she stepped on the running-board, took hold of a hand-hold and stepped down with her left foot until she thought it was far enough to touch the ground, when she discovered that she must step about five inches further to reach the ground; that she judged she could step that much further and stepped down; that her clothing caught on the car; that although she tried, she could not pull herself back and could not hold longer with the hand-hold; that her clothing, which was holding her, tore and her left foot went on down in the ditch hole and she fell down and broke her ankle; that the hole was under the running-board and she could not, and did not, see it when she was standing on the running-board; that the ground in and around the hole was soft; that she may have said it was her fault (meaning she ought not to have ridden in the car); that she perhaps remarked she ought to have gotten out on the other side; that she had gone up there two or three times before on the car, but the car did not stop in exactly the same place on other occasions. Mrs. Beach denied that she told any one then or later that she was at fault and. appellee’s employees were not to blame. :
’Mrs. Beach was corroborated in many particulars by other witnesses, but in other respects, her evidence was in sharp conflict with a majority of the witnesses. For example, according to the other witnesses, she stepped off the car promptly when it stopped; she made no effort to pull herself back on the running-board; practically all other witnesses testified that there was no hole in the ground except the water course which was about five inches below the surface; and none of the witnesses observed that her clothes caught on the car or that they were torn. The motorman testified that she said it was her own fault and not his. The president of the company said she afterwards told him she was injured by her own fault and not through the fault of appellee’s employees.
The evidence is voluminous, but the substance thereof, in so far as it relates to the issue for our determination, is about as set forth above.
This court has adopted the rule that: “A common carrier of passengers by street car is required to exercise the highest degree of skill and care which may rea sonably be expected of intelligent and prudent persons employed in that business, in view of tbe instrumentalities employed and the dangers naturally to be apprehended.” Little Rock Traction & Electric Co. v. Kimbro, 75 Ark. 211; Oliver v. Ft. Smith Light & Traction Co., 89 Ark. 222. Under this rule it was the duty of appellee to furnish appellant a safe place to alight. We think the evidence tends strongly to show that the ground on the left side of the car was an unsafe place for ladies to get out. The proof indicated that it was slanting, uneven and washed out until the distance from the running-board to the ground made it dangerous to alight. No effort was made by the motorman to prevent passengers from getting out from that side at that point. Under the rules of the company, passengers were permitted to get on or off on either side. Passengers had a right to presume that it was safe to get off and on either side, having had no notice to the contrary. Again, it can not be said as a matter of law, under the undisputed facts, that the danger was so apparent that a casual observer would necessarily detect the danger before alighting, or that the plaintiff was so familiar with the condition of the ground that it was contributory negligence on her part to alight at that particular place.
It can be said that appellant’s evidence tended to prove the issue of negligence set forth in her complaint. We think there is ample evidence in the record, when viewed in its most favorable light, to have warranted a verdict in her favor, if returned by the jury under proper instructions.
For this reason, it was error to instruct 'the verdict against her.
The judgment is reversed and the cause remanded for a new trial. | [
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KENNETH S. HIXSON, Judge
| lAppellant Cortez Gould appeals his convictions for aggravated robbery and theft of property, which sentences were enhanced due to his use of a firearm during the commission of the crimes. Appellant was sentenced to forty years in prison. For his sole point on appeal, appellant contends that the trial court erred in denying his motion for a mistrial due to alleged juror misconduct. We affirm.
The standard of review is well settled. A mistrial is an-extreme and drastic remedy that will be resorted to only - when there has been an error so prejudicial that justice cannot be served by continuing with the trial or when the fundamental fairness of the trial has been manifestly affected. Harrison v. State, 371 Ark. 652, 269 S.W.3d 321 (2007). The trial court has broad discretion in granting or denying a motion for' mistrial, and on appeal, we will not overturn the circuit court’s decision absent an abuse of that discretion.- Id. Declaring a mistrial is proper only when the error is beyond repair and cannot be corrected by any 12curative relief. McClinton v. State, 2015 Ark. 245, 464 S.W.3d 913. The presiding trial judge is in a better position than anyone else to evaluate the impact of any alleged errors. Id. Thus, this discretion will not'be disturbed except where! there is an abuse of discretion or manifest prejudice to the movant. Stewart v. State, 320 Ark. 75, 894 S.W.2d 930 (1995).
Following allegations of juror misconduct, the moving party bears the burden of proving both juror misconduct and a reasonable probability of- resulting prejudice.. Butler v. State, 349 Ark. 252, 82 S.W.3d 152 (2002). Our court will not presume prejudice in such situations. Id, Jurors are presumed unbiased and qualified to serve, and the burden is on the appellant to show otherwise. Id. Whether prejudice occurred is also a matter for the sound -discretion • of the trial court. Id.
In keeping with these legal principles, the following is an analysis of the events at trial. Appellant was accused of committing armed robbery at a Cricket cellular store in Conway, Arkansas, on September 7, 2012. A jury was seated, with one alternate juror available. The jurors were instructed on the rules to follow while serving as a juror, and among the admonitions was the following: “First, do not talk among yourselves about this case or about anyone involved with it until the end of the case when you go to the jury room to decide on your verdict.”
During trial, the owner of the Cricket store testified, explaining that she provided a general description of the perpetrator to the police, telling them that he was an African American male, estimated to be 5’6” tall, and she said he was clean shaven: The police presented her with a photographic lineup five days after the crime took place, bn September 12, wherein she identified appellant as the person who robbed the store. During a Conway | (¡police detective’s testimony, the detective said that two pictures of appellant — State’s Exhibits 52 and 43 — were taken on different days for purposes of the photographic lineup, but it appeared that appellant was coincidentally wearing the same shirt in both pictures. The photographs were passed to the jury.
At the conclusion of the detective’s testimony, - defense counsel brought two jurors to the trial court’s attention: Deborah Creswell and Vicky Campbell. Appellant had reported to his attorney that he heard the two women discussing the two photos of appellant as they were published to the jury. Appellant said that one of the women, later determined to be Vicky Campbell, commented that the shirts in the photos were not the same, to which the other woman disagreed. The prosecutor admitted that he heard the two women speak to each other, but he only heard one juror respond “no” or “not.” This drew a motion for mistrial, given that this was deemed by appellant as- improper inter-juror communication. Defense counsel argued that there was only one alternate juror available, and' defense counsel did not know how to remedy the fact that there was improper conversation between jurors without removal of both jurors.
The prosecutor suggested that the trial judge question the two jurors, and if there was improper communication, to issue a curative instruction to them. The prosecutor maintained, though, that there was no resulting prejudice from the alléged comments. After taking a brief recess, the trial judge denied the request for the extreme remedy of mistrial.
In order to provide a complete record, and in renewal of the mistrial motion, defense counsel asked that the trial judge conduct an inquiry of these jurors to see if they were qualified as fair and impartial jurors to continue with jury duty. Defense counsel argued |4that it was unfair to. eo.ntinue when two jurors were talking about a piece of evidence. The trial judge agreed to conduct an in camera inquiry.
Vicky Campbell stated to the trial judge that Deboi4ah Creswell mentioned that the shirt collar in one picture did not look the same as the other, but she (Campbell) disagreed with Creswell. Campbell left the judge’s chambers. Deborah Creéwell was then called into chambers. Creswell said that Campbell mentioned that she thought the shirts were different in the two pictures,,to which she (Creswell) said that .she agreed the shirts were not the same, but she did not mean to respond aloud. Creswell apologized.
The trial judge found that Campbell was the one who- made the initial comment, which was in line with what appellant had reported. The trial judge agreed with defense counsel that fairness and the appearance of fairness were paramount, but noted that the substantive issue was whether there had been resulting prejudice requiring a mistrial. The trial judge decided that “if’ there had been any violation of the court’s admonitions, it was Campbell. The trial judge removed * Campbell from the jury, seating the alternate juror, and mistrial,'was denied. The State'had rested its case, the defense' did not present any evidence, and the jury was dismissed for lunch. Before releasing the jurors, the trial judge again reminded, the jurors of the admonition not to discuss anything about this ease or anyone involved with it until the case was submitted for jury deliberation.
Appellant argues that Cres-well’s responsive comment to Campbell in the jury box, made in violation of the jury instruction not to do that, constituted denial of a fair trial and resulted in prejudice, requiring a mistrial, We disagree that appellant demonstrated prejudice from Creswell looking at properly admitted evidence and briefly stating ^disagreement with a witness on whether the shirts in the two photographs were the same. Any juror misconduct by Creswell, if there were any, appears to have had no discernible effect on Creswell’s ability to decide appellant’s guilt or innocence in a' fair and impartial manner. Creswell expressed remorse for any errant behavior. The trial judge again admonished the jury not to discuss anything about this case until deliberations. A juror is presumed unbiased and qualified to serve, and whether prejudice resulted from alleged juror misconduct is a matter of the trial court’s sound discretion. Butler v. State, supra; Shamlin v. State, 23 Ark. App. 39, 743 S.W.2d 1 (1988) (affirming the removal of a juror who made an improper comment to two other jurors during trial about whether Shamlin was guilty, replacing that juror with the only alternate, and allowing the two other jurors to remain). If a juror is shown to have prejudged a defendant to be guilty prior to hearing all the evidence and being instructed on the law, then this demonstrates that the defendant was deprived a fair and impartial jury, entitling the defendant to a new trial. See Conway v. State, 2012 Ark. 420, 2012 WL 5462859. Such is not the case in the appeal before us today. Because appellant has failed to demonstrate that there was a reasonable probability of resulting prejudice here in having Creswell remain on the jury, we affirm the trial court’s denial of mistriál as not manifesting an abuse of discretion.
Affirmed.
Kinard and Whiteaker, JJ., agree. | [
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PER CURIAM
| tin 1988, appellant Lonnie E. Mitchell was found guilty by a jury of kidnapping, rape, and first-degree battery. He was sentenced as a habitual offender to consecutive terms of imprisonment for life, life, and forty years, respectively. We affirmed. Mitchell v. State, 299 Ark. 566, 776 S.W.2d 332 (1989).
In 2015, Mitchell, who is incarcerated at a unit of the Arkansas Department of Correction (“ADC”) in Lincoln County, filed a petition for a writ of habeas corpus in the Lincoln County Circuit Court. The petition was dismissed, and Mitchell brings this appeal.
A circuit court’s grant or denial of habeas relief will not be reversed unless the court’s findings are clearly erroneous. Hobbs v. Gordon, 2014 Ark. 225, 434 S.W.3d 364. A finding |gis clearly erroneous when, although there is evidence to support it, the appellate court is left, after reviewing the entire' evidence, with the definite and firm conviction that a mistake has been committed. Id.
Under our statute, a petitioner for the writ who does not. allege his actual innocence and proceed under Act 1780 of 2001 Acts of Arkansas must plead either the facial invalidity of the judgment or the lack of jurisdiction by the trial court and make a showing by- affidavit or other evidence of probable cause to believe that he is illegally, detained, Ark.Code Ann; § 16--112-103(a)(l) (Repl.2006). The burden is .on the petitioner in proceedings for a writ of habeas corpus to establish that the trial court lacked jurisdiction or that the commitment was invalid on its face; otherwise, there is no basis for a finding that a writ of habeas corpus should issue. Fields v. Hobbs, 2013 Ark. 416, 2013 WL 5775566.
Mitchell argued in. the habeas petition, and in this appeal; that the judgment in his case was illegal on its face'because the trial court lacked authority, to sentence him to the terms of life imprisonment because he was under the age of twenty-one when he committed the offenses. As authority for the claims. Mitchell cites Arkansas Code Annotated § 16 — 93—607(d) (1987) and our decision in Hobbs v. Turner, 2014 Ark. 19, 431 S.W.3d 283.
Section 16 — 93—607(d), however, applied only to first offenders. As stated, Mitchell was sentenced as a habitual offender. With respect to Turner, the case concerned a juvenile offender who was sentenced to life imprisonment and was thus entitled to relief under the United States Supreme Court’s decision in Graham v. Florida, 560 U.S. 48, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010). In Graham, 560 U.S. at 74, 130 S.Ct. 2011, the Court held “that for a juvenile offender who did not commit homicide the Eighth Amendment forbids the sentence of life without parole.” According | ato the judgment of conviction and records maintained by the ADC, Mitchell was born on January 12, 1968. He committed the offenses in June 1986 when he was eighteen years old. He did not allege in his habeas petition that he was under the age of-eighteen when he committed the offenses or demonstrate that Graham applied to his ease.
Mitcheil also argues that Arkansas Code Annotated section 16-93-607(c)(1) (1987) rendered him ineligible for parole, and, thus, his life terms were unconstitutional because life without parole was not a legal penalty for the offenses of which he was convicted. Section 16-93-607(c)(1), in pertinent part, provided that prison inmates under sentence of life imprisonment shall not be eligible for release on parole unless the sentence is commuted to a term of years by executive clemency. Upon commutation, the inmate becomes eligible for release on parole. Mitchell asserted that his life sentences were effectively converted by section 16-93-607(c)(l) to a sentence of life without the possibility of parole.
14Pursuant to Arkansas Code Annotated section 5-4-401 (a)(1) (1987), Mitchell could be sentenced for rape and kidnapping, both of which were Class Y felonies, to a term of imprisonment, of ten to forty years or life. Mitchell did not argue that the life sentences that were imposed were outside the range of sentencing provided at the time he committed the offenses. A court considering claims in a habeas petition pertaining to the facial validity of the judgment need not look beyond the permitted statutory range of punishment in determining whether the sentence in the judgment was valid. Redus v. State, 2013 Ark. 9, at 4, 2013 WL 7851469 (per cu-riam).
We have held that a challenge to the constitutionality of a parole-eligibility statute is not a cognizable claim in habeas proceedings. Woodson v. Hobbs, 2015 Ark. 304, at 3, 467 S.W.3d 147, 149 (per curiam). Habeas proceedings do not extend to issues of parole eligibility and are limited to the questions of whether the petitioner is in custody pursuant to a valid judgment of conviction or whether the convicting court had proper jurisdiction. See Blevins v. Norris, 291 Ark. 70, 722 S.W.2d 573 (1987).
The determination of parole eligibility is solely within the province of the ADC. Aguilar v. Lester, 2011 Ark. 329, 2011 WL 3930362 (per curiam). This court has repeatedly held that the ADC, not the sentencing court, determines parole eligibility. Cridge v. Hobbs, 2014 Ark. 153, at 3-4, 2014 WL 1344404 (per curiam); see Johnson v. State, 2012 Ark. 212, 2012 WL 1739110 (“Parole eligibility falls clearly within | ¡¿he domain of the executive branch and specifically the ADC, as fixed by statute.”); Thompson v. State, 2009 Ark. 235, 2009 WL 1784086 (per curiam) (holding that, because determining parole eligibility is the prerogative of the ADC, the trial court would not have had authority to place conditions as to parole eligibility on the sentence announced). The ADC’s determination that a prisoner is not eligible for parole does not amount to a modification of his sentence or render the sentence imposed illegal on its face. See Cridge, 2014 Ark. 153, at 3-4, 2014 WL 1344404.
Because Mitchell did not establish the facial invalidity of the judgment in his case or the lack of jurisdiction by the trial court, he does not show that he was entitled to the relief sought in his petition. Philyaw v. Kelley, 2015 Ark. 465, 477 S.W.3d 503. Accordingly, we hold that the circuit court did not err in declining to issue the writ. Id,
Affirmed; motion moot.
. As of the date of this opinion, Mitchell remains incarcerated in Lincoln County.
. As we noted in Turner, generally, in Arkansas, life means life; and, with few exceptions that Mitchell does not .contend apply to him, the legislature has not provided for a sentence of life with the possibility of parolé in ovér forty years. Turner, 2014 Ark. 19, at 7-8,. 431 S.W.3d 283, 287; see Ark.Code Ann. § 16-93-601(b)(1) (Repl.2006) (stating that individuals sentenced to life imprisonment for felonies committed before March 1, 1968, and individuals sentenced to life imprisonment for felonies committed after February 12, 1969, and before April 1, 1977, are not eligible for parole unless thé sentence is commuted to a term of years by executive clemency); § 16-93 — 604(b)(1) (Repl.2006) (stating that individuals sentenced to life imprisonment for felonies committed on or after April 1, 1977, and before April 1, 1983, are not eligible for parole unless the sentence is commuted to a term of years by executive clemency); § 16— 93 — 607(c)(1) (Repl.2006) (stating that individuals sentenced to life imprisonment for felonies committed on or after April 1, 1983, but .before January 1, 1994, are not eligible for parole unless the sentence is commuted to a term of years by executive clemency); § 16-93-614(c)(1)(B) (Supp.2013) (stating-that inmates sentenced to life for offenses committed after January 1, 1994 are not eligible for transfer to community corrections unless the sentence is commuted to a term of years by executive clemency); § 16-93-601(b)(2) (Repl.2006) (stating that individuals sentenced to life on and after March 1, 1968, and prior to February 12, 1969, are parole eligible after serving fifteen years). | [
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KENNETH S. HIXSON, Judge
|,Appellants Ernest Warren Farr, Jr. (Warren) and Debbie Holmes (Debbie) entered into an insurance contract with ap-pellee American National Property and Casualty Company (ANPAC) to insure a pontoon boat and trailer. Appellants later submitted a claim for insurance coverage after the boat and trailer were allegedly stolen. ANPAC denied coverage for the loss and rescinded the policy after discovering that Warren and Debbie were not the owners of the boat and had made misrepresentations on the insurance application. Warren and Debbie, along with the boat’s owner, Jo Ann Farr, brought a complaint against ANPAC for breach of the insurance contract, alleging that AN-PAC had acted in bad faith and should be ordered to cover the loss. The trial court subsequently granted summary judgment for |2ANPAC. Warren and Debbie now appeal, arguing that the trial court erred in granting summary judgment because material issues of fact remained to be litigated. We affirm.
Summary judgment may be granted only when there are no genuine issues of material fact to be litigated, and the mov- mg party is entitled to judgment as a matter of law. Kirkwood v. Dial, 2013 Ark. App. 536, 2013 WL 5371934. 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. Midkiff v. Crain Ford Jacksonville, LLC, 2013 Ark. App. 373, 2013 WL 2457272. On appellate review, we determine if summary judgment was appropriate based on whether the evi-dentiary items presented by the moving part in support of the motion left a material fa'ct unanswered. Neal v. Sparks Reg’l Med. Ctr., 2012 Ark. 328, 422 S.W.3d 116. 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. Campbell v. Asbury Auto., Inc., 2011 Ark. 157, 381 S.W.3d 21. Our review focuses not only on the pleadings, but also on the affidavits and documents filed by the parties. Kirkwood, supra.
Jo Ann Farr, who is Warren Farr’s mother, purchased the pontoon boat and trailer in 2007. In Debbie’s deposition, she explained that although Jo Ann was the named purchaser and titled owner, the boat essentially belonged to her [Debbie] and Warren and that they were making the payments. Debbie said that both she and Warren had bankruptcies on their credit reports, and that Jo Ann, who had better credit, signed for the boat so they could get a lower interest rate.
IsOn July 23, 2010, Debbie submitted a watercraft insurance application with AN-PAC, seeking insurance coverage on the boat and trailer for herself and Warren. One of the questions on the application asked, “Have you or any member of your household ever been convicted of a felony or drug possession?” The application stated, “If yes, do not bind.” The answer given on the application was “no,” when in fact Warren had a prior felony conviction for attempted murder. The application further asked, “Is the applicant the original owner of this watercraft?” The, answer given to that question on the application was “yes.” ■ The application was signed by Debbie, and above the signature line the application stated:
I, the undersigned, agree that the statements herein are made for the express purpose of inducing the company to issue an insurance policy and these statements are true, correct, and complete and any policy issued as a result of any material misrepresentation shall be declared void. I understand that any binder or insurance policy issued as a result of this application will be based on the facts and answers stated herein.
After the application was submitted, ANPAC issued a watercraft policy naming Warren and Debbie as the insureds. The policy provided, “Unless otherwise shown in the endorsements area on the Declarations page,- your statements are as follows: ..... You, are .the only owner of your insured watercraft[.]” ,vThe policy also contained the following provision:
Concealment or Fraud. This entire policy is void if an insured person has intentionally concealed or misrepresented any material .fact or circumstances relating. to • this . insurance, or acted fraudulently or mqde false. statements relating to this insurance. • .
Warren and Debbie made a claim for coverage under the policy, claiming that the boat and trailer were stolen on July 24, 2011. After ANPAC denied coverage, Warren and Debbie filed a breach-of-contract action against ANPAC on March 20, 2013, alleging that ANPAC 14had breached the insurance contract and had also acted in bad faith. On , June 16, 2014, ANPAC filed a motion for summary judgment as serting that Debbie had made material misrepresentations in the insurance application, and further asserting that, because Jo Ann Farr was the titled owner of the boat, Warren and Debbie lacked an insurable interest in the subject matter of the insurance. On July 28, 2014, the trial court entered an order granting ANPAC’s motion for summary judgment and dismissing appellants’ complaint with prejudice. The trial court subsequently denied appellants’ motion for reconsideration.
In this appeal, Warren and Debbie argue that the trial court erred in granting ANPAC’s summary-judgment motion. Appellants first claim that, contrary to ANPAC’s contention, they had an insurable interest in the boat and trailer under these circumstances notwithstanding the fact that Warren’s mother held the title. Appellants assert that they established an insurable interest because they made the monthly payments, and also used and housed the boat. Appellants rely on Beatty v. USAA Casualty Insurance Co., 330 Ark. 354, 954 S.W.2d 250 (1997), where the supreme court held that, although a person must have an insurable interest in property to have an enforceable insurance contract, in order to have an'insurable interest, a party need not have legal title to the insured property, but must have some legal basis for the assertion of interest. In Beatty, supra, the supreme court indicated that a person has ah insurable- interest in property if he would profit by or gain some advantage by its continued existence and suffer some loss or disadvantage by its destruction.
Appellants also claim that. summary judgment was improper under ANPAC’s theory that Debbie had made a material misrepresentation on the insurance application. Appellants Urely on Neill v. Nationwide Mutual Fire Insurance Company, 355 Ark. 474, 139 S.W.3d 484 (2003), a case in which the supreme court reversed a summary judgment in favor of the insurance company because, although there had been a misrepresentation made on the insurance application, and the insured signed the application, a material fact remained as to whether the insurance agent had misstated the insured’s response or failed to ask all -the questions on the application. The supreme court in that case stated that the insurer may not set up false answers in the application to avoid the policy. Id. In the present case, appellants assert that there is.- a material issue of fact based on Debbie’s deposition testimony that, during the application process, the appellee’s agent .never asked whether anyone in her household was a convicted felon. Appellants further argue that, even had there been a misrepresentation on the application, ANPAC failed to show that the misrepresentation was material or that it would not have issued the policy had it known the true facts. Finally, citing National Old Line Insurance Company v. People, 256 Ark. 137, 506 S.W.2d 128 (1974), appellants assert that it was AN-PAC’s burden to show a causal connection between the misrepresentation and the eventual loss, and that in this case the fact that Warren was a convicted felon had no •relationship to the boat being stolen.
We hold that the tidal court properly granted ANPAC’s summary-judgment motion because a material misrepresentation made on the insurance application, relied on by the insurance company, voided the policy. Therefore, we nteed not reach ANPAC’s alternative defense that the appellants lacked an insurable interest.
Inin addressing the material misrepre-séntation, we initially note that National Old Line Insurance Company, supra, cited by appellants, was later overruled by oür supréme court in Southern Farm Bureau Life Insurance Company v. Cowger, 295 Ark. 250, 748 S.W.2d 332 (1988). In Southern Farm Bureau, the supreme court held that an insurer may defend on the ground that ■ a misrepresentation caused issuance of the policy, though the fact misrepresented was not necessarily related to the loss sustained. Therefore, contrary to appellants’ argument herein, ANPAC did not have to show a causal connection between the misrepresentation and the eventual loss.
In the absence of a statutory provision to the contrary, Arkansas follows the general common-law rule' that a material misrepresentation made ón an application for an insurance policy and reliéd on by the insurance company will void the policy. Countryside Cas. Co. v. Orr, 523 F.2d 870 (8th Cir. 1975). The materiality of the misrepresentation goes to whether or not the insurer, with knowledge of the true facts, would have accepted the risk and issued the policy. Id.
In this case the insurance application, signed by Debbie, falsely contained a “no” answer to whether any member of her household had ever been convicted of a felony. Next to that question the application contains the instruction, “If Yes, do not bind.” Above Debbie’s signature she agreed “that the -statements made herein are made for the express purpose of inducing the company to issue an insurance policy and these statements are true, correct, and complete and any policy issued as a result of any material misrepresentation shall be declared void.” From the language in the application providing that coverage should not |7be bound if the answer was “yes,” we conclude that ANPAC established that it would not have accepted the risk and issued the policy had it known about Warren’s prior felony,
With respect to appellants’ claim that the insurance agent never asked Debbie this question during the application process, we conclude that Debbie’s deposition does not raise a factual question on that issue or lend support to that claim. In Debbie’s deposition she was asked if she remembered the agent asking the question about prior felony convictions, and she responded, “I don’t recall.” She did not deny that she was asked the question. Debbie proceeded to testify that, despite being given the opportunity to do so, she did not read the application line by line before signing it, stating that “I don’t think anybody does that.”
In Neill, supra,- the supreme court stated the .general rule that, if a person signs a document, she is bound under the law to know the contents of the document. One who signs a contract, after an opportunity to examine it, cannot be heard to say that she did not know what it contained. Neill, supra. However, an insurer will not be allowed to use misstatements in the application to avoid liability where the misstatements are the result of fraud, negligence, or mistake by the insurer’s agent. Id.
In the present case, Debbie signed the application containing the material misrepresentation, and there is no proof in the record to support appellants’ claim that her misstatement was the result of fraud, negligence, or mistake by ANPAC’s agent. The material misrepresentation, relie4 upon by the insurance company in issuing the policy, voided the policy and relieved ANPAC from coverage. Therefore, AN-PAC was entitled to judgment as a matter of law with respect to appellants’ breach-of-contract claim. Appellants do not | ^address their bad-faith claim in their brief, and we summarily affirm that aspect of the summary judgment as well. •
Affirmed.
Kinard and Gruber, JJ., agree,
. Jo Ann Farr, who was not a party to the insurance contract, was dismissed from the case for failure to state a cause of action. | [
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KAREN R. BAKER, Associate Justice
_JjOn August 6, 2014, a Pulaski County Circuit Court jury convicted appellant, James Johnson III, of capital murder and sentenced Johnson to life imprisonment without the possibility of parole. This timely appeal followed. This court has jurisdiction pursuant to Ark. Sup. Ct. R. l-2(a)(2) (2015).
Johnson’s appeal arises from the death of Charles Gaskins during the course of an aggravated robbery in Little Rock on July 30, 2012. Because Johnson does not challenge the sufficiency of the evidence, only a brief statement of the facts is necessary. The record demonstrates that around midnight on July 30, 2012, Nikelle Girndt and her fiancé, Gaskins, were sitting on the front porch of their trailer in southwest Little Rock off Baseline Road when two masked gunmen jumped onto the porch. Girndt testified, that she thought it was La prank until one of the masked men said “[T]his is a robbery.” Girndt further testified that one of the men raised the gun to her chest; Gaskins intervened and attacked one of the men to free Girndt from the gun’s path as Gaskins remained outside on the porch. Girndt testified that she then ran inside the home and attempted to lock the door and struggled with one of the men as he tried to shove his way in the door. Girndt testified that she awoke Gaskins’s son-in-law, Stephon Gillersen, and called 911. Finally, Girndt testified that, through the window, she saw Gaskins lying on his stomach on the porch, but Gillersen would not let her open the door until officers arrived for fear that the men remained outside.
Later that same day, Johnson and Donte Davis were developed as suspects in the homicide, stopped pursuant to a traffic stop, and arrested and charged with capital murder. Upon his arrest, Johnson had a cell phone on his person that was seized. Pursuant to a search warrant, over his objection, the phone contents were searched, and incriminating evidence was found on the phone. Specifically, the search revealed the following text message on Johnson’s phone: “So ima go my own route if they ketch me on this here charge im gone fa life.” The search also revealed that Johnson’s phone had accessed a news article regarding the homicide entitled “Witness says fiancé fought masked man on porch, died.” Johnson was tried and convicted as discussed above, and this appeal followed.
Johnson raises one point on appeal: the circuit court erred in denying Johnson’s motion to .suppress evidence obtained from his cell phone records.
I. Points on Appeal
■ For his sole point on appeal, Johnson contehds that the circuit court erred in denying | sJohnson’s motion to suppress evidence obtained from his cell phone. Johnson contends that the search-warrant affidavit was deficient and that the good faith exception is inapplicable because the affidavit was “bare bones.”
“In reviewing a circuit court’s denial of a motion to suppress evidence,- we conduct a de novo review based on the totality of the circumstances, reviewing findings of historical facts for clear error and determining whether those facts give rise to reasonable suspicion or probable cause, giving due weight’ to inferences drawn by the circuit court and proper deference to the circuit court’s findings. E.g., Menne v. State, 2012 Ark. 37, 386 S.W.3d 451. A finding is clearly erroneous, even if there is evidence to support it, when the appellate court, after review of the entire evidence, is left with the definite and firm conviction that a mistake has been made. E.g., Lee v. State, 2009 Ark. 255, 308 S.W.3d 596. We defer to the superiority of the circuit court to evaluate the credibility of witnesses who testify at a suppression hearing. E.g., Cockrell v. State, 2010 Ark. 258, 370 S.W.3d 197. We reverse only if the circuit court’s ruling is clearly against the preponderance • of the evidence. Ritter v. State, 2011 Ark. 427, 385 S.W.3d 740.” Jackson v. State, 2013 Ark. 201, 5-6, 427 S.W.3d 607, 611-12.
Turning to Johnson’s argument on appeal, he asserts that the circuit court erred in denying his motion to suppress the search warrant that resulted in the search of the contents of his cell phone. Prior to trial, Johnson filed a motion to suppress and orally made a motion to suppress. At the pretrial hearing, Johnson contended, as he does on appeal, that the circuit court erred in denying the motion to suppress because the affidavit in support of the search | ¿warrant does not provide a nexus between the phone and the homicide. The State responds that the application for the search warrant provided detailed information regarding the connection between the phone and Gaskins’s homicide and urges us to affirm the circuit court.
Our law regarding search warrants, pursuant to Rule 13.1, of the Arkansas Rules of Criminal Procedure (2014), subsection (b) provides as follows:
The application for a search warrant shall describe with particularity the persons or places to be searched and the persons or things to be seized, and shall be supported by one (1) or more affidavits or recorded testimony under oath before a judicial officer particularly setting forth the facts and circumstances tending to show that such persons or things are in the places, or the things are in possession of the person, to be searched. If an affidavit or testimony is based in whole or in part on hearsay, the affiant or witness shall set forth particular facts bearing on'the inforfnant’s reliability and shall disclose, as far as practicable, the means by which the information was obtained. An affidavit or testimony is sufficient if it describes circumstances establishing reasonable cause to believe that things subject to seizure will be found in a particular place. Failure of the affidavit' or testimony to establish the veracity and bases of knowledge of persons providing information to the affiant shall not require that the application be denied, if the affidavit or testimony viewed as a whole, provides a substantial basis for a finding of reasonable cause to believe that things subject to seizure will be found in a particular place.
Accordingly, “probable or reasonable cause to believe the things subject to seizure will be found in the particular place identified is required, and this must be established by affidavit or recorded testimony.” Yancey v. State, 345 Ark. 103, 110, 44 S.W.3d 315, 319 (2001) (internal citations omitted).
In determining the adequacy of the affidavit, “the task of the issuing magistrate is to make a practical, common sense decision whether, given all- the circumstances set forth in the affidavit before him, including the ‘veracity and ‘basis of knowledge’ of persons supplying the | ¿hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place.” Coggin v. State, 356 Ark. 424, 437-38, 156 S.W.3d 712, 720 (2004) (quoting State v. Rufus, 338 Ark. 305, 993 S.W.2d 490 (1999)). The duty of this court is to simply ensure that the magistrate had a substantial basis for concluding probable cause existed. Id. “Our review of probable cause for the issuance of a warrant is confined to the information contained in the affidavit as that was the only information before the magistrate when he issued the warrant. George v. State, 358 Ark. 269, 189 S.W.3d 28 (2004).” Wagner v. State, 2010 Ark. 389, 7, 368 S.W.3d 914, 921 (2010).
Here, the record demonstrates that, on August 1, 2012, the phone was seized and held in custody for almost two years. On June 30, 2014, a search warrant for the phone’s contents was issued, and the warrant was returned to district court on July 14, 2014. Detective Kevin Simpson’s affidavit in this case reveals the following facts relevant to probable cause:
• On July 30, 2012, at approximately 12:31 a.m., a shooting and homicide occurred at 9500 South Heights # 203.
• LRPD officers responded to the scene, determined Gaskins to be deceased, and-initiated an investigation.
• On July 30, 2012, LRPD homicide detectives received information identifying Johnson and Davis as suspects in the homicide.
• On July 30, 2012, LRPD located Johnson and Davis, the two men were detained in a traffic stop, arrested and taken into custody.
• On July 30, 2012, during Johnson’s arrest for capital murder, a black Cricket ZTE phone in a red case -with a black rubber cover was located on Johnson. Detective Simpson believes that said phone contains possible evidence regarding the Gaskins homicide at 9500 South Heights #203. The phone was seized and stored in evidence.
le,* On July 30, 2012, Davis and Johnson were transported- to LRPD for further . investigation.
• Once at the LRPD homicide office, Davis was advised and waived his Miranda fights and gave a taped statement implicating himself and Johnson in the Gaskins homicide.
Here, Johnson contends that the affidavit was deficient and the circuit court erred because “the affidavit does not provide any nexus between the phone and the homicide... -. There are no facts included in the warrant to justify -any reasonable belief that the phone contains evidence of. the murder of Charles Gaskins.” We disagree. The record demonstrates that Detective Simpson’s affidavit creates a nexus between the homicide and the phone.
First, the affidavit established that the victim had been shot and that two men were identified as suspects in the homicide. The affidavit also established that Johnson was one of the two suspects. Second, upon arrest for capital murder, approximately twenty-hours after the homicide, the phone was found on Johnson and seized and secured. Third, the affidavit established that after Johnson and Davis were arrested, during questioning at the police station, Davis implicated himself and Johnson in the homicide.
Here, because Johnson was working with at least one other person when the homicide was committed, it is reasonable to infer that the cell phone that was in his possession was used to communicate with others regarding the shootings before, during, or after they occurred. Further, because the confidential informant relayed information about Johnson’s involvement in the homicide to Detective Simpson- on the same day that the homicide occurred, it is reasonable to infer that the cell phone in Johnson’s possession at the time of his arrest was used to communicate with some third party regarding his involvement in the homicide. See, e.g., United States v. Gholston, 993 F.Supp.2d 704, 719 (E.D. Mich. 2014) (where codefendants were charged with robbery, the court denied codefendant Gholston’s motion to suppress a search warrant of the data on his cell phone and explained that a search of a cell phone was likely to reveal evidence of communication of criminal activity involving multiple participants.).
Based on these facts, it is reasonable to conclude that the phone may have been used as a communication device regarding the homicide. Accordingly, the record demonstrates that there was a nexus between the homicide and the phone. Further, the warrant is clear that the facts asserted in Detective Simpson’s affidavit were the basis for the magistrate’s finding of probable cause that evidence related- to the Gaskins homicide would be located' on the cell phone at issue.
Based on the facts of this case, we are satisfied that there was adequate probable cause to issue the search warrant and that the resulting search was proper. Therefore, we find no error in the circuit court’s denial of Johnson’s motion to suppress, and we affirm the circuit court.
This case involves a sentence of life imprisonment without parole; therefore, it is subject to review under Arkansas Supreme Court Rule 4 — 3(i) (2015). As required under Ark. Sup. Ct. R. 4 — 3(i), the record has been examined for all objections, motions, and requests made by either party that were decided adversely to Johnson, and no prejudicial error has been found.
Affirmed.
. At the conclusion of the trial, count two, possession of firearms by certain persons, Ark. Code Ann. § 5-73-103(c)(1)(B) (Repl. 2005), was still pending.
. At the pretrial hearing, Johnson’s attorney explained that after the cell phone was seized, on April 29, 2014, Riley v. California, — U.S. -. 134 S.Ct. 2473. 2477. 189 L.Ed.2d 430 (2014), was announced and held that a search warrant was required to search a cell phone’s contents. | [
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HUMPHREYS, J.
This case was before us on former appeal and is reported under the style of Brinkley v. Halliburton„ in 129 .Ark. at page 334. For the substance of the complaint, reference is made to that opinion. The trial court had sustained a demurrer to the complaint and dismissed it, but this court reversed that judgment and remanded the cause with directions to overrule the demurrer. On remand of the case the demurrer was overruled and the defendants, appellants on this appeal, filed an answer to the effect that the letters “RR” appearing in the description in the tax deed, upon which they relied, referred to the Chicago, Rock Island & Pacific Railroad which passes over the land, and that by the aid of such evidence the description in the tax deed is rendered definite and certain; and pleaded the further defenses of laches and two and seven years’ statutes of limitation, and thereupon, moved to transfer the cause to the chancery court. The motion to transfer the cause to the chancery court was overruled and an exception to the ruling was saved by appellants. A reply was filed to the affirmative allegations in the answer. The cause was then submitted to the court upon stipulations of counsel without a jury, which stipulations are as follows:
“For the purpose of expedition and avoidance of expense, it is hereby agreed by B. J. Semmes, attorney for plaintiffs, and H. R. Boyd, attorney for defendants, that the following facts are true, and may be used in the trial of the above cause, and may be made a part of the record therein:
I.
“That the title to the southwest quarter of section 26, T. 6 North, Range 7 East, of Crittenden County, Arkansas, passed to the State of Arkansas under the Swamp Land Grant of 1850; that the State of Arkansas granted said land to R. C. Brinkley, and issued a patent to him on March 9, 1859, which patent is recorded in Book J, page 170; and that on said date said R. C. Brinkley was the owner of said land, and never conveyed samé to anyone.
II.
“It is agreed that R. C. Brinkley above mentioned died intestate on the 28th day of November, 1878, leaving surviving him his widow, Elizabeth M. Brinkley, who died intestate on the 15th day of October, 1892, and his children, as follows:
1. Lucile B. Brinkley, who died intestate on the 2d day of December, 1893, leaving as her sole heirs at law her brothers and sister hereafter named:
2. ~W. J. Brinkley, who is now 45 years old;
3. R. C. Brinkley who is now 47 years old;
4. J. M. Brinkley, who is now 62 years old, and who on the 16th day of May, 1895, conveyed his interest in said land to his wife, Clara F. Brinkley. That J. M. Brinkley and Clara F. Brinkley, the plaintiff herein, are husband and wife, and were married on the 3d day of November, 1876.
5. Elizabeth B. Currier, who is now a married woman, 57 years of age, and that the said Elizabeth B. Currier was married on the 3d day of June, 1885, and has been under the disability of coverture since that date.
III.
“It is further agreed that the defendants and one W. M. Rooks, under whom defendants claim, have been in actual possession of part of said land, claiming to own the 150 acres which lies north of the Rock Island Railroad .since January, 1912, and have continuously since that time paid taxes thereon; that the taxes and improvements paid and made by defendants equal in value the amount of the reasonable rental value of said land and that the rents offset the taxes and improvements, and that the judgment of the court, if in favor of plaintiffs in this case shall be only for possession and costs.
“It is agreed that the taxes for the year 1866 on said land were not paid and that the description under which they were Assessed and land sold, was as follows, to-wit: SW. 14» See. 26, T. 6 N., R. 7 E., 160 A.; and that the collector of Crittenden County sold .same to the State of Arkansas under said description on July 8, 1867. That said sale was irregular and that no suit in ejectment could be maintained thereunder, the clerk having failed to affix his certificate to the delinquent list.
“It is agreed that the taxes for the years 1882, 1S83 and 1884, on said land were not paid and that the description under which the taxes were assessed and land sold was as follows: Und. Frl. pt. SW.14, Sec. 26, T. 6 N., R. 7 E., 138 acres; and that the collector of Crittenden County sold same to the State of Arkansas under said description on April 13, 1886.
“It is agreed that on the 29th day of March, 1909, the Board of Directors St. Francis Levee District executed quit claim deed conveying all interest it had in SW. 14, Sec. 26, T. 6 N., R. 7 E., 160 acres, to J. H. Hammett.
“It is agreed that on the 30th day of January, 1911, J. H. Hammett entered into a contract of sale or bond for title with W. Halliburton in which he agreed to sell said Halliburton all that part of the SW. % lying north of the Rock Island Railroad in Sec. 26, T. 6 N., R. 7 E., a copy of which is attached hereto and made a part hereof.
“It is agreed that Hammett did not pay levee taxes for year 1909; that same went delinquent, and that the Board of Directors St. Francis Levee District brought'a suit to foreclose said levee taxes in the chancery court of Crittenden County, at the January term, 1910, under Act No. 262 of Acts of 1909, the complaint warning order, complaint decree and deed, and all proceedings in said cause describing the land as being N. of RR. Frl. SW. %, Sec. 26, T. 6 N., R. 7 E., 125 acres; that at said sale W. M. Rooks became the purchaser and deed was executed by Louis Barton, commissioner, to W. M. Rooks in which the last mentioned description was used on the 13th day of November, 1911; that on the 1st day of January, 1912, said Rooks went into actual possession of part of the land lying north of Rock Island Railroad, and cleared and put into cultivation a part of same; that before and up to the 1st of January, 1912, all of the SW. %, See. 26-6-7 was wild and unoccupied, and in the actual possession of no one, and that 150 acres of said land lie north of the .said C. R. I. & P. Railroad.
“It is agreed that the Memphis & Little Rock Railroad was located in said SW. %, Sec. 26 in the year 1860 and has remained thereon to this date, and is now known as the Chicago, Rock Island & Pacific R. R.; the said railroad runs through the SW. % in an easterly and westerly direction leaving south of the railroad 10 acres and 150 acres north of the said railroad in said SW. %•
“That on the 27th day of January, 1913, W. M. Rooks executed quit claim deed to defendants conveying all interest he had in all that part of the SW. %, Sec. 26-6-N, R-7-E, 135 acres, lying north of Rock Island Railroad, to defendants; that defendants and Rooks, under whom they claim, have been in the actual possession of all the cleared land on that part of the SW. ]4, Sec. 26-6-7 lying north of the Rock Island Railroad, claiming title to all of same both wild and cleared, since January 1,1912.
“It is agreed that the rental value during this time equals the amount of taxes and improvements made on said land, and that no money judgment shall be rendered.
“This suit was filed September 4,1916.
“It is agreed that the SW.1/^ Sec. 26, T- 6 N., R. 7 E., is a regular quarter section containing 160 acres.
“These facts above enumerated constitute all the facts in the lawsuit and it is agreed that judgment shall be rendered thereon.
B. J. Semmes,
Attorney for Plaintiff.
H. R. Boyd,
Attorney for Defendant.”
It will be observed from the agreed statement of facts that appellants have been in actual possession of all the eleared land on that part of the SW. %, Sec. 26, T. 6 N., R. 7 E., on the north side of the Chicago, Rock Island & Pacific Railroad since January 1, 1912, paying taxes thereon and claiming title thereto; and that this suit was filed September 4, 1916. Their actual possession of said premises existed for only 4 years, 9 months and 4 days prior to the institution of this suit; hence, their defense that they acquired title by seven years’ adverse possession is not tenable.
The other defenses must depend upon whether the description in their tax deed is such a description as may be rendered definite and certain by evidence aliumde. Appellants can not invoke the statute of limitations of two years provided by section 5061 of Kirby’s Digest in favor of tax purchasers, unless the description in the tax deed is sufficient to identify the land involved in litigation. A tax deed void for insufficient description is not such a color of title as will set the statute in motion. Woodall v. Edwards, 83 Ark. 334. Nor can appellants avail themselves of a plea of laches on the part of appellees as a defense to the cause of action unless they themselves have some interest in the land.
We proceed, at once, then, to a consideration of whether the description in the tax deed is that character of description which may be aided by extrinsic evidence to identify or locate the land. The description in the tax deed is as follows: N. of RR. Frl. SW. 14 > Sec. 26, T. 6 N., R. 7 E., 125 acres. This court has held that a description of land in a tax deed is sufficient if the description itself furnishes a key through which the land may be definitely located by proof aliunde. Kelly v. Salinger, 53 Ark. 114; Lonergan v. Baber, 59 Ark. 15; Buckner v. Sugg, 79 Ark. 442. Of course, the converse of this proposition is true. That is to say, extrinsic evidence is not admissible to cure or perfect a description which in itself is void and offers no key or suggestion by which the land may be located. The sufficiency of the description in the tax deed in the instant case was fully considered when the case was before us on former appeal. This court said at that time:
“In special statutory proceedings to enforce tax charges against lands, the abbreviations employed must have been in such general use and knowledge in reference to government surveys that the meaning thereof will be intelligible, not only to experts but also to persons with ordinary knowledge of such matters.”
And referring to the use of the letters “RR” in the description further said: “The abbreviation ‘RR’ is not an abbreviation commonly used to designate government subdivisions. Government surveys were not made with reference to railroads. The abbreviation ‘RR’ does not necessarily convey the meaning of railroad to one of only ordinary experience in land titles. As suggested by appellants preferring to appellants on that appeal) the letters could have reference to Ridge Road or River Road. It might refer to any natural or artificial monument where such letters were used in spelling the monument in mind. ’ ’
And the court further said: “Testing the description before us by the rule laid down by this court, we have concluded that the description is fatally defective.” Brinkley v. Halliburton, 129 Ark. 334.
We decided in that case that this particular description was void on its face, which was in effect saying, that the description contained no key or suggestion by which the land could be definitely located by evidence aliunde. This ruling became, and is, the law of this case.
No error appearing in the record, the judgment is affirmed. | [
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WOOD, J.
This action was instituted by the appellees against the appellants to enjoin the latter from open ing up a certain road through appellees’ premises. The appellees alleged in substance that they were the owners of certain lands (describing them) over which there was an old road from Newport to Old Grand Glaize in Jackson County, Arkansas; that the road had been abandoned as a public highway about 30 years ago; that the land over which the road formerly passed had been enclosed by appellees and held by them openly, adversely, and continuously for more than 15 years; that appellant Frank Nelson, as road overseer, acting under orders of appellant W. D. McLain, the county judge of Jackson County, was threatening to destroy appellees’ fence and crops in order to open up the road to the public; that no viewers had been appointed and no proper orders made by the county court relating to the opening up of said road. Appellees prayed that appellant be perpetually enjoined. Appellants answered, admitting that the road had been once established as alleged, but denied that it had ever been abandoned.
It could serve no useful purpose as a precedent to set up and discuss in detail the testimony bearing upon the issues of fact as to the establishment of the alleged highway in controversy and the alleged abandonment thereof. There is no record evidence that the road in controversy had ever been laid out and established as such by order of the county court in the manner provided by law. We are convinced from the testimony that the road was established at least by user. The. record of the county court and other evidence tends to prove that the right of the public to use the road as a highway was recognized by the county court some 25 years before this action was brought; that a road overseer was appointed who worked the road with free labor at that time.
But there was testimony tending to prove that for a long interval between that time and down to the year 1903, when appellees fenced the lands in controversy, the public generally had ceased to use the road. There is also testimony tending to .show that the road had not been abandoned by the public. The court found that the road in controversy had been abandoned and entered a decree perpetually enjoining appellants, as prayed in appellee’s complaint. The testimony is in direct conflict on this issue and leaves us in doubt as to where the preponderance lies. The finding of the chancellor therefore, on the issue of fact will not be disturbed. Leach v. Smith, 130 Ark. 465, 470; Holloway v. Eagle, ante p. 205.
The right which the public acquires in a public highway, whether by order of the county court or whether by open, continuous and adverse user without such order, for a period of more than seven years is only an easement. The original owner or his privies in title still retain the fee; together with all rights not inconsistent with the public use. See Taylor v. Armstrong, 24 Ark. 102; Packet Co. v. Sorrels, 50 Ark. 467, 471; Reichert v. Ry., 51 Ark. 491. See also Kendall v. J. I. Porter Lumber Co., 69 Ark. 448.
It is well settled that where a highway is used by the public for a period of more than seven years, openly, continuously and adversely, the public acquires an easement by prescription or limitation of which it can not be dispossessed by the owner of the fee. Patton v. State, 50 Ark. 53; District No. 2 v. Winkler, 102 Ark. 553. But it is also equally well settled that the right to a public highway once established by limitation or prescription may be abandoned by non-user, and if so abandoned for .a period of more than seven years, the right of the owner of the fee to re-enter and to thereby exclude the public from the use of the highway is restored. See Phillips v. Lawrence, 23 Ken. Law Rep. 824-825, where the facts were very similar to the facts of this record. In Corning v. Gould, 16 Wend. 531, it is held that, in order to prove an abandonment, the enjoyment must have totally ceased for the same length of time as was necessary to create an original presumption.
Under our statute the right by limitation or prescription is established by adverse user for a period of seven years. Johnson v. Lewis, 47 Ark. 66; Clay v. Penzel, 79 Ark. 5. See also State v. Parker, 132 Ark. 316. Nonuser for the same length of time abandons the right. In the absence of a statute, the doctrine of “once a highway, always a highway” has no application.
The decree is correct, and it is therefore affirmed. | [
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HART, J.,
(after stating the facts). It is first insisted by counsel for the defendant that the evidence is not sufficient to warrant the verdict.
The jury might well have found that the plaintiff himself was not negligent. The evidence shows that he was standing on the west side of the street between a watermelon wagon and the curb looking at the watermelons with the view of purchasing one; that the wagon was about two and a half or three feet from the curb. He was lawfully there, and had no reason to suppose that he would be run down by the negligence of the driver of an automobile running north on the opposite .side of the street.
The negligence of the defendant was also a question for the jury. The automobile was going north, and it was the duty of the driver to have kept the automobile to the right of any vehicle he was approaching. It is claimed by the defendant that the chauffeur turned the automobile to the left to avoid striking a horse and buggy which was being driven south on the wrong side of the street and also to avoid striking two persons who were walking across the street. The situation of these persons, it is contended, created .an emergency, and that the chauffeur was not negligent under the circumstances in turning his automobile to the left.
According to the testimony of the chauffeur himself, his brakes were not working well. In the first place, the jury might have found that he negligently turned his car too far to the left without checking its speed. The jury, too, might have found that if the chauffeur had had his automobile under perfect control, as he should have had on a public street, such as the one in question here, he might have stopped his vehicle before striking the wagon and have prevented the injury. The testimony for the plaintiff shows that the automobile struck the watermelon wagon with such force as to knock it over against the curb two and a half or three feet away. One can not shield himself behind an emergency created by his own negligence.
It is next insisted that the verdict is excessive. The verdict was for $500. Dr Snodgrass testified that he dressed the wounds of the plaintiff, and that his injuries were not permanent; that the plaintiff had a cut over his eye and that his right shoulder was bruised; that both legs were bruised from the knees down and the skin was off all around; that the plaintiff was not seriously hurt, but had a rather painful injury; that he was dirty and muddy from top to bottom; that he was laid up two weeks before he got well.
According to the testimony of the plaintiff, .himself, he could not bend his knee for almost three months after the injury and his knee was badly sprained; he had two cuts on his legs and he was cut pretty well all over; he was laid up for eighteen days and then went back to work but had to go home again for about nine days. The accident occurred in August, 1917, and at the date of the trial, November 2, 1917, the plaintiff could not walk fast on account of his injuries. He was making 33 1-2 cents per hour for nine hours per day at the time he was struck. . He suffered severe pain on account of his injuries.
The testimony must be considered in the light most favorable to the plaintiff, and, when that is done, it can not be said that the verdict is excessive.
The judgment will therefore be affirmed. | [
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McCULLOCH, C. J.
The controversy in this case involves the right of appellees to redeem a certain lot or tract of real estate from sale under decree of a chancery court enforcing a lien for drainage assessments. The chancery court upheld the appellees’ asserted right to redemption, and an appeal has been prosecuted from the decree allowing the redemption.
Appellees were the owners of the land in controversy, and the same was assessed for taxation for drainage purposes in a district designated as “Eight Mile Drainage District No. 2,” organized under the general statute authorizing the organization of such districts and the levying of special taxes for the purpose of constructing that kind of improvement. Acts 1907, p. 276. In a suit in the chancery court to foreclose the lien for unpaid assessments the chancery court of Greene County rendered a decree in the year 1913 condemning this tract of land for sale to raise funds to discharge the lien for unpaid assessments, and the sale was made by a commissioner of the court on January 14, 1914. Appellant became the purchaser of this tract at the .commissioner’s sale, which was reported to and confirmed by the chancery court on November 3,' 1915, and the commissioner executed a deed to appellant, which was approved by the court. Appellees remained in possession of the land, and this action was originally instituted at law by appellant to recover possession. Appellees filed an answer in the action on March 5, 1917, asserting the right to redeem the land from said sale pursuant to the terms of a statute enacted by the General'Assembly and approve'd February 9, 1915. On motion of appellees the cause was transferred to the chancery court, and a final decree was rendered, as before stated, allowing appellees to redeem. Appellees also alleged in their answer that the drainage taxes on the land in controversy had been paid prior to the rendition of the decree, and they asked that the decree of the court and the sale thereunder be set aside on that account, but the court refused to grant relief on that ground.
The statute in force at the time of the sale provides that “at any time within three years from the date of the sale of said lands, as aforesaid, the owner of the lands may file his petition in the court, rendering the decree, alleging the payment of the amount for which the lien was decreed against said land in said suit, and upon proving the same, the court shall vacate and set aside said decree and sale.” Acts 1911, p. 28. The answer of appellees alleging the payment of taxes for which the land was sold was not filed within three years after the date of the sale by the commissioner. Therefore, the statute quoted above was not applicable, and the attack on the validity of the sale on the ground that the taxes had been paid was purely collateral. The court was, therefore, correct in refusing to set aside the decree and sale on that ground. McCarter v. Neil, 50 Ark. 188; Collier v. Smith, 132 Ark. 309.
The right of redemption turns solely upon the validity and effect to he given to the Act of 1915, p. 123, which was approved and went into effect on February 9, 1915, more than a year after the commissioner’s sale at which appellant purchased the land, and after the exr piration of the period of redemption prescribed by the statute in force on the date of the sale. The statute in force on the date of the sale contained a provision that ‘ ‘ any land owner shall have the right to redeem any and. all lands sold at such sale within one year thereafter, which shall run from the day when the lands are offered for sale, and not from the day when the sale is confirmed.” Acts 1911, p. 28. The sale in question was not an ordinary tax sale, hut was one made by a commissioner of the chancery court in a suit authorized by statute to enforce a tax lien. The statute in question authorized the court to render a decree declaring the lien for taxes and ordering the land sold by commissioner at public outcry for cash to raise funds to discharge the lien.
The statute enacted in 1915, supra, under which the present redemption is sought extends to five years the period of redemption under decrees of courts for foreclosure of delinquent assessments. The language of the statute is that “any person, firm or corporation, or the heirs, assigns or legal representatives of any person, firm or corporation, who would have been permitted to redeem had the sale been by the collector for State and county taxes, or who was in possession under color of title at the time of said decree of sale, shall have thp right to redeem from said sale at any time within five (5) years,” by payment of the prescribed amount to the commissioner. We have, therefore, before us a case where, after confirmation by the court of a judicial sale, the right of redemption is asserted under a statute enacted after the expiration of the time for redemption prescribed in the statute in force at the time of the sale, but before tbe confirmation in this instance, and the question presented on this state of facts is whether or not it was within the power of the Legislature under such circumstances to enlarge the period of redemption.
We pretermit any analysis of the statute for the purpose of determining whether or not, according to the interpretation of the language used, it was intended by the lawmakers to give retroactive effect to the statute, and we go at once to a consideration of the question as to the power of the Legislature, under the circumstances, to pass such a statute giving it that effect.
We have dealt with this statute in two decisions, involving the assertion of the right to redeem from sales of the character involved in the present litigation. Collier v. Smith, supra; Hogg v. Nichols, 134 Ark. 280. In the first of the cases just referred to there was involved an attempt to redeem under this statute from a confirmed sale made more than a year before the passage of this statute, the law as it existed at the time of the sale allowing one year within which there could be a redemption, and we decided that the Act of 1915 had no application under those circumstances, but that the rights of the parties concerning the redemption must be determined in accordance with the law as it existed at the time of the sale. The doctrine of that case was reiterated in the other case referred to above, but the facts were materially different in that the sale was made less than a year before the passage of the Act of 1915. But we again held that the statute had no application for the reason that the law as it existed at the time of the sale controlled the rights of the parties, and that the Legislature could not thereafter change it so as to affect existing rights. The present case differs from each of the other cases in that the sale was not confirmed until after the passage of the Act of 1915, but it also differs from the last case in the fact that the period of redemption required by the statute in existence at the time of the sale had expired before the present statute was enacted. The subject was very thoroughly discussed in Hogg v. Nichols, supra, and the law as announced there absolutely controls, in appellant's favor, the decision of the- present case. In the opinion in that case it was said: “We have examined the authorities carefully and find that the law regards and treats a judicial sale as contractual-, and the laws of redemption in force at the time of the sale are a condition attached to the sale. In other words, the authorities seem practically unanimous in holding that the right to redeem from a tax sale is governed by the statute in force and effect at the time the sale was made.” Many authorities were cited in support of the court’s declaration of the law.
The only additional question which concerns us in the present case is the distinction found here in the fact that the sale had not been confirmed, but we are of the opinion that,when the sale is viewed in the light of the rights which this court has frequently declared arise in favor of a purchaser at a judicial sale, it necessarily follows that to give this statute a retroactive effect so as to extend the right of redemption beyond the period under the law as it stood at the time-of the sale would be an impairment of the obligation of the contract, which is expressly forbidden, not only by the Constitution of this State (art. II, sec 17) but likewise the Constitution of the United States. It was stated in that opinion that the authorities are practically unanimous in holding that the right of redemption from a tax sale must be determined according to the law in force at the time of the sale, and that the lawmakers can not extend the period of redemption by a statute passed after the sale takes, place. In addition to the authorities cited in the opinion, we call attention to a decision of the Supreme Court of South Dakota expressly holding that a sale of lands for delinquent taxes constitutes a contract between the purchaser and the State, and that a statute extending the period of redemption can not be enacted so as to apply to a sale already made. State v. Flypaa, 3 S. D. 586. The same rule was stated by Judge Cooley in this work on Constitutional Limitations, (7th ed. p. 412) as follows : “So a law is void which extends the time for the redemption of lands sold on execution, or for delinquent taxes, after the sales have been made; for in such a case the contract with the purchaser, and for which he has paid his money, is, that he shall have title at the time then provided by the law; and to extend the time for redemption is to alter the substance of the contract, as much as would be the extension of the time for payment of a promissory note.”
In Freeman on Executions, sec. 315, the same rule is stated with reference to redemption from execution sales, and the author states the rule unequivocally that the Legislature can not pass a law extending the period of redemption so as to apply to a sale already made.
The case of Thompson v. Sherrill, 51 Ark. 453, which we cited in Hogg v. Nichols, supra, declared the law to be that “the right to redeem lands from a tax sale depends upon the statute in force at the date of the sale,” and in that case the sale was one made by a commissioner of the chancery court under an overdue tax decree. In other words, there was involved, as in this case, the right of redemption under a judicial sale, and the court held that the right must be determined according to the statute in force at the date of the sale. The rule has been frequently declared by this court to be that a purchaser at a judicial sale acquires something more than a mere option to purchase at the price specified in his bid, that he acquires a right to an acceptance and confirmation of his bid which is consummated by the approval of the court, and that he has a right to insist upon such a confirmation where the sale has been regularly and fairly made in accordance with the law as it existed at the time of the sale.
It has been said that some of the earlier decisions of this court declare a different rule, but we do not find that to be true. An examination of the whole line of decisions of this court on that subject shows them to be in complete harmony. For instance, in the case of Sessions v. Peay, 23 Ark. 39, which is claimed to be in conflict with the rule just stated, the court said: ‘ ‘ The theory of sales of this character is, that the court is itself the vendor, and the commissioner or master is a mere agent in executing its will. The whole proceeding, from its incipient stage up to the final ratification of the reported sale, and the passing of the title to the vendee, and the money to the person entitled to it, is under the supervision and control of the court. The court will confirm or reject the reported sale, or suspend its completion, as the law and justice of the case may require.” The same statement is found in the later case of Thomason v. Craighead, 32 Ark. 391; Wells v. Rice, 34 Ark. 346.
That statement of the rule concerning the control of the court over -sales made by its commissioners does not imply that a purchaser prior to confirmation has acquired no substantial right. On the contrary, the rule is stated in those decisions to be that the court must pass upon the sale and approve or reject it “as the law or justice may require,” meaning, of course, the law as it stood at the time the sale was made. Again in the case of Greer v. Anderson, 62 Ark. 213, we said that “no purchaser at such a sale has the right to rely absolutely upon the order of the court directing the sale, and the fact that the agent of the court has pursued the terms prescribed in making the sale.” That statement, too, is in harmony with later decisions because the court retains control of the sale for the purpose of determining whether it has been made in accordance with the law, and the purchaser, though he has acquired a right to confirmation subject to the approval of the court according to the law at the time of the purchase, has no absolute right to his purchase, and must await the action of the court in approving the sale. The subject was fully reviewed by Judge Battle in the case of Colonial & United States Mortgage Co. v. Sweet, 65 Ark. 152, and the old English rule of allowing interested parties to raise the bid at any time be fore confirmation of judicial sales was rejected, and the rule was in substance stated to be that where the sale was fair and regular in all respects it should be confirmed by the court.
In the case of Banks v. Directors of St. Francis Levee District, 66 Ark. 490, which was a case involving confirmation of a sale of lands under decree for delinquent taxes, the owner having appeared before the confirmation and offered to redeem, we held that “where a judicial sale of land has been conducted fairly, and in substantial compliance with the law and the orders of the court directing the same to be made, it is error to permit the original owner to redeem before confirmation.” In George v. Norwood, 77 Ark. 216, we again discussed the question of the rights of a purchaser at a judicial sale, and we held that the purchaser upon the acceptance of his bid at the sale acquired a right to have the sale confirmed “in the absence of fraud, irregularity or misconduct affecting the validity of a judicial sale,” and we reversed the chancellor for refusing to confirm a sale.
In Robertson v. McClintock, 86 Ark. 255, the subject was again fully discussed and the law in this State was stated to be as follows: “In some jurisdictions the commissioner is treated as a mere agent to take bids to be reported to the court. The highest bidder acquires no rights by his bid, and it is customary to open the bidding and to award the property to the man who will offer the highest price after the sale has been reported. The language employed in some of our earlier cases would indicate that this system was in the mind of the judge delivering the opinion, though the point was not decided. It is now, however, the settled law of this State, as it is of most of the States, that the highest bidder at a judicial sale, to whom the property has been struck off by the commissioner, acquires vested rights, which must be respected by the court. ’ ’
The following rule was announced by this court in the case of Brasch v. Mumey, 99 Ark. 324: ‘ ‘ The right of the owner to redeem from a judicial sale exists, therefore, only in those cases which fall within the statute giving such privilege, and can be asserted within the time and manner prescribed by the statute, and not otherwise. ’ ’
The case of Groves v. Keene, 105 Ark. 40, is especially in point here for the reason that it came here on appeal from an order confirming a sale of lands sold under a delinquent tax decree, the original owner having appeared before the court before confirmation and offered to redeem by paying the taxes. We quoted with approval from the cases cited herein, and said: ‘‘ There was nothing in the facts of this record that would have justified the chancery court in refusing to approve and confirm the report of the commissioner who made the sale of the lands under the decree of the court. Appellee, therefore, acquired by his purchase at that sale vested rights. # * * These rights are created by statute, and a court of chancery can not annul them. ’ ’
The last case on the subject is Gailey v. Ricketts, 123 Ark. 18, and the doctrine is again stated in harmony with that so frequently announced by this court, as follows : “It is settled that, until confirmation by the court, a sale made by a commissioner, under a decree of court, is not final and complete so as to pass the title to the property sold, and that such sale may be set aside before confirmation thereof, upon good and valid grounds. Still the purchaser at such a sale does not acquire a mere option, but a right to a deed, which becomes perfect upon the confirmation of his purchase, and which, if confirmed, relates back to the time of his purchase, and the deed to him conveys such interests as he would have acquired if he had received his deed at the time of his purchase.”
It would seem, therefore, to be just as well settled as a rule of law can be settled by repeated declarations of this court that a purchaser acquires a vested right by his bid accepted at a judicial sale, and it necessarily follows that if a right is thus acquired it is one which must be respected by the courts and by the lawmakers, and that any effort on the part of the lawmakers to change the law so as to disturb those rights would operate as an impairment of the obligations of the contract. The protection of the Constitution extends to inchoate interests as well as to consummated rights and makes no distinction as to the magnitude or value of contracts but shields the obligation of them all from impairment.
In all the vast array of judicial authority and exposition of the law by text writers, the only discordant note that has been sounded is in the one decision of the Supreme Court of Pennsylvania in the case of Gault’s Appeal, 33 Pa. St. 94. That case stands alone against the great weight of authority in holding that the Legislature had the power to extend the right of redemption under a sale already made, and the court based its conclusion on the control of the Legislature over the whole matter of taxation. The reasoning of the court is, we think, unsound, as the legislative control over the matter of taxation, or any other subject, does not imply the power to disturb vested rights in the exercise of that control. However, that decision related to a statute passed before the expiration of the period of redemption under the statute in force at the time of the sale, and for that reason it has no application to the present case. But aside from that, we think the case was decided wrong, and is in conflict with the great weight of authority, and in conflict with what we have often said and decided here.
It is argued that the question of redemption relates merely to the remedy, and a litigant can have no vested right in a mere remedy. Our view of the matter is that a right of redemption does not come within the limits of a mere remedy, but that it affects substantial rights, and where those rights are acquired before the passage of the statute they can not be disturbed.
There is an effort also to liken statutes conferring rights of redemption to those creating periods of limitation upon the institution of an action, but we find no analogy between the two classes of statutes. Under a statute of limitations there is no vested right until the statute bar has attached, hut a sale, either a judicial sale or a tax sale, as soon as the property is struck off to the highest bidder, creates contractual rights which vest immediately, and those rights must be determined according to the law existing at the time they accrue.
After careful consideration of the whole subject, a majority of the court has reached the conclusion that the Act of 1915 can have no application to sales already made at the time the statute went into effect. The decree of the chancellor is, therefore, reversed, and the cause is remanded with directions to enter a decree in appellant’s favor in accordance with this opinion.
HART and SMITH, JJ., dissent. | [
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McCULLOCH, C. J.
The circuit court of Greene County made an- order, upon the petition of property owners, creating a drainage district embracing certain lands in Greene and Craighead Counties. The boundaries of the district as created by said order of the court were correctly described in the petition, and also in the preliminary survey made by the engineer appointed by the court. Those boundaries included the south half of the northwest quarter of section 27, township 16 north, range 3 east, in Greene County, but the notice published pursuant to the requirements of the statute incorrectly defined the boundaries in that it omitted the tract above mentioned and included in lieu thereof the south half of the northeast quarter of said section 27. The notice was in all other respects in proper form, and the court made the order creating the district on the day specified in the notice. The proceedings were conducted under .the Act of the General Assembly of 1909, page 829, as amended by the act of 1913, p. 738. Assessors were appointed to assess the benefits, and the court subsequently made an order confirming the assessments. Thereafter the owner of the south half of the northwest quarter of .said section 27, which had been included in the district but omitted from the notice, and the owner of the south half of the northeast quarter of section 27, which was not embraced in the district as created but was described in the notice, joined in a stipulation which was filed in the circuit court, and which, after reciting the ownership of said lands, reads as follows:
“We hereby agree that said lands be incorporated in the First Slough Drainage District, and that said lands be assessed as the same are assessed now on the assessment roll of said district, and as confirmed by the circuit court, and we hereby waive all notice as to the establishment of the district and all notice as to the publication of the assessment roll required by law.”
Appellant is the owner of other lands embraced in the district, and he instituted the present action in the chancery court to restrain further proceedings for the collection of assessments on the ground that the order of the court creating the district was void.
In the case of Paschal v. Swepston, 120 Ark. 230, we decided, construing the same statute under which this district was created, that the publication of the notice was jurisdictional, and that where the notice failed to correctly describe the area to be incorporated in the district it was fatal to the validity of the proceedings. The present case is controlled by that decision, for the reason that the omission from the notice of the south half of the northwest quarter of section 27 lessened the area described in the original petition and in the engineer’s plat and the inclusion of the south half of the northeast quarter of section 27 was unauthorized because that tract had not been put into the area described in the original petition.
In dealing with a similar state of facts under a somewhat similar statute in the case of Norton v. Bacon, 113 Ark. 566, we said: “To exclude the territory from the plat would be to form a district of less territory than that included in the boundaries set forth therein; and, on the other hand, if we should include that territory in the district, it would be done without notice having been given to the owner as required by the statute. So we think that there is a fatal variance between the description of the lands embraced in the notice and those included in the plat, and that this invalidates the formation of the district.”
But appellees, who are the commissioners of the district, insist that the void order attempting to create the district was validated by the subsequently filed stipulation of the owners of the two tracts of land mentioned above, and that such is the effect of sec. 8 of the act of 1913, supra, which reads as follows:
“The property owners in a drainage district may consent to waive the right to resort to courts and may absolutely ratify and confirm what has been done by the board of commissioners, and all other officials with reference to the district; and may thereafter be forever barred from testing or contesting in any way the validity of the proceedings up to that time, the assessments made or the tax levied for the payment of principal and interest of bonds or for any other purpose.”
The statute just quoted contains no specification or direction as to how the property owners may manifest their waiver or consent, and as that is not involved in the present controversy we pretermit any discussion on that subject, but we are clearly of the opinion that it requires the consent of all of the property owners in the district to give efficacy to such stipulation. The notice is jurisdictional, as we have already shown, and an order of the court based upon insufficient notice is void. . It is not conceivable that the Legislature meant to provide that a part of the property owners interested could validate the proceedings by a waiver of the defects. The language is clear that the “property owners in the drainage district may consent,” etc., and this necessarily means all of them, for the prior proceedings are wholly void, .and can not be revived except upon the consent of all of the interested property owners.
Our conclusion, therefore, is that the proceedings gained no validity from the stipulation filed by two of the property owners, and that the chancellor erred in upholding the validity of the district. The decree is reversed, and the cause remanded with directions to enter a decree in accordance with this opinion. | [
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WOOD, J.
Eiley Williams owned a tract of land in Yan Burén County. He had three daughters, Betty Williams, Nice Nenley, and Lou Hall. They were all of age. Williams was 76 years of age in 1915 and in feeble health. He concluded to divide his farm among his children. He called in three of his neighbors and requested them to lay off the land into three tracts. His desire was to have them made as near equal in value as possible. They were designated as the upper, middle and lower tract's. He first concluded to give the upper tract to Mrs. Henley, the middle to Betty Williams, and the lower to Lou Hall. This was in the fall of 1915, but at that time he executed no deeds. In the spring of 1916 he changed his mind and executed and delivered a deed to his daughter, Lou Hall, to the upper tract, and to Betty Williams the middle, and to Nice Henley the lower.
On December 20,1916, Nice Henley deeded the lower tract to W. D. Harris. On the 17th of February, 1917, Eiley Williams executed to his daughter, Nice Henley, a ■second deed to the lower tract, which deed recited that it was made to correct an error in the description in his first deed to her, and on the same day Nice Henley executed another deed to appellee, Harris, reciting that it was made for the purpose of correcting the error in the description in her deed to Harris of December 20,1916. Harris paid $425 in cash and gave his notes for $425 as the consideration for the deed.
Eobert Hall, who married Lou Williams in February, 1916, took possession of the lower tract. Harris, claiming to be the owner of this tract under his deed from Nice Henley, demanded of Hall the possession of the land •which. Hall refused to surrender. Whereupon Harris instituted an action for possession of the land and for damages against Bob and Lou Hall. The appellees answered, alleging that Riley Williams had given to them the tract in controversy in -consideration of an indebtedness due from Williams to them in the- sum of $250, and that he had placed them in possession of the land promising to execute a deed to them for same; that they had made valuable improvements in the sum of $35 and had paid all the taxes on the land. They made their answer a cross bill, and prayed that the deeds from Nice Henley to Harris be cancelled as a cloud on their title, and that the cause might be transferred to equity to give them such relief. The cause was, accordingly, transferred to the chancery court. At the hearing the court found that Harris had title to the land, and was entitled to the immediate possession and to the rents for same for the year 1917, in the sum of $126. From the decree dismissing appellants ’ complaint for want of equity .and quieting the title in appellee, and awarding appellee damages in the sum of $126, is this appeal.
The appellee testified that he purchased the land from Nice Henley, and introduced his deeds. He received his last deed in February, 1917, and demanded possession of the land from Hall which Hall refused to surrender.
Riley Williams testified that he had owned a farm in Van Burén -county for 25 or 30 years. He gave his daughter, Nice Henley, the particular tract described in her deed because he wanted her to have it and deeded to the other children the parts he wanted them to have. At the time the children received their deeds they thanked him and said they were satisfied. R. W. Hall told the witness in the spring of 1916 that he had already started his crop, but that if witness would let him cultivate the lower end, he would turn the land back after the crops were gathered in just as good shape as when he got it. That was the agreement under which Hall cultivated the lower end of the field in 1916. Witness did not owe Hall or his wife anything and never did owe either of them. For 25 years witness had furnished them land to cultivate, about 17 acres, and they did not pay any rent for it. He paid a little scrip on witness’ taxes, but in all it amounted to practically nothing. Witness suspected from Hall’s actions and talk that he had in mind to try to get the whole farm, and witness wanted to fix it while he was living so each of his daughters would get an equal part. Witness stated that, on one occasion when he came to Little Rock to have an operation performed, Hall accompanied him. Witness was to pay all expenses. Witness paid Hall $25 in cash and later paid the balance of the expense of the trip to Hall in corn and hay. Witness did not owe Hall for any services, nor for any money loaned or advanced by Hall to witness. Hall commenced farming the lower end in the spring of 1916. He went into possession under a verbal agreement. At the time of the rental agreement Hall knew that witness had deeded the land to his three daughters, and knew what part each was to get. The mistake in witness’ deed of April-4, 1916, to his daughter, Nice Henley, was an error of the notary.
The testimony of Nice Henley tended to corroborate the testimony of her father as to his intention in the division of the farm among his three daughters. She stated that he intended that his daughters should each get one-third of his land, divided according to its value, and he deeded the land in controversy to her, and to the others their respective tracts, to carry out his intention. The testimony of the three men who were selected by Williams to divide his land tended to show that Williams requested them to divide his land into three parts as near equal as possible according to value.
Appellant, Lou Hall, testified that her father gave her the lower tract, the land in controversy; her sister, Betty, the middle part, .and Nice the upper part;"that he put her in possession of her part and told her that he would give her a deed to it in time, and for her husband to have it assessed in her name. He said he was going to divide it equally; that he was due Bob and was going to pay him until he was satisfied; that the indebtedness was Bob’s paying off a note to one Mr. Roberts for Mm and for Ms paying Ms way to Little Rock. He promised to make witness a deed to the lower end, but instead made it for the npper end. On cross-examination she stated that when she received the deed, her father told her it was for the upper end. She asked him why he had changed his mind, and he replied that the Nice boys were not satisfied. He told witness he hoped she would be satisfied. Witness replied that she “just as well be for all the good it would do; ” that she could not help what he did and she was glad to get any part. Her husband cleared the land known as the upper end; he never paid any rent; just kept the taxes paid on it. For 27 years he got the use of the upper end for the improvements he made on it.
Appellant, R. W. Hall, testified that he and his wife were in possession of the land in controversy, and had been since February, 1916. Riley Williams and his three daughters had a family meeting, and at that meeting he turned this tract over to witne'ss ’ wife. The next day he said he was owing witness some, and, if it was satisfactory, witness could take that part (the lower tract) and strike off even. Witness told Williams of the $100 he had paid to one Roberts for Williams and also of $50 or $55 borrowed money. Witness told Williams that he would rather have the lower end by $200 than either of the other tracts, and witness and Williams agreed to strike off even. Witness then cancelled Williams ’ indebtedness as a consideration for his giving witness’ wife the lower tract and took possession of the lower by reason of such division. Witness testified that he had some evidences of Williams ’ indebtedness to him and introduced what purported to be .a receipt as follows:
“Scotland, February 21, 1888. Received of Robert Hall, $100 due him by Riley Williams. (Signed) C. C. Roberts. ”
Witness also introduced receipts showing payments of the expenses of Williams and witness on their trip to Little Rock. Witness denied receiving any cash from Williams on the trip. On cross-examination he stated that he had been working the upper tract about 28 years, but never did pay any rent. He was to have a lease from Williams as long as he and Williams lived, for clearing and fencing it. The lease was oral, and witness paid $2.50 a year on the taxes. Witness improved the lower tract after he went into possession, by removing all the timber blown down on it by the cyclone, and by clearing a strip around the slough, and rebuilding the fence. The total •value of the improvements amounted to $25 or $30. There were 21 acres in cultivation on the lower tract of the fair rental value of $6 per acre.
A decided preponderance of the evidence tended to prove that the rental for the year 1917 exceeded the sum awarded by the court in its decree in favor of the appellee. We have set forth in substance the testimony relied upon by the parties tending to sustain their respective contentions, and we are convinced that the preponderance of the evidence shows that the appellee had title to the property as alleged in his complaint, and that his damages by reason of the appellant’s detention of the same amounted to at least the sum adjudged to appellee in the decree of the trial court.
The issues as to whether the appellee made an oral gift of the land in controversy to appellant, Lou Hall, and whether or not appellants, in pursuance of such, took possession and made substantial and valuable improvements thereon, are purely issues of fact. The law applicable to such cases where specific performance is prayed is declared by this court in Young v. Crawford, 82 Ark. 33, where we held: ‘ ‘ Equity will not decree specific performance of a parol contract for the conveyance of land, unless the terms of the contract are clearly and conclusively proved. ’ ’
The burden was upon the appellants upon their cross-complaint, and their proof is not sufficient to entitle them to the relief prayed. The decree is in all things correct and is, therefore, affirmed. | [
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HUMPHREYS, J.
Appellant was indicted, tried, convicted and sentenced to one year in the penitentiary in the Miller Circuit Court, June Term, 1918, for the crime of grand larceny.
The evidence on behalf of the State tended to show that in May, 1918, appellant took a steer owned by R. M. Pool out of the range on Beech Creek in Miller County, and sold it for $60.
The evidence on behalf of appellant tended to show that at the time he took the steer and sold it he believed it was a steer he had previously bought from E. P. Williams.
. Appellant insists that the court erred in refusing to give instructions Nos. 5 and 6 requested by him for the reason that these instructions presented his phase of the case to the effect that he took and appropriated the steer through an honest mistake. Each instruction embodied a correct statement of the law as applied to appellant’s phase of the case, but the substance of each was contained in the second paragraph of the general instruction given by the court which is as follows: ‘ ‘ The court will further tell you, gentlemen of the jury, that the intent to steal is the gist of the crime charged against the defendant, and before you can convict him you must find from the evidence beyond a reasonable doubt not only that the steer in question was the steer of the witness R. H. Pool, but that the defendant at the time he took it did so with the intention of stealing it. * * *”
Appellant also insists that the court’ erred in refusing to give instruction No. 2 on reasonable doubt in thé form requested by him. As requested it was as follows:
“The court instructs the jury that the burden is on the State to prove the defendant guilty as charged in the indictment; and if the evidence fails to satisfy yonr minds beyond a reasonable doubt of the guilt of the defendant, then it is your duty to give him the benefit of the doubt and acquit him. If any reasonable view of the evidence is or can be adopted, which admits of a reasonable doubt of the guilt of the defendant, then it is your duty to adopt such view of the evidence and acquit the defendant.”
The court struck out the last sentence and gave the instruction as modified. The sentence stricken out is a reiteration in different language of the subject matter embodied in that part of the instruction given; and a repetition in substance of the instruction on reasonable doubt contained in the general instruction given by the court. The court told the jury in the general instruction that, “If you entertain a reasonable doubt of his (appellant’s) guilt growing out of the evidence in the case, you will give him the benefit of the doubt and acquit him.” And also instructed the jury in the latter part of the general instruction as follows: “If you entertain a reasonable doubt as to his (appellant’s) intent, you will give him the benefit of that doubt and acquit him. ’ ’
The case of Tanks v. State, 71 Ark. 459, cited by appellant to support his contention that the modification of instruction No. 2 had the effect of rendering negative the rule on the; subject of reasonable doubt, is not. in point. In the case at bar, the court simply modified the instruction by striking out.the last sentence. In the case cited, the court not only struck out the last sentence but modified it by an addendum which had the effect of rendering negative the rule on the subject of reasonable doubt.
We think the rule on the subject of reasonable doubt in the instant case was sufficiently presented to the jury, and that no harmful or prejudicial error was committed by striking out the last sentence of instruction No. 2 and giving the instruction as modified.
The judgment is affirmed. | [
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JOHN B. ROBBINS, Judge.
_JjThe controversy in the case involves the estate of Willie Mae Dodds, who died testate on November 30, 2007. Pursuant to the terms of Willie Mae Dodds’s will, her son Lonzell Dodds (one of the appel-lees herein) was appointed executor of the estate. Willie Mae Dodds had thirteen surviving children both when she executed her will and at the time of her death. The estate consisted of a little more than 240 acres of land that contained two residences, as well as $32,790.73 in cash.
Willie Mae Dodds’s will provided for the payment of her debts and proper claims against the estate, and then made gifts of the two small parcels of residential land to two of her children, one to Marilyn Dodds Page and one to Tellus Dodds. As for the remaining real property, the will provided:
RMy son, Lonzell Dodds, has farmed my real property for many years. He has also incurred many expenses in improving the land, including precision leveling, and the drilling of waterwells. For this reason, I hereby grant to my son, Lon-zell Dodds, the option to purchase my remaining acreage, of approximately 240 acres, for the sum of $115,000.00. This option to purchase is meant to allow Lonzell Dodds to file with the Probate Court a written document exercising his option to purchase at any time within 90 days after my will is admitted to probate in a court of competent jurisdiction.
The will provided that the sale proceeds of $115,000.00 shall be divided among her twelve other children as well as three grandchildren in specific varying amounts. The will further provided that should Lon-zell Dodds choose not to exercise the purchase option, the remaining acreage shall be sold and the proceeds distributed in the amounts previously designated. Any remaining sale proceeds, and any other property owned by Willie Mae Dodds at the time of her death, was left to Lonzell Dodds.
On February 19, 2008, Lonzell Dodds filed a notice of intent to purchase the remaining property consisting of 240 acres for the sum of $115,000.00. On February 12, 2009, Lonzell Dodds filed a petition for authority to make final distribution of the estate assets. The petition asserted that “by the terms of the decedent’s will, it was directed that after payment of debt, taxes, and administrative expenses, as hereinafter described, the sale proceeds from the $115,000.00 should be divided among the decedent’s children and grandchildren in designated amounts.” The petition further asserted that after paying a claim against the estate for $14,083.14, attorney’s fees of $4950.00, reimbursement costs of $237.24, and a personal representative fee of $750.00 (which totals $20,020.38), the remaining assets should be paid to the children and grandchildren according to their pro-rata share of the expenses. The petition proposed to' distribute a total of $94,909.62 (as opposed to | s$115,000.00) to the children and grandchildren. Lonzell Dodds, as personal representative of the estate of Willie Mae Dodds, executed a deed transferring the real property from the estate to Lonzell Dodds.
On February 23, 2009, the trial court entered an order authorizing the final distribution of assets in accordance with Lon-zell Dodds’s petition. Taking into account the sales proceeds paid by Lonzell Dodds (for which Lonzell Dodds took an offset for the estate’s debt and administrative expenses), the trial court distributed a total of $94,909.62 to the children and grandchildren. The trial court’s order authorized the personal representative to distribute the assets according to each devisee’s pro-rata share, and ordered that upon the filing of a report of final distribution and receipts in support thereof, Lonzell Dodds shall be discharged as personal representative and the estate closed.
The appellant herein is Juanita Dodds Moreland, who is one of the decedent’s children sharing in the distribution of the sales proceeds. All of the children and grandchildren sharing in the proceeds, including Mrs. Moreland, executed two waivers each. The first was a “waiver of notice and entry of appearance and waiver of inventory accounting” executed individually by each beneficiary in the early months of 2008, and that waiver provided:
The undersigned hereby waives notice of hearing in connection with any petitions filed herein, or other matters presented to the Court, consents that the same |4may be heard and decided forthwith, and enters his appearance for all purposes in these proceedings.
The undersigned further waives the requirement that the personal representative file in these proceedings an inventory of probate assets, and all account-ings, which the personal representative would otherwise be required to prepare and file herein.
The next waiver was styled “receipt and waiver” and was executed individually by each beneficiary in late February and March of 2009, after the trial court had entered the order authorizing final distribution of the estate assets. That waiver provided:
I, the undersigned, hereby acknowledge receipt of all property and amounts due and distributable to me from the personal representative of said estate. Further, I approve the acts of the personal representative in the administration of this estate.
I hereby waive the requirement of a formal accounting on behalf of the said personal representatives, and of any hearing thereon pursuant to the provisions of Sections 28-52-104 and 28-53-103 of the Arkansas Code, and waive service of notice of any hearing to be held in this matter in connection with the administration of this estate. Further, I enter my appearance in this cause and consent to the closing of this estate and the discharge of Lonzell Dodds as Personal Representative without a hearing and without further notice.
The trial court entered an order approving report of final distribution on April 20, 2009, finding that proper receipts had been given and filed by all distributees, and discharging the personal representative and closing the administration of the estate.
On March 30, 2010, Juanita Dodds Moreland brought a petition to reopen the estate and to set aside the deed by the personal representative. The petition was brought pursuant to Ark. R. Civ. P. 60(c), which permits a trial court to modify an order after the expiration of ninety days under certain circumstances, and Ark. Code Ann. § 28-53-119(a) (Repl.2004), which provides:
(a)(1) If, after an estate has been settled and the personal representative discharged, other property of the estate is discovered, or if it appears that any | r,necessary act remains unperformed on the part of the personal representative, or for any other proper cause, the court, upon the petition of any person interested in the estate and without notice or upon such notice as it may direct, may order that the estate be reopened.
(2) It may reappoint the personal representative or appoint another personal representative to administer such property or perform such act as may be deemed necessary.
In Mrs. Moreland’s petition, she alleged that the deed from the personal representative of the estate to Lonzell Dodds was not supported by the full consideration required by the will. In particular, Mrs. Moreland asserted that Lonzell Dodds miscalculated his financial obligation to complete the purchase of the 240 acres, and that to exercise his purchase option he was required to pay the full $115,000.00 as set forth in the will. Because Lonzell Dodds mistakenly thought that the claims against the estate and expenses of administration were to be deducted from the amounts paid to the named devisees, this resulted in the devisees receiving a total of $20,090.88 less than the will required. The petition asserted that the estate had cash assets of $82,790.73, from which the claims against the estate and administration expenses should have been paid. The petition prayed that Lonzell Dodds be required to pay additional funds of $20,090.38 to be distributed to the devisees, and that should he desire not to pay the funds, the deed to Lonzell Dodds should be cancelled and set aside for lack of adequate consideration. Mrs. Moreland’s petition asserted that, should the deed to Lonzell Dodds be can-celled, the 240 acres contained in the estate will require further administration.
|fiOn April 8, 2010, Lonzell Dodds filed a response to Mrs. Moreland’s petition to reopen and to set aside the deed by the personal representative. In his response, Mr. Dodds asserted:
1. Personal Representative, Lonzell Dodds, admits that due to a misunderstanding on his part, cash funds that should have been counted as part of the estate assets were used to exercise his option to purchase the 240 acre tract of land. He did not understand that those cash funds should have been placed into the residual estate, and then disbursed to his siblings.
2. Personal representative, Lonzell Dodds, states that due to a change in circumstances, he does not wish to exercise the option to purchase the 240 acres.
On April 30, 2008, separate appellee Willie A. Dodds, the estranged wife of Lonzell Dodds, filed a motion to intervene as well as a reply to Mrs. Moreland’s petition. Willie A. Dodds asserted that on April 16, 2009, Lonzell Dodds filed for divorce, and that the divorce action was still pending. Willie A. Dodds stated that the petition to reopen the estate was a conspiracy designed to deny her her lawful division of marital assets. Willie A. Dodds asked that she be allowed to intervene to protect her marital assets in the pending divorce case. Relying on the two waivers signed by Mrs. Moreland, Willie A. Dodds claimed that Mrs. Moreland received all property she was entitled to receive and waived her right to complain about the administration of the estate. In an amended response to the petition filed on December 3, 2010, Willie A. Dodds argued that res judicata barred relitigation of any issue involved in the administration of the estate.
A hearing on Mrs. Moreland’s petition to reopen the estate was held on December 20, 2010. Willie A. Dodds testified at the hearing that it was her understanding that Lonzell 17Podds was trying to have the 240 acres removed as a marital asset and put back in the estate. She said that if that happens, she will not have any claim to that part of the marital property.
Lonzell Dodds testified that he only paid about $88,000.00 of his own money toward the purchase price of the 240 acres, taking into account the estate’s cash assets of about $82,000.00. He acknowledged that he has since reread the will and realizes that he should have paid the full $115,000.00. He said that this was a mistake on his part, and his failure to pay the correct amount was not deliberate. Lon-zell testified that he does not have the money to make up for the deficiency, and that he unsuccessfully tried to borrow the money from a bank. He stated, “I thought I had already purchased it and I just don’t have the money to pay any more.”
Juanita Dodds Moreland testified that she knew that her brother Lonzell Dodds was the personal representative and that she was not active in the administration of the estate. She never attended any hearings or was given any accounting associated with the estate, and signed the waivers to facilitate the probate proceedings. Mrs. Moreland testified that in the spring of 2010 she asked her attorney to look into the estate, and he discovered that some errors were made. Based on the fact that the children and grandchildren only received a total of $94,909.62 instead of $115,000.00 as prescribed by the will, Mrs. Moreland thought that the beneficiaries were shorted $20,090.38. Mrs. Moreland contended that Lonzell Dodds still owes the difference, and that if he cannot afford to pay the difference the estate will have the responsibility to do something with the acreage. Mrs. Moreland testified that she was willing to serve as personal representative of the estate. She acknowledged that at the time | Sshe signed the receipt from the estate she thought she was receiving everything she was entitled to.
On January 24, 2011, the trial court entered an order reopening the estate, appointing a new personal representative, and granting petition to intervene. The trial court’s order provides:
1. The request of Willie A. Dodds, to intervene is granted.
2. The request to set aside the deed to Lonzell Dodds [is] denied.
3. The estate captioned above is reopened for the limited purpose of pursuing the collection the sum of $20,090.38 from Lonzell Dodds.
4. Petitioner, Juanita Dodds Moreland, daughter of Willie Mae Dodds, decedent, [as] a named devisee under the Last Will and Testament of the decedent is appointed personal representative.
Each devisee in the above captioned estate executed a Waiver and Receipt acknowledging that they had received all they were entitled to receive and they are each bound by those documents. Juanita Dodds Moreland is appointed personal representative for the limited purpose of collecting $20,090.38 from Lonzell Dodds, subject to her acceptance and appointment of a statutory agent for service of process.
Juanita Dodds Moreland, personal representative of the estate of Willie Mae Dodds, now appeals from the January 24, 2011, order. She argues on appeal that the trial court exceeded its authority by prohibiting her, as personal representative, from filing an action to rescind the deed transaction. Mrs. Moreland submits that the devisees have been left without a remedy because there is no viable cause of action to collect the balance of the purchase |9price from Lonzell Dodds, and Lonzell Dodds testified that he no longer wished to purchase the land and could not afford to pay the balance. Mrs. Moreland asks this court to modify the trial court’s order reopening the estate, set aside the order of final distribution, and order a cancellation of the deed.
In support of her argument, Mrs. More-land cites Economy Swimming Pool Co. v. Freeling, 236 Ark. 888, 370 S.W.2d 438 (1963), where the supreme court held that where there is a material breach of contract, substantial nonperformance, and entire or substantial failure of consideration, the injured party is entitled to rescission of the contract. Mrs. Moreland asserts that because Lonzell Dodds paid inadequate consideration for the deed, rescission is the proper remedy. Mrs. Moreland characterizes Lonzell Dodds’s actions as constructive fraud on the part of the executor. She also alleges mutual mistake in the deed transaction because Lonzell Dodds was both the seller and buyer and mistakenly thought he was entitled to a credit against the $115,000.00 purchase price for cash in the estate. Mrs. More-land asserts that whether we label the deed transaction as constructive fraud, inadequate consideration, mutual mistake, or unilateral mistake, the appropriate remedy is rescission.
Mrs. Moreland argues that when the trial court restricted her authority to file a separate action seeking rescission of the deed transaction, the devisees of the estate were left without a remedy. She submits that in order to form a contract there must be a meeting of the minds, and that this did not occur in this case. She makes this contention because the will provided for a purchase price of $115,000.00, but Lonzell Dodds thought he was only | ^required to pay the difference between the $115,000.00 purchase price and the cash available in the estate. Mrs. Moreland thus contends that there was no enforceable contract, and the estate could not prevail in a suit to collect the balance of the purchase price from Lonzell Dodds. She claims that the only remedy is rescission.
This court reviews probate proceedings de novo on the record, but we will not reverse the decision of the probate court unless the decision is clearly erroneous. Moore v. First Presbyterian Church of Searcy, Arkansas, Inc., 2010 Ark. App. 269, 2010 WL 1233843. Under the circumstances presented in this case, we hold that the trial court’s decision to reopen the case for the limited purpose of allowing Mrs. Moreland to collect $20,090.38 from Lonzell Dodds, as opposed to permitting rescission and cancellation of the deed, was not clearly erroneous. While the trial court did not make specific findings in that regard, the appellant did not request specific findings of fact and conclusions of law, and we indulge in the presumption that the trial court acted properly and made the findings necessary to support its judg ment. See Tillery v. Evans, 67 Ark.App. 43, 991 S.W.2d 644 (1999).
In Herrick v. Robinson, 267 Ark. 576, 595 S.W.2d 637 (1980), our supreme court recognized that rescission is cognizable at law as well as in equity. Equitable rescission is distinct from rescission at law in that equitable rescission requires the affirmative powers of an equity court to rescind or undo the contract, whereas in rescission at law the court merely grants restitution after the party seeking it has achieved rescission by his own acts. Phelps v. U.S. Life Credit Life Ins. Co., 336 Ark. 257, 984 S.W.2d 425 (1999). In this case, Mrs. Moreland is seeking to cancel an instrument not through her own acts but rather through the affirmative powers of a court, which would constitute equitable rescission.
In American Investors Life Ins. Co. v. TCB Transp., 312 Ark. 343, 849 S.W.2d 509 (1993), the supreme court held that in order to be entitled to equitable relief, a party must show a lack of an adequate remedy at law. When damages are difficult, if not impossible, to calculate, it cannot be said that the plaintiff has an adequate remedy at law. See Standridge v. Rice, 212 Ark. 703, 207 S.W.2d 598 (1948). In the present case, Mrs. More-land had an adequate remedy at law, and the amount of damages was readily ascertainable. As the probate court indicated in the order being appealed, the damages amount is $20,090.38, the difference between the amount the devisees should have received pursuant to the express terms of the will ($115,000.00), and what they actually received ($94,909.62). Because Mrs. Moreland had an adequate remedy at law, the trial court did not err in limiting her remedy to the collection of $20,090.38 from Lonzell Dodds as opposed to permitting equitable rescission of the deed.
While Mrs. Moreland argues in her brief that the trial court’s decision left her without a remedy, we disagree. The will gave Lonzell Dodds the option of purchasing the acreage for $115,000.00, he made that election, and the proceeds were to be divided among the devisees. In Lonzell Dodds’s notice of intent to exercise his option to purchase the property, he represented that he would pay $115,000.00. However, he improperly took a credit against that amount and paid an insufficient price that shorted the beneficiaries $20,090.38. In his testimony, Lonzell Dodds conceded that he still owes the deficiency to the estate, but |12said he presently lacked the funds. Everyone involved in this case agrees that the devisees received $20,090.38 less than they were due from the purchase of the acreage, and there is no “meeting of the minds” issue as appellant suggests. The will speaks for itself, and it undisputedly provided that Lonzell Dodds should have paid $115,000.00 and not some lesser amount. Simply put, he owes the beneficiaries $20,090.38, and Mrs. Moreland has been given the authority to sue for that amount thereby making the beneficiaries whole.
Affirmed.
GLADWIN and HOOFMAN, JJ., agree.
. This amount is actually $20,090.38 less than $115,000.00, as opposed to the total deductions of $20,020.38 represented in Lonzell Dodds's petition. There is no explanation for this $70.00 discrepancy.
. We acknowledge an apparent inconsistency in the trial court’s order because it found that the devisees were bound by their waivers and receipts, and yet the trial court appointed Mrs. Moreland as personal representative for the purpose of collecting additional funds. Nonetheless, there has been no cross-appeal from the trial court's decision to reopen the estate for that limited purpose.
. Even if Lonzell Dodds presently lacks these funds as he claims, Mrs. Moreland has- the right to seek a judgment and if necessary attempt collection of it through execution on the 240 acres. | [
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WAYMOND M. BROWN, Judge.
|, Savannah Rossie-Fonner appeals from the June 15, 2011 order terminating her parental rights to her son, C.R. (born December 7, 2009). We affirm.
Factual Background
On April 1, 2010, the Arkansas Department of Human Services (DHS) received a report that appellant, while bathing her four-month-old son C.R., heard a voice telling her to drown him. This incident occurred on or about March 16, 2010. The call on April 1, 2010, was made by appellant’s physician, Dr. Trehun, after appellant reported the incident during an appointment. It was also reported that appellant had a history of mental illness, had been diagnosed with a mood disorder, had missed three mental health appointments since December 2009, and was not taking any medication. DHS took C.R. into custody.
| ;>DHS petitioned for emergency custody and a finding of dependency/neglect, and on April 23, 2010, the Pulaski County Circuit Court entered an order finding that there was probable cause for C.R. to remain in DHS custody. The court instructed DHS to develop an appropriate case plan and ordered that appellant and her live-in boyfriend, Chris Fonner, undergo psychological evaluation. The court ordered appellant and her parents (biological mother Jeanne Rossie and adoptive father Paul Rossie) to have supervised visitation at DHS and authorized DHS to proceed with home evaluations on relatives interested in placement. C.R. was placed in foster care with Mr. and Mrs. Rossie.
On May 17 and 18, 2010, Dr. Paul Dey-oub performed psychological evaluations on appellant, her parents, her sister, and Chris Fonner. Dr. Deyoub noted that appellant reported a history of seizures and mental illness and had been diagnosed with bipolar disorder; had received mental health treatment since the age of five; had been hearing voices all of her life; and had, on several occasions since the sixth grade, stood over family members with a knife while they slept. Appellant also told Dr. Deyoub that she had used drugs as a teenager; used marijuana and methamphetamine in March 2010 and used “some marijuana” during her pregnancy with C.R.; and was on probation for felony second-degree battery for hitting her mother with a baseball bat on the elbow while she was “blacked out” in June 2008. The injuries to her mother’s arm from this incident required surgery. Jeanne Rossie told Dr. Deyoub that during the incident, appellant also attacked her aunt (Rossie’s sister), who was suffering from cancer at the time.
|sDr. Deyoub noted in his psychological evaluation report that Chris Fonner was twenty-four years old and was the assistant manager at a Subway sandwich store. Fonner told Dr. Deyoub that he had been with appellant for about a year and that they were living with his mother when the incident causing C.R. to be taken into custody by DHS occurred. Fonner said that when appellant heard the voice telling her to drown C.R., she immediately called her mother for help, and her sister came and got C.R. Mrs. Rossie corroborated this account and told Dr. Deyoub that she and her husband, Paul Rossie, would like to have custody of C.R., that they were taking foster-care classes, and that they hoped that appellant would voluntarily agree to their having permanent guardianship. Paul Rossie told Dr. Deyoub that he adopted appellant when she was two years old.
Dr. Deyoub ruled out postpartum depression and diagnosed appellant with schizoaffective disorder, bipolar type, cocaine abuse (stated to be in remission), methamphetamine and cannabis abuse; borderline personality disorder; and seizure disorder. He stated in his report that one of appellant’s problems was intense hostility; she was “bizarre and disturbed” and “very unpredictable”; she scored very high for the Paranoid scale and also had elevated Antisocial and Psychopathic Deviancy scales; she also had a character disorder and “significant mental illness”; and she had little insight about her parenting issues. He noted in his report that at one point during her Rorschach test, appellant said that she had “a dragon that follows her for protection.” Dr. Deyoub described her condition and its effect on her parenting ability as follows:
Due to her mental illness and character disorder, she is a danger and a risk to her son [C.R.] This is a tragedy waiting to happen if she has unsupervised contact with [C.R.]
|4What makes her such a high risk patient is the combination of her schizoaf-fective disorder and her borderline personality disorder. The schizoaffective disorder provides for Bizarre Mentation and hallucinations while the personality disorder ensures that she has the propensity to act out. We already know this is true, because she cracked her mother’s elbow with a baseball bat. She admitted standing over family members with a knife so we know this is not just obsessional thinking, but actual homicidal and violent behavior. She is permanently unfit to raise [C.R.] or any other child. There would be no way of ensuring that she is stable, and there is no cure.... She could be on her medication and stable for awhile, but there is no such thing as someone with her diagnoses who will not relapse or go off their medication or have a psychotic episode. Episodes of deterioration will occur with 100 percent certainty and it will be during one of these episodes that [C.R.] will be at risk. She thinks all she needs to do is tweak her medication and [C.R.] should be returned to her. This is not the case, because her circumstances are going to change.... • [C.R.] should be in the permanent custody of the grandparents, and Savannah should only have supervised visitation indefinitely.
On June 18, 2010, the court entered an order adjudicating C.R. dependent-neglected, quoting extensively from Dr. Dey-oub’s evaluation report and finding that, although no harm had befallen C.R. as a result of the bathtub incident, appellant “poses a real and substantial risk of serious injury or death to the juvenile due to her mental health issues.” The court set the goal of the case as reunification, ordering appellant to follow the recommendations of her psychological evaluation, but stated that the prospects of reunification were not very encouraging and that the most viable option might be permanent relative placement. The court ordered appellant to have supervised visitation.
A review hearing was held on August 31, 2010. The court found that it was contrary to C.R.’s best interest to return him to appellant and that continued custody with DHS was necessary to protect his health and safety. The court kept the goal as reunification and noted that appellant “appears to be making an effort to comply with court orders” but that “it remains to be seen whether progress is being made.” The court ordered DHS to arrange a | .^medication assessment for appellant, and a permanency-planning hearing was scheduled for January 25, 2011.
At the permanency-planning hearing, the court changed the goal of the case to concurrent goals of termination of parental rights and reunification, and ordered DHS to arrange for appellant to undergo a second psychological evaluation. The court explained the reasoning behind its ruling:
Let the court be clear. The mother has complied with court orders, but have the conditions which caused removal been remediated? This is the question the court must answer. According to Dr. Deyoub, the conditions will never be remedied. Somewhat consistent with that view is the mother’s comportment at today’s hearing. Even today, when the mother was testifying and wanting to make a favorable impression with the court, although some emotion is to be expected, the court could feel her anger coming out. The court believes that the mother continues to have great anger which could be a risk to the child. The concern is not just the mother’s mental illness by itself, but that her mental illness affects her ability to parent and ability to protect her child.
The court noted that appellant had proposed a safety plan consisting of certain individuals who would be available to care for C.R. if she felt herself to be on the verge of psychosis. But, the court reflected, “these safety plans may not go as planned when psychosis suddenly strikes, and we are talking about a completely defenseless young child.... Having a child in the home can be a stressor, and the mother has not had to deal with such stress.” The court noted that appellant’s treating therapist “appeared to be in [appellant’s] corner,” but that “the court still has to weigh the therapist’s recommendations in light of what is in the child’s best interests.” What the court termed a “permanency termination of parental rights and/or permanent custody hearing and/or permanency planning hearing” was scheduled for April 19, 2011.
|ñDr. George DeRoeck performed a second psychological evaluation of the appellant on March 16, 2011. During the evaluation, appellant told Dr. DeRoeck that she had engaged in self-abuse since the age of five and had been hospitalized at age fourteen for attempted suicide. She also told him that when she got her son back, she wanted to move to Delaware, where her biological father lived. Dr. DeRoeck diagnosed her with bipolar disorder; cocaine, amphetamine, and cannabis/alcohol abuse (in controlled environmental remission); and personality disorder with narcissistic, paranoid, and borderline traits. Dr. DeRoeck stated in his evaluation report that appellant showed indications of instability and shallowness in interaction with others, difficulty coping with unwanted moods and limited insight into that tendency, and a tendency toward a lack of empathy. He stated that appellant was “likely to demonstrate unrealistic expectations in relationships with others that may often find her isolated or alienated from others.” Dr. DeRoeck overall had a more favorable view of her prognosis than Dr. Deyoub:
Currently and with continued treatment/medication along with sustained recovery from cannabis/alcohol abuse, Ms. Fonner presented as relatively stable. Notwithstanding the seriousness of hearing a voice telling her to drown her child in the bath, she evinced the presence of mind to report the incident to others, attempt to obtain viable treatment for her condition and obtain childcare help until “stable.” Although a number of psychopathological indicators are present in her presentation, it is my opinion that Ms. Fonner’s efforts over the past 9-10 months suggest the 17residual capacity to manage in the supportive care of her son while stabilized on medications and with a support network in place.
However, Dr. DeRoeck recommended that appellant receive close monitoring by DHS regarding compliance with medication and counseling services, as well as stress management, counseling, family integrative counseling, and parenting-skills instruc tion, and continued supervised visitation before being allowed weekend visitation.
On March 18, 2011, DHS filed a petition for termination of parental rights (TPR), and a hearing was held on April 19, 2011. After reviewing all evidence and testimony presented, the court found that DHS had proved by clear and convincing evidence that C.R. was adjudicated dependent-neglected, had continued to be out of appellant’s custody for twelve months, and despite a meaningful effort by DHS to rehabilitate appellant and correct the conditions that caused removal, those conditions had not been remedied by appellant.
Standard of Review
Termination of parental rights is an extreme remedy and in derogation of the natural rights of the parents. A heavy burden is placed upon a party seeking to terminate the parental relationship, and the facts warranting termination must be proved by clear and convincing evidence. Clear and convincing evidence is that degree of proof which will produce in the fact-finder a firm conviction regarding the allegation sought to be established. This standard | Rof proof reduces the possibility that a parent’s rights are terminated based solely on a few isolated instances of unusual conduct or idiosyncratic behavior, and impresses the fact-finder with the importance of the decision, thereby perhaps reducing the chances that inappropriate terminations will be ordered. However, courts are not to enforce parental rights to the detriment or destruction of the health and well-being of the child.
Cases involving the termination of parental rights are reviewed de novo on appeal. The appellate court will not reverse the trial court’s decision unless the court’s finding of clear and convincing evidence is clearly erroneous. A finding is clearly erroneous when, although there is evidence to support it, the reviewing court on the entire evidence is left with a definite and firm conviction that a mistake has been committed. We give a great deal of deference to the trial court, as the trial court is in a far superior position to observe the parties before it and judge the credibility of the witnesses. On de novo review, this court will only reverse on grounds properly argued by the appellant.
Discussion
|aOur termination statute requires clear and convincing proof that termination is in the child’s best interest, plus clear and convincing proof of at least one enumerated ground for termination. A best-interest finding must be based upon a consideration of at least two factors: the likelihood that the juvenile will be adopted if TPR is granted, and the potential harm caused by continued contact with the parent. 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 the termination is in the best interest of the child. The statute only requires the trial court to consider the potential harm to the health and safety of a child that might result from continued contact with the parents. Furthermore, our supreme court has directed that the potential-harm analysis be conducted in a forward-looking manner and considered in broad terms, including the harm the child suffers from the lack of stability in a permanent home. The court is not required to find that actual harm would result or to affirmatively identify a potential harm.
|inThe statutory ground cited by DHS in its petition for TPR was Ark.Code Ann. § 9 — 27—341(b)(3)(B)(i)(a), which provides for termination when the juvenile has been adjudicated by the court to be dependent-neglected and has continued out of the custody of the parent for twelve months and, despite meaningful effort by the department to rehabilitate the parents and correct the conditions that caused removal, those conditions have not been remedied by the parents.
In this case, there was sufficient evidence to support the circuit court’s ruling, and we cannot say that the court’s termination of appellant’s parental rights was clearly erroneous. The DHS caseworker, Bridget Williams, testified that C.R. was adoptable and that, despite the services provided to the appellant, TPR was in the child’s best interests because, although appellant might be able to present as a competent parent at times, her condition was such that there was no way to ever know that C.R. would be safe. Williams testified that the idea of having a third party live in appellant’s home and supervise her and the child was not a realistic possibility in terms of ensuring C.R.’s safety because of appellant’s interpersonal problems and instability in relationships, and Williams expressed concern that C.R. was too young to report any problems that might occur. Williams further testified that appellant’s plan to move to Delaware to live with her putative father, who had no relationship with C.R. and had only known appellant a short time, was clearly not in C.R.’s best interests. Appellant argues that she complied with the case plan and the court’s orders. However, even fullj_y completion of a case plan is not determinative of the outcome of a TPR petition. What matters is whether the intended result — making the parent capable of caring for the child — has been achieved.
Dr. Deyoub testified at the termination hearing that his psychological evaluation of appellant took an entire workday and consisted of both paper-and-pencil tests and about two and a half hours of face-to-face interaction. He stated that although he had not seen appellant since he evaluated her on May 17, 2010, he was not aware of any progress she might have made but that such progress would not change his recommendation because her mental illnesses were of a type that were chronic and would never change. He said that in his opinion, C.R. would always be at risk with appellant, and that if she had C.R. she would require supervision and “you hope nothing happens.” In short, Dr. Deyoub did not believe that it was possible for appellant to safely parent C.R.
Two therapists who had treated appellant testified that they did not think appellant would harm C.R., but the circuit court explained that it did not grant those opinions as much weight because appellant had not had to care for a child for the past year, stating, “To me, that really undercuts the weight to be given their testimony. ...” The court noted that with regard to the psychologists who evaluated appellant and testified at the TPR hearing, Dr. Deyoub was “more pessimistic” about appellant’s prospects of reunification than Dr. liaDeRoeck, but that Dr. DeRoeck “wasn’t just saying we should hand the child back over.” Rather, as the court noted, Dr. DeRoeck advocated a detailed safety plan to protect C.R. The court then reiterated that the interest of the child was the paramount concern in every case, and found that in light of that priority, a safety plan would not work in this case for several reasons. First, the court noted that all of appellant’s witnesses testified that she was a good parent and did not pose a problem, making it unlikely that any of them would monitor her or enforce the safety plan as vigilantly as was necessary to keep C.R. safe. Second, C.R. was not even two years old yet and would be unable to protect himself or get help if he were in danger.
The circuit court further found that appellant lacked credibility because she testified, contrary to her earlier statements, that the voice she heard instructing her to drown C.R. might have been coming from the radio and not her own mind. The court stated that this sudden change of story demonstrated that appellant was not credible and lacked insight into her mental illnesses. The court was well within its discretion to make these assessments of the witnesses and the weight that should be attributed to their testimony. Our courts have repeatedly stated that there are no cases in which the superior position, ability, and opportunity to view the parties carry as great a weight as those involving minor children, “as a heavier burden is placed on the trial judge to utilize to the fullest extent his or her powers |13of perception in evaluating the witnesses, their testimony, and the best interest of the children.”
The court found that in light of appellant’s history of actual violence and threatening behavior, as well as anger and hostility the court saw appellant display during her testimony, there was a clear and continuing risk of harm to C.R. The court considered granting permanent custody to appellant’s parents, but found that the alternative would create instability in C.R.’s placement because, based on the hostility and anger the court saw appellant demonstrate and which Dr. Deyoub documented in his psychological evaluation, appellant would likely continue to clash with her mother and mount custody challenges.
The court further found that, in light of the legal requirement to look at permanency planning from the child’s perspective, there was no compelling reason to allow more time to achieve reunification because it would take “multiple more months of stability on the mother’s part before the court could consider return of the child” and “[e]ven if the child were to be returned at some point, it would be necessary for the court to retain jurisdiction for perhaps years to ensure nothing happened to the child.”
We cannot say that the circuit court’s decision to terminate appellant’s parental rights was clearly erroneous under the specific facts and circumstances of this case. The court’s TPR order and discussion of its ruling at the TPR hearing demonstrate that the court’s focus was 1! ¿appropriately on C.R.’s best interests, and that the court weighed the evidence and testimony presented and considered the factors bearing on its decision. The court assigned greater weight and credibility to some witnesses, such as Dr. Deyoub, and made its own observations about the conduct and personality of appellant, but these things are well within the discretion of the court. We note that the risk posed to the child in this case, should appellant’s mental illnesses manifest, was not merely a risk of injury, but of death. The hallucination that gave rise to this case was not an isolated or anomalous event; rather, the evidence was that it was part of appellant’s lifelong history of serious mental illness and dangerous or violent behavior, and there was evidence to support a finding that the nature of this illness was permanent and unpredictable and would therefore continue to present a serious risk to C.R. The record does not support appellant’s argument that the circuit court terminated her parental rights simply because she had a mental illness. Rather, it demonstrates that the court was concerned with the permanent and unpredictable nature of appellant’s mental illnesses, the alienating and destabilizing effect they had on her interpersonal relationships, and the severity of the risk those illnesses created for C.R. Upon a review of the entire evidence, we are not left with a definite and firm conviction that a mistake has been committed. We find no clear error and affirm.
lisAffirmed.
VAUGHT, C.J., and GLADWIN, J., agree.
. Appellant was twenty-three years old at the time of the evaluation.
. Appellant later testified at the termination-of-parental-rights hearing that she never had any contact with her biological father until she was seventeen years old, but now spoke to him on the telephone and wanted him to have custody of C.R. if she could not.
. At some time during the pendency of the case, prior to the January 25, 2011 hearing, appellant and Chris Fonner were married.
. Smith v. Ark. Dep't of Human Servs., 100 Ark.App. 74, 264 S.W.3d 559 (2007).
. Albright v. Ark. Dep't of Human Servs., 97 Ark.App. 277, 248 S.W.3d 498 (2007).
. Smith, supra.
. See Santosky v. Kramer, 455 U.S. 745, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982).
. Smith, supra.
. Dinkins v. Ark. Dep't of Human Servs., 344 Ark. 207, 40 S.W.3d 286 (2001).
. Id.
. Gregg v. Ark. Dep't of Human Servs., 58 Ark.App. 337, 952 S.W.2d 183 (1997).
. Dinkins v. Ark. Dep’t of Human Servs., 344 Ark. 207, 40 S.W.3d 286 (2001).
. See, e.g., Country Gentleman, Inc. v. Harkey, 263 Ark. 580, 569 S.W.2d 649 (1978).
. Smith, supra; Ark.Code Ann. § 9-27-341(b)(3) (Repl.2009).
. Ark.Code Ann. § 9-27-341(b)(3)(A) (Repl. 2009).
. McFarland v. Ark. Dep't of Human Servs., 91 Ark.App. 323, 210 S.W.3d 143 (2005).
. Dowdy v. Ark. Dep’t of Human Servs., 2009 Ark. App. 180, 314 S.W.3d 722 (citing McFarland v. Ark. Dep’t of Human Servs., 91 Ark. App. 323, 210 S.W.3d 143 (2005)).
. Id. (citing Bearden v. Ark. Dep’t of Human Servs., 344 Ark. 317, 42 S.W.3d 397 (2001)).
. Lee v. Ark. Dep’t of Human Servs., 102 Ark.App. 337, 285 S.W.3d 277 (2008).
. Dowdy, supra.
. Williams stated that DHS had provided the appellant parenting classes, psychological evaluations, random drug screens, and supervised visitation with C.R.
. Lee v. Ark. Dep't of Human Servs., 102 Ark.App. 337, 285 S.W.3d 277 (2008).
. Id.
. Id. (citing Norwood v. Robinson, 315 Ark. 255, 866 S.W.2d 398 (1993), and quoting Hamilton v. Barrett, 337 Ark. 460, 989 S.W.2d 520 (1999)).
. Ark.Code Ann. § 9-27-341(a)(3).
. This case is thus distinguishable from the case relied upon by the appellant, Benedict v. Ark. Dep't of Human Servs., 96 Ark.App. 395, 242 S.W.3d 305 (2006). The appellant in Benedict suffered from postpartum depression that was eliminated through treatment over the course of the case, and the condition that led to her children's removal — neglect and a dirty/unsafe home — -was remedied. In this case, the evidence was that the appellant’s mental illnesses are permanent and cannot be "cured,” and that the condition leading to C.R.’s removal has not been remedied. | [
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DONALD L. CORBIN, Justice.
| Appellant, Tyson Poultry, Inc., appeals the order of the Workers’ Compensation Commission finding that Appel-lee, Francisco Narvaiz, was entitled to additional temporary-total-disability benefits, wage-loss disability, and attorney’s fees. For reversal, Appellant asserts that there was not substantial evidence to support the Commission’s findings. The Arkansas Court of Appeals first heard this appeal and reversed the Commission’s decision. Tyson Poultry, Inc. v. Narvaiz, 2010 Ark.App. 842, 2010 WL 5132119. Appellee petitioned for review, asserting that the decision of the court of appeals conflicted with a prior decision of the court of appeals, Superior Industries v. Thomaston, 72 Ark.App. 7, 32 S.W.3d 52 (2000), and erroneously applied the rules of statutory construction. See Ark. Sup.Ct. R. 2 — 4(c)(ii) & (iii) (2011); see also Ark. Sup.Ct. R. 1-2(b)(6) (2011). We granted review, and jurisdiction is properly in this court pursuant to Rule l-2(e). When we grant review following a decision of the court of appeals, we consider the case as though it had been originally filed in this court. Nat’l Bank of Ark. v. River Crossing Partners, LLC, 2011 Ark. 475, 385 S.W.3d 754. Upon such review, we find no error in the Commission’s decision and affirm it; the opinion of the court of appeals is vacated.
Appellee had previously been injured on the job and was working on light duty when he called his female supervisor an insulting, derogatory, and vulgar name (“mother-f- -king bitch”). Appellant placed Appellee on suspension and then terminated his employment due to insubordination and gross misconduct. The administrative law judge (ALJ) denied Ap-pellee’s claim for temporary-total disability for the remainder of his disability period, as well as his claims for wage-loss benefits and attorney’s fees.
The Commission reversed the ALJ’s decision on the grounds that termination for misconduct is not a sufficient basis for a finding that the employee refused suitable employment under Ark.Code Ann. § 11 — 9— 526 (Repl.2002), which provides that an injured employee who refuses suitable employment shall not be entitled to compensation during the period of his refusal. The Commission relied on Thomaston, 72 Ark.App. 7, 32 S.W.3d 52, in which the court of appeals strictly construed section 11-9-526 and held that when an employer terminates a claimant’s employment due to his misconduct, the employee has not refused employment; rather, his employment has been terminated at his employer’s option. Accordingly, in the present case, the Commission found that Appellee proved that he was entitled to additional temporary-total-disability benefits for the remainder of his disability period, that he was entitled to wage-loss benefits at the rate of five percent, and that he was thus entitled to attorney’s fees.
lain reversing the Commission’s decision, the court of appeals departed from Thomaston by expressly limiting that case to its facts and stating without explanation that, “We think that the broad construction of the statutory language adopted in [:Thomaston ], implying as it does that no act of misconduct can ever constitute a refusal of employment, was unwarranted.” Narvaiz, 2010 Ark.App. 842, at 2, 2010 WL 5132119. As noted, although we granted review, we treat this ease as an appeal to us from the decision of the Commission, and we now address Appellant’s three points for reversal of the Commission’s decision. Lawhon Farm Servs. v. Brown, 335 Ark. 272, 984 S.W.2d 1 (1998).
As its first point for reversal, Appellant asserts that there is not substantial evidence to support the Commission’s finding that Appellee proved he was entitled to temporary-total-disability benefits. Because Appellee was performing light-duty work at the time his employment was terminated, and because Appellant offered testimony that Appellant would have continued to make the light-duty work available to Appellee absent his misconduct, Appellant contends that Appellee did not meet his burden of proving that he was totally incapacitated from earning gainful wages due to his compensable injury. Any incapacity from earning wages, argues Appellant, stemmed from Appellee’s misconduct and not from his injury. Appellant’s view is that, by engaging in misconduct, Appellee unjustifiably refused suitable work as contemplated in section 11-9-526. Section 11-9-526 states in its entirety as follows:
If an injured employee refuses employment suitable to his or her capacity offered to or procured for him or her, he or she shall not be entitled to any compensation during the continuance of the refusal, unless in the opinion of the Workers’ Compensation Commission, the refusal is justifiable.
14Appellee responds that Appellant’s attempt to characterize its termination of Appellee’s employment as amounting to a refusal on Appellee’s part to go to work is a broad misinterpretation of section 11 — 9— 526. Appellee responds further that Appellant’s argument overlooks the medical evidence that thoroughly describes the extent of Appellee’s injury and the healing period that followed.
To be entitled to temporary-total-disability benefits, the claimant must remain in his healing period and be unable to earn wages. Ark. State Hwy. & Transp. Dep’t v. Breshears, 272 Ark. 244, 613 S.W.2d 392 (1981); St. Joseph’s Mercy Med. Ctr. v. Redmond, 2012 Ark. App. 7, 388 S.W.3d 45. Disability means “incapacity because of compensable injury to earn, in the same or any other employment, the wages which the employee was receiving at the time of the compensable injury.” Ark.Code Ann. § 11-9-102(8) (Supp.2011). The healing period is “that period for healing of an injury resulting from an accident.” Ark.Code Ann. § 11-9-102(12) (Supp.2011). Temporary-total disability is that period within the healing period in which a claimant suffers a total incapacity to earn wages. RPC, Inc. v. Hargues, 2011 Ark. App. 264, 2011 WL 1319384. To be entitled to temporary-total-disability benefits, the claimant must prove that he remains within his healing period and suffers a total incapacity to earn wages. Id. The question of when the healing period ends is a question of fact for the Commission. Id.
In ruling that Appellee had met his burden of proof in this case, the Commission stated as follows:
The claimant contends that he did not refuse employment suitable to his capacity. A termination for misconduct is not a sufficient basis for a finding that an employee refused suitable employment. See Superior Indus. v. Thomaston, 72 Ark.App. 7, 32 S.W.3d 52 (2000). Like the claimant in Superior Indus., the claimant did not |Brefuse employment. The claimant accepted the employment offered him and was later terminated not by his choice, but at the option of the employer. See Superior Indus, at p. 11 [32 S.W.3d 52].
The instant claimant underwent com-pensable left-shoulder surgery on January 31, 2008. The record therefore shows that the claimant remained within a healing period and was totally incapacitated from earning wages no later than January 31, 2008. The respondent paid temporary total disability benefits through April 28, 2008, but Dr. Kaler reported on that daté that the claimant had not reached maximum medical improvement. Dr. Kaler determined that the claimant reached maximum medical improvement as of August 6, 2008. The claimant proved that he remained within a healing period and was totally incapacitated from earning wages until August 6, 2008. The claimant therefore proved that he was entitled to additional temporary total disability benefits from April 28, 2008 through August 6, 2008.
In appeals involving claims for workers’ compensation, we view the evidence in the light most favorable to the Commission’s decision and affirm the decision if it is supported by substantial evidence. Hudak-Lee v. Baxter Cnty. Reg’l Hosp. & Risk Mgmt. Res., 2011 Ark. 31, 378 S.W.3d 77. Substantial evidence is evidence that a reasonable mind might accept as adequate to support a conclusion. Id. The issue is not whether the appellate court might have reached a different result from the Commission, but whether reasonable minds could reach the result found by the Commission. Id.
The evidence of record shows that Ap-pellee sustained the compensable injury to his left shoulder on August 22, 2007, and began receiving medical treatment on August 28, 2007. He continued to work on light duty, and learned on November 29, 2007, that his injury was a complete tendon tear that would require surgery. Surgery occurred on January 31, 2008. Meanwhile, his misconduct and suspension for violation of company policies against insubordination and gross misconduct occurred on or about December 22, 2007, and when Appellee returned to work immediately following his suspension, Appellant terminated his | ^employment. Appellant stopped paying temporary-total-disability benefits to Appellee on April 28, 2008. The treating physician determined Appel-lee to be at maximum medical improvement on August 6, 2008. Based on this evidence before the Commission, substantial evidence supports its finding that Ap-pellee had proved that he remained within a healing period and was totally incapacitated from earning wages until August 6, 2008, and that he had therefore proved that he was entitled to additional temporary-total-disability benefits from April 28, 2008, through August 6, 2008.
In addition to being supported by the foregoing substantial evidence, the Commission’s decision is also supported by a correct interpretation of section 11-9-526. The Commission’s reliance on Thomaston, 72 Ark.App. 7, 32 S.W.3d 52, was well placed for making the determination that Appellee’s termination for misconduct was not a sufficient basis for a finding that he refused suitable employment. As we have previously noted, in Thomaston, the court of appeals strictly construed section 11 — 9— 526 and expressly acknowledged that such a strict construction was required by the General Assembly’s language in Act 796 of 1993:
When our General Assembly enacted Act 796 of 1993, it issued the following “Legislative Declaration,” codified at Ark.Code Ann. § 11-9-1001 (Repl.1996):
The Seventy-Ninth General Assembly realizes that the Arkansas workers’ compensation statutes must be revised and amended from time to time. Unfortunately, many of the changes made by this act were necessary because administrative law judges, the Workers’ Compensation Commission, and the Arkansas courts have continually broadened the scope and eroded the purpose of the workers’ compensation statutes of this state. The Seventy-Ninth General Assembly intends to restate that the major and controlling purpose of workers’ compensation is to pay timely temporary and permanent disability benefits to all legitimately injured workers that suffer an injury or disease arising out of and in the course of their employment, to pay reasonable and necessary medical expenses resulting therefrom, and then to return the worker to the work force. When, and if, the workers’ compensation statutes of this state need to be changed, the General Assembly 17acknowledges its responsibility to do so. It is the specific intent of the Seventy-Ninth General Assembly to repeal, annul, and hold for naught all prior opinions or decisions of any administrative law judge, the Workers’ Compensation Commission, or courts of this state contrary to or in conflict with any provision in this act. In the future, if such things as the statute of limitations, the standard of review by the Workers’ Compensation Commission or courts, the extent to which any physical condition, injury, or disease should be excluded from or added to coverage by the law, or the scope of the workers’ compensation statutes need to be liberalized, broadened, or narrowed, those things shall be addressed by the General Assembly and should not be done by administrative law judges, the Workers’ Compensation Commission, or the courts.
(Emphasis added.) If our workers’ compensation laws are to be changed or broadened, this should be left to the legislature.
Thomaston, 72 Ark.App. at 11-12, 32 S.W.3d at 54-55. Indeed, when construing other workers’ compensation statutes not at issue here, this court has acknowledged and followed the legislative declaration requiring strict construction of the workers’ compensation statutes. Nelson v. Timberline Int’l, Inc., 332 Ark. 165, 964 S.W.2d 357 (1998).
Since the court of appeals decided Thomaston, some twelve years ago, the General Assembly has not made any amendments or changes to section 11—9—526. “[T]he General Assembly is presumed to be familiar with the appellate courts’ interpretation of a statute, and if it disagrees, it can amend the statute.” City of Fort Smith v. Carter, 364 Ark. 100, 111 n. 4, 216 S.W.3d 594, 601 n. 4 (2005). Without such amendments, however, the appellate courts’ interpretation of the statute remains the law. Id.; Morris v. McLemore, 313 Ark. 53, 852 S.W.2d 135 (1993).
We acknowledge Appellant’s argument in its supplemental brief on review that we should in effect, now follow the view of section 11-9-526 expressed in the dissent in Thomaston. We have considered that competing view, and disagree, however, that that is the | «correct course to take. Rather, consistent with the legislative declaration requiring strict construction of workers’ compensation statutes, we agree with the strict interpretation of section 11-9-526 given by the majority in Thomaston. The legislature has not amended the statute in any way to express its disagreement with the court of appeals’ strict interpretation. The interpretation of section 11-9-526 given in Thomaston, therefore, became part of the law itself, and the Commission correctly followed that case in the present one. We have not here been presented with any compelling reason for abandoning prior judicial interpretation of a statute, especially in light of the twelve-year silence from the General Assembly. See Nelson, 332 Ark. 165, 964 S.W.2d 357. Notwithstanding Appellant’s assertions to the contrary, such a strict interpretation does not defy common sense — the misconduct and insubordination presented in this case are just that, misconduct and insubordination, and nothing more. After committing the misconduct and suffering the suspension, Appellee returned to work. It was then Appellant’s option to terminate his employment or allow him to continue working light duty. Regardless of Appellant’s choice, Appellee was still within his healing period.
We summarily reject Appellant’s attempts to factually distinguish the present case from Thomaston. We simply are not persuaded that the factual distinctions alleged by Appellant, namely that Thoma-ston was silent with respect to any misconduct in violation of company policy and that the claimant in that case had fallen behind in his work, had any real bearing on that decision, nor are we persuaded that they should have any bearing on our current decision. We likewise summarily reject Appellant’s argument that the present case is more closely aligned with Roark v. Pocahontas Nursing & Rehabilitation, 95 Ark.App. 176, 182, 235 S.W.3d 527 (2006). Roark is inapposite as it involved a claimant whose employment was terminated for violation of her employer’s attendance policy rather than a violation of a conduct policy as was Appellee’s case. In addition, there was no discussion in Roark of the particular statute at issue here, section 11-9-526.
In summary, there was substantial evidence to support the Commission’s finding that Appellee was entitled to temporary-total-disability benefits for the remainder of his healing period until August 6, 2008. In addition, the Commission correctly relied on Thomaston to conclude that Appel-lee’s misconduct did not amount to a refusal of suitable employment. The strict interpretation of section 11-9-526 given by the court of appeals was required by the legislative declaration in section 11 — 9— 1001, and there has been no legislative amendment of section 11-9-526 since Tho-maston. Accordingly, the Commission’s reliance on that case was entirely proper. The Commission’s decision that Appellee met his burden of proving he was entitled to temporary-total-disability benefits for the remainder of his healing period, April 28, 2008, through August 6, 2008, is supported by substantial evidence and is a correct interpretation of statute. We therefore affirm that ruling.
As its second point for reversal, Appellant argues that Appellee did not prove that he was entitled to wage-loss benefits because he gave incredible testimony that conflicted with the medical evidence. Appellant argues further that, even if Appellee’s testimony regarding his physical restrictions was accurate and the medical evidence correct, Appellee would still not be entitled to wage-loss benefits because his managerial work history, his transferrable skills, and his physical abilities enabled him to obtain employment at a much higher rate than |inhe had been receiving through Appellant. Finally, Appellant emphasizes that Appellee has a lack of motivation to work because he is retired from a previous job.
The wage-loss factor is the extent to which a compensable injury has affected the claimant’s ability to earn a livelihood. Lunday v. Entergy Ark., Inc., 2012 Ark. App. 169, — S.W.3d -. When determining wage-loss disability, the Commission should consider, in addition to medical evidence, the appellant’s age, education, experience, and other matters affecting wage loss. Glass v. Edens, 233 Ark. 786, 346 S.W.2d 685 (1961). Another consideration is the claimant’s motivation to return to work, as a lack of interest or a negative attitude impedes the assessment of the claimant’s loss of earning capacity. Lunday, 2012 Ark. App. 169, — S.W.3d -. The Commission may use its own superior knowledge of industrial demands, limitations, and requirements in conjunction with the evidence to determine wage-loss disability. Id. It is the function of the Commission, not this court, to determine the credibility of witnesses and the weight to be given to the evidence. Id.
Our review of the evidence before the Commission reveals the following substantial evidence. Appellee is a sixty-year-old male with an 8th grade education who did not obtain a GED. He worked for thirty-five years as a manual laborer at a sugar company where he also learned supervisory skills and other responsibilities. However, he was forced to retire from the sugar company. After his retirement, he began working for Appellant doing manual labor while visiting his son here in Arkansas. He sustained a compensable injury, and his physician opined that he had reached maximum medical improvement on August 6, 2008. His physician noted, however, that Appellee’s prognosis for recovery was good, but not excellent; |nhe further noted that although he initially stated that Appellee would have no physical restrictions after three months, he eventually assigned Appellee a two-percent, whole-person impairment rating. Appellee testified that, although he still felt pain in his shoulder and was limited in his physical abilities, he continued to seek work with other employers.
After considering the foregoing evidence, the Commission ruled as follows:
Based on the claimant’s age, limited education and work history, and based on the claimant’s post-injury anatomical impairment, the Full Commission finds that the claimant proved he sustained wage-loss disability in the amount of 5%.
We acknowledge Appellant’s argument that Appellee’s credibility was at issue before the Commission. But this court does not weigh the credibility of the evidence on appeal, which is the exclusive function of the Commission. Hudak-Lee, 2011 Ark. 31, 378 S.W.3d 77. As recited above, there was indeed substantial evidence to support the Commission’s decision that Appellee was entitled to wage-loss disability, and we therefore affirm that decision.
As its third and final point for reversal, Appellant contends that Appellee is not entitled to attorney’s fees pursuant to Ark. Code Ann. § 11-9-715 because he has not proved that he is entitled to recover either temporary-total-disability benefits or wage-loss benefits. As we have rejected Appellant’s arguments for reversal of the award of temporary-total-disability benefits and wage-loss disability benefits, we likewise reject Appellant’s argument with respect to attorney’s fees. Because Appellant has proved that he is entitled to receive temporary-total-disability benefits and wage-loss disability benefits, and because he prevailed on appeal to the | ^Commission, he is statutorily entitled to attorney’s fees as awarded by the Commission pursuant to section ll-9-715(a) and (b).
The Commission’s decision is supported by substantial evidence and correct statutory interpretation, and we therefore affirm it. The decision of the court of appeals is vacated.
Special Justices STUART W. HANKINS and PHILLIP McMATH join in this opinion.
BAKER and GOODSON, JJ., not participating. | [
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DOUG MARTIN, Judge.
h An Arkansas County jury found appellant Gary Benton guilty of second-degree forgery and theft by receiving, and he was sentenced as a habitual offender to serve thirty years’ imprisonment on each count, with those sentences running consecutively. Benton raises the following arguments on appeal: (1) there was insufficient corroboration through accomplice testimony to support his conviction for second-degree forgery, and (2) there was insufficient evidence to support his theft-by-receiving conviction. We affirm.
The State charged Benton with second-degree forgery with respect to a check in the amount of $150 belonging to Elear May Racy and with theft by receiving in connection with a gold ring owned by Racy, valued in excess of $500 but less than $2,500, that was found in Benton’s possession. Both charges were Class C felonies. The State further charged Benton Ras a habitual offender, alleging that Benton had previously been convicted of four or more felonies.
At trial, Racy testified that David Hughes was her brother-in-law and that Benton was Hughes’s brother. Racy recalled that, in June 2009, Hughes and Benton came to her home and helped her remove fallen tree limbs from her backyard. Racy testified that the two men came inside her house for a glass of water when they were finished with the task. They entered through the back door, which was only a few feet from Racy’s bedroom, and the men exited Racy’s house through the front door.
Racy further testified that, on December 11, 2009, her house was broken into while she was at a funeral in Little Rock. Before leaving for the funeral, Racy left some jewelry on top of her dresser after deciding not to wear the jewelry to the funeral. When Racy came home, she went into her bedroom and saw broken glass and two rocks beside her dresser. Racy also saw that the jewelry she had left on the dresser was missing. Racy called the police and reported that her jewelry had been stolen. Racy testified that she was not aware that anything else was missing from her home at that time. On December 15, 2009, however, Racy checked her bank account balance and realized that blank checks had also been stolen from her home. Racy specifically testified that she thought the checkbooks were in her home as recently as December 7, 2009.
According to Racy, a printout from her bank revealed that someone had written a check in the amount of $150 from her bank account. Racy stated that the signature on the check was not hers and that she did not authorize anyone to write a check from her bank |saccount. Racy testified that she did not know Marsha Stigger, whose endorsement appeared on the back of the check. •
Further, Racy testified that the police had recovered a gold ring belonging to her. Racy testified .that she had acquired the ring in 1993 and paid $800 or $900 for it.
Marsha Stigger, a felon on parole and admitted crack-cocaine addict, testified that she was charged with forgery with respect to the $150 check because she had cashed the check at the A-Z Mart in Stuttgart on December 12, 2009. Stigger testified that she had known Benton for more than twenty years and that he had given her the check. According to Stigger, Benton owed her $50 for previously “turning] a trick.” Stigger testified that Benton approached her with the check, claiming that the check belonged to his girlfriend, and that she should cash it and take her $50 from the check. Stigger stated that the check was “all made out” and that the payee was A-Z Mart and the memorandum line indicated it was for “house clean.” Stigger testified that Benton took her to the A-Z Mart, she endorsed the back of the check, and she cashed it and purchased cigarettes and beer. Stigger kept her $50 and gave the rest to Benton. Stigger testified, “Any suspicions I had about cashing the check, my addictions might have led me to go ahead and cash it anyway.” According to Stigger, after she cashed the check, Benton asked her to cash another check approximately fifteen minutes later. Stigger testified that the second check reflected “the same name and stuff.” Stig-ger refused to cash the second check.
Jason Sandine, a Stuttgart police officer, testified that he spoke with Racy following the initial report of stolen property. Specifically, Sandine stated that Racy came to him on |4Pecember 15, 2009, to discuss a check cashed at the A-Z Mart for $150. Sandine testified that the police report was supplemented to include the missing checks discovered by Racy subsequent to the report of the missing jewelry. San-dine saw Stigger’s name on the bank printout provided by Racy and asked Stigger about the check written for $150. Sandine testified that Stigger told him that Benton had given her the check and she had cashed it. Sandine ran a background check on Benton and discovered that his license was currently suspended and he had two outstanding warrants for his arrest. Sandine and another officer subsequently approached Benton at a car wash and arrested him. In a search incident to arrest, Sandine was pulling a napkin or paper towel from Benton’s pocket when Benton blurted out that he had found “that” on the ground. Sandine was expecting to see drugs, but, instead, a gold ring fell onto the ground. Sandine recalled that some jewelry was missing from Racy’s home, so he confirmed that the ring found in Benton’s possession belonged to Racy. Sandine testified that he did not believe Benton’s explanation as to how he came to have the ring in his possession.
Benton moved for directed verdicts with respect to both charges, and the trial court denied his motions. The jury then convicted Benton of second-degree forgery and theft by receiving.
Benton argues that the trial court erred in denying his motions for directed verdict. On appeal, we treat a motion for directed verdict as a challenge to the sufficiency of the evidence. Lewis v. State, 2009 Ark. App. 504, 323 S.W.3d 640. We will affirm the trial court’s denial of a motion for directed verdict if there is substantial evidence, either direct or circumstantial, | ¿to support the jury’s verdict. Id. Substantial evidence is evidence forceful enough to compel a conclusion one way or the other beyond speculation or conjecture. Page v. State, 2009 Ark. 112, 313 S.W.3d 7. Furthermore, the appellate court views the evidence in the light most favorable to the verdict, and only evidence supporting the verdict will be considered. Id.
We make no distinction between circumstantial and direct evidence when reviewing for sufficiency of the evidence. Booker v. State, 335 Ark. 316, 984 S.W.2d 16 (1998). Circumstantial evidence may constitute substantial evidence to support a conviction. Brunson v. State, 368 Ark. 313, 245 S.W.3d 132 (2006). The longstanding rule is that, for circumstantial evidence to be sufficient, it must exclude every other reasonable hypothesis consistent with innocence. Ross v. State, 346 Ark. 225, 57 S.W.3d 152 (2001). Whether the evidence excludes every other reasonable hypothesis is left to the jury to determine. Id.
Although it is his second argument on appeal, we will first address Benton’s argument with respect to his conviction for theft by receiving, given that the dissenting judges agree with the majority that Benton’s conviction for this offense can be affirmed. Benton argues that there was no evidence that he knew the gold ring belonging to Racy was stolen and that the jury was left to speculate as to how Benton came into possession of the ring.
According to Arkansas Code Annotated section 5-36-106(a) (Repl.2006), “[a] person commits the offense of theft by receiving if he receives [or] retains ... stolen property of another person, knowing ... or having good reason to believe it was stolen.” The unexplained possession or control of recently stolen property gives rise to a presumption that the person in possession or control of the property knows or believes the property was stolen. |,;Ark.Code Ann. § 5-36-106(c)(l) (Repl. 2006). The presumption is not necessarily overcome when the possessor gives a plausible explanation for his possession. See Core v. State, 265 Ark. 409, 578 S.W.2d 581 (1979). Rather, the reasonableness of the accused’s .explanation, and thus whether the defense has been established, is for the trier of fact to determine. Id. The fact-finder is not required to believe the defendant, as he is the person most interested in the outcome. Ross v. State, 300 Ark. 369, 779 S.W.2d 161 (1989).
Only three or four days had elapsed between the theft at Racy’s home and Sandine’s discovery of the stolen ring in Benton’s possession. Benton’s possession of recently stolen property gave rise to the presumption that Benton knew the ring was stolen. Although Benton offered an explanation for his possession, the jury was not required to believe Benton’s explanation that he had found the ring on the ground. Accordingly, substantial evidence supports Benton’s conviction for theft by receiving, and we affirm.
As to the forgery conviction, Benton argues that the fact that he was found with Racy’s stolen ring is insufficient to prove that he had the requisite intent to commit second-degree forgery three days earlier. In his directed-verdict motion, however, Benton challenged only the sufficiency of the corroboration provided by Stigger. This court does not consider arguments raised for the first time on appeal. Henson v. State, 94 Ark.App. 163, 227 S.W.3d 450 (2006). Therefore, we do not address this particular argument.
Benton argued in his directed-verdict motion at trial and now argues on appeal that, without Stigger’s testimony as an accomplice, there was insufficient evidence to' convict him of second-degree forgery. We disagree.
|7“A person forges a written instrument if, with the purpose to defraud, he or she makes, completes, alters, counterfeits, possesses, or utters any written instrument that purports to be or is calculated to become or to represent if completed the act of a person who did not authorize the act.” Ark.Code Ann. § 5-37-201(a) (Supp. 2009). “A person commits forgery in the second degree if he or she forges a ... check ... that does or may evidence, create, transfer, terminate, or otherwise affect a legal right, interest, obligation, or status.” Ark.Code Ann. § 5-37-201(c)(l) (Supp.2009).
Arkansas Code Annotated section 16-89-lll(e)(l)(A) (Repl.2005) provides that a person cannot be convicted of a felony based upon the testimony of an accomplice, unless that testimony is “corroborated by other evidence tending to connect the defendant ... with the commission of the offense.” Corroboration is not sufficient if it merely establishes that the offense was committed and the circumstances thereof. Ark.Code Ann. § 16-89-111(e)(1)(B). The test for determining the sufficiency of the corroborating evidence is whether, if the testimony of the accomplice were totally eliminated from the case, the other evidence independently establishes the crime and tends to connect the accused with its commission. McGehee v. State, 338 Ark. 152, 992 S.W.2d 110 (1999). Circumstantial evidence may be used to support accomplice testimony, but it, too, must be substantial. Id. Corroborating evi dence need not, however, be so substantial in and of itself to sustain a conviction. Id.
There appears to be no dispute that Racy’s testimony was sufficient to prove the check for $150 was forged. The dissenting judges would hold that, when Stigger’s testimony is eliminated from consideration, the remaining evidence does not tend to connect Benton with [ 8the commission of the crime. We do not agree. Viewing the evidence in the light most favorable to the verdict, the evidence established that Racy’s ring and checkbooks were stolen at the same time. This, combined with the fact that Benton was found in possession of Racy’s stolen ring, for which the jury found Benton offered no reasonable explanation, tends to connect Benton with the stolen check that was forged. Also, Benton had been inside Racy’s home that summer. While this evidence is circumstantial given that it was Stigger, rather than Benton, who cashed the forged check, circumstantial evidence can provide the basis to support the conviction if it is consistent with Benton’s guilt and inconsistent with any other reasonable conclusion, and such a determination is a question of fact for the jury. See Ross, supra. We hold that this evidence, while circumstantial, was substantial. Considering Stigger’s accomplice testimony, along with the other evidence in this case, there was substantial evidence to support Benton’s conviction for second-degree forgery. Accordingly, we affirm.
Affirmed.
PITTMAN, GRUBER, and GLOVER, JJ., agree.
VAUGHT, C.J., and HART, J., concur in part and dissent in part.
. Arkansas Code Annotated sections 5-37-201(e) (Supp.2009) and 5-36-106(e)(2) (Repl. 2006), respectively. | [
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CLIFF HOOFMAN, Judge
hAppellants Mona B. Sloop and the Mona B. Sloop Revocable Trust (“Sloop”) appeal from a summary-judgment order in favor of appellees Russell and Sally Kiker, individually and as trustees of their respective trusts (“the Kikers”). We affirm the summary-judgment order.
The Kiker trusts own a housé on 134.5 acres in Newton County. On January 26, 2012, appellant Sloop contracted to purchase the house and the land for $850,000. The contract contained the following down-payment provision:
The nonrefundable dawn payment shall be $350,000, due upon execution of this contract by both parties, and the balance to be paid in full on or before January 1, 122013. No interest shall be paid on the unpaid balance until January 1, 2013. If for unforeseen reasons, there is still a balance due after this date, an additional grace period of six months may be granted by the Seller, with interest accruing at local bank retail interest rate. Time is of the essence in satisfying the terms of this contract. In the event closing does not occur on or before August 31, 2013, this contract shall be null and void, the down payment shall be retained by Seller. Buyer, if then occupy ing the property shall vacate the property.•
(Emphasis supplied.)
Sloop made the $350,000 down payment on January 26, 2012. That same day, the parties executed two additional documents: a warranty deed and a lease/caretaker agreement. The deed recited that the Kikers, as trustees, conveyed the property to Sloop as trustee of her own trust. It further contained a full metes-and-bounds description of the property, which the contract had described only by street address. The lease/caretaker agreement essentially allowed Sloop to live on the property as a tenant until the $500,000 balance due was paid, subject to an August 31, 2013 deadline. Sloop assumed occupancy of the property in the summer of 2012.
Sloop did not pay the $500,000 balance by January 1, 2013. As the August 31, 2013 deadline approached, she informed the Kikers that she would also not.be able to pay the balance by that date. As a result, the Kikers entered into a listing agreement with a real-estate agent on July 24,2013, in an attempt to sell the property. Sloop remained on the premises during this time.
Efforts to sell the property were unsuccessful, and the listing agreement ended on September 1/2013. On or about September 6, 2013, the Kikers served Sloop with a notice to vacate the premises. The notice stated that the lease/caretaker agreement had expired and |athat Sloop had missed the August 31,2013 deadline to pay the balance due on the property, requiring her to forfeit her $350,000 nonrefundable down payment.
Sloop refused to vacate the property, and the Kikers filed suit against her in Newton County Circuit Court. Their complaint sought an order removing Sloop from the property and a declaration that they were entitled to retain the $350,000 down payment. Sloop voluntarily abandoned the property a month after the complaint was filed, but she filed a counterclaim asking that the Kikers return her $350,000 down payment.
The Kikers moved for summary judgment, arguing that the real-estate contract unambiguously provided that the $350,000 down payment was nonrefundable, given that Sloop had failed to pay the balance due by August 31.2013. Sloop responded that the down payment constituted an improper penalty under Arkansas law; that the parties’ contract violated the Statute of Frauds because it lacked a sufficient property description and failed to identify the sellers; and that the Kikers waived the August 31, 2013 deadline. In connection with her waiver argument. Sloop filed an affidavit stating that the Kikers had agreed to return the down payment to her if the property sold for more than $850,000 upon being listed with the real-estate agent.
After a hearing, the circuit court entered an order granting the Kikers’ motion for summary judgment. The order did not address Sloop’s penalty or waiver arguments but instead granted summary judgment on the ground that any uncertainties in the real-estate contract were - cured by the warranty deed — a clear reference to Sloop’s Statute-of-Frauds argument. Sloop now appeals from the summary-judgment order.
| ¿Sloop first contends that the $350,000 nonrefundable down payment represents an unenforceable penalty. See generally Alley v. Rodgers, 269 Ark. 262, 599 S.W.2d 739 (1980); McIlvenny v. Horton, 227 Ark. 826, 302 S.W.2d 70 (1957) (recognizing that a stipulated-damages provision in a contract may constitute an unenforceable penalty if it does not meet certain criteria). We cannot reach Sloop’s argument on this point because the circuit court did not rule on it.
An appellant has the burden to obtain a ruling on an issue in order to preserve the issue for appeal. Ark. Lottery Comrn’n v. Alpha Mktg., 2012 Ark. 23, 386 S.W.3d 400. In the absence of a ruling, the appellate court will not reach the issue; nor will we presume a ruling from the circuit court’s silence. Id. Applying these principles, our courts have held that, when a circuit court’s order specifies a particular ground for the court’s decision, that ground alone is subject to our review: See Tillman v. Raytheon Co., 2013 Ark. 474, 430 S.W.3d 698; TEMCO Constr., LLC v. Gann, 2013 Ark. 202, 427 S.W.3d 651; Hurst v. Ark Radiology Affiliates, P.A., 2015 Ark. App. 333, 2015 WL 2438107. Other arguments that the appellant raised ■ below ■ but did not obtain a ruling on are not preserved for appeal, and we are precluded from addressing them. Tillman, supra; TEMCO, supra; Hurst, supra. By contrast, if the circuit court’s order is more in the nature of a “blanket” decision and does not articulate a particular basis for its ruling, then the order encompasses all of the issues presented to the circuit court in the parties’ briefs and arguments. See generally Ark. Dep’t of Human Servs. v. Ft. Smith Sch. Dist., 2015 Ark. 81, 455 S.W.3d 294; Asset Acceptance, LLC v. Newby, 2014 Ark. 280, 437 S.W.3d 119 (citing Hardin v. Bishop, 2013 Ark. 395, 430 S.W.3d 49).
|BHere, the circuit court’s summary-judgment order was not a “blanket” ruling. Rather, the order discussed and ruled on Sloop’s Statute-of-Frauds argument without deciding whether the $350,000 down payment constituted a penalty. Therefore, based on the above-cited authorities, Sloop’s penalty argument is not reviewable by this court.
Sloop’s claim that the Kikers waived the August 31, 2013 payment deadline is likewise procedurally barfed. Sloop made her waiver argument during the summary-judgment hearing, and the circuit court appeared to consider and reject it. However, the waiver issue was not addressed in the court’s summary-judgment order. As our supreme court has recognized, “the written order controls.” Nat'l Home Ctrs., Inc. v. Coleman, 370 Ark. 119, 121, 257 S.W.3d 862, 863 (2007).
Turning to the issue that was ruled on below, Sloop argues that the circuit court erred in determining that the parties’ real-estate contract satisfied the Statute of Frauds. We see no error on this point.
The Statute of Frauds provides that a contract for the sale of land must be in writing to be enforceable. ' Ark.Code Ann. § 4-59-101 (a)(4) (Repl.2011). Additionally, the contract must contain certain essential information, such as the terms and conditions of the sale, the price to be paid, the time for payment, and a description of the property. See Van Dyke v. Mover, 326 Ark. 736, 934 S.W.2d 204 (1996); Price v. Willbanks, 2009 Ark.App. 849, 374 S.W.3d 28.
Sloop contends that the contract in this case was deficient because it did not name the Kiker trusts as sellers of the property and did not contain a sufficient description of the property. However, as noted by the circuit court, the warranty-deed that the parties executed on the same day as the real-estate contract named the Kiker trusts as grantors and provided a formal, legal description of the property. Generally, instruments executed at the same time by the same parties, for the same purpose, and in the course of the same transaction, are, in the eyes of the law, one instrument and will be read and construed together. Graves v. Graves, 7 Ark.App. 202, 646 S.W.2d 26 (1983). Moreover, if a contract furnishes a means by which realty can be identified — a key to the property’s location — the Statute of Frauds is satisfied. Baker v. Taylor & Co., 218 Ark. 638, 237 S.W.2d 471 (1951). Here, the contract’s designation of the premises by street address met this requirement. Creighton v. Huggins, 227 Ark. 1096, 303 S.W.2d 893 (1957); Price, supra. ' • - •
Sloop also cites what she refers to. as an ambiguity in the contract, arising from the fact that the contract calls for a six-month grace period if the balance is not paid by January 1, 2013, but also provides for a nine-month payment extension until August. 31, 2013. The law does not favor the destruction of contracts over uncertainty. Price, supra. This is particularly true where, as here, the contract contained an express deadline of August 31, 2013, which the parties treated as operative throughout the case.
Affirmed.
Vaught and Brown, JJ., agree.
. Sloop cites Bayer Cropscience LP v. Schafer, 2011 Ark. 518, 385 S.W.3d 822, for the proposition that an oral ruling on a motion is sufficient. Bayer involved a ruling on a preliminary motion in a case that subsequently went to trial. The case at bar involves a dispositive summary-judgment ruling, which must necessarily be reduced to writing and entered of record to be effective. See Ark. R. Civ. P. 58 (2015); Ark. Sup.Ct. Admin. Order No. 2(b)(2) (2015). | [
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PHILLIP T. WHITEAKER, Judge
|, Donald Corey Campbell appeals his Hot Spring County Circuit Court conviction of rape, for which he was sentenced to forty years in the Arkansas Department of Correction. We affirm.
Campbell raises two points for appeal: he contends that he was unfairly prejudiced by the introduction of prior bad acts and by the State referring to the child as the “victim” at trial. For purposes of this opinion, we will review these points in reverse order.
Campbell was charged with raping S.B., a minor child under the age of fourteen. He argues that the circuit court erred in allowing the State to refer to S.B. as a victim at trial. The court denied Campbell’s motion in limine in this respect, indicating that Campbell would be allowed to argue his complaint regarding the “victim” language with the jury, and, if the context of the word changed during trial, it would entertain further, objections. Thus, Campbell was perfectly free at trial to argue to the jury that it was the State’s burden to prove 12that S.B. was not only a “victim,” but was “his victim,” Campbell was also free to raise another objection to the. State’s- use of the term if he felt the State was abusing the latitude granted by the court; however, he did not pursue any further objections to that term when it was used at trial. From our review of. the record, it does not appear that the State used the phrase in any way to “subtly implant” into the jurors’ minds that the allegations of abuse were true as asserted by Campbell. Moreover, the cases cited by Campbell do not stand for the proposition that the State may not refer to the alleged victim as a victim at trial. -As such, he has failed to support his argument with any persuasive authority. We will not consider an issue if the appellant has failed to cite to any convincing legal authority in support of his argument. Barker v. State, 2010 Ark. 354, at 6, 373 S.W.3d 865, 869.
Campbell also challenges the introduction of prior bad acts, arguing that the trial court committed reversible error in allowing the introduction , of this evidence. To adequately address this argument, we must consider the. evidence surrounding the rape of S.B., as well as the evidence of the prior bad acts.
On December 6, 2012, S.B. was a guest in Campbell’s home. S.B.’s mother was scheduled to marry Campbell’s stepson, Markus Dill, the next day. At approximately 5:30 or 6:00 in the morning, S.B. woke up her mother and Dill. She was hysterical and shaking. She told, them that “Pawpaw” (Campbell) was kissing and touching her. S.B. indicated that Campbell had kissed her face and touched her private area, possibly penetrating her, with his hands. The underwear S.B. had been wearing at bedtime was missing. S.B.’s mother called off the wedding and took S.B. to the hospital in Malvern to be examined. After she was 1 ¡¡interviewed by the police, S.B. was sent to Little Rock to have a rape kit performed. The examination revealed some mild irritation and redness in the areas of the labia majora and labia minora. Such findings are consistent with sexual abuse but are not definitive, Campbell does not challenge the sufficiency of this evidence on appeal.
What Campbell does challenge on appeal is the introduction of prior bad acts, mainly evidence of uncharged conduct toward one of his step-granddaughters, C.D.l. The challenged evidence involved an incident in 2009 in which’C.D.1 and C.S. reported inappropriate sexual contact with Campbell and multiple incidents in 2012 in which C.D.l reported that Campbell had molested her. The 2012 allegations were that Campbell would kiss C.D.1 and touch her breasts and her privates with his hands. While C.D.l did not state that Campbell had digitally penetrated her, she did say that he had placed his hand in her underwear, that he moved his finger around, and that it would hurt inside her privates. The court permitted the introduction of both the 2009 and 2012 prior incidents, finding that it was clear from the testimony that the evidence “goes to the opportunity, intent, and plan of this defendant, what his knowledge and conduct was.” The court further found that the incident was Sufficiently similar and that it was admissible under Rule 404(b).
Rule 404(b) provides that
[e]vidence- of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such, as proof of motive, opportunity, intent, preparation, ■ plan, knowledge, identity, or absence of mistake or accident.
REvidence is not admissible under Rule 404(b) simply to show a prior bad act. Vance v. State, 2011 Ark. 243, 383 S.W.3d 325.
On appeal, Campbell challenges the circuit court’s Rule 404(b) findings. He claims that the court expressly permitted the introduction of the evidence in order to prove “preparation, plan, and design” or “motive, opportunity, intent, preparation, plan, knowledge,. .identity, or absence of mistake or accident.” He argues that, because there was no evidence proffered to show that there was any unique .method or preparation by him with respect to the charged offense, the evidence could not be probative to the plan, method, intent, or design, as found by the trial court. He further contends that, because the jury was not charged with determining whether Campbell had any particular intent in touching S.B. or whether there was an issue of mistake in doing so, the evidence could serve no other purpose other than to prejudice the jury. Campbell’s arguments fail, however, because this evidence falls squarely within the pedophile exception.
When the charge concerns the sexual abuse of a child, evidence of other crimes, wrongs, or acts, such as sexual abuse of that child or other children, is admissible under the “pedophile exception” to show motive, intent, or plan pursuant to Ark. R. Evid. 404(b). Fields v. State, 2012 Ark. 353, 2012 WL 4471112. Our supreme court has also approved allowing evidence of the defendant’s similar acts with the same or other children when it is helpful in showing a proclivity for a specific act with a person or class of persons with whom the defendant has an intimate relationship. Kelley v. State, 2009 Ark. 389, 327 S.W.3d 373. The rationale for this exception is that such evidence helps to prove the depraved sexual instinct of the accused. Jeffries v. State, 2014 Ark. 239, 434 S.W.3d 889. Further, such proof is admissible to show the familiarity of the parties, disposition, and antecedent conduct toward one another and to corroborate the testimony of the victim. Fields, supra (citing Free v. State, 293 Ark. 65, 732 S.W.2d 452 (1987)). For the pedophile exception to apply, there must be a sufficient degree of similarity between the evidence to be introduced and the sexual conduct of the defendant. Eubanks v. State, 2009 Ark. 170, 303 S.W.3d 450. There must also be an “intimate relationship” between the perpetrator and the victim. Chunestudy v. State, 2012 Ark. 222, 408 S.W.3d 55.
We hold that the trial court did not abuse its discretion in ruling that the evidence of prior acts was admissible under the pedophile exception. The intimate relationship requirement was met by the evidence. In each instance, Campbell was the alleged perpetrator and his victims were his step-grandchildren or future step-grandchildren. In each instance, Campbell was in a quasi-familial relationship with the children and had assumed the role of their grandfather. Campbell’s relationship as Dill’s step-father placed him in a position to have access to the children. The similarities requirement is also met by the evidence. There are many similarities between the challenged prior incidents and the charged conduct. In each instance, he engaged in inappropriate sexual contact with the children. In fact, C.D.l’s 2012 allegations are virtually identical to the allegations made by S.B. C.D.l and S.B. were of similar ages and sex. They both have a similar relationship with Campbell — C.D.l is Campbell’s step-granddaughter and S.B. is his soon-to-be step-granddaughter. Both children alleged that Campbell touched them on their breasts and privates while in bed with them and |fithat he placed his fingers on or in their privates and moved them around causing it to hurt. This is precisely the type of evidence the pedophile exception was crafted to include. Admittedly, the circuit court did not recite the pedophile exception in its ruling on admissibility. However, this is exactly what the court found, and the evidence falls squarely within its parameters.
In reviewing the admission of evidence under Rule 404(b), a circuit court has broad discretion in deciding evidentia-ry issues, and its decisions are not reversed absent an abuse of discretion. Rounsaville v. State, 2009 Ark. 479, 346 S.W.3d 289. The abuse-of-discretion stan dard is a high threshold that does' not simply require error in the circuit court’s decision, but requires that the circuit court act improvidently, thoughtlessly, or without due consideration. Chatmon v. State, 2015 Ark. 28, 467 S.W.3d 731. We find no abuse of discretion in this matter.
Affirmed.
Kinard and Hixson, JJ., agree.
. Markus Dill has three children, C.D.l, C.D.2, and C.S.
. The Crimes Against Children Division of the Arkansas State Police (CACD) investigated arid found the 2009 allegation to be unfound- . ed. | [
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ROBERT J. GLADWIN, Chief Judge
|,The Palestine-Wheatley School District (District) appeals the January 20, 2015 order of the St. Francis County Circuit Court affirming the decision of the Arkansas Board of Trustees (Board) of the Arkansas Teacher Retirement System (ATRS). The District argues that ATRS acted without substantial evidence, abused its discretion, and acted in an arbitrary and capricious manner in (1) finding that the District was responsible for paying the employer contribution to ATRS on settlement proceeds received by appellee Bobbie Fingers and (2) failing, to follow the calculation of damages designated in the settlement as back pay. 'We affirm.
. I. Procedural History and Statement of Facts
Fingers was a member of ATRS, having been employed by the District as a teacher and a principal. She filed suit against the District in the United States District Court, Eastern |2Pistrict of Arkansas, alleging employment discrimination after she had been passed over for superintendent on three separate occasions. The federal magistrate judge mediated a settlement between the parties, and the following colloquy occurred:
The CouRt: The settlement is that [the ■ District] will pay to [Fingers] the sum of $275,000, and that is all inclusive of all her claims, known and unknown, whether they’re ripe or not ripe, every claim that she could -have had up until this date, and it includes attorneys’ fees and costs and everything associated with this lawsuit as well.
The two attorneys — or Mr. Walker and Mr. Brazil will do the allocation of how the $275,000 is allocated. Some of it will of course be allocated to back pay, and [the. District] will pay employment taxes on that; otherwise the tax liability will be on [Fingers] and her attorney for however they pay their 1099 taxes or whatever.
So in other words, the total liability for the school — or total exposure for [the District] is limited to $275,000 plus the payroll taxes on the portion that is designated W-2.
Mr. Walker, have I accurately stated the terms?
MR, WalkeR:' I (think you have, Your Honor, with the understanding that Mr. Brazil and I, recognizing that an amount — a portion of this amount is for back pay, will seek to have her made whole, to the extent that that is possible, and the attorneys would be responsible for trying to effect that with the Teacher Retirement board. But any payments that are related to that circumstance will come out of the $275,000.-
Finger,s signed, a release (Release) that recounted the-terms of the settlement as set forth above. The Release specifically provided as follows:. .
I further acknowledge -and agree that of the net amount paid to me $70,000.00 for 1099 and the balance will be due after retirement and fees would be 10-40 taxable income for which the district is hereby authorized to make appropriate deductions to be forwarded to the Internal Revenue Service on my behalf.
laFollowing the settlement conference and execution of the Release, ATRS notified the District by letter dated August 8, 2011, that it owed employer contributions based on the settlement in the amount of $26,610.18, plus interest, based on all payments made to Fingers, except attorney’s fees. The District filed an appeal with ATRS, which resulted in a ruling by the executive director issued on November 23, 2011, that the District was liable for the contributions. The executive director of ATRS found in pertinent part as follows:
First, no party disputes that a 14% contribution is owed on the settlement amount that was ultimately paid for the benefit of Bobbie A. Fingers .., [totaling] $26,610.18[.] ...
The School District’s entire claim is that ATRS should not look to the School District for initial payment of these employer contributions.... The only issue is where ATRS may look in order to obtain the 14% employer contribution. Arkansas law provides that the ATRS Board may set the employer Contribution rate. See Ark,Code Ann. § 24-7-401. The ATRS Board has done so and the current rate is set at the maximum allowed rate of 14%. Arkansas law further provides that “Local school districts shall pay the teacher retirement employment contribution for any eligible employee in accordance with rules established by the board.” See Ark.Code Ann. §§ 24-7-103 and 24-7-401(e).
Arkansas law provides that the local district shall pay the employer" contributions on each “eligible employee.” ... Ms. Fingers was an “eligible employee.”
The court transcript and affidavit indicate that ATRS would receive the required employer contribution out of the $275,000 in settlement funds paid to Ms. Fingers. However, before the School District made the settlement payment to Ms. Fingers, a Release was signed by Ms. Fingers stating: “[T]he balance will be due after retirement and fees would be 10-40 taxable income for which the district is hereby authorized to make appropriate deductions to be forwarded to the Internal Revenue Service on my behalf.”
Thus, Ms. Fingers apparently authorized the School District, in writing, to make appropriate deductions prior to forwarding the settlement payment. However, for reasons that are unclear, the School District did not withhold the required employer contributions before making the payment. In any event, these are factual and legal -issues to which ATRS does not have authority or jurisdiction to determine as “final” |4or “binding” and then impose as a legal or contractual obligation , on either , the School District or Ms. Fingers.
In sum, ATRS has not received the employer contributions related to the remuneration paid to Bobbie Fingers as part of the settlement.Because Arkansas law specifically requires payment of the employer contribution by the school district, and no basis exists for ATRS to force payment of the required employer contribution from the member, ATRS must look to the School District for payment of the employer contributions.
... Any statements and/or findings in this Determination Letter are not intended to function as collateral estoppel or res judicata with respect to any issue not specifically decided below, except as allowed and authorized under,Arkansas law.
The issues determined as final in this administrative adjudication are: (1) a 14% contribution is owed on the litigation settlement that was ultimately paid by the School District for the benefit.of Bobbie A. Fingers; (2) the 14% employer contribution equals $26,610.18 (including a small underpayment for the 2008-2009 fiscal year) as of the. date of the Staff Determination Letter; (3) ATRS has not been paid the required employer contributions related to the. remuneration paid by the School District to Bobbie Fingers; and (4) the School District owes ATRS employer contributions of $26,610.18, plus interest, until paid.
That ruling was appealed to the ATRS Board, and a hearing was held' on August 16, 2012.- ■ The ATRS hearing officer concluded that the District was liable to ATRS for the employer contributions owed on the settlement between the District and Fingers. On December 3, 2012, the proposed order and recommendation of the hearing officer was affirmed by the ATRS Board of Trustees.
On December 28, 2012, the District filed a complaint in circuit court against appel-lees ATRS, George Hopkins as executive director of ATRS, and Fingers alleging that the ATRS order was arbitrary, capricious, contrary to state law, and was otherwise in error. The District alleged that the amount of money paid to Fingers abovefback wages did not constitute salary on which payments to ATRS were tó be assessed or considered. Further, jsit claimed that if any sums were due to ATRS, they were required by agreement to be paid by Fingers.
The circuit court issued a letter dated October 31, 2014, and stated that it had conducted the judicial administrative review to determine whether there was substantial evidence to support the agency’s findings and found that the decision of ATRS should not be overturned. An order to this effect was filed on January 20, 2015. The District filed a timely notice of appeal, and this appeal followed.
II. Standard of Review
In this appeal, our review is directed not to the decision of the circuit court, but rather to the decision of the administrative agency. Dep’t of Health & Human Servs. v. R.C., 368 Ark. 660, 249 S.W.3d 797 (2007). Review of administrative agency decisions, by both the circuit court and appellate courts, is limited in scope. Ark Dep’t of Human Servs. v. Thompson, 331 Ark. 181, 959 S.W.2d 46 (1998). The standard of review to be used by both the circuit court and the appellate court is whether there is substantial evidence to support the agency’s findings. Id.
An appellate court sitting in review of a finding of an administrative agency must affirm the agency’s finding if the finding is supported by any substantial evidence. Ark.Code Ann. § 25-15-212(h) (Repl. 2014); C.C.B. v. Ark. Dep’t of Health & Human Servs., 368 Ark. 540, 543-44, 247 S.W.3d 870, 872 (2007). Substantial evidence is such relevant evidence that a reasonable mind might accept as adequate to support a conclusion, giving the evidence “its strongest probative force in favor of the administrative agency.” Reed v. Arvis Harper Bail Bonds, Inc., 2010 Ark. 338, at 4-5, 368 S.W.3d 69, 73.
As with all appeals from administrative decisions under the Administrative Procedure Act, the circuit court or the appellate court may reverse the agency decision if it concludes that the substantial rights of the petitioner have been prejudiced because the administrative findings, inferences, conclusions, or decisions are (1) in violation of constitutional or statutory provisions; (2) in excess of the agency’s statutory authority; (3) made upon unlawful procedure; (4) affected by other error or law; (5) not supported by substantial evidence of record; or (6) arbitrary, capricious, or characterized by abuse of discretion. Ark.Code Ann. § 25-15-212(h).
IfiThe party challenging the agency’s decision has the burden of proving an absence of substantial evidence. Ark. Dep’t of Human Servs. v. Nelson, 2015 Ark. App. 98, 455 S.W.3d 859. In order to establish the absence of substantial evidence, the challenging party must demonstrate that the proof before the administrative tribunal was so nearly undisputed that fair-minded persons could not reach its conclusion. Id. This court reviews the entire record to find whether the testimony supports the finding that was made by the ALJ. Id. The requirement that the agency’s decision not be arbitrary or capricious is less demanding than the requirement that it be supported by substantial evidence. Collie v. Ark. State Med. Bd., 370 Ark. 180, 258 S.W.3d 367 (2007). To be invalid as arbitrary or capricious, an agency’s decision must lack a rational basis or rely on a finding of fact based on an erroneous view of the law. Id. Where the agency’s decision is supported by substantial evidence, it automatically follows that it cannot be classified as unreasonable or arbitrary. Id.
Odyssey Healthcare Operating A. LP v. Ark. Dep’t of Human Servs., Div. of Med. Servs., 2015 Ark. App. 459, at 3-4, 469 S.W.3d 381, 384-85.
Initially, ATRS contends that the District did not raise any argument regarding an absence of substantial evidence or an abuse of discretion in the circuit court. ATRS claims that it can find no evidence in the record that the District made any accusations or argument regarding an absence of substantial evidence or an abuse of discretion prior to this appeal. It asserts that, because the District did not raise its arguments regarding a lack of substantial evidence and abuse of discre tion in the circuit court, it waived its opportunity to raise the arguments on appeal. Owens v. Office of Child Support Enft, 2011 Ark. App. 351, 2011 WL 1795302.
Arkansas Code Annotated section 25-15-212(h) (Repl. 2014) provides as follows:
The court may affirm the decision of the agency or remand the case for further proceedings. It may reverse or modify the decision if the substantial rights of the petitioner have been prejudiced because the administrative findings, inferences, conclusions, or decisions are:
(1) In violation of constitutional or statutory provisions;
(2) In excess of the agency’s statutory authority;
(3) Made upon unlawful procedure;
(4) Affected by other error or law;
17(5) Not supported by substantial evidence of record; or
(6) Arbitrary, capricious, or characterized by abuse of discretion.
The circuit court’s letter of October 31, 2014, made part of the final order by reference, recites the standard of review applicable herein, specifically noting that both the circuit and appellate courts review using the standard of whether there is substantial evidence to support the agency’s findings. Further, the circuit court recites that “substantial evidence” is valid, legal, and persuasive evidence that a reasonable mind might accept as adequate to support the agency decision. In the accompanying order of January 20, 2015, the circuit court found that the decision of the administrative hearing officer from which the appeal arose was supported by substantial evidence. Therefore, ATRS’s contention that the circuit court did not consider the issue of whether substantial evidence supported the agency’s decision is not well taken.
However, we note that no mention was made of an abuse-of-discretion inquiry in the circuit court’s letter or accompanying order. Nonetheless, we have held that if or when an agency’s decision is .supported by substantial evidence, it automatically follows that it cannot be classified as unreasonable or arbitrary. See Odyssey Healthcare, supra. ■ Accordingly, we-must determine whether .substantial' evidence supports the agency’s decision as established by our standard of review.
III. Argument
The District contends that ATRS acted without substantial evidence, abused its discretion/and acted in an arbitrary and capricious manner in finding that the District was responsible for the employment contribution in derogation of the settlement between the | «District and Fingers. The District contends that the parties knew an amount would be owed to ATRS and agreed to work'together with ATRS to determine what that amount would be! The District further claims that the parties also agreed that anything owed to ATRS would come out of that amount already paid to Fingers, and the District would not owe anything further.
The District contends that ATRS’s reliance on Arkansas Code Annotated section 24-7-103 (Repl. 2014) (providing that local school districts shall pay the teacher retirement employer-contribution rate for any eligible employee in accordance with rales and regulations established by the Board of Trustees of ATRS) is too simplistic and overlooks' other code provisions. The District cites section 24-7-406(a)(2) (Repl. 2014) (where employer contributions to retirement-fund accounts may be made by an employee) ■ and argues, therefore, that Fingers could have contributed other amounts to her account if she had wanted to do so. It also cites section 24-7-202(32)(C) (Supp. 2015) for the proposition that employees or members could receive money from school districts for things other than salary.
The:District argues that ATRS has never been made a part of a lawsuit between a teacher and a school district. Further, the District contends that if ATRS wanted to dictate terms of settlements ■ between teachers and .school districts, it should lobby the Arkansas Legislature to change the law. The District asserts that ATRS cannot be allowed to dictate settlement terms, especially after those terms have already been reached.
|9The District has failed to cite any authority or make any legal argument, in support of its alleged grounds for reversal or modification. The District simply states that a decision may be reversed on a finding of lack of substantial evidence, an abuse of discretion, or arbitrary or capricious, action, then concludes, without discussion or argument, that the order should be reversed. Therefore, this court will not consider the argument. Johnson v. Encompass Ins. Co., 355 Ark. 1, 130 S.W.3d 553 (2003).
The District also claims that ATRS acted without substantial evidence, abused its discretion, and acted in an arbitrary and capricious manner in failing to follow the breakdown of damages as set forth in the settlement regarding back pay. The District contends that Fingers was to receive $275,000 — $94,117.66 for attorney’s fees, $70,000 for non-salary-related damages, and $110,882.34 for back pay less any amount owed for | ^employment taxes on this amount only. The District argues that these figures were .derived through long and tough settlement negotiations. The District contends that the ATRS witness testified that ATRS interprets the statutes to mean that anything.a member receives from the school district is salary and is to be utilized in determining the retirement percentage. A mathematical formula is used to determine the amount. However, the District argues that many factors determine computation of damages. Here, the District maintains that Fingers sought compensatory damages for loss of professional status and development for four years, not just for lost wages. The District claims that for ATRS to redefine what salary was in this situation was arbitrary, capricious, and an abuse of discretion.'
ATRS characterizes the District’s argument as ATRS not abandoning its statutory framework to comply with the District’s wishes as described in the settlement. ATRS notes that it is not bound by the settlement because it was not a party to the settlement. It claims that the contribution owed by the District is a result of a statutory mathematical function. ATRS contends that the District incorrectly believed that it could independently designate a portion of the settlement payments as “salary” in derogation of the term’s statutory definition. The fact that the District failed to correctly consider or calculate its legal obligation to make retirement contributions is perhaps unfortunate, but irrelevant.
ATRS contends, and we agree, that substantial evidence supports its finding. Important are the facts that (1) there was no ruling in federal court regarding the employer contribution to ATRS; (2) ATRS was not part of the settlement and did not review or approve the settlement or Release; (3) Fingers received $180,882.34 after attorney’s fees |nwere paid; (4) ATRS interpreted Ark.Code Ann. § 24-4-401(c)(4) to require a 14 percent employer contribution to. be paid to ATRS on.all salary; (5) ATRS interpreted Ark.Code Ann. § 24-7-202(27)(B)(iii) to allow ATRS to treat as salary any remuneration paid to a member for the settlement of litigation with an ATRS employer; and (6) ATRS determined that the District was liable to it for contributions equal to 14 percent of $180,882.34, plus interest. Thus, we conclude that the 'evidence of record is evidence that a reasonable mind would accept as adequate to support ATRS’s order.
ATRS further contends that its actions were not arbitrary, capricious, or characterized by an abuse of discretion. Because this standard is less demanding than the requirement that it be supported by substantial evidence, it automatically follows that it cannot be classified as unreasonable or arbitrary. Odyssey Healthcare, supra.
Affirmed.
Virden and Gruber, JJ., agree.
. ATRS contends that the District incorrectly cited the statutory definitions of ".employee1' (found in Ark. Code Ann. § 24-7-202(12) [mis-cited as (22)]) and "salary” (found in Ark. Code Ann. § 24-7-202(32)(C)(i) [mis-cited as .202(c) ]). Neither party cites this court to the proper version of Arkansas Code Annotated section 24-7-202. The version applicable at the time Fingers filed her lawsuit in federal court, May 2009, is found in Ark.Code Ann. | 24-7-202 (Supp. 2007), which provides the definition for "employee” at subsection 202(12) and "salary” at subsection 202(27). ATRS supplied this court with the version applicable after July 31, 2009, but before any amendments made in the 2011 legislative session, which might arguably be applicable at the time the settlement took place in August 2011. Each version of the statute contains a different definition of "salary.” Neither party raised the question of the applicable statute below, both seeming to settle on the version containing the amendments through 2009 and supplied to this court in ATRS’s supplemental addendum. "It is essential to judicial review under the Arkansas Administrative Procedure Act that issues must be raised before the administrative agency appealed from or they will not be addressed by this court.” Wright v. Ark. State Plant Bd., 311 Ark. 125, 132, 842 S.W.2d 42, 46 (1992). | [
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OPINION OF
THE COURT.
This is an action on the case brought by the.appellee against the appellant. The appellant in the court below demurred to the declaration, which demurrer was overruled, and he excepted and prayed an appeal to this court, which seems to have been granted. It does not appear from the record that the court proceeded to give final judgment in favor of either party. We are clearly of opinion, that an appeal will not lie except from the final decision or judgment of the court; and here there being no final judgment, this court has no jurisdiction. Geyer’s Dig. 261; [Rutherford v. Fisher] 4 Dall. [4 U. S.] 22; [M’Clay v. Hanna] Id. 160; [Young v. Grundy] 6 Cranch [10 U. S.] 51. Dismissed. | [
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CROSS, J.
This was an action of detinue brought by the appellee against the appellant, in the Pulaski circuit court, for the recovery of a negro boy. The suit was commenced on the 22d February, 1830, and at the following June term, a verdict and judgment were recovered by the appellee. From the bill of exceptions taken by the appellant during the trial, it appears that the judge of the circuit court instructed the jury, that if they found from the evidence that the negro slave in contest was the property of the plaintiff, and that the defendant had possession of said slave in December or January ’last, although he might not have been in his possession at the date of the writ, they ought to find for the plaintiff, &c. In giving these instructions, it is contended that the court erred: First, because the appellant had restored the negro to the person from whom he had received him, in whose power it was to have affected a legal eviction before the commencement of the suit; and second, that the relation of bailor and bailee existed between the appellant and a certain Thomas Mathers, to whom the negro had been returned. The evidence, as collected from the bill of exceptions, is, that the appellee sent the negro in contest to a certain Thomas Mathers, his son-in-law, on the 23d Decem ber, 1827, where he remained in his employ and possession until October, 1820, when he (Mathers) hired him to the appellant. The negro remained in the possession of the appellant, under this contract of hirage, until the early part of January, 1830, when a man by the name of Harris came and demanded him, stating that he had purchased him from the appellee, upon condition that he could get peaceful possession of him. Appellant refused to deliver up said negro, declaring that he would deliver him to no person without an order from Mathers. A few days aft-erwards Mathers was seen in possession of the negro, on the way to his residence in Conway county. Two weeks thereafter he sent the negro to Little Bock, where appellant resides, with directions that the appellant would hire him, or that he should hire himself to some other person. The negro came to appellant’s, and remained with him five or six days; when Chester Ashley put him in possession of the Messrs Elliots, under a previous contract of hirage from said Mathers. In January preceding the commencement of the suit, the appellee called on Mathers, and told him to send home his negro, then in his possession. The question is, are the instructions given to the jury by the judge of the circuit court correct, when applied to the facts above detailed?
It is certainly a well-settled principle, that detinue lies against a person who has quit-ted the possession of the property prior to the institution of the suit. Com. Dig. tit. “Act,” 304; Bastie v. Lambert, 1 Wash. [Va.] 176. When, however, the defendant has been legally evicted before the institution of the suit, it would operate as a bar, and a recovery could not be had in detinue. Id. 11G. And so where the relation of bailor and bailee exists, a return of the property by the bailee would bar the action, and after a demand made by a person who had title. 1 Bac. Abr. tit. “Bailment,” 375; Rolle, Abr. 607; 2 Bos. & P. 462.
This doctrine, as was justly remarked by the counsel for the appellant, is founded in the best policy. Were it otherwise, a door would be open placing it in the power of corrupt individuals, by combining, to practise" incalculable frauds and impositions upon society. Besides, it would greatly impair the beneficial relations growing out of contracts of hirage, or any other species of bailment. But does the evidence in this case show that the appellant was legally evicted, or that he stood in the attitude of a bailee and returned the property to Mathers, the bailor? We think not. His contract for the hire of the negro took place in October, 1829, under which he remained in possession until some time in January following. A demand was then made by Harris, who alleged that he had purchased from appellee. Shortly after-wards appellant-returned the negro to Math-ers. With this return the relation of bailor and bailee ceased; and if nothing further had appeared from the evidence, we would be disposed to reverse the judgment. But it did not close at this stage of the transaction. After the return of the negro, the appellee called on Mathers for him,- and immediately afterwards he was sent back to appellant, without any contract or obligation on the part of Mathers to do so. He remained in the possession of, or, to use the language in the bill of exceptions, stayed with the appellant five or six days. The appellee, it seems, ascertained in the mean time where his property was, and, intent upon requiring it in specie, brings suit against the appellant. But before the writ was sued out, the negro is taken by Ashley, and by him placed in the hands of Messrs. Elliots. The appellant, therefore, had not been legally evicted prior to the institution of the suit; nor can he be regarded, under the circumstances, as having stood in the attitude of a bailee. Mathers himself appears to have held the negro only in that character under Bentley, as his bailor. And the appellant was apprised of his (Bentley’s) claim before the negro came to his possession the second time. It is questionable whether he was not, under this state of case, equally responsible with Mathers to Bentley. We are, therefore, of opinion that the instructions of the circuit court given to the jury, when applied to the facts of the case, are substantially correct. Judgment affirmed. | [
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JOHNSON, J.
On the 24th day of January, 1828, Wilson, the plaintiff in error, recovered .a judgment against Robert B. Musick, for the sum of eighty-three dollars debt, and five' •dollars and sixty cents damages, and the costs -of the suit, and on the same day, Eads, the ■defendant in error, appeared before the justice and acknowledged himself jointly bound with Musick for the stay of execution. On the 24th of July, the stay of execution having ■ expired, Wilson caused execution to be issued against Musick and delivered it to the proper .officer, who made return thereon, on the 19th • day of August, 1829, in the following words: “No goods or chattels are found in my town- • ship to levy on, nor is the body of the defendant Robert B. Musick.” A second execution issued on the 19th of August, on which a part of the debt was made, and returned on the 18th of September, and a third execution issued on the last-mentioned day, and was returned on the 1st of October, on which noth- ' ing was made. On the 26th of August, 1829, Wilson sued out from the justice who rendered the judgment, a scire facias against Eads as special bail, which was duly served upon "him. On the 30th of September, 1829, thejus-tice rendered judgment that execution issue in favor of Wilson against Eads and Musick ..jointly. To this judgment Eads sued out a writ of certiorari from the Hempstead circuit • court, where the judgment of the justice awarding a joint execution against Eads and Musick was reversed, and judgment for-costs given in favor of Eads; and to this judgment this writ of error is prosecuted.
It is admitted that the judgment obtained by Wilson against Musick, is regular and free from error. The only inquiry now before the court, relates to the judgment against Eads, the defendant in error.
The counsel for the defendant in error contend that the judgment is erroneous upon two grounds: First, because the execution against Musick was not returned in twenty days from its date, and a scire facias issued forthwith against Eads. And secondly, because the plaintiff Wilson caused two other executions to be issued against Musick, and thereby released the defendant -Eads. It is material to inquire into the nature and extent of the obligation entered into by the special bail for the stay of execution, upon a judgment rendered by a justice of the peace. The act of the legislature, passed the 26th day of October, 1825 (page 20),- provides: “That any person who shall hereafter become special bail for any defendant against whom judgment may be rendered, so as to entitle such defendant to stay of execution, such bail shall, before the justice of the peace, acknowledge himself jointly bound with such defendant in the full amount of such judgment and costs, which judgment the justice shall enter upon his docket, and at the time limited for the stay of execution shall issue execution against the principal, and if thé principal shall not satisfy the execution, and if the bail shall not show property, and ■constable cannot find property of the principal to satisfy said execution, then, and in either case, it shall be the duty of the constable to return said execution to the justice within twenty days of the date thereof, whose duty it shall be to issue scire facias against such bail requiring him to show cause why execution should not forthwith issue against him for the judgment and costs aforesaid; and if he fails to show sufficient cause the justice shall issue execution against both principal and bail.” Ter. Dig. 364. From the provisions of this act it is manifest that the obligation into which the special bail for the stay of execution enters, is, that he will pay the judgment, provided an execution shall be issued against the principal at the time limited for the stay, and the amount of the judgment cannot be made out of the principal. There is no provision in the act that the special bail may discharge himself by the delivery of the body of the principal. He becomes jointly bound for the amount of the judgment in consideration of the time given for the principal, and if it cannot be made on execution against • the principal, his liability is fixed, and from which nothing can discharge him except the payment of the judgment.
The execution against Musick was not returned within twenty days, and this is relied upon as a ground for discharging the special bail from his responsibility. The provision of the statute requiring the return of the execution within twenty days was introduced solely for the benefit of the plaintiff in the execution, and the failure of the officer to return it within that time cannot possibly operate to the prejudice of the special bail.
The alias executions taken out against Mu-sick might and did operate for the benefit of Bads, but could not possibly prejudice his rights. Judgment reversed. ' | [
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ROBERT J. GLADWIN, Chief Judge
11 This appeal arises out of a divorce case involving Denee Ellis and Mike Ellis. Both parties appeal from the circuit court’s rulings. However, we must dismiss the appeal because our court lacks jurisdiction.
I. Background
Denee and Mike Ellis married on November 30, 1996, and had two children during them marriage. In July 2009, Mike filed for divorce from Denee. In his complaint, Mike conceded that Denee was the appropriate party to be the custodial parent for their two minor children. Denee answered Mike’s complaint. Later, Mike filed an amended complaint for divorce requesting an unequal division of the marital property. Denee answered the amended complaint and disputed Mike’s entitlement to an unequal division of the marital property.
The circuit court held a trial on the parties’ divorce over the course of seven days in 2011—May 10-11, June 14-15, June 24, June 28, and July 19. The trial focused primarily |<,on the disposition of the parties’ property. Ultimately, the circuit court adjudicated the issues in this case in a piecemeal fashion and issued several orders.
First, the circuit court granted the parties’ divorce in an order entered June 20, 2011. The decree of divorce specifically provided that it did not adjudicate custody, visitation, support, alimony, or the division of property. The court retained jurisdiction to dispose of these matters.
Later, on August 19, 2011, the circuit court entered an order entitled “Visitation Order,” setting out Mike’s visitation schedule with the two minor children. This order provided only for Mike’s visitation with the minor children and did not award custody of the children to either party. Again, the court retained jurisdiction to adjudicate the issues that remained unresolved.
On March 26, 2012, the circuit court entered an order to show cause. This order was entered in response to Mike’s February 23, 2012 motion for contempt against Denee wherein he accused Denee of lying under oath.
On February 11, 2015, three and one half years after the trial, the circuit court entered an order that set Mike’s child-support obligation and purported to equal ly divide the parties’ property. Both parties appealed from this order. The circuit court entered another order on April 27; 2015. This order attempted to fully and finally resolve all pending issues before the court—including several posttrial motions. The order also contained a Rule 54(b) certificate. Both parties subsequently appealed the February 11 and April 27 orders.
|SII. Jurisdiction
It is well settled that, in order to be appealable, an order must be final. Liberty Life Ins. Co. v. McQueen, 364 Ark. 367, 219 S.W.3d 172 (2005). An order is final if it dismisses the parties from the court, discharges them from the action, or concludes their rights to the subject matter in controversy. Id. The question of whether an order is final and subject to appeal is a jurisdictional question which this court will raise sua sponte. Moses v. Hanna’s Candle Co., 353 Ark. 101, 110 S.W.3d 725 (2003). Our review revealed that there are two issues still pending before the circuit court—custody of the minor children and Mike’s motion for contempt.
First, we address the issue of custody. Absent from this case is any order adjudicating custody of the parties’ two minor children. In his statement of the case, Mike refers to the circuit court’s August 19, 2011 visitation order as a visitation and custody order, and both parties seemed to operate under the assumption that this order adjudicates custody. Nevertheless, nothing in the visitation order or any other order specifically addresses the issue of custody.
We acknowledge that Mike conceded in his initial complaint for divorce that Denee was the proper party to have custody of the children. Subsequent orders of the circuit court indicate that the circuit court intended to grant custody to Denee—the visitation order refers to Mike’s visitation schedule with the children and the April 2015 order sets Mike’s child-support obligation. Regardless of the circuit court’s intentions, we hold that- the absence of a specific provision naming Denee as the custodial parent prevents this court from exercising jurisdiction.
LWhile this may seem as though our court is being overly critical, this deficiency must be cured. An award of custody is always modifiable. Alphin v. Alphin, 90 Ark. App. 71, 204 S.W.3d 103 (2004). When evaluating a motion to modify custody a circuit court must determine whether there has been a material change of circumstances since the previous custody order. Walker v. Torres, 83 Ark. App. 135, 118 S.W.3d 148 (2003). Should issues arise that result in a motion to change custody, the circuit court would be without a custody order by which to evaluate the motion. Additionally, we have concerns in the event that an agent of an outside entity such as a school or a police department, were to be charged with interpreting the rights of the parties as they relate to custody.
Next, we turn our attention to whether the circuit court disposed of Mike’s contempt motion. In February 2012, Mike filed a motion requesting that Denee be held in contempt for lying-under oath, and the court entered a show-cause order. In a posttrial hearing held on April 6, 2015, the .circuit court orally announced its refusal to hold Denee in contempt of court. Irrespective of that announcement, it is well settled that an oral order announced from the bench does not become effective until reduced to writing and filed. Nat’l Home Centers, Inc. v. Coleman, 370 Ark. 119, 257 S.W.3d 862 (2007).
The April 2015 order that followed the posttrial hearing attempted to fully and finally dispose of all pending issues. However, it did not specifically address Mike’s contempt motion. The opening paragraph of the order enumerated the motions being addressed in the order, and the contempt motion was not listed. The April 2015 order also included a provision that “any and all relief sought by either party in the above described motions not specifically granted or addressed herein is denied.” Because the contempt motion was never [ ^described in this order, this provision is ineffective to dispose of the motion. Finally, the April 2015 order includes language that the court “adopts and incorporates herein each and every statement of reasoning and oral ruling' it made from the bench during the hearing on April 6, 2015, as if restated herein word for word.” We caution the circuit court that we will not condone the usage of such catch-all language. This language does not comply with the requirements or spirit of Arkansas Rule of Appellate Procedure-Civil 2, arid it is not effective to adjudicate Mike’s motion for contempt.
Based on our conclusion that the circuit court failed to dispose of all pending issues, we direct our attention to whether the Rule 54(b) certificate attached to the April 2015 order is effective to give this court jurisdiction over the appeal.
Rule 54(b) of the Arkansas Rules of Civil Procedure provides, in pertinent part, that
[wjhen more than one claim for relief is presented in an action ... the court may direct the entry of a final judgment as to one or more but fewer than all of the claims ... only upon an express determination, supported by specific factual findings, that there is no just reason for delay.
In order for a Rule 54(b) certificate to be effective, “the record must show facts to support the conclusion that there is a likelihood of hardship or injustice which would be alleviated by an immediate appeal rather than at the conclusion of the case.” Edwards v. Ark. Dep’t Human Servs., 2015 Ark. 402, at 4, 474 S.W.3d 58, 60. Our rules also require that , an order include specific findings of any danger of hardship or injustice that could be alleviated by an immediate appeal and that the order set out the factual underpinnings that establish such hardship or injustice. Id.
|fiThe certificate executed by the circuit court is woefully inadequate. It merely provides that “the parties would endure hardship, injustice and prejudice if they were not allowed appellate review at this point, given the efforts of the parties, counsel, and the Court to reach a final order.” The circuit court seems to suggest that, because so much time has passed during the pendency of this litigation, an appeal is appropriate regardless of whether there is a final order. Even if this certificate complied with Rule 54(b), we do not find this statement persuasive. Our review shows that the circuit court took three and one half years to reach decisions regarding the division of the parties’ property and Mike’s child-support obligation, arid often during this time, the parties were merely waiting for the court to issue its ruling. Accordingly, we are without jurisdiction to reach the merits of this appeal.
Dismissed.
Virden and Glover, JJ., agree.
. Issues on appeal in this case relate ,to whether the circuit court, erred in determin ing Mike’s child-support obligation. We do not offer an opinion on the propriety of the figures utilized by the circuit court to calculate child support. However, our cursory review indicates that, regardless of whether the figures the circuit court used to calculate child support were correct, the circuit court did not utilize the mathematical formula required by Administrative Order No. 10 when calculating Mike’s obligation. We strongly suggest that the circuit court review its child-support determination. | [
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PER CURIAM
hOn April 11, 2013, appellant Cody James Malone pleaded guilty to fourth- degree sexual assault and was sentenced to 72 months’ imprisonment in the Arkansas Department of Correction. After filing multiple pleadings in the trial court, including a motion to correct clerical mistake in the commitment order and a petition for rehearing regarding that motion; a petition to correct an illegal sentence pursuant to Arkansas Code Annotated section 16-90-111 (Supp. 2015); a petition for writ of habeas corpus; and a petition for writ of mandamus—all of which essentially claimed that he was serving an illegal sentence because he was not serving his 72-month state sentence in federal custody as per his plea ^agreement—the trial court denied Malone’s claims for relief in three separate, file-marked orders on March 17, 2016. Malone has lodged an appeal of the three orders in this court. Now before us are Malone’s motions for extension of time to file brief and for appointment of counsel.
When it is clear from the record that the appellant cannot prevail if an appeal of an order that denied postconviction relief were permitted to go forward, we dismiss the appeal. Wheeler v. State, 2015 Ark. 233, 463 S.W.3d 678 (per curiam); see also Justus v. State, 2012 Ark. 91, 2012 WL 664259. As it is clear from the record that Malone could not prevail on appeal, the appeal is dismissed. The dismissal of the appeal renders the motions moot.
On May 30, 2014, Malone filed a motion to correct a clerical mistake in the commitment order in the Benton County Circuit Court, arguing that the judgment-and-commitment order contained an error because he should have been serving his 72-month .sentence in federal custody. On June 12, 2014, the trial court denied relief, finding there was- no clerical error. Moreover, the trial court found that Malone’s claim challenged more than just a mere clerical error and deemed it an untimely postconviction petition because it was filed more than 400 days after entry of the judgment on April 26, 2013, pursuant to his plea. On June 24, 2015, Malone filed a petition for rehearing, contending he had made exhaustive attempts’to correct the illegal imposition of his sentence. On March 17, 2016, the trial court entered an order denying Malone’s petition for rehearing, finding that it was without jurisdiction to grant relief.
|rA trial court may correct a mere clerical error in a judgment at any time; however, a motion to correct a judgment that is based on a substantive claim, such as an allegation that the sentence imposed did not conform to the plea agreement, falls within the purview of Rule 37,1 of the Arkansas Rules of Criminal Procedure. Samples v. State, 2012 Ark. 146, 2012 WL 1130592 (per curiam): Here, Malone’s motion to correct clerical error did not assert a mere clerical error but instead asserted that he should be serving his sentence in federal custody as opposed to state custody. See id. Rule 37.2(c) requires that, when an appellant entered a plea of guilty, a petition under the Rule must be filed in the trial court within ninety days of the date of entry of judgment. See Engstrom v. State, 2016 Ark. 45, 481 S.W.3d 436 (per curiam). Malone filed his postcon-viction petition on May 30, 2014, more than one year-after entry of judgment.from his plea of guilty—clearly outside the ninety-day period to seek relief under the Rule. Because the petition was not timely filed, the trial court did not have the authority to grant the relief sought and properly denied relief. See Tolliver v. State, 2016 Ark. 111, 486 S.W.3d 199 (per curiam).
On March 31, 2015, Malone filed in the trial court a petition to correct an illegal sentence pursuant to Arkansas Code Annotated section 16-90-111, claiming the plea agreement between the parties was void because he was not serving his state sentence in federal custody. On March 17, 2016, the trial court entered an order denying Malone’s petition to correct an illegal sentence, finding it was an untimely Rule 37.1 petition.
Arkansas Code Annotated section 16-90-lll(a) allows the trial court to correct an | illegal sentence at any time because a claim that a sentence is illegal presents an issue of subject-matter jurisdiction. Williams v. State, 2016 Ark. 16, 479 S.W.3d 544 (per curiam). While the time limitations on filing a petition under section 16-90-lll(a) and (b)(1) on the grounds that the sentence was imposed in an illegal manner were superseded by Arkansas Rule of Criminal Procedure 37.2(c) (2015), the portion of section 16-90-111 that provides a means to challenge a sen-tehee at any time on the ground that the sentence is illegal oh its face remains in effect. Halfacre v. State, 2015 Ark. 105, 460 S.W.3d 282 (per curiam). Here, however, Malone did not argue that his sentence was illegal on its face but rather that it was imposed in an illegal manner. See Tolliver v. State, 2012 Ark. 46, at 1, 2012 WL 310958 (While appellant styled the petition as one to correct an illegal sentence, his claim was an entitlement to a reduction in his sentence due to a length of imprisonment he was required to serve under the plea agreement he accepted.). Because Malone argued he was entitled to relief based on a claim that his sentence was illegally imposed, it had to be raised in a timely petition under Rule 37.1. See id.
' Notwithstanding that Malone had previously filed a motion to correct clerical error, which was treated as an untimely Rule 37.1 petition, Rule 37.2(b) provides that all grounds for relief available to a petitioner under the Rule must be raised in his or her original petition unless the original petition was denied without prejudice to filing a second petition. See Hinkston v. State, 2016 Ark. 4, at 4, 2016 WL 97509 (per curiam). If a first petition under the Rule is denied without leave to proceed with a second petition, a petitioner under the Rule is barred from submitting a subsequent petition. See id. Malone has failed to demonstrate that his first Rule 37 petition was denied without prejudice; therefore a subsequent Rule 37.1 petition |fiwould be prohibited. Moreover, even if not considered as a subsequent Rule 37.1 petition, Malone filed his motion to correct an illegal sentence nearly two years after his judgment had been entered on the plea of guilty. See Ark. R. Crim. P. 37.2(c). Because the postconviction, petition was untimely,, the trial court lacked the authority under the Rule to grant the relief sought. See Rule 37.2(c); Tolliver, 2012 Ark. 46. Malone did not timely seek postconviction relief, and the trial court properly denied relief.
On May 11, 2015, Malone filed a petition for writ of habeas corpus in the trial court, alleging that, contrary to his plea agreement made and entered on April 11, 2013, he should not have been confined in the Arkansas Department of Correction (ADC) and should have been remanded into federal custody to serve his state sentence, and, as a result, he is illegally incarcerated in the ADC. On September 18, 2015, a letter from Malone was file-marked by the Benton County Circuit Clerk and was docketed as a petition for -writ of mandamus, which requested that the trial court set a date and issue an order to produce Malone before the court to dispose of the previously-filed habeas petition, On March 17, 2016, the trial court entered an order denying Malone’s petition for writ of habeas corpus and declaring Malone’s petition for writ of mandamus moot. The trial court noted that Malone made no claim that his sentence was invalid on its face or that the court lacked jurisdiction but merely made a claim that “he should be serving his sentence in federal custody as opposed to state custody.” The United States Department of Justice informed Malone that since he was “in custody on the state charges first they will not accept [Malone] into federal custody until he finishes his sentence given to him by this [c]ourt.” The petition for writ of mandamus was rendered moot- because a hearing would be to-no effect. '
IfiAny petition for writ of habeas corpus to effect the release of a prisoner is properly addressed to the circuit court in the county in which the prisoner is held in custody if the prisoner is incarcerated within the state, unless the petition is filed pursuant to Act 1780 of 2001 Acts of Arkansas, codified at Arkansas Code Annotated sections 16-112-201 to -208 (Repl. 2006). Hinkston, 2016 Ark. 4. Here, Malone did not bring his proceeding under Act 1780. Because Malone did not proceed under Act 1780 and because he is incarcerated in Izard County, the habeas-corpus petition was properly denied by the Benton County Circuit- Court, as it did not have jurisdiction to grant the relief sought. A court does not have jurisdiction to issue the writ and make it returnable if a prisoner who is in custody in Arkansas is not in custody in that court’s jurisdiction. Id. Moreover, a petitioner for the writ who does not allege actual innocence and proceed under Act 1780 of 2001 Acts of Arkansas must plead either facial invalidity of the judgment or the lack of jurisdiction by the trial court and make a showing by affidavit or other evidence of probable cause to believe that -he is illegally detained- pursuant to Arkansas Code Annotated section 16-112-103(a)(l) (Repl. 2006). Lovett v. Kelley, 2016 Ark. 127, 487 S.W.3d 361 (per curiam). Malone made no such allegation that the judgment was facially invalid or that the trial court lacked jurisdiction. Because the court could not issue the writ, it properly denied relief, and the petition for writ of mandamus was rendered moot when the trial court ruled on Malone’s petition because there was no need to have Malone present for a hearing on the habeas-corpus petition.
Additionally, to the extent the trial court disposed of Malone’s petition for writ of habeas corpus—a petition seeking to collaterally attack his judgment-and-commitment border—as a petition seeking relief pursuant to Rule 37.1, Malone was still not entitled to relief because, as discussed previously, it would have been a subsequent Rule 37.1 petition and untimely nonetheless under the Rule. See Hinkston, 2016 Ark. 4; see generally Friend v. Norris, 364 Ark. 315, 219 S.W.3d 123 (2005) (A habeas-corpus proceeding is not a substitute for postconviction relief under Rule 37.1.). Based on all of the foregoing, the appeal is dismissed, rendering the motions for extension of time to file brief and for appointment of counsel moot.
Appeal dismissed; motions moot.
. It appears that, on October 26, 2012, Malone pleaded guilty in the United States District Court, Western District of Arkansas, in case number 5:12CR500550-001, and, on March 29, 2013, he was sentenced to thirty years’ imprisonment in the Federal Bureau of Prisons. Malone’s judgment-and-commitment order, which was file-marked on April 26, 2013, noted that his 72-month state sentence was to run concurrently with his federal sentence in case number 5:12CR50050-001 and was to "be served in federal custody^]”
. The order denying the petition for rehearing is specifically referenced in the notice of appeal filed by Malone, not the underlying motion to correct clerical mistake or the order denying the motion to correct clerical mistake. | [
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PER CURIAM
|Jn 2008, petitioner Edward Carter was found guilty by a jury of aggravated robbery and was sentenced to 360 months’ imprisonment. The Arkansas Court of Appeals affirmed. Carter v. State, 2009 Ark. App. 683, 2009 WL 3384382.
In 2015, Carter filed in this court a pro se petition to reinvest jurisdiction in the trial court to consider a petition for writ of error coram nobis'in the case. The petition, as well as an amendment to it, were denied. Carter v. State, 2015 Ark. 397, 2015 WL 6560610 (per curiam). On August 17, 2016, Carter filed a second such petition that is now before us. After the State filed its response, Carter filed a request to be allowed to file a response to the State’s response. We deny the petition and the request. •
The petition for leave to proceed in the trial court is necessary because the trial court can entertain a petition for writ of error coram nobis after a judgment has been affirmed on |2appeal only after we grant permission. Newman v. State, 2009 Ark. 539, 354 S.W.3d 61. A writ of error coram nobis is an extraordinarily rare remedy. State v. Larimore, 341 Ark. 397, 17 S.W.3d 87 (2000). Coram-nobis proceedings are, attended by a strong presumption that the judgment of conviction is valid. Westerman v. State, 2015 Ark. 69, at 4, 456 S.W.3d 374, 376; Roberts v. State, 2013 Ark. 56, 425 S.W.3d 771. The function of the writ is to secure relief from a judgment rendered while there existed some fact that,would have prevented.its rendition if it had been known to the trial court and which, through no negligence or fault of the defendant, was not brought forward before rendition of the judgment. Newman, 2009 Ark. 539, 354 S.W.3d 61. The petitioner has the burden of demonstrating a fundamental error of fact extrinsic to the record. Roberts, 2013 Ark. 56, 425 S.W.3d 771.
The writ is allowed only under compelling circumstances to achieve justice and to address errors of the most fundamental nature. Id. A writ of error coram nobis is available for addressing certain errors that are found in one of four categories: (1)-insanity -at the time of trial, (2) a coerced guilty plea, (3) material evidence withheld by the prosecutor, or (4) a third-party confession to the crime during the time between conviction and appeal. Howard v. State, 2012 Ark. 177, 403 S.W.3d 38.
Evidence adduced at Carter’s trial reflected that he and Jessica Brewer were shopping at a Wal-Mart store at the same time Salli Reding and Shannon Smith were shopping in the' store. Reding observed Carter placing video games inside his clothing. When Carter left the store without paying for the games, Reding followed him outside and confronted him about his failure to pay. At that point, Carter pulled a gun from his pocket, cocked it, and | ¡¡pointed it at Reding. Smith testified that she did not see Carter pull out the gun but saw a gun in Carter’s hand down at his side after Reding stepped back and called out, “He’s got a gun.” Brewer also testified to seeing a gun at Carter’s side. Carter then left the parking lot with Brewer and went to a resale shop where he sold the stolen games as used electronics.
On direct appeal, Carter argued that the State failed to prove that he had actual, unauthorized possession of merchandise from .the Wal-Mart, that there was no proof that a security alarm sounded when he left the store, and that no representative of the store testified to a loss of the merchandise. He contended that, without proof of the theft, there could be no aggravated robbery. The court of appeals rejected the arguments, finding that there was substantial evidence of a theft. Carter, 2009 Ark. App. 683, at 3. The court of appeals held that aggravated robbery occurred when physical force was threatened. Id.
As grounds for his first petition for a writ of error coram nobis, Carter contended that the State violated Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). He reiterates the claim in this petition and in the request to respond to the State’s response to , the petition.
A Brady violation is established when material evidence favorable to the defense is wrongfully withheld by the State. Isom v. State, 2015 Ark. 225, 462 S.W.3d 662. In Strickler v. Greene, 527 U.S. 263, 119 S.Ct. 1936, 144 L.Ed.2d 286 (1999), the Supreme Court revisited Brady and declared that, when the petitioner contends that material evidence was not disclosed to the defense, the petitioner must show that “there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.” Strickler, 527 U.S. at 280, 119 S.Ct. 1936 (quoting United States v. Bagley, 473 U.S. 667, 682, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985)). In Strickler, the Court also set out the three elements of a true Brady violation: (1) the evidence at issue must 14be favorable to the accused, either because it is exculpatory or because it is impeaching; (2) the evidence must have been suppressed by the State, either willfully or inadvertently; and (3) prejudice must have ensued. Strickler, 527 U.S. 263, 119 S.Ct. 1936, 144 L.Ed.2d 286; see Howard, 2012 Ark. 177, 403 S.W.3d 38. Impeachment evidence that is material, as well as exculpatory evidence, falls within the Brady rule. Bagley, 473 U.S. 667, 105 S.Ct. 3375, 87 L.Ed.2d 481. To determine whether the proposed attack on the judgment is meritorious so as to warrant the granting of permission to reinvest jurisdiction in the trial court to pursue a writ of error coram nobis, this court looks to the reasonableness of' the allegations of the petition and to the existence of the probability of the truth to those claims, Isom, 2015 Ark. 225, 462 S.W.3d 662.
In the first petition, Carter based his Brady claim on the following assertions: Carter did not take, or manifest the intention to take, anything of value from Red-ing; the only crimes that Reding could have witnessed were .shoplifting by Brewer, who stole the video games, and, if Brewer passed those games, to. Carter, Reding was a witness only to Carter’s being an accomplice to shoplifting;, the State used a statement from a Wal-Mart customer as evidence that an aggravated robbery had occurred;- Reding was a witness only to the aggravated robbery of Randall Nichols, a Wal-Mart employee; the affidavit in support of the arrest warrant for aggravated robbery recited facts that supported only a showing of shoplifting or accomplice to shoplifting; the victim was Wal-Mart, not Reding; Carter was charged with one crime and convicted of another because there was no robbery; in her pretrial statement, Reding speaks as though she were a police officer or “some type of store security” rather than an ordinary shopper, and this constituted a “fabricated affidavit” that was used to obtain an arrest warrant; Carter’s Fifth Amendment right to remain silent was | ¿violated because the “court stated that [Carter] did not confess to a shoplifting charge so he cannot rely on it now”; Carter did not know that he was being tried for committing an aggravated robbery against Red-ing; the State did not disclose that Reding was testifying as a witness rather than a victim, and, as a result, she could not be asked if she believed that Carter had any intention of taking anything of value from her by threat or force; and the State allowed Reding’s perjured testimony to' be introduced at trial.
This court denied the relief sought in the first petition because it was abundantly clear that the claims raised by Carter were challenges to the sufficiency of the evidence adduced at trial rather than a violation of Brady in that he offered nothing to demonstrate that any material evidence had been concealed from the defense. Carter, 2015 Ark. 397, at 5. Issues concerning the sufficiency of the evidence are not cognizable in coram-nobis proceedings. Ventress v. State, 2015 Ark. 181, at 6, 461 S.W.3d 313, 317 (per curiam). The question of the sufficiency of the evidence is to be settled at trial and on the record on direct appeal. Sims v. State, 2012 Ark. 458, 2012 WL 6061927 (per curiam). The claims, of trial error were outside the purview of a coram-nobis proceeding. Howard, 2012 Ark. 177, 403 S.W.3d 38. Even constitutional issues that could have been addressed at trial are not within the purview of the writ. See Watts v. State, 2013 Ark. 485, at 7, 2013 WL 6157325 (per curiam).
In this second petition for the writ, Carter repeats some of the same claims and again seeks to challenge the evidence adduced at trial, and he again complains of trial error. He first argues that, if there had been a proper arraignment in a timely manner, no court would have found the evidence sufficient to bind him over for trial in the circuit court. He further contends that only a photograph of the gun was produced at trial; that the gun in the | (¡photograph was a toy that could not be cocked; that the Wal-Mart manager did not give a sworn statement or testify at trial even though the- manager was the complainant; and that any aggravated robbery was against Reding, but he was not charged with an offense against her. As with the allegations raised in the first petition, for the writ, these claims are not a ground for the writ.
Carter contends that Brady was violated by the State’s failure to produce the “best evidence” of the offenses. He states that he did not bring the allegations in his first petition because he did not receive certain information until after he had filed a petition under the Freedom of Information Act (“FOIA”). Specifically, he states that he located newly discovered evidence in the form of pictures that appear to show a different gun than the one at issue in his trial and other information that refutes the testimony and evidence adduced at trial. He asserts that he has learned that his fingerprints were not found on the gun, that there was no video showing him stealing from Wal-Mart, and that were “narratives” withheld, by the State that would have been helpful to the defense and that were used by the State to obtain a spurious warrant for his arrest. He contends that the material he received through the FOIA request indicates that there was no probable cause for the warrant. Carter argues that, if this information had been available to him at trial, he could have moved to dismiss the warrant and suppress the evidence obtained through the warrant.
First, it should be noted that we have held that a writ of error coram nobis cannot be granted on the basis of newly discovered evidence alone. Pinder v. State, 2015 Ark. 423, at 5, 474 S.W.3d 490, 493 (per curiam); Smith v. State, 301 Ark. 374, 375, 784 S.W.2d 595, 596 (1990). There is a distinction between fundamental error, which requires issuance of 17the writ, and newly discovered information, which might have created an issue to be raised at trial had it been known. Hooper v. State, 2015 Ark. 108, at 6-7, 458 S.W.3d 229, 233 (per curiam). To establish that newly discovered evidence is a basis for the writ, the facts as alleged as grounds for the writ must show that there is a reasonable probability that the judgment of conviction would not have been rendered, or would have been prevented, had the exculpatory evidence been disclosed at trial. Butler v. State, 2015 Ark. 488, at 3-4, 478 S.W.3d 210, 213 (per curiam); Dansby v. State, 343 Ark. 635, 641, 37 S.W.3d 599, 603 (2001). Carter has not established that there is a reasonable probability that any of the information he cites in his petition would have resulted in a different outcome of the trial. When the petitioner does not demonstrate that the newly discovered evidence would somehow have created an issue sufficient to affect the outcome of the trial and preclude the entry of the judgment, the petitioner has not established a ground to issue a writ of error coram nobis. Wallace v. State, 2015 Ark. 349, at 11, 471 S.W.3d 192, 199 (per curiam).
Moreover, Carter has not stated a ground for the writ because he offers no factual substantiation that the State had hidden any specific, particular evidence from the defense at the time of trial. Conclusory claims concerning evidence omitted from the record are deficient as a basis for coram-nobis relief and do not establish that there is a reasonable probability that the outcome of the proceeding would have been different if the State had disclosed any particular evidence to the defense. See Strickler, 527 U.S. 263, 280, 119 S.Ct. 1936, 144 L.Ed.2d 286; see also Lacy v. State, 2010 Ark. 388, 377 S.W.3d 227. A coram-nobis proceeding is not a means merely to contradict a fact already adjudicated in the trial court. See Stenhouse v. State, 2016 Ark. 295, at 4, 497 S.W.3d 679 (per curiam).
|RWith respect to Carter’s' allegations concerning the validity of the arrest warrant, any defects in the arrest warrant could have been discovered and raised in the trial court. See Smith v. State, 2016 Ark. 201, at 3, 491 S.W.3d 463 (per cu-riam). Carter’s claims regarding the warrant in his case do not' establish the existence of some fact extrinsic to the record that was concealed from the defense. See id. The petitioner seeking to reinvest jurisdiction in the trial court to proceed with a coram-nobis petition bears the burden of presenting facts to support the claims for the writ because an application for the writ must make a full disclosure of specific facts relied on and not merely state conclusions as to the nature of such facts. Howard, 2012 Ark. 177, 403 S.W.3d 38; see also Cloird v. State, 357 Ark. 446, 182 S.W.3d 477 (2004).
Petition and request denied. | [
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DAVID M. GLOVER, Judge
| Appellant Rickie Allen Smith was convicted by a Sebastian County jury of robbery. He was sentenced as a habitual, offender to eighteen years in the Arkansas Department of Correction and fined $15,000. On appeal, he argues the State failed to present sufficient evidence to support the conviction. We affirm.
A directed-verdict motion is a challenge to the sufficiency of the evidence. Davis v. State, 2016 Ark. App. 274, 493 S.W.3d 339. When the sufficiency of the evidence is challenged in a criminal conviction, the evidence is viewed in the light most favorable to the verdict, and only the evidence supporting the verdict is considered. Robinson v. State, 2016 Ark. App. 240, 491 S.W.3d 481. We will affirm if the verdict is supported by substantial evidence—evidence of sufficient force and character that it will, with reasonable certainty, compel a conclusion one way or the other, without resorting to speculation or conjecture. |2/⅞ Circumstantial evidence may constitute substantial evidence to support a conviction; to be substantial, circumstantial evidence must exclude every other reasonable hypothesis than the guilt of the accused; that determination is a question of fact for the trier of fact. Id. Weighing the evidence, reconciling conflicts in the testimony, and assessing credibility are all matters exclusively for the trier of fact, in this case the jury. Davis, supra. The jury may accept or reject any part of a witness’s testimony, and its conclusion regarding credibility is binding on the appellate court. Id.
A person commits robbery “if, with the purpose of committing a felony or misdemeanor theft ... the person employs or threatens to immediately employ physical force upon another person.” Ark. Code Ann. § 5-12-102(a) (Repl. 2013).
At trial, Stephanie Miller’s testimony revealed that on October 25,2014, as she was closing the convenience store where she worked, she noticed someone at the door and'went to let him in; when she opened the door, she was pushed inside by a man wearing a black toboggan hat, panty hose over his face, a long-sleeved black shirt, and long black pants; she also said he sounded to her like a black male. Miller testified the man hit her in the cheek with a hard object that she believed to be a gun; she was struck four or five times during the altercation; the man ordered her to open the register; and the man took the money from the register, as well as a bank bag of money. Miller testified she tried to keep around $100 in the register. Just prior to the robbery, Miller had written her boss a note about the money in the bag and the change she needed; she told him there was $38 in the cigar box (which was not taken) and $62 in the bank bag (four rolls of pennies ($2), two rolls of nickels ($4), two rolls |aof dimes ($10), a one-dollar bill, two ten-dollar bills, five five-dollar bills) for a total of $100 outside of the register. As soon as the man left, Miller called 911 to report she had been robbed.
Miller gave officers a description of a slender black male, around 6'21', wearing a long-sleeved black shirt, black pants, and panty hose over his face. This description was put out over the radio, and Officer Jared Girard saw Smith, who matched the general description and was wearing black pants and a grey t-shirt, a few blocks from the scene of the robbery. When Smith saw the officer, his eyes grew big, and Girard thought Smith was going to run because he turned quickly and began walking the other direction. Girard made contact with Smith, who was breathing heavily and sweating even though it was a cool night, and conducted a pat-down search of Smith’s person for his own safety. Girard recovered $46 cash from Smith’s right pocket—two ten-dollar bills, five five-dollar bills, and a one-dollar bill. In the backpack, Girard located a long-sleeved black shirt, a black toboggan, a pair of eyeglasses, a pair of black-handled steel scissors, four rolls of pennies, two rolls of nickels, two rolls of dimes, and a single tan panty hose. Intake officers at the jail found $95 in cash in Smith’s underwear. Stephanie Miller confirmed the coins were wrapped in the manner in which she wrapped her coins; she also stated the black shirt and panty hose looked like the items being worn by the assailant during the robbery.
Smith argues on appeal that his fingerprints were not found at the scene, a gun was never recovered, the bank bag was never recovered, and Miller did not identify him as the person who committed the robbery; therefore, he contends, there was not sufficient evidence 14to support the allegations that he committed the robbery. We disagree. It is true that Miller did not identify Smith as the person who committed the robbery; however, Miller testified that the man, whom she believed to be a black man from his voice, was wearing long pants and a long-sleeved black shirt, and his face and head were covered with panty hose and a black toboggan, concealing any identifying features. Thereafter, the evidence is remarkable. Smith was stopped a few blocks away from the convenience store immediately after the robbery; he was out of breath and sweating; and he became visibly alarmed when the officer stopped to question him. Smith was wearing black pants and a grey t-shirt, but a black long-sleeved shirt, which is what Miller testified the robber wore, was in the backpack he was carrying, along with a black toboggan and a single panty hose. Moreover, the exact denominations of bills taken from the bank bag were in Smith’s pocket, and' the exact denominations of wrapped coins, which were identified by Miller as being wrapped in the manner she wrapped coins, were in Smith’s backpack. Additionally, the approximate amount of money taken from the cash register was recovered from Smith’s underwear during intake at the county jail. All of this circumstantial evidence, taken together, provides substantial evidence to support Smith’s conviction for robbery’
Affirmed.
Gladwin, C.J., and Virden, J., agree. | [
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Paul Ward, Associate Justice.
The trial court held that appellees had acquired title to the south one-half of an abandoned railroad right-of-way by adverse possession. Appellants, who claimed ownership of said land by record title, now proseeute this appeal for a reversal on the grounds that (a) appellees had no color of title because the deed relied on contained an indefinite description and (b) there is no substantial evidence of adverse possession.
The railroad right-of-way involved in this litigation runs in a northeasterly direction across the northwest corner of the Southeast Quarter of the Southeast Quarter of Section 26, Township 15 North, Bange 16 West, in Searcy County. That part of the right-of-way here involved is 100 feet wide and approximately 800 feet long. The centerline intersects the north line of the above described forty acres near the middle and it intersects the west line of said forty acres 240 feet south of the northwest corner of said forty acres, leaving about 7 acres north of the right-of-way and abutting thereon.
The entire forty acres was owned by one N. J. McBride in 1903, when he conveyed the right-of-way to the St. Louis and North Arkansas Railroad. McBride later sold the land to Lonzo Tilley, and in 1916 Tilley sold to James A. Sutterfield 13 acres lying south of the right-of-way and abutting thereon. The heirs of Sutterfield, on March 28, 1959, deeded to Mr. and Mrs. Branscum (appellants herein) a portion of this land lying south of the right-of-way and abutting thereon.
In 1928 Highway No. 65 was built along the south line of the right-of-way. The right-of-way was abandoned by the railroad company in 1946.
Appellees acquired title to the aforementioned 7 acres of land north of the right-of-way either in 1951 or sometime prior thereto, and on October 16, 1951, they procured a Quit Claim Deed from the Trustees of the railroad company purporting to convey the said railroad right-of-way. The description in this deed reads as follows:
“That part of the right-of-way of the old Missouri and Arkansas Railway commencing at the west line of the Southeast quarter of the Southeast Quarter of Section 26, Township 15 North, Range 16 West, and extending in an easterly direction approximately 806 feet, or from Engineering Station 9039/75 to Station 9047/81 at private road crossing, as more fully indicated by Railroad Map V2A-Ark. No. 26 on file with the Railway Company at Harrison, Arkansas, same being a strip 100 feet in width of the length of 806 feet as indicated above, containing 1.8 acres, more or less.”
This is the deed that appellants attack as containing an indefinite description.
In June, 1959, appellants filed a suit in ejectment against appellees in the Circuit Court, claiming to be the owners of the south one-half of said right-of-way; setting forth their chain of title; alleging that appellees had, without authority, entered upon the land and erected a fence thereon; and asking the court to declare them to be the true owners. Appellees claim that they were entitled to the land by reason of 7 years adverse possession under color of title.
After hearing the testimony the court, sitting as a jury by agreement, found that appellees had acquired title to said strip of land by reason of adverse possession, and rendered judgment accordingly.
It is our conclusion that the judgment of the Circuit Court must be sustained on the ground that appellees had adverse possession of the portion of the land in question for more than 7 years under color of title.
(a) DESCRIPTION IN THE DEED. While the description in the deed from the Trustees to appellees does not definitely describe, by metes and bounds, the strip of land in question, we think it' furnishes a sufficient “key” to make the description definite. Being a conveyance of a right-of-way in a definite forty acres of land it could not possibly refer to any other lands. The acreage is accurately described — being 1.8 acres. The width and length of the parcel of land is definitely stated. In addition to all of these, the deed itself makes reference to a map and tells where the map can be found. We think all these facts constitute a sufficient key to make the description definite under the decisions of this court. See: Tolle v. Curley, 159 Ark. 175, 251 S. W. 377; Turrentine v. Thompson, 193 Ark. 253, 99 S. W. 2d 585; Ketchum v. Cook, 220 Ark. 320, 247 S. W. 2d 1002, and Benny Rinke, gdn., et al v. Mark Weedman, 232 Ark. 900, 341 S. W. 2d 44.
(b) ADVERSE POSSESSION. Having concluded that appellees ’ deed from the Trustees constitutes color of title, it is necessary only that appellees show they had possession of a portion of the said strip for 7 years in order to acquire title to all of it. This court has uniformly and frequently held that adverse possession of a part of a parcel of land extends to all of the land claimed under color of title. See: Benjamin M. Ledbetter v. Jesse Fitzgerald, 1 Ark. 448; Bradbury v. Dumond, 80 Ark. 82, 96 S. W. 390; Flannigan v. Beavers, 172 Ark. 28, 287 S. W. 755 and Lollar v. Appleby, 213 Ark. 424, 210 S. W. 2d 900.
The record reflects that appellees cleared the strip of land in question more than once; that in 1951 they built a road from Highway No. 65 across the parcel of land to their home near by, and; that they had sawdust placed on the disputed parcel of land. It is not disputed that appellees built the road across the parcel of land in 1951 or that it has been in use ever since. Also, although the record is not clear on the point, there is evidence indicating appellees had built and maintained a fence on the land. In the Lollar case, supra, there appears this statement: “. . ., it has been well said that if the claimant ‘raises his flag and keeps it up’ continuously for the statutory period of time, knowledge of his hostile claim of title may be inferred as a matter of fact.”
It is our conclusion therefore that there is sufficient evidence to support the judgment of the trial judge, whose findings have the same force and effect as the findings of a jury in this case.
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Sam Robinson, Associate Justice.
Appellants appeal from convictions of involuntary manslaughter and sentences of three years each in the penitentiary. The only point we reach is whether the evidence sustains the verdicts.
On August 19, 1959, the appellants, Bruce Kagen and Jimmie Tibbett, and Clinton Silvey and Claudine Gilliam, met at the DeLuxe Cafe in Fort Smith. They all agreed to go swimming near Sugar Loaf Mountain. They left in Silvey’s car and went to two or three places attempting to get other girls, but were unsuccessful in that respect. They then proceeded to buy some whiskey, gin and vodka. Silvey was driving the car and did not go to the swimming place near Sugar Loaf, but drove to a strip pit full of water, made in a mining operation. On the way Claudine Gilliam became very drunk and passed out, and either she or someone else took her clothes off, and apparently she had vomited on herself. According to the evidence, Tibbett took her down to the water in the strip pit, washed her and bathed her face; brought her back to the car and put her clothes on. According to the statements of appellants, they endeavored to get Silvey to take all of them back to town because of the condition of the girl. Silvey became very angry and got out of the car with a pair of metal knucks on his hand and made an attack on the appellant Kagen. The two clinched, and- Tibbett came up and caught hold of Silvey, who then asked them to turn him loose, that everything was all right; but when they turned Silvey loose, he ran away a short distance and began throwing rocks at Kagen and Tibbett, who were standing near Silvey’s car. It is indicated that the rocks struck the car, because pictures introduced in evidence show damage to the vehicle.
The appellants did not testify at the trial, but made statements subsequent to the tragedy that they had thrown one rock each in the direction of Silvey at the time and that he could have been struck by one of the rocks. Appellants also stated that Silvey then ran to the strip pit and entered the water; that they threw nothing at him while he was in the water, only endeavoring to get him to come back and drive them to town, but that Silvey swam on out into the water and they heard nothing more of him. They concluded that he drowned or had come out on the other side of the pit. Appellants attempted to start Silvey’s car, but could not do so. They then walked to Eugene Johnson’s house about a half-mile away, taking Claudine Gilliam with them. Tibbett assisted her in walking. The Johnsons had no telephone, but the Johnson boy went with one of the appellants to a neighbor’s house about two and one-half miles distant, and the sheriff was called.
The sheriff went to the scene immediately and after searching around the strip pit and seeing no evidence of anyone having come out of it, made arrangements to obtain grappling hooks for the purpose of dragging the strip pit, which was very deep. Two sets of grappling hooks were obtained, one of which was made of an iron bar about four feet long, with sharp hooks about three inches long extending from it. After dragging the pit for a considerable time with both sets of grappling hooks, the body had not been located. Skin diving apparatus was then obtained, and by the use of this equipment Silvey’s body was found at the bottom of the pit in water about 60 feet deep, at a point about the middle of the pit, which is approximately 125 feet wide, and about 60 feet from the end of the pit. In other words, the body was at least 60 feet from dry land in any direction. When the body was brought to the surface, it was found that there was a gash in the scalp to the rear of the top of the head, about three-quarters of an inch long. When found, the body was lying face down, with the hands under the body, and there were marks where grappling hooks had passed close to the body. In fact, mud had been stirred up by the hooks and settled on the body. No doubt the gash in Silvey’s head could have been made by the grabs. An autopsy was made and the autopsy report contains this statement: “The autopsy findings indicated that the cause of death was due to asphyxia (drowning). A laceration was found at the top of the scalp. This was strictly in the skin and was superficial. No evidence of fractured skull or traumatic injury to the brain could be seen. The other findings are incidental.” The autopsy report also shows that the body contained 191.4% of alcohol, and the undisputed evidence is that with this amount of alcohol in the body a person would be very drunk.
If appellants made a vicious attack on Silvey, causing him to jump into the strip pit in an effort to save his life or to prevent great bodily injury, they would be guilty of homicide. Tharp v. State, 99 Ark. 188, 137 S. W. 1097. But there is no substantial evidence that this occurred. The deceased could not have got to a point above where the body was found except by swimming. There is no current in the pit, and the record does not indicate that there was a boat. And of course if appellants had struck him in the head with a rock while he was in the water and knocked him unconscious, causing him to drown, they would be guilty. There is no substantial evidence to sustain either theory. Even assuming that the appellants were throwing rocks at Silvey and he felt it necessary to make a hasty retreat, it was wholly unnecessary that he jump into the water in order to get away. Pictures of the scene of the killing were introduced in evidence, and there is a clear strip of ground about 50 feet wide around the strip pit. Silvey could have gone in any one of three directions without going into the pit. The fact that Silvey did jump into the pit, as stated by appellants, is corroborated by the fact that his shoes were found at the place 30 or 40 feet from the pit, where they said he ran. The shoes were about 25 feet apart, indicating that they had come off while he was running. They were not laced up. In 25 A. L. R. 2d 1187, it is stated that one may be found guilty of some degree of homicide by causing another to jump to his death, but it must appear that the act of the deceased was such a step as a reasonable man might take and that his apprehension was of immediate violence or injury and must have been well grounded. Cases from eight states are cited in support of this doctrine.
When Silvey’s body was found, there was a pair of metal knucks on his left hand. The evidence is that there was no indication that Tibbett had been drinking, and Kagen showed no signs of intoxication, although he stated to the sheriff that he had taken some drinks. Claudine Gilliam was so drunk that according to her own testimony she passed out before arriving at the strip pit and still needed help in walking to Johnson’s after the tragedy occurred, and the sheriff testified that she was groggy when he got to the Johnson house. The State lays much stress on the fact that at just about the place where appellants said Silvey was when the rock throwing occurred there are some blackberry vines, and although Silvey had on no shirt, there were no scratches on his body. A picture of the vines is in the record and they do not appear to be so high as to indicate that they would necessarily scratch the top part of a person’s body. Moreover, there-is no evidence in-the record that Silvey was actually' in the blackberry vines. The State cites the cases of Tharp v. State, 99 Ark. 188, 137 S. W. 1097, and Padgett v. State, 151 Ark. 290, 236 S. W. 603, in support of 4he proposition that when one is killed in trying to avoid an unlawful assault, such a happening will sustain a homicide' conviction, but in neither case are the facts similar to the case at bar.
There is no evidencé whatever that any rocks were thrown at Silvey while he was . in the water, and to say that the accused threw at him in such circumstances would be pure speculation. Professor Wharton, in his work on Criminal Evidence, Vol. 2, §’872, states: “To sustain a conviction, proof of the • criminal agency is as indispensable as the proof of death. The fact of death is not sufficient; it must affirmatively appear that the death was not accidental, that it was not due to natural causes, and that it was not due to the act of the deceased. Where it is shown by the evidence, on one side, that death may have been accidental, or it may have been the result of natural causes or due to suicide, and on the other side, that it was through criminal agency, a conviction cannot be sustained. Proof of death cannot rest in the disjunctive. It must affirmatively appear that death resulted from criminal agency.”
In Taylor v. State, 211 Ark. 1014, 204 S. W. 2d 379, in holding that the evidence was not sufficient to sustain conviction, the Court quoted from Bowie v. State, 185 Ark. 834, 49 S. W. 2d 1049, 83 A.L.R. 426, as follows: “In a case depending on circumstantial evidence the circumstances relied upon must be so connected and cogent as to. show guilt to a moral certainty and must exclude every other reasonable hypothesis than that of the guilt of the accused. Circumstances, however strong they may be, ought never to coerce the mind of the jury to a conclusion of guilt if they can be reconciled with the theory that one other than the defendant has committed the crime or that no crime has been committed at all.”
From a careful study of the record it does not appear that appellants were at any time mad at Silvey or wanted to harm him. Appellants stated that Silvey made an attack on Kagen with a pair of metal knucks and appellants merely held him and let go of him when he asked to be turned loose. When Silvey’s body was recovered the knucks were on his hand. It does not appear that appellants were intoxicated; in fact, it does not appear that Tibbett had been drinking at all, and certainly Kagen had drunk very little. The sheriff said he showed no sign of intoxication. Moreover, only three half pints of liquor were bought. Claudine Gilliam said she drank all the whiskey; and from the amount of alcohol in Silvey’s body, he must have drunk practically all of the half pint of gin and the half pint of vodka. Even though appellants threw some rocks at Silvey while he was throwing rocks at them, certainly there is no evidence, circumstantial or direct, that they wanted to kill him, and surely no one in his right mind would throw rocks at anyone swimming in deep water unless a homicide was intended. Nothing in the record would indicate that appellants were not in their right minds. They went out with Silvey and the girl in Silvey’s car to go swimming. Kagen drank very little and it appears that Tibbett drank nothing. Before they got to go swimming, the girl became intoxicated and sick and unconscious. Tibbett tried to help her by bathing and putting her clothes on her, all except her panties, and when Silvey’s body was recovered, they were found in his pants pocket, as were the keys to the car, along with a contraceptive. It appears that if anyone had sexual relations with the girl, it was Silvey, and not either of appellants.
Eugene Johnson testified that while appellants and the girl were at his house the girl said: “They’re lying to you. They know where the body is. It’s over there all right but they know how it is there, and they’re the ones that put it there.” One of the appellants replied: “She’s sick. She doesn’t know what she is saying.” The alleged statement of the girl was hearsay, and to be admissible it must come within one of the exceptions to the hearsay rule. There is at least grave doubt that it comes within such an exception. The girl who is alleged to have made the statement was in court and tes tified as a State’s witness, but she did not testify that sbe made tbe statement attributed to her by Johnson. However, she did testify:
“Q. How many different stories have you told the officials here, including Mr. Glenn Abbott. —Of different things you thought you might have remembered?
A. I don’t know. I must have told him something the night I came in but I don’t know what I told him. — The night they picked us up.
Q. Was that because you were still intoxicated?
A. No, not exactly. I was a little drunk. —I was passed out when they came after us.
Q. You were passed out when they came to Johnson’s to get you?
A. Yes, sir.
Q. And you were passed out when you got to the strip pit, weren’t you, Claudine?
A. That’s right, but I walked up to the farmhouse by myself.
Q. Did you just walk in a trance?
A. Well, Jimmie might have been holding me up a little.’’
In order to bring hearsay evidence of an implied admission within the exceptions to the hearsay rule, not only must it be shown that the statement was made, but it must also be shown that the accused heard the statement; that he understood it, and remained silent or evaded a response. It is the failure to deny that is significant. If the total response adds up to a clear-cut denial, this theory of implied admission is not properly available. McCormick on Evidence, pp. 528-530. Here one of the appellants — the record does not show which one — spoke up and said, “She’s sick. She doesn’t know what she is saying.” In the circumstances it appears that the reply is all that was required and the girl’s statement therefore does not have any proba tive value, although no objection was made to the admissibility of it.
The law presumes a defendant innocent until proved guilty beyond a reasonable doubt. Where the State depends on circumstantial evidence, this Court has said: ‘ ‘ The evidence against the accused was entirely circumstantial. In such cases it is required that the evidence relied on must show the guilt of the accused to a moral certainty and must exclude every other reasonable hypothesis than that of the defendant’s guilt. We conclude that the testimony adduced was not sufficient to establish the guilt of appellant with the certainty that the law requires in cases of this kind. We cannot say that the circumstances shown could not be reasonably explained except upon the hypothesis of appellant’s guilt.” Johnson v. State, 210 Ark. 881, 197 S. W. 2d 936.
It is our conclusion that the evidence in the case at bar is not sufficient to sustain the verdicts. The judgment is therefore reversed and the cause remanded for new trial. | [
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Jim Johnson, Associate Justice.
On October 23, 1953, the Commissioner of Labor filed a Certificate of Assessment in the amount of $109.35 for unpaid unemployment contributions against Ralph C. Barnhart in the office of the Circuit Clerk of Washington County. Appellee Barnhart filed a petition for review in the Chancery Court of Washington County and prayed that the Chancellor quash the assessment and expunge it from the record because the assessment had been made without appellee’s having been afforded a hearing regarding appellee’s liability for contributions as 'ah employer under the terms of the Arkansas Employment Security Law, The Chancellor held that the Commissioner of Labor had not followed the procedure prescribed by the Act affording appellee an opportunity to be heárd before filing such assessment and ordered the assessment expunged from the record without prejudice to the Commissioner.
Thereafter the Commissioner instituted proceedings in accordance with the procedure the trial court found to be requisite for filing assessments and a hearing was held before the Commissioner and appellee was found to be indebted for taxes in the amount of $109.35, together with interest thereon from October 22, 1953, until paid. This finding by the Commissioner was appealed to the Board of Beview by appellee on the ground that the matter was res judicata because of the decree entered by the Chancellor in the prior proceedings.
On May 24, 1956, the Board of Beview held that the decree of the Chancery Court which was based upon technical defects in the procedure followed by the Commissioner in filing the assessment was res judicata regarding the matter of whether appellee was indebted for taxes; and further, that because this question was res judicata there was no liability for taxes on the part of appellee. The Commissioner appealed this determination of the Board of Beview to the Pulaski Circuit Court; the Pulaski Circuit Court sustained the determination of the Board of Beview by a final judgment; and this appeal is from that final judgment.
For reversal, appellant relies upon the following points: (1) The Court erred in holding the issues made before the court res judicata under the Washington Chancery Court decree for the reason that the issues now involved were not before the court in the proceedings in which the decree was entered. (2) The Court erred in holding that, the Chancellor’s decree entered “without prejudice to J. R. Cash, Commissioner of Labor” was a final judgment rendering the issues in this matter res judicata. (3.) The Court erred for the reason that “to expunge from, the record” does, not embrace a judicial or equitable determination of an issue, but denotes a physical act of obliteration, leaving the record, for all purposes, as if that “expunged” had never occurred.
The basic issue before this Court is whether the proceeding in the Washington Chancery Court, wherein the sole- question determined was that of technical procedure required by the Commissioner of Labor in filing a valid certificate of assessment, renders the merits of the claim for employment security contributions res judicata thereby defeating the right of the Commissioner to collect the contributions claimed.
There have been two proceedings in the instant case. In the first proceeding the record before this Court does not reflect that the question concerning the merits of the claim for contributions was tried but that a technical defense, i. e., that the procedure followed by the Commissioner of Labor in filing the Certificate of Assessment did not fulfill the requirements of the Arkansas Employment Security Law. Appellee’s technical defense was successful in that proceeding and the Chancellor issued his decree expunging the assessment from the record without prejudice to the Commissioner of Labor. Appellee now seeks to, prevent the, claim, for contributions being processed and collected by raising the defense of res judicata, although the merits of the claim were not in issue when the first defense of improper procedure was used.
Appellee did not raise any issue concerning the merits of the claim for tax;es. To the contrary, appellee’s petition for review filed in the Washington Chancery Court was based solely on the ground that the certificate of assessment was not founded on a finding of fact which could be reviewed by the Chancery Court. Therefore, we conclude that the merits of the claim of the Commissioner of Labor for contributions from appellee was not in issue but only the question whether appellee was entitled to a hearing on the merits before an assessment was filed; and if he was entitled to such a hearing whether the failure to afford him the opportunity for a hearing was a fatal defect in the procedure for filing a certificate of assessment by the Commissioner of Labor. The trial court was correct in holding that the failure to afford appellee such a hearing was a fatal procedural defect and in issuing the order to “expunge the assessment from the record without prejudice to the Commissioner of Labor.”
Having thus concluded, we reach the question whether such order is res judicata in the present case. The general rule applicable to this question is well stated in 30 Am. Jur. under the title of Judgments, p. 925, Sec. 180:
“The rule granting conclusiveness to a judgment in regard to issues of fact which could properly have been determined in the action is limited to cases involving the same cause of action. The established rule is that the judgment in the first action operates as an estoppel only as to the points or questions actually litigated and determined, and not as to matters not litigated in the former action, even though such matters might properly have been determined therein. Accordingly, before the doctrine of res judicata is applied in such cases, it should appear that the precise question involved in the subsequent action was determined in the former action. These rules prevail whether the judgment is used in pleading as a technical estoppel, or is relied on by way of evidence as conclusive per se. ’ ’
Appellee very forcefully argues that the rule set out in Crump v. Loggains, 212 Ark. 394, 205 S. W. 2d 846, should apply to the case at bar. There the Court said:
“The test in determining a plea of res judicata is not alone whether the matters presented in a subsequent suit were litigated in a former suit by the same parties but whether such matters were necessarily within the issues and might have been litigated in the former suit.”
There is nothing in the record to show that the matter of appellee’s liability for taxes was in issue nor that such liability was necessarily in issue. See Harvard Law Review, Vol. 65, p. 818, et seq.
Based upon the facts in the present case, as we view it, the rule applicable here is stated in Chiotte v. Chiotte, 225 Ark. 101, 279 S. W. 2d 296, as follows:
“In the application of the doctrine of res judicata, if it is doubtful whether a second action is for the same cause of action as the first, the test generally applied is to consider the identity of facts essential to their maintenance, or whether the same evidence would sustain both ... if, however, the two actions rest upon different sets of facts ... a judgment in one is no bar to the maintenance of the other. It has been said that this method is the best and most accurate test as to whether a former judgment is a bar in subsequent proceedings between the same parties, and it has been designated as infallible.”
The Chancellor in his decree recited that the act of expunging the assessment from the record was done without prejudice to the Commissioner. There can be no merit in the contention made by appellee that such action was a final judgment on the merits since the rule in Arkansas as restated by this Court in the case of Baughman v. Overton, 183 Ark. 561, 37 S. W. 2d 81, is as follows:
“A judgment dismissing a suit without prejudice is not res judicata in a subsequent suit involving the same parties and issues.” [Emphasis ours.]
See also: Jordan v. McCabe, 209 Ark. 788, 192 S. W. 2d 538. We believe that the Chancellor recognized that it would be inequitable and would defeat the ends of justice to bar a valid claim by the Commissioner of Labor on technical procedural grounds and entered his decree “without prejudice” which phrase is universally under stood to preserve to the parties the right to proceed anew in order that the case may be tried on its merits.
The term “expunge” is defined in Black’s Law Dictionary, 4th Ed. p. 693 as: “To destroy or obliterate; it implies not a legal act but a physical annihilation. To blot out; efface designedly; to strike out wholly.” [Emphasis ours.] It is our holding that the certificate of assessment then of record had no legal force and effect as a judgment against appellee Barnhart but we cannot read into this physical act of striking the assessment from the record [because of procedural defects] a bar to further proceedings on the merits of the case since no determination was ever made as to appellee’s liability as an employer under the terms of the Employment Security Act. Since the issues now involved were not before the trial court when the decree was entered, we cannot say that the prior decree was res judicata.
Reversed and remanded to the Circuit Court with directions to remand to the Board of Review for further proceedings consistent with this opinion without prejudice to either party to introduce additional evidence upon the merits.
McFaddin, J., concurs. | [
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Ed. F. McFaddin, Associate Justice.
This is a mandamus action brought by appellant, Carter, against appellees, Beamey et al. Prom a judgment of the Circuit Court denying the prayed relief, there is this appeal, which necessitates a decision as to the validity of Act No. 359 of the General Assembly of 1957, captioned:
“An Act Granting and Empowering Counties and Municipalities to Hold Certain Types of Elections Under Amendment Number Seven to the Constitution of the State of Arkansas and the Enabling Acts Pertaining Thereto; and for Other Purposes.”
Ashley County is a “dry” County — the sale of intoxicating liquor therein having been prohibited several years ago. In 1958 West Crossett was an incorporated Town in Ashley County; and appellant, Carter, as a citizen and taxpayer of West Crossett, sought to have an election held in the Town under the provisions of said Act No. 359 of 1957. A petition was filed, praying for said election on the issue: “An Act to Legalize the Sale of Beer for Off-premise Consumption Only Within the Corporate Limits of West Crossett, Arkansas”. At first, the County Board of Election Commissioners (appellees here) voted to put the issue on the ballot at the General Election in November, 1958; later, two of the three Commissioners attempted to rescind the action; but the third Commissioner claimed the rescinding action was illegal and had a typewritten sticker prepared and used at the General Election in November, 1958. After the said election, the County Board of Election Commissioners, by a majority vote, refused to recognize the validity of the election or the typewritten ballot, and also refused to certify the result of the election regarding the liquor issue. Thereupon, appellant, as a citizen and taxpayer in West Crossett, filed this mandamus action, and the Circuit Court denied the prayed relief after an extended hearing. This appeal resulted.
The election on the beer issue in West Crossett- was attempted under the provisions of said Act No. 359, so the first essential of the appellant is to sustain the validity of the said Act. It would be an idle thing to mandamus the Election Commissioners to certify the vote on the beer issue in West Crossett if the Act No. 359 be invalid: there conld have been no valid election under the Act unless the Act itself be valid. Our research discloses that the said Act No. 359 is invalid, because it did not receive enough votes to amend or repeal any part of the Initiated Act No. 1 of 1942, which was the controlling Act regarding elections for the sale of intoxicating liquor.
Initiated Act No. 1 of 1942 (hereinafter called “Initiated Act No. 1”) was adopted by the People of Arkansas at the General Election of 1942. It may be found at Pages 998 et seq. of the printed Acts of 1943, and may also be found in § 48-801 et seq. Ark. Stats. The Initiated Act is captioned:
“An Act to Amend The Liquor Laws of the State of Arkansas So As To Provide for Better Local Option Laws, for Prohibiting the Manufacture or Sale, or the Bartering, Loaning or Giving Away of Intoxicating Liquors, for Defining Intoxicating Liquors, for Fixing Penalties for the Violation of the Law in Territory Made Dry Under the Provisions of This Act, and for Other Purposes”.
The Initiated Act applies to all types of intoxicating liquor: the last sentence of Section 2 being: “Intoxicating liquor is hereby defined to include any beverage containing more than one-half of one percent of alcohol by weight.” The Arkansas Legislature had previously defined beer: “The term ‘beer’ means any fermented liquor made from malt or any substitute therefor and having an alcoholic content of not in excess of 3.2 percent by weight ”. (Section 1 of Act No. 7 of the Extraordinary Session of the Legislature of 1933, as now found in § 48-503 Ark. Stats.) In the case of Denniston v. Riddle, 210 Ark. 1039, 199 S. W. 2d 308, which was followed in Tabor v. O’Dell, 212 Ark. 902, 208 S. W. 2d 430, it was held that after a county as a whole votes dry no subdivision within the county may thereafter hold a separate wet-dry election. Our holding was based upon the fact that the Thorn Liquor Law was a borrowed Kentucky statute which had already been so construed in Kentucky when it was adopted by our legislature. In the Denniston case we quoted from a Kentucky decision that adopted the following rule: “When a statute provides that after the lapse of a Specified time the question of revoking an order declaring prohibition to. be in force by virtue of a prior adoption may be submitted, the resubmission must be to the voters of the entire territory embraced in the former election.”
We pointed out in the Denniston opinion that nothing in Initiated Act No. 1 had repealed the pertinent parts of the Thorn Liquor Law, but it was not then necessary to say whether those sections of the Thorn Law had been substantially re-enacted by the Initiated Act. That is the question now posed. We aré of the opinion that there was such a re-enactment. The sentence that we have quoted above from the Kentucky court’s decision is applicable not only to the Thorn Law but also to this provision in the Initiated Act: “If a majority of said electors voting at said election vote ‘AGAINST the Manufacture or sale of Intoxicating Liquors’,, then it shall be unlawful for the Commissioner of Revenues of the State or Arkansas, or any County or Municipal official to issue any license, or permit, for the manufacture, sale, barter, loan, or giving away of any intoxicating liquor as. defined in this act, for at least two years, and thereafter, unless' the prohibition shall be repealed by a majority vote as provided for in Section 1 of this Act.” Ark. Stats. 1947, § 48-802. It is therefore our conclusion that the Initiated Act in substance re-enacts that portion of the Thorn Law which was construed in the Denniston case as preventing any subdivision of a dry county from having a separate vote upon the liquor question.
It is the claim of the appellant in this case that the Act No. 359 of 1957 allows the municipality of West Crossett to have a separate election for the sale of beer in West Crossett, even though Ashley County is “dry”. It is clear, in the light of our decisions, that if said Act No. 359 could accomplish any such purpose, then it would be an amendment of-the Initiated Act No. 1, as heretofore mentioned. Section 8 of Amendment No. 7 of the Arkansas Constitution says:
“No measure approved by a vote of the people shall be amended or repealed by the General Assembly or by any City Council, except upon a yea and nay vote on roll call of two-thirds of all the numbers elected to each house of the General Assembly, or of the City Council, as the case may be. ’ ’
The records of the General Assembly, of which we take judicial notice, disclose that the Act No. 359 of 1957 was IT. B. No. 459, and that the measure passed the House of Representatives by a vote of 52 to 30, and passed the Senate by a vote of 18 to 11. To validly amend the Initiated Act No. 1, the Legislative Act No. 359 would have been required to receive 67 votes in the House and 24 votes in the Senate — being two-thirds of all elected members of each House: Section 8 of Constitutional Amendment No. 7 so prescribes. The Act No. 359 did not receive the required number of votes to amend Initiated Act No. 1 of 1942 so as to allow a municipality in a “dry” County to have a separate vote on the sale of beer in such municipality.
We, therefore, conclude that the Act No. 359 of 1957 was ineffectual to accomplish the election here sought by the appellant, and that it would be an idle thing for the Election Commissioners to be required to certify the result of the election when such result could have no possible effect looking toward the sale of beer in West Crossett.
Affirmed.
Harris, C. J., concurs.
Robinson, J., dissents.
The records in the 'Office of the Secretary of State show that West Crossett became an incorporated Town on June 18, 1937; but a Certificate of Revocation was filed in the office of the Secretary of State on February 11,1959, which was after the Circuit Court proceedings in this case and is mentioned only for information.
The record of this case in this Court deserves explanation. The appeal was submitted on November 16, 1959; the Court then asked for additional briefs; and counsel for both sides graciously complied with such request. Then the Court invited all counsel to appear for further discussion; and that invitation was likewise accepted.
Fulkerson v. Refunding Board, 201 Ark. 957, 147 S. W. 2d 980; Connor v. Ricks, 212 Ark. 838, 208 S. W. 2d 10; and other cases collected in West’s Arkansas Digest “Evidence” § 33. | [
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Carleton Harris, Chief Justice.
This appeal involves the custody of a minor child, and the award granted for his support. Loretta Cheek was granted a divorce from Harold Cheek in the Ashley County Chancery Court on June 2, 1958. By the terms of the decree, she was given custody of the minor son, Bicky, then five years of age, and the court awarded $20 per week for the child’s support., , The decree provided that Mr. Cheek should have custody of the child for “two periods of two months each twelve months until the child starts to school in September, 1959, at which time temporary custody period shall be reduced to three months during the summer vacation; * * The support payments, of course, were only required during the time that Ricky was in the custody of his mother.
On July 8, 1959, appellant filed a motion to amend the decree and reduce the support payment, and appellee subsequently petitioned the court, seeking a contempt citation for appellant’s alleged failure to comply with the decree of June 2nd. In response to this petition, appellant further pleaded that appellee was not a fit person to have the custody of the child, and asked that he (appellant) be granted custody of Ricky. Following a hearing on September 15, 1959, the court modified the original decree of June 2nd, 1958, by reducing the $20 per week payments to the sum of $70 per month; giving the mother the right to move the child out of the state (subject to visitation rights of the father as set out in the original decree), and requiring- appellee to file with the court a bond in the amount of $500, conditioned upon her compliance with further orders of the court. Judgment was rendered against appellant for $720, representing Cheek’s arrearage in child support payments. From such judgment comes this appeal.
Appellant first contends that the trial court erred in the amount for which judgment was awarded for arrearage. This contention is based upon the argument that Mr. Cheek was entitled to custody of Ricky for four months in 1958, and four months in 1959, a total of eight months, even though there was only a fifteen month interval between the granting of the decree and the order for modification. We are unable to understand the basis for this argument. The provision of the decree relative to custody of the child, heretofore set out, provides that appellant shall have custody for four months of each twelve months — not four months during each calendar year. The record reflects that the child was in the possession of appellant for sixteen weeks, the approximate four months, and the petition for modification was filed thirteen months after the original decree. It appears therefore, that appellant had possession of the child for the approximate period of time granted him under the decree. However, the court apparently miscalculated the amount of arrearage by $100, and this is admitted by appellee. The proper amount of judgment should have been $620.
Appellant next contends that the amount awarded per month for the support of the child is excessive and entirely beyond his ability to pay. The record reflects that Cheek earned $5,226 in 1958. In 1959, Cheek worked from the first of the year until March 4th, at which time he was laid off. He returned to work June 15th, and was working at the time of the trial. His total wages at the time of the hearing amounted to $2,328.15. In addition, he had drawn unemployment compensation at the rate of $26 per week during the period that he was off from work (three months, ten days). Of course, there still remained approximately three and one-half months in the year. The court arrived at its maintenance figure for the child on the following basis: $30 per month for food, $10 per month for clothing, school expenses, $8 per month; medical expenses, $10 per month; insurance, $4 per month; and $10 miscellaneous. This totals $72 per month, and the figure for support was fixed at $70 for each monthly period. Appellant argues that the total award should not exceed $40 per month. We do not agree that the amount awarded is excessive, nor do we feel that it is out of line with appellant’s earnings. It is true, that because of the lay-off from work, he may have earned some less in 1959 than in 1958, but, as previously stated, he was working regularly at the time of the trial. Perhaps we would be more impressed with this argument if Mr. Cheek had fully complied with the court’s order during the period of time he was regularly employed. Prom June 2, 1958, through December 31, 1958, appellant contributed $100 for the support of Ricky; from January 1, 1959, through March 4, 1959 (at which time he ceased work, Mr. Cheek contributed $80 for child support. The total amount paid from the date of the divorce until the date of the hearing was $400. Be that as it may, we cannot say that this award is excessive. This Court has many times held that the amount of support is a matter within the sound discretion of the trial court under the facts of each case. See Robbins v. Robbins, 231 Ark. 184, 328 S. W. 2d 498, and cases cited therein.
Appellant contends that appellee is not the proper person to have the custody of Ricky, and that custody should be given to the father. We do not agree. In Perkins v. Perkins, 226 Ark. 765, 293 S. W. 2d 889, this Court said:
“. . . It is a matter of common knowledge that usually there is no love like a mother’s love, this is a law of nature that is almost invariable, and unless there are compelling reasons for giving someone other than the mother custody of a small child, it should not be done. ’ ’
Certainly, no compelling reason appears in the instant case for changing custody. There are no allegations, or proof, of lewdness of drunkenness — or staying away from home — or improper treatment of the child — or neglect in any manner. In fact, appellant’s evidence of unfitness was rather strained. This proof relates to the fact that appellee would not let Cheek have the child on one or two occasions, and her use of a credit card, made out to appellant, to obtain gasoline, wherein she signed her name “Mrs. Harold Cheek” after she had remarried a man named Zeagler. The total gas bill was $39.15, though it is not entirely clear that appellee purchased all of this gas, since only two tickets are in the record. Mrs. Cheek (Zeagler) testified that the child was staying with appellant in Fort Smith; that she called and asked that he bring the boy home, but he replied that she would have to come after Ricky. She stated he told her it was all right to use the credit card, and that, though the gas was charged to him, she actu ally paid the bill. At any rate, we do not consider this act so grievous as to merit a change of custody of the child, particularly when appellant, at the time of the occurrence (October llth-12th) was several weeks behind in his payments.
The findings of the Chancellor carry particular weight in a case of this nature. As we stated in Wilson v. Wilson, 228 Ark. 789, 310 S. W. 2d 500:
“We know of no type of case wherein the personal observations of the court mean more than in a child custody case. The trial judge had an opportunity that we do not have, i.e., to observe these litigants and determine from their manner, as well as their testimony, their apparent interest and affection, or lack of affection for the child.”
The decree is modified to the extent that the judgment for $720 is reduced to $620, and is, in all other respects, affirmed. Attorney for appellee is awarded an additional attorney’s fee of $150.00. Costs of this case shall go against appellant.
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George Rose Smith, J.
This is an appeal from an order by which the circuit court refused to grant the appellant a new trial upon the ground of newly discovered evidence. Since the appellant concedes that Ms motion was addressed to the trial court’s sound discretion the only question is whether there was an abuse of that discretion.
The dispute grew out of an oral transaction by wMch the appellee, Ellery Halbrook, sold and delivered thirty-five head of cattle to his brother Archie, the appellant, for an agreed price of $3,500.00. Ellery’s suit to recover the purchase price was defended by Archie on the ground that the money had been paid. At the trial Archie testified that he paid his brother in cash, without taMng a receipt, wMle Ellery testified that he had received nothing. The decisive issue of fact was submitted to a jury, which returned a verdict for Ellery, the plaintiff.
The appellant, in his motion for a new trial, asserted that after the entry of the judgment he discovered that his brother Ellery had engaged in a conversation in a barber shop several months before the trial and had then said in the presence of three named witnesses that he had sold Ms cattle too cheaply but there was nothing he could do about it, as ArcMe had paid Mm for the cattle. The motion was supported by affidavits of the three witnesses.
At a hearing upon the motion two of the affiants were called as witnesses. One of them testified in conformity with Ms affidavit, but the other, upon being questioned by the court, was not sure whether Ellery had mentioned payment in the conversation or had merely said that he had sold the cattle too cheaply. In denying the motion the circuit judge indicated that he considered the newly discovered evidence to be cumulative and doubted if this proof alone would change the result of the first trial.
We are not willing to say that the circuit court abused its broad discretion in the matter. Our pertinent cases are cited and discussed in a comment appearing at á Ark. L. Rev. 60. There the authors point out that a motion of this kind is not favored by the courts, owing to the manifest disadvantages in allowing the losing litigant a second trial after lie has been afforded a fair opportunity to present his proof at the original hearing. Before granting such a motion the trial court should be convinced, among other things, that an injustice has been done, that the newly found evidence is not merely cumulative to that produced at the first trial, that the proof was not discoverable through the exercise of due diligence, and that the additional testimony will probably change the result.
There are two reasons for our reluctance to disagree with the circuit judge in this case. First, he had the advantage not only of having heard the testimony at the original trial but also of hearing two of the new witnesses at the hearing upon the motion. In the latter respect the case differs from Medlock v. Jones, 152 Ark. 57, 237 S. W. 438, where there was apparently no hearing upon the motion, so that its allegations stood undisputed. Here the trial judge, after observing the demeanor of the newly found witnesses, did not feel that their testimony would change the outcome of the case.
Secondly, the new testimony was to some extent of a cumulative nature. “Cumulative evidence is such as tends to support the fact or issue which was before attempted to be proved upon the trial.” Olmstead v. Hill, 2 Ark. 346, 353. At the original trial the defendant attempted to prove the same fact that is involved in his present motion — that Ellery had stated to a third person that he had been paid for the cattle. The witness Hilton was called by the defendant for the purpose of so testifying, but he proved to be a disappointment in that he failed to testify as counsel had expected. In this situation, where a party’s attempt to prove a particular fact has unexpectedly failed, he is not entitled to seek out additional witnesses to the same fact and upon that basis, with no affirmative showing of prior diligence, demand a retrial upon the ground of newly discovered evidence.
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Carleton Harris, Chief Justice.
Tbis appeal relates to an election contest. Appellee, Dexter Brewer, following the Democratic Primary on July 26, 1960, was certified on July 29th, as the nominee for the office of Sheriff of Stone County, by the Democratic Central Committee o f that county. Appellant, Jake Cullen Storey, was his opponent in that election. On August 18th, which, under our statute, was the last day for the filing of an election contest (Sec. 3-245, Ark. Stats., 1956 Replacement), appellant took a complaint and summons (which had been prepared by one of his attorneys) to the office of the clerk for filing, but the clerk refused to file same until one of the attorneys listed as counsel for appellant signed the complaint. Appellant offered to sign this attorney’s name, but the clerk would not permit this, and the latter placed a long distance call for the attorney at Harrison, but was unable to reach him. Appellant then took the papers back to the office of his Stone County attorney, but returned to the clerk’s office about one hour later, and filed his complaint. In the meantime, the summons had been handed to Dr. T. J. Burton, coroner of Stone County, by either this attorney or his secretary, and Dr. Burton took the summons and proceeded to the court house. Before entering the building, he met appellee at the west steps, and according to the testimony of this witness, Brewer stated, “ ‘I understand you’ve got some papers for me.’ And I said, ‘I do, and I appreciate it. I thought I’d have to hunt you.’ ” Burton then handed one copy of the summons to Brewer, and returned his copy to the office of appellant’s Stone County attorney, where it has remained since that time.
Shortly after Burton and Brewer met on the court house steps, Storey offered his complaint for filing in the clerk’s office, and the clerk filed same and accepted the fee for the filing. The record does not reflect that Storey asked that summons be issued on the complaint, though he stated that the fee included issuance of summons. Apparently appellant, knowing that Burton was in possession of the summons, was under the impression that the coroner would properly take care of that phase of instituting the suit. Later on in the day, Anita Vickers, secretary to appellant’s Stone County attorney, took the unsigned summons to the clerk, and according to Miss Vickers, requested the clerk to sign that summons or issue another. She stated that the clerk refused to do so. The testimony on this point is in conflict. The clerk’s version, which was verified by Luther Avey (who happened to be in the clerk’s office), was that she remarked “this is for Dexter Brewer, and he’s done been summoned”. The clerk stated that she did not refuse to sign it nor refuse to issue a new one, but after the aforementioned remark, Miss Vickers “picked it up and took it with her”.
Appellee, appearing especially, and without entering his appearance, filed a Motion in Abatement, setting up that since no summons had been issued, the complaint had not been filed within the twenty days, and he asked that the cause be abated. On the same day, subsequent motions and pleadings were also filed in the following order:
(b) Motion in Abatement (Ineligibility of appellant to become nominee).
(c) Motion to Quash Summons.
(d) Demurrer.
(e) Motion to Strike.
(f) Motion to Strike.
(g) Answer and Response.
In each of these motions and pleadings, appellee commenced by stating that he was “not waiving any rights under any or either of the motions or pleas heretofore filed, but still insisting thereon”. On September 15th, after the taking of testimony, the Circuit Court found “that the Contestee by his attorneys * * * filed with the Circuit Clerk of Stone County, certain motions and pleadings; that the Contestee was not entering his general appearance, but was appearing specially and reserving his right to question the jurisdiction of the court; that the court considered these motions to be filed before the demurrer and answer and so ruled; that no summons had ever been issued by the Clerk of the Court and, therefore, suit was never begun and the motion to abate should be granted.” Judgment was accordingly entered dismissing the complaint. From such judgment comes this appeal. For reversal, appellant first contends that appellee, by his conduct, is estopped from questioning the validity of the service, and second, that the pleadings filed by appellee had the effect of entering his general appearance.
Article VII, Section 49, of our State Constitution, provides:
“All writs and other judicial process shall run in the name of the State of Arkansas, bear teste and be signed by the clerks of the respective courts from which they issue. ’ ’
This provision is reiterated in Section 27-303 (Ark. Stats., Anno.). Section 27-306 provides:
“The summons shall be dated upon the date it is issued, and signed by the clerk.”
Further, Section 27-313:
“No summons or order for a provisional remedy shall be issued by the clerk in any action before the plaintiff’s complaint or petition therein is filed in his office.”
While there is some authority to the effect that acceptance or acknowledgment of service precludes a party from taking advantage of defects or irregularities in the service, it will be noted here that this is not the case of a defective summons; rather, no summons was ever issued. In other words, this suit was not properly commenced, and appellant is accordingly compelled to rely upon one of the two points heretofore mentioned for reversal. We do not agree that the doctrine of estoppel can apply in this case. Appellant refers to the testimony of Dr. Burton, who testified that Brewer took the “summons” willingly and stated “I understand you’ve got some papers for me. They didn’t have to do this. I would have been glad to have volunteered anyway”. The testimony of the clerk, wherein she stated, “This is for Dexter Brewer and he’s done been summoned”, is also relied upon. In addition, appellant contends that the clerk refused to issue a new summons. Of course, appellee is not responsible for the actions of the clerk, and whatever statements were made by her are not binding upon him unless it be shown that the sheriff and clerk were acting in concert. This was not shown. At any rate, an essential element of estoppel is that the complaining party relied upon the act or statement of the person sought to be estopped, and suffered detriment because of such reliance. It is readily apparent in the instant cause that appellant did not rely upon either the alleged statement made by Brewer to Dr. Burton, or the statement attributed to the clerk, for Miss Vickers, who testified on behalf of appellant, was subsequently sent to the clerk’s office to get the clerk’s signature and seal, and, according to her evidence, also requested the issuance of a new summons. As to the contention that the clerk refused to issue a new summons, this was disputed, and was purely a question of fact. We have repeatedly held that we will not reverse the Circuit Court upon a question of fact if there is any substantial evidence to support the findings. Even if it were shown that appellant had relied upon Brewer’s statement to his (Storey’s) detriment, we are of the opinion that appellant still could not prevail. In Corpus Juris Secundum, Vol. 72, § 113, p. 1168, it is stated that a defendant may waive certain defects or irregularities in process or service, by failure to assert the irregularity by timely plea or motion, or by participating in the trial on the merits of the case — but where the defect in the process or service is so substantial as to render same void, it cannot be cured by waiver, consent or agreement. On page 1169, “acceptance or acknowledgment of service precludes the party from taking advantage of any defects or irregularities in the service, but such a waiver cannot bind third parties; nor does it apply to any de fects in the summons itself.” . In other words, a defendant may, by his conduct, be estopped to object to the manner in which service is made, but estoppel does not apply where the defect in the summons itself is so substantial as to render the process void. Certainly, this litigation deals with a substantial defect, for the summons was never issued by the clerk, and the “summons” served on Brewer by Dr. Burton, prepared away from the clerk’s office, bearing’ no signature, and no return made to the office of the clerk as required by law, was totally ineffective.
We likewise find appellant’s second contention to be without merit. It is the position of Storey that the filing of the demurrer to the complaint, and the various motions thereafter, prior to any action being taken on the first motion, had the effect of entering the appearance of appellee. The filing of either a general demurrer or answer would have had this effect. We so held at least as far back as 1892. See Hawkins v. Taylor, 56 Ark. 45, 19 S. W. 105. As previously mentioned, the first line in this demurrer contains the language “not waiving any rights under any or either of the motions or pleas heretofore filed, but still insisting thereon”, and each pleading or motion following the original motion in abatement contains substantially the same language.
Appellant cites, in support of his contention, the cases of Nichols v. Lea, 216 Ark. 388, 225 S. W. 2d 684, and Federal Land Bank of St. Louis v. Gladish, 176 Ark. 267, 2 S. W. 2d 696, but these cases are not applicable to the cause before us. In each of those cases, the defendant appeared specially by motion for the purpose of questioning the jurisdiction of the court over the defendant; however, in each case, the defendant filed a cross-complaint, and we held that the question of jurisdiction was accordingly waived. The determining factor is whether defendant seeks affirmative relief, i.e., whether the pleading filed is more than a defensive action. In the Federal Land Bank case, supra, the Court said: “Where he preserves his protests he cannot be said to waive Ms objection. But certainly he cannot go into Court and ask affirmative relief and enter into the stipulations entered into in this case, without entering a general appearance”. No affirmative relief was sought in the cause before us, and the mere fact that the various pleadings were filed before action was taken on the first pleading is without significance. Actually, it would seem that the filing of the several motions and pleadings, each conditioned upon the failure of the prior defense, would have been of benefit to the court and all parties, since this was an election contest, and an early trial advisable.
Though perhaps it seems that appellant, while apparently seeMng in a bona fide manner to institute suit, was somewhat the victim of circumstances, the provisions of our Constitution and Statutes were not complied with, and this appeal must fail.
Finding no reversible error, the judgment is affirmed.
Appellee contends that Burton was not legally serving as coroner, but a discussion of this contention is not necessary.
For instance, failure to properly sign a summons after issuing same, signed by an improper party, or other clerical omission of the clerk.
Other alleged acts are also mentioned in appellant’s brief, but all took place after August 18th, which was the last day for filing suit. Reliance upon these acts could not have worked to the detriment of appellant, for it was then too late to institute action.
Emphasis supplied. | [
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Paul Ward, Associate Justice.
This is the second appeal by appellant to this Court in connection with the same subject matter. For a full understanding of the background issues and subject matter, reference is made to the opinion of this Court in the case of Wood v. Setliff, 229 Ark. 1007, 320 S. W. 2d 655.
Summarily stated, the essential facts leading up to this appeal are those presently set forth. In 1951 appellant, for consideration of $14,000.00, executed a General Warranty Deed to Setliff and his wife (appellees herein) purporting to convey a parcel of land in the City of El Dorado 80 feet by 220 feet. Later appellees filed suit in the Chancery Court against appellant for breach of warranty, alleging that a substantial portion of the' above parcel of land had been dedicated to the City of El Dorado; that appellant had no title and appellees received no title to that portion of the land; and that appellees were entitled to damages in a substantial amount. The trial court agreed with appellees’ contentions and entered a decree awarding damages for the value of that portion of the land to which title had failed. The court also awarded to appellees attorneys’ fees and damages for removal of a building. On appeal by appellant this Court affirmed the decree of the trial court in all respects except as to the last two mentioned items, and remanded the cause for further proceedings.
Upon remand appellant filed a Petition in which he asked the trial court to require appellees, upon payment of the judgment, “to convey, without warranty of title” all of their right, title, and interest in and to that parcel of the land to which title had failed. This Petition was denied, and appellant prosecutes this appeal.
There are no disputed questions of fact and it is agreed by both parties that the sole question for decision is one of law. The essence of appellant’s contention is set forth in his brief in this statement: “When the appellant paid this money to appellees, it would be grossly inequitable to allow the appellees to keep the money and the land too. They have the money to make them whole — if they keep the land, too, they are more than whole — they have both land and money. ’ ’
The strongest legal support which we find for this contention is the statement in 91 C.J.S. p. 1131, Section 170 c., under the subject of Reconveyance. There we find this statement: “Where title has vested in the purchaser he must, as a general rule, reconvey or offer to reconvey the property by a conveyance which will put the vendor in status quo.” Following the above quoted headnote we find this: “Ordinarily where title has vested in the purchaser, a reconveyance of the property or offer to reconvey is necessary; . . . ” However there is an exception to the above rule announced in the same paragraph where it is stated: “A tender of reconveyance is not necessary, however, where the purchaser has never acquired legal title or where the right acquired by the purchaser under his deed is absolutely worthless.” Authority for the above statement is found in the case of Bailey v. Gilman Bank, 99 Mo. App. 571, 74 S. W. 874. See also McCracken v. San Francisco, 16 Cal. 591; Upton v. Archer, 41 Cal. 85, 10 Am. R. 266; and Lewis v. Mote, 140 Iowa 698, 119 N. W. 152.
As is more clearly set forth in our former opinion, appellant apparently had no title to subject land because it had been dedicated to the City of El Dorado, and for the same reason appellees received no title.
It occurs to us, moreover, that appellant is now in the same position as he would be if appellees executed a quitclaim deed to him. In the case of Mackintosh et al v. Stewart, 181 Ala. 328, 61 So. 956, where a similar issue was under consideration, the Court said: “A recovery in an action on a covenant for title works a rescission pro tanto by revesting in the convenantor the title, such as it is, which he has conveyed.” Apparently appellees concede the above announced principle because in their brief and in the oral argument here, they disclaim all right, title and interest in the subject property, and they further agree that a court order to that effect may be entered.
Since appellant expresses the belief that he can someday perfect his title to the subject parcel of land against any claim of the City of El Dorado and since he wants to be in the best possible position to do so, and since all records affecting title to real estate should, when possible, be entered in the County where it is situated, we are remanding the cause to the trial court with instructions to enter an order reinvesting in appellant the title to the subject land, such as it is, which he conveyed to appellees.
As so modified the cause is remanded for the purpose above stated.
Modified and remanded with directions. | [
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Sam Robinson, Associate Justice.
Appellee, Nannie Strange, filed this suit to quiet title to 80 acres of land. From a decree in her favor appellants have appealed. George Strange, deceased husband of appellee, bought the property in 1928 and occupied it as his homestead until his death in 1936, when he died intestate, leaving surviving him his widow and seven children, five of whom were of age. Shortly after his death Mrs. Strange, the appellee, notified the five children who were of age that she was claiming ownership of the land, and gave the minor children the same notice when they became of age, which was more than seven years before the commencement of this suit in 1957. Four of the heirs, for the consideration of $500 each, conveyed their interest in the remainder to appellants, Leroy Haynes and Belle Haynes. The issue is whether Mrs. Strange has acquired the fee title in the property by adverse possession, or whether she owns only dower and homestead rights.
In her complaint Mrs. Strange alleges that her husband bought the property in 1928. She makes no claim to having been one of the purchasers. The complaint alleges: ‘ ‘ That in approximately the month of February, 1928, her husband, George O. Strange, purchased and obtained a deed to the following property, to-wit: . . .” Mrs. Strange bases her claim of ownership solely on adverse possession. The complaint alleges in that respect: “That since the death of the said husband and father, on December 15, 1936, the widow and petitioner, Nannie Strange, has exercised exclusive, open, notorious, actual, adverse, possession of the aforementioned property as against the world and the defendants named in the style of the case and the individuals named in the body of the petition, and is now in actual possession of said property, and has disavowed and has not recognized the claim or interest of the named individuals or any other persons as to the property since the death of George O. Strange.”
Upon the death of her husband, Mrs. Strange acquired by operation of law dower and homestead interest in the property. Before she could acquire the fee by adverse possession, she would have to renounce the rights of dower and homestead in an unequivocal manner. This she failed to do. She merely told the children that she was claiming to be the owner of the property, but she did not say she was renouncing her dower and homestead rights. In Watson v. Hardin, 97 Ark. 33, 132 S. W. 1002, this Court said: “The testimony adduced upon the trial of the case proved that Rachel Watson retained possession of the land after the death of Steve Watson solely by reason of the fact that she was his widow. Her claim to the land was derived from Steve Watson, and was in recognition of his right and title thereto. Her claim was therefore in recognition also of the interest of the heir of Steve Watson, if he had an heir. In its inception her claim of possession of the land was not hostile to the right or interest of the heir of Steve Watson, but was perfectly consistent and in conformity with such right and interest. It is true that her claim and possession might have been of such a nature as to amount to an entire disseizin of the heir and an entire denial of his rights, so as to result in an ac quisition of title by adverse possession; but, before her possession could become adverse, it was necessary for her to first repudiate the title of Steve Watson and to disavow any claim thereto as his widow; and it was also essential that notice of such disavowal by her of title as widow should be brought home to the heir. If Rachel Watson acquired possession of the land as widow of Steve Watson, and therefore in conformity with the right and interest of his heir and not in opposition to such interest, then, in order to constitute possession that would be adverse, it was incumbent upon appellee to prove that she disclaimed title in Steve Watson, under whom she acquired the possession, and that she claimed actual possession thereof hostile to that title and to the heir, of which he had notice; or that her disclaimer and hostile possession was so open and notorious as to raise the presumption of notice to him.” (Emphasis supplied.)
In Restatement — Law of Property — § 222, comment (f), it is said: “Owner of present interest as adverse possessor against owner of future interest. In cases within the rule stated in this Section, since the owner of the present estate is entitled to possession and the owner of the future estate is not, no adverse possession by the former against the latter is possible until the future interest becomes a present interest. It is immaterial that the present owner claims a larger interest under color of title, or informs the future owner that he claims an estate in fee simple absolute, or does both.”
Here Mrs. Strange had the right of possession by reason of her dower and homestead interest, and even though it be conceded that she announced to the world that she was claiming the fee ownership in the property, from a practical standpoint there was nothing the remaindermen could do, since she had not repudiated her interest growing out of dower and homestead. And, furthermore, if she had repudiated such interest at that time, she would have had no interest in the property at all, because she did not begin claiming adversely until shortly after the death of her husband, and of course it would take seven years for her claim to ripen into owner ship. The evidence is not sufficient to show that she repudiated or renounced her dower and homestead rights, and therefore she could not claim adversely to the remaindermen.
Reversed, with directions to dismiss the complaint. | [
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George Rose Smith, J.
This is a boundary line dispute between the owners of two adjoining forty-acre tracts. For about fifty years the line now in controversy was marked by a fence that was maintained between the two forties. In 1959 the appellant, who owns the tract lying east of the disputed line, attempted to extend his possession by the construction of a new fence along what he contends to be the true line, which lies from 37% to 62 feet west of the old fence. The appellee then filed this suit for an injunction, and the chancellor found the old fence line to be the correct boundary.
The proof is amply sufficient to show that the fence line became the established boundary by acquiescence. The Hilliard property was occupied by the appellant’s parents from 1909 until her mother’s death in 1941. During those years the Weston land was occupied either by the appellant, who bought it in 1926,or 1927, or by his predecessor in title. For thirty-two years the adjoining owners silently acquiesced in the location of the fence as the visible evidence of the boundary line. These facts bring the case within the principles recently reaffirmed in Tull v. Ashcraft, 231 Ark. 928, 333 S. W. 2d 490, and Neely v. Jones, 232 Ark. 411, 337 S. W. 2d 872. The appellant relies upon Cossey v. House, 227 Ark. 100, 296 S. W. 2d 199, but that case was distinguished in Neely v. Jones, supra, and need not be discussed again.
The appellant urges two other points for reversal. First, he insists that the trial court erred in refusing to permit him to prove that at some time after 1941 he acquired title to the disputed strip by adverse possession. The record does not support this contention. It merely appears that the appellee’s attorney objected to one question on the ground that adverse possession had not been pleaded; but the court made no ruling, and in any event the appellant is not in a position to complain, as he failed to show what the proffered testimony would have been. Wallace v. Riales, 218 Ark. 70, 234 S. W. 2d 199.
Secondly, the appellant contends that after 1941 the Hilliard land was wild and unimproved and that therefore he acquired title to the full extent of his governmental subdivision of forty acres (including the disputed strip) by the payment of taxes for more than seven successive years. Ark. Stats. 1947, §§ 37-101 and 37-102. In answer to this contention it is enough to say that the proof does not show that the Hilliard land was unimproved and uninclosed for seven years after 1941. The house was unoccupied and eventually fell into disrepair, but it appears that the dwelling was still standing at the date of trial. It is also indicated that underbrush had grown up to some extent while the land was unoccupied. The present point, however, was not really developed at the trial, and the proof falls decidedly short of showing that the property had reverted to its original natural state and thus could be found to have become unimproved and uninclosed within the intent of the statute. See Moore v. Morris, 118 Ark. 516, 177 S. W. 6.
Affirmed. | [
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ROBERT J. GLADWIN, Chief Judge.
hOn November 22, 2013, in the Faulkner County Circuit Court, Lester Hendrix was convicted of internet stalking of a child, a violation of Arkansas Code Annotated section 5-27-306 (Supp.2013), and sentenced to ten years’ imprisonment. On appeal, he argues that the State failed to prove an essential element of the crime. However, the State contends that appellant failed to preserve the issue for appellate review. We agree that the issue is not preserved and affirm appellant’s conviction.
A felony information was filed on September 7, 2012, alleging that appellant had stalked a child on the internet. At the bench trial, Shannon Cook, an investigator with the Faulkner County Sheriffs Office, testified that she investigates cases where people are trying to sexually exploit children in some way. She said that she met appellant on a website called Fetlife, which is a free social networking site for people who are interested in fetishes. She |2had set up a profile on Fetlife using an undercover email address, calling herself “playful mom.”
She testified that appellant sent her a friend request, calling himself “daddy for young.” From their meeting on Fetlife, they moved on to communicate through Yahoo messenger and Yahoo email. During their communications, Cook led appellant to believe that she was a thirty-year-old mother of two children, ages ten and eight, and that she had incestuous relationships with her children. She testified that appellant sought a meeting with her and the children, and she testified that he described explicitly the sexual acts he intended to carry out with her and the children. She said that appellant was given chances to “step back” from their conversations on the internet, but he did not. Instead, they set up a meeting at McDonald’s on Highway 65 in Conway, Arkansas, where he arrived driving a 2002 silver Buick as described in the emails. Appellant and Cook went inside the restaurant, and appellant was arrested.
Jason Keeler testified that he is also an investigator with the Faulkner County Sheriffs Office, and he assisted in the investigations and computer forensics. He interviewed appellant subsequent to the arrest. He also contacted the Fulton County Sheriffs Office, because appellant resided in Viola, Arkansas, and a search warrant was executed on appellant’s residence there.
Stephen Barker testified that he worked for the Russellville Police Department and conducted a forensic examination of the computer recovered from appellant’s residence. He confirmed appellant’s presence on the website Fetlife by recovering deleted messages posted Don the website.
When the State rested its case, appellant moved for a dismissal, arguing as follows:
The State charged my client with the crime of internet stalking of a child under specific provisions of Arkansas Code 5-27-306. I think the court probably has a copy of that charging document. The State has failed to meet its burden of proof of establishing that he has in fact violated that specific penal statute. We move for an acquittal.
After the State responded, the circuit court denied the motion. The defense then rested its case, and the dismissal motion was renewed without further specification and denied. After the State’s closing argument, appellant’s counsel gave his closing argument, contending that appellant was not guilty of the charge. He then specifically explained that appellant did not violate the statute because he did not communicate with a person that he believed to be fifteen years of age or younger, as is required by the statute. The State argued that appellant’s asking Cook to talk to her daughter to determine if she were okay with his “touching her and other things” was a communication that met the element under the statute.
The circuit court found appellant guilty and sentenced him to ten years’ imprisonment in the Arkansas Department of Correction. Appellant filed a timely notice of appeal, and this appeal followed.
Arkansas Rule of Criminal Procedure 38.1 (2014) provides in pertinent párt as follows:
(b) In a nonjury trial, if a motion for dismissal is to be made, it shall be made at the close of all of the evidence. The motion for dismissal shall state the specific grounds therefor. If the defendant moved for dismissal at the conclusion of the prosecution’s evidence, then the motion must be renewed at the close of all of the evidence.
(c) The failure of a defendant to challenge the sufficiency of the evidence at the times and in the manner required in subsections (a) and (b) above will constitute a waiver of any question pertaining to the sufficiency of the evidence to support the verdict or [judgment. A motion for directed verdict or for dismissal based on insufficiency of the evidence must specify the respect in which the evidence is deficient. A motion merely stating that the evidence is insufficient does not preserve for appeal issues relating to a specific deficiency such as insufficient proof on the elements of the offense. A renewal at the close of all of the evidence of a previous motion for directed .verdict or for dismissal preserves the issue of insufficient evidence for appeal. If for any reason a motion or a renewed motion at the close of all of the evidence for directed verdict or for dismissal is not ruled upon, it is deemed denied for purposes of obtaining appellate review on the question of the sufficiency of the evidence.
Ark. R.Crim. P. 33.1(b) & (c). Rule 33.1 is strictly construed. Etoch v. State, 343 Ark. 361, 365, 37 S.W.3d 186, 189 (2001) (citing Thomas v. State, 315 Ark. 504, 868 S.W.2d 483 (1994)).
Arkansas Code Annotated section 5-27-306 provides that a person commits the offense of internet stalking of a child if the person, being twenty-one years of age or older, knowingly uses a computer online service, internet service, or local internet bulletin board service to seduce, solicit, lure, or entice a child fifteen years of age or younger, or who the person believes to be fifteen years of age or younger, in an effort to arrange a meeting with the child for the purpose of engaging in sexual intercourse, sexually explicit conduct, or deviate sexual activity. Ark.Code Ann. § 5-27-306(a)(i) & (2). Appellant argues that the State did not prove every element of the offense charged. He contends that the State’s evidence was that appellant had arranged to meet the internet persona “Brooke” and her children and have sexual contact with them. Appellant claims that communication with “Brooke” alone and never with one of the “children” does not suffice to meet the elements of the statute.
The State claims that the issue is not preserved for appellate review because appellant did not specifically address the elements claimed missing from the State’s case when he made and renewed the motion for dismissal. The State cites McClina v. State, 354 Ark. 384, 123 S.W.3d 883 (2003), where our supreme court refused to consider an appellant’s closing argument as a dismissal motion in a bench trial. Also, citing Grabe v. State, 2010 Ark. 171, 368 S.W.3d 58, the State contends that a challenge to the sufficiency of the evidence must be preserved in a dismissal motion rather than a closing argument. Finally, in Hudson v. State, 2014 Ark. App. 305, 2014 WL 2012577, the State points to this court’s refusal to treat Hudson’s closing argument as a motion to dismiss where he failed to move for dismissal.
In reply, appellant contends that the reason that- Rule 33.1 requires precision in specifying the missing elements in a motion to dismiss is to allow the trial court to reopen the State’s case so it can meet the identified deficiency. Medina, swpra. Based on this reasoning, appellant argues, the merits issue is preserved here. He contends that when the argument was made with specificity during closing, the State did not argue that it was deprived of any opportunity to cure the deficiency. Rather, he asserts that the State’s position was that no direct communication with a child was needed.
Appellant’s argument is that the State was remiss in not complaining at the time of his closing argument that the State’s case should be reopened to meet an essential element of the charged offense. However, the Rule states that it is appellant’s duty to strictly comply, offering the motion to dismiss in a time and manner so that the State might have the opportunity to reopen its case if the circuit court deems it necessary. When appellant failed to comply with Rule 33.1 by arguing his case with no specificity at the time the dismissal motion was made, the circuit court was not given the opportunity to rule on that issue. A dismissal argument made in a closing argument does not preserve the issue of sufficiency, even |fiin a bench trial. See McClina, supra; Hudson, supra.
Appellant distinguishes Medina from the instant case, as there was no dismissal motion made before closing arguments in Medina. However, the dismissal motion made here did not comply with the specificity requirements of Rule 33.1; thus, construing the rule strictly, the issue is not preserved for appellate review.
Affirmed.
WALMSLEY and VAUGHT, JJ., agree. | [
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Carleton Harris, Chief Justice.
This is an appeal from a judgment for $12,000 entered by the Saline Circuit Court in favor of appellee against appellant. The jury found Ford Motor Company guilty of negligence in the manufacture of a certain Ford truck, subsequently purchased and driven by appellee, and that such negligence was the cause of injuries sustained by Fish.
About April 12, 1956, Fisb, employed by the State Game and Fish Commission as a game refuge commissioner in Lafayette County, purchased the Ford pickup truck from the Ford dealer in Stamps, L. D. Galloway, Jr. Five days later, while traveling highway 67 out of Little Bock, going toward Benton, the truck left the right side of the highway, turned over twice, and Fish was injured. This occurred shortly after 2 p.m., and the testimony establishes that the truck had been driven a total of approximately 550 miles at the time of the occurrence.
On January 9,1958, Fish instituted suit in the Saline Circuit Court against the Ford Motor Company and Milton Green, d/b/a Stamps Auto Company, alleging the purchase of the Ford pickup truck from Stamps Auto Company. Appellee averred that he drove the truck for five days in a careful manner, and had allowed no one else to drive the vehicle; that it had been driven 550 miles; that he had not in any way tampered with, altered, or disturbed, the braking assembly or mechanism, nor allowed any other person to do so; that such mechanical parts and assemblies were sealed, and locked by the Ford Motor Company in the process of manufacture, by means of screws, bolts, rivets, and pins, and “were at the time of the injury to plaintiff hereinafter described in the same condition, position and alignment as they were when this vehicle left defendant Ford Motor Company’s factory except for whatever changes, if any, to condition, position and alignment as may have been caused by approximately 550 miles of careful operation of the vehicle.” Paragraph four alleged “that on April 17, 1956, plaintiff was driving this vehicle at a speed of approximately 45 miles per hour on U. S. Highway 67-70 in Saline County, Arkansas, at which point said highway is a smooth, level, unobstructed concrete public roadway, when the right front wheel of the truck suddenly ‘grabbed’ twice in rapid succession and immediately thereafter that wheel ‘locked’ causing the vehicle to overturn, and causing the injuries and damages to plaintiff hereinafter described.” The complaint further charged, insofar as Ford Motor Company was concerned, that the company negligently failed to exercise the degree of care owed by a manufacturer of a vehicle to the vendee and public “in the manufacture, testing, inspection, design and engineering of its product” and as a result of this failure, placed this vehicle in the channels of trade for sale with mechanical defects which caused, or contributed to cause, the injuries and damages to plaintiff. Further allegations were that the defective parts “were closed up, sealed and locked by defendant Ford Motor Company by means of screws, bolts, rivets and pins and thus continued to be in the exclusive control of this defendant until the time of the injuries to the plaintiff, and therefore their nature is within the exclusive knowledge of this defendant. All of the foregoing defects would have been discoverable by this defendant in the exercise of reasonable inspection and testing.” The complaint sought damages in the amount of $64,844.10. After the filing of various motions and interrogatories, both the Ford Motor Company and L. D. Calloway filed separate answers, denying liability and asserting that if appellee sustained any injuries or damages, such injuries or damages were proximately caused or contributed to by negligence or carelessness on the part of appellee. The case was heard on October 15, 1959, at which time the jury found the defendant, L. X). Calloway, d/b/a Stamps Auto Company, guilty of no negligence, found Charlie Fish guilty of no negligence, but found the Ford Motor Company guilty of the entire and total negligence, or 100%. Verdict was returned in the amount of $12,000.
For reversal, appellant urges three points, as follows :
“I.
The evidence was insufficient to sustain a verdict against appellant, and the trial court should have directed a verdict in appellant’s favor.
II.
The Court erred in admitting, over the objection of appellant, certain incompetent testimony offered on behalf of appellee.
III.
The Court erred in giving, over the general and specific objections of appellant, plaintiff’s instructions numbered 1, 4, 5, and 6.”
We proceed to a discussion of these contentions, though not under separate headings.
The evidence reflected that appellee had been in possession of the truck five days, and had driven it 551 miles. Fish testified that no one else had driven the truck, and that he had not inspected or tampered with the mechanical parts in any way. Appellee is a game refuge keeper in Lafayette County, and on April 17th, he drove the vehicle to Little Rock for the purpose of having a two-way radio installed, leaving Bradley (a distance of 163 miles from Little Rock) about 1 or 1:30 a.m., and arriving in Little Rock between 6 and 6:30 a.m. Installation of the radio was completed around 12:30, and appellee started back to Bradley, taking highway 67 out of Little Rock. He passed a heavily loaded truck, while traveling at a speed of 40 or 45 miles per hour, and after getting back on his own side of the highway, noticed that his right front wheel was pulling to the right. “It grabbed two or three little short grabs, and then it grabbed and held, and pulled me to the right.” The car left the highway and turned over twice; the right door came open, and appellee, in sliding down, had both legs pinned to the ground by the running board. The radio was on, and Fish called the Came and Fish office, and asked that help be sent. According to the witness, no traffic was approaching at the time the mishap occurred. In the meantime, William Rider, a state policeman, arrived, and with the help of bystanders, removed Fish from the wreckage. Appellee testi fied that, while being carried away, he observed two or three short, black marks, three or four feet in length, some thirty or forty feet back of where the truck left the highway. Appellee’s contention is that these marks were left by the right front wheel, and show that the wheel did lock. Both Aubrey Fowler, Chief Enforcement Officer for the Game & Fish Commission, and Eider testified that they observed the skid mark, though they testified that it was a single (rather than two or three short marks), black, straight, mark, that ran straight for a few feet, and then veered, at first gradually, and then sharply, to the right. Fowler stated that he drove the truck back to the Game & Fish Commission Building in Little Bóck, a distance of approximately 15 miles, at a speed of 12 to 15 miles per hour. He observed nothing wrong with the operation of the vehicle, though he testified that he did not apply the brakes at all before stopping at the Game & Fish Building.
In endeavoring to establish liability on the part of the Ford Motor Company, appellee relied, to some extent, on the doctrine of res ipsa loquitur. This Latin phrase is generally interpreted to mean “the thing itself speaks” or “the transaction speaks for itself”, and is a concise way of stating that circumstances attending an accident are of themselves of such character as to justify an inference of negligence on the part of one having control over such circumstances. Interesting discussions of this doctrine are found in various legal volumes, and it is evident that all jurisdictions are not in accord in determining what fact situations properly come under the doctrine. However, in those states which recognize the doctrine, certain conditions are necessary before res ipsa loquitur may be applied. As stated in Corpus Juris Secundum, Yol. 65,para. 220 (4),page 999:
“There are several conditions, aside from those directly pertaining to the nature and happening of the accident or injury as such, which are generally recognized as essential to make the doctrine of res ipsa loquitur applicable to a given case and to lay the foundation for the presumption or inference arising therefrom. These conditions or essential elements include superior knowledge on the part of defendant as to the cause of the accident, * * * the absence or unavailability of direct evidence of negligence, * * * the existence of a sufficient duty on the part of defendant to use due care, * * * and proof of the accident or injury and defendant’s relation thereto.
In order that the doctrine of res ipsa loquitur may apply, plaintiff must first present sufficient proof of the existence of the elements necessary to bring the doctrine into operation; the inference arising from the rule does not supply the foundation facts from which the rule arises, and the application of the doctrine to a particular state of facts cannot be based on speculation alone.”
In paragraph 220 (6):
“Although, * * * the doctrine of res ipsa loquitur provides a substitute for direct proof of negligence, the rule is nevertheless one of necessity to be invoked only when, under the circumstances involved, direct evidence is absent and not readily available. ’ ’
In Words and Phrases, Vol. 37, page 484:
“For application of doctrine of ‘res ipsa loquitur’ accident must be of a kind which ordinarily does not occur in the absence of some one’s negligence, it must be caused by an agency or instrumentality within defendant’s exclusive control, and it must not have been due to any voluntary action or contribution on part of plaintiff. ’ ’
Further, on page 488, paragraph 5:
“The mere happening of accident does not justify recourse to ‘res ipsa loquitur’ rule in personal injury suit, but accident must further appear to be without explanation in light of ordinary experience, except on theory of defendant’s negligence to render rule applicable.” Still further, paragraph 12 :
“The ‘res ipsa loquitur’ doctrine applies only when the damage caused, which is the basis of the action, is of such a nature that it can be said that according to com mon experience the event which caused the damage would not have occurred without some fault on the part of the persons sought to be held responsible.”
Finally, in 7A Blashfield, Automobile Law and Practice, 217, Sec. 4818, it is stated:
‘ ‘ The mere occurrence of an accident resulting in injuries to the buyer of an automobile or other third person does not raise a presumption that the manufacturer or dealer was negligent, or that the vehicle had a latent defect, and plaintiff must prove that the alleged manufacturer was such, and he has the burden of proving that the manufacturer was negligent in the manufacture of the automobile. * * *
However, the doctrine of res ipsa loquitur may be applied in a proper case, as, for example, in the case of an explosion of a solvent used for the tune-up of automobile motors.”
Through the testimony of Artie Bearden, an automobile mechanic of Benton, and W. C. “Dutch” Mayer, a garage operator in Little Rock, appellee sought to prove that the right brake was defective. Mayer testified, ‘‘ The brake was binding”, and he took it to Cook’s Machine Shop to see “if the drum was out of round”. He stated that the drum was placed on a machine which could be used for determining whether the drum was out of round. Mayer testified that “it was an eighth of an inch off”. The witness stated that, based on his experience as an automobile mechanic, if a drum is an eighth of an inch out of round and the brakes are applied, or if the brakes are set too tight, the vehicle will be thrown to one side. He testified this would not happen every time, but that if the drum is out of round and it happens to revolve at the proper point, it would cause it to “lock up”. Mayer further stated that a brake could also be caused to lock by brake fluid or grease on the brake lining, or that it could be caused by a rough lining. However, on cross examination, the witness testified that if a drum is as much as an eighth of an inch out of round, the driver of the vehicle would feel this defect by pres sure on the brake pedal; that the pedal would work backward and forward, and the driver could easily tell that something was wrong; also, if the car had been driven for 550 miles, a “hot spot” would be created at the high point, and that this “hot spot” would be visible by looking at the brake drum; however, his examination revealed no “hot spot” on this particular drum. Mayer found no foreign matter of any nature on the brake lining, and in fact, found nothing wrong with either the brake shoes or the brake lining except ‘ ‘ that the lining was scored a little bit”. Mr. Mayer testified that the brake linings “shouldn’t score within four to five thousand miles”.
Counsel for appellee propounded to the witness Bearden the following hypothetical question:
“Assume that a buyer purchased a new 1956 model Ford pick-up truck and drove it for four days and on the fifth day, at a time when he had about 550 miles on that pick-up truck, and at a time when no other driver but him had driven it since he bought it, and at a time when he had not tampered with any of the mechanical parts of that vehicle, nor had permitted anyone to, and at a time when he had had no mechanical difficulty with the pick-up truck, that he was driving down a straight, level, concrete highway, under favorable weather conditions, it was a pretty day, the pavement was dry, and, as he would describe it in his layman’s language, the right front brake grabbed one, two or three times in rapid succession, and releasing each time, and then it grabbed and locked, resulting in the vehicle making a single black skid mark on the pavement for a short distance in a straight line, then veering off gradually to the right shoulder, then more sharply to the right across the shoulder and off the highway, resulting in the vehicle turning over, I believe, twice; now, assuming that state of facts, do you have an opinion as to what might have caused that reaction? . . . Assume one further fact — that during this four days that the vehicle had been driven, that it had been driven on some paved roads, some gravel roads, some dirt roads; and, assume one fur ther fact — that the driver of that vehicle had arisen on the morning of the incident so as to leave his home at approximately 1:30 in the morning, and consequently had been up all morning and the incident occurred approximately 2:00 o’clock in the afternoon, and he had not slept during that period of time and had had approximately 5 hours of sleep the night before; now, then, do you have an opinion, under those circumstances, as to what might have caused this incident?”
To this question, objected to by appellant, the witness replied that he had an opinion, the opinion being “it could be caused by foreign matter in the wheel or a bearing”. Bearden explained that by foreign matter, he meant something that was not supposed to be there, i.e., in this instance, grease or brake fluid on the brake lining. One addition was then made to the hypothetical set of facts, and the witness was asked, “Assume that some application was made on the brake pedal, would there be any change or do you have an opinion as to what might happen in this instance?” To this question, Mr. Bear-den replied, “It would lock the wheel.” Appellant continued with his objections to the question and answer.
Appellant offered the testimony of Robert Riding, an engineer and employee of Ford Motor Company for 19 years. Riding testified that á drum cannot be tested properly in the manner testified to by Mayer, and that the use of the spindle is not an accurate way to test a drum for “out of round”. The witness stated that the “run out” on the drum was measured at seven thousandths; and that the manufacturer’s permissible tolerance is five thousandths; that a run out of up to five thousandths is considered perfect; however, he testified that a run out of seven thousandths would not be noticed in the operation of the drum. The witness testified that if a drum were one-eighth of an inch out of round, one could not get a brake adjustment, and the pedal would bounce up and down; further, that under such a condition, the brake would not have lasted 500 miles; that a “hot spot” would have been evident, and he found no evidence that heat had ever been applied to the drum, nor did he notice any unusual scoring or wear on the linings. Of course, we are not here concerned with the conflict in evidence, for conflicts are resolved by juries. We are only concerned with whether the court committed error in permitting the case to go to jury on the theory advanced.
We have reached the conclusion that, under the evidence offered, the doctrine of res ipsa loquitur was inapplicable. Appellees rely heavily upon Coca-Cola Bottling Co. of Ft. Smith v. Hicks, 215 Ark. 803, 223 S. W. 2d 762 (1949) and Coca-Cola Bottling Co. of Helena v. Mattice, 219 Ark. 428, 243 S. W. 2d 15 (1951). Both of those cases involved the explosion of a bottle of coca-cola, and we held that the mere fact that a bottle explodes raises a presumption of negligence in bottling, since reasonable men know that when bottles are properly manufactured and filled, they do not blow up. Appellee considers these cases analogous to the one before us, for he argues that the evidence reflects that appellant had exclusive control over the brake assembly up until the time of the accident. It is at once apparent that there is a vast difference between the handling of a coca-cola bottle and the driving of an automobile. There is much room for mishandling in operating a ear; in fact, we think it can be safely said that automobiles ordinarily depart the road through negligence of the operator, rather than through negligence of the manufacturer. There is still another clear distinction. After the bottle explodes, there is little that can be done by the injured person to determine the cause of the explosion. The bottle cannot be reassembled, and checked for defects. The cited cases would be more similar if the motor of a ear exploded, or a wheel suddenly disintegrated. In such event, a determination of the exact cause would be extremely difficult; however, brakes are not a complicated mechanism. The average auto repairman can determine the exact nature of the malfunction of brakes, — and all parts of the brake mechanism were available for inspection. In General Motors Corporation v. John son, 137 F. 2d 320 (1943) and Hupp Motor Car Corporation v. Wadsworth, 113 F. 2d 827 (1940), cited by appellee, direct proof of negligence in tbe manufacturer of automobiles was found, and the doctrine of res ipsa loquitur was not relied upon. A case which seems to be somewhat similar to the case at bar is Haas v. Buick Motor Division of General Motors Corporation, 20 Ill. App. 2d 448, 156 N. E. 2d 263. There, a new automobile had been driven about 1,300 miles when smoke began coming from under the dashboard. When an attempt was made to turn off the ignition, the key would not turn. The fire melted the dashboard, and windows were smoked. A verdict was directed for the manufacturer, and this action was sustained by the Appellate Court of Illinois (Second District, Second Division). Although the suit was brought on express warranties, we feel that the logic is applicable to the present case. The Court said, inter alia:
" The mere fact that an occurrence resulting in damage to property has happened does not authorize any presumption or inference that the defendant was at fault. Rotche v. Buick Motor Co., 1934, 358 Ill. 507, 193 N. E. 529, Huff v. Illinois C. R. R. Co., 1935, 362 Ill. 95, 199 N. E. 116. The mere fact that a fire evidently occurred here, resulting in damage to the property, does not authorize any presumption or inference that the defendant was responsible therefor — the burden was on the plaintiff to prove, among other things, that there was some material defect in materials or workmanship. * * * This is not a case for the application of some doctrine analogous to that of res ipsa loquitur.”
In line with the definitions and authorities herein cited, we conclude that the facts do not make a proper case for the application of res ipsa loquitur. There was evidence that the car left the highway without fault of the driver. There was evidence that the brake mechanism was sealed and locked by the motor company, thus in their exclusive control, and that this mechanism had not been disturbed. Of course, it cannot be said that the accident (leaving the highway) was without explanation in the light of ordinary experience; however, be that as it may, the alleged defective mechanism was not destroyed, was available to the injured party for inspection and examination, was examined, and the testimony reflected that specific defects were found.
Appellant complains that appellee was permitted to testify that the right front wheel of his truck caused the marks on the highway. Appellant states that this was an unsupported conclusion or opinion, and violates the rules of evidence which exclude conclusions or opinions of all witnesses except experts. We do not agree. This was not a matter of a witness coming to the scene after the occurrence was over, viewing the skid mark and then testifying that it was caused by the right front wheel. Appellee’s testimony was based on the “feel” of the drag in the front wheel, through steering, as the car went to the right.
We think the court committed error in permitting the answer of the witness Bearden, in response to the hypothetical question, to be considered by the jury. Mr. Bearden’s testimony amounted to a suggestion that there was the possibility that grease or brake fluid within the braking assembly could have caused the accident. Yet, all witnesses were unanimous in stating that no such foreign matter was found within the assembly. The jury was told by the court that the witness had given his opinion as an expert “as to what might have happened, and the jury will consider it in that manner.” Since there was absolutely no evidence upon which to base this possibility, the answer should not have been considered, as it afforded the opportunity for speculation on the part of the jury.
We are also of the opinion that the court erred in giving Plaintiff’s Instructions 4 and 5. Without going into detail, it suffices to say that these instructions, in effect, permitted the jury to apply the doctrine of res ipsa loquitur, which we have held inapplicable under the facts developed at the trial. Objections to other instructions are held without merit.
There was evidence of specific negligence, though not of the strongest nature. For instance, the witness Mayer testified that the brake was binding, which occasioned his taking it to Cook’s Machine Shop to see if the drum was out of round; there was the evidence of the skid mark, the evidence of Fish himself as to the pull to the right; the testimony that the mechanism had not been disturbed and had remained sealed, and that the drum was an eighth of an inch out of round.
In accordance with the reasons set forth in this Opinion, the judgment is reversed, and the cause remanded.
McFaddin, J., dissents in part.
Subsequently, service of summons upon Green was quashed, and the complaint amended naming L. D. Galloway as the defendant owner of Stamps Auto Company rather than Green.
The excessiveness of the verdict is not questioned.
Rider testified that Fish told him that the reason he (Fish) did not pull to the left, .was because of oncoming traffic.
“Out oí round” means when the center point is not where it should be, and “run out” means a wobbling of the drum. | [
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George Rose Smith, J.
This boundary line dispute involves the ownership of a strip of land, less than an acre, lying between the appellants’ property to the east and the appellees ’ property to the west. The case began as an action in ejectment but was later transferred to equity. At the close of the plaintiffs’ proof the chancellor sustained a demurrer to the evidence, and this appeal is from the ensuing order of dismissal. The only question is whether the demurrer to the evidence was properly sustained. This depends, under our holding in Werbe v. Holt, 217 Ark. 198, 229 S. W. 2d 225, upon whether the proof, viewed in its most favorable light, would have presented a question of fact for the jury if the case had been tried at law.
The appellees have record title to a tract of about ten acres, which includes the strip now in controversy. Some twenty or more years ago their predecessors in title erected a fence near their eastern boundary, but for some reason not disclosed by the record the disputed strip was left outside the fence. The appellants’ land, a three or four acre tract, lies just east of the strip in question and includes a dwelling house that has been occupied by the appellants and their predecessors in title. Except for a few isolated acts neither the appellants’ actual possession nor that of their predecessors has extended to the disputed strip, which is largely made up of gullies not suited to cultivation or other use. This litigation arose in 1959 as a result of the appellees’ having moved the fence over to the true line and having thereby attempted for the first time to exercise dominion over the area in controversy.
We are of the opinion that the demurrer to the evidence should have been overruled, for the appellants’ proof raised a question of fact as to the existence of a boundary by acquiescence. As we said in Tull v. Ashcraft, 231 Ark. 928, 333 S. W. 2d 490: “We have frequently held that when adjoining landowners silently acquiesce for many years in the location of a fence as the visible evidence of the division line and thus apparently consent to that line, the fence line becomes the boundary by acquiescence. [Citing cases.]” In such cases the existence of a boundary line by acquiescence is an issue of fact, to be determined upon the evidence in each individual case. Thompson on Real Property (Perm. Ed.), § 3309. In the record now before us there is substantial evidence to support the view that the landowners ’ tacit recognition of the fence line for more than twenty years created a new boundary line.
The appellees rely principally upon Cossey v. House, 227 Ark. 100, 296 S. W. 2d 199, where we said that “a landowner who puts his fence inside his boundary line does not thereby lose title to the strip on the other side. That loss would occur only if his neighbor should take possession of the strip and hold it for the required period of years.” We adhere to the basic principle followed in the Cossey case, but there are at least two important points of distinction between that case and this one. First, there the adjoining land on the far side of the fence was wild and unimproved, so that its owner could hardly be regarded as having consciously acquiesced in the fence as a boundary line. Here the fact that both tracts have been improved and occupied might well support an inference that the fence has been accepted as the line. Secondly, the Gossey case was tried upon its merits; the question on appeal was where the preponderance of the evidence lay. Here the trial court’s action in sustaining a demurrer to the evidence can be affirmed only if the plaintiffs offered no substantial testimony upon the controlling question of fact. We are unable to say that their proof falls completely short of establishing a prima facie case.
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Carleton Harris, Chief Justice.
Appellant instituted suit against appellee for libel, slander, and malicious prosecution, resulting from a charge brought by appellee against appellant of petit larceny. The jury found for appellee, and judgment was entered dismissing the complaint. From such judgment, comes this appeal.
The evidence reflects that on the morning of Saturday, October 13, 1956, appellant, with her two daughters, Nadie, age 12, and Glenda, age 6, entered the Ben Franklin Store, a self-service store, located at Newport, owned and operated by appellee, and made some purchases. Four purchases were made, including a green coat sweater for the older girl, taken to the cashier’s stand, and paid for. As appellant and her daughters were leaving the store, appellee, Douglas Holmes, requested that they come to the back, where he interrogated them about a red sweater being worn by the younger daughter. Mrs. Reynolds claimed she purchased the red sweater at the store on the preceding Monday, October 8th. Employees of the store were summoned, and two, Mrs. Nettie Davidson and Jerry Lynn Bradley, stated that they had seen appellant, while standing at the sweater counter, button the red sweater on the little girl. Both witnesses stated that neither of the children was wearing, or carrying, wraps of any kind when they first observed them in the store. Martha Spears, an employee, stated that she was the cashier, and remembered a sale of a sweater to Mrs. Reynolds on Monday, but did not remember the col- or of the sweater. Appellant then left the store, returning with her husband, Lawrence Reynolds, and after some conversation with Holmes, the Reynolds went to the office of the sheriff for the purpose of instituting prosecution. The sheriff’s office was also occupied by the police department of the City of Newport. J. R. Taylor, chief of police, heard their story, and placed a telephone call to Holmes, who came to the office. After discussing the matter, an affidavit for a warrant of arrest, charging appellant with petit larceny was prepared, and was signed by appellee. Taylor kept the written charge until Monday or Tuesday, at which time he delivered it to the municipal clerk of the City of Newport. Following the signing of the affidavit, Taylor, together with a deputy sheriff, drove appellant and her family to their home. The officer testified that appellant told him she had the tag that came off the red sweater which had been purchased on Monday, but when the tag was not produced, he returned to town. Appellant was instructed to appear in municipal court in the City of Newport on Tuesday, October 16th, but the case was not tried until December 7,1956, at which time Mrs. Reynolds was acquitted of the charge. Three weeks later, complaint was filed against appellee seeking $10,000 actual damages for libel and slander, $10,000 actual damages for malicious prosecution, and punitive damages in the sum of $5,000, or a total amount of $25,-000. The case was tried on December 4, 1957, and resulted in a hung jury. The second trial was held on July 11, 1959, and resulted in a verdict for appellee. Numerous alleged errors are urged by appellant, and we proceed to a discussion of these points.
Appellant first asserts that the verdict of the jury amounted to a finding that appellant stole the sweater in question, and there is no substantial evidence to support such a finding. Under the court’s instructions, it would appear that the jury may have taken such a view. Of course, we have no way of knowing the factual basis upon which the jury reached its conclusions. The fact that she had been acquitted of the charge in criminal court, did not necessarily preclude the civil jury from reaching an opposite conclusion. It must likewise be remembered that a criminal conviction requires proof of guilt beyond a reasonable doubt, while an action for damages only requires a preponderance of the evidence; here, on appeal, we are only concerned with whether there was substantial evidence to support the verdict. Proof offered by appellee included the testimony of the two ladies, heretofore mentioned, that they had observed Mrs. Beynolds buttoning the red sweater on the little girl; that she was in the store for an hour and a half to two hours; that the little girls were neither wearing sweaters, nor carrying sweaters, when first observed in the store, and a price tag was found by one of the employees on the floor near the sweater counter. Admittedly, the red sweater was not paid for on October 13th. Holmes also testified that he watched the mother and two daughters in the store for approximately thirty minutes, and neither of the children had any kind of wrap. Appellant denied taking the sweater, and testified that the red sweater had been purchased on the previous Monday; however, another employee of the store (Mrs. Warren) testified that the sweater purchased at that time was blue. The price tag found was for a size 8 sweater, and the record reflects that, following the filing of the charge of petit larceny against Mrs. Beynolds, a friend of appellant, Sarah Miller, purchased a size 8 sweater from the Ben Franklin Store, for the purpose of showing that that size sweater was too large for the child to wear. Mrs. Miller testified that the size 8 sweater purchased ‘ ‘ * * * come way down on her ”. The witness also testified that she had observed Glenda wearing a red sweater on Tuesday before the alleged theft on Saturday. Lawrence Beynolds, husband of appellant, Billy Beynolds, son of appellant, and Nadie Beynolds, daughter, also testified that the red sweater was purchased on the Monday prior to the accusation, and had been worn for several days during the week. Appellant points out that certain evidence offered by appellee was contradictory — but the jury heard each witness, and was in a position to evaluate the testimony; also, appellant urges that no asportation was proved, i.e., no one actually saw Mrs. Reynolds take the sweater from the counter. No citation of authority is required to the effect that circumstantial evidence is entirely competent and affords a valid basis upon which to render a verdict. As this Court has many times. stated, it is within the province of the jury to believe or disbelieve witnesses, and weigh the facts and circumstances. Though appellant’s evidence, if accepted by the jury, would likely have supported a verdict, we are likewise of the opinion that appellee offered evidence of a substantial nature upon which the jury could properly base its verdict.
Error is claimed because of the refusal of the court to permit appellant to testify on direct examination about a question asked Holmes at the criminal trial by the presiding judge, Vernon Ridley, and to relate the answer given by appellee. Appellant states that this evidence was competent to show Holmes was guilty of express malice in the prosecution, and that he attempted to obtain a conviction by giving false testimony. Upon refusal of the court to permit the evidence, counsel for appellant stated:
“Note our exceptions, and the witness, if permitted to answer would have stated that at the conclusion of the argument Judge Ridley hesitated, then said, ‘I know this is unusual, but I want to ask Mr. Holmes a question and I am going to ask it; Mr. Holmes, did you see Mrs. Reynolds and the two little girls enter the store?’ His answer was, ‘No, sir, I did not know about it until it was reported to me.’"
In the first place, we do not see how the refusal to admit this evidence was prejudicial to the cause of appellant. Mrs. Reynolds had just testified that Mr. Holmes stated in the criminal trial that he saw her and the children when they first came in, and they were not wearing wraps. According to appellant’s brief, in the previous civil trial, Mr. Holmes had stated, in effect, that he did not see the family when they first came in, and this evidence was evidently desired by appellant in contemplation that appellee would testify in a like manner. In fact, when Holmes subsequently took the stand, he did state that he did not recall when he first saw the family. Appellant contends that the desired evidence “* * * went to the very heart of the principal issue: Who was lying? Who started off lying? Can there be absence of express malice when the prosecution attempts to obtain conviction by false testimony?” As stated, the jury heard Mrs. Reynolds relate the version given by Holmes at the criminal trial. Subsequently, in the case now before us, Holmes testified that he did not know when he first observed appellant and her daughters. Accordingly, before submission, the jury was well aware of the fact that Holmes had, according to appellant, made contradictory statements. Therefore, if the testimony was relevant, Mrs. Reynolds was not prejudiced, for the damaging part of Holmes ’ alleged evidence before the municipal court was admitted, and the alleged conflict in his testimony was brought to the attention of the jury. It would seem that the only fact that could have been shown by this evidence was that Holmes gave two versions in the criminal trial, which was entirely collateral to the matter at hand. At any rate, we do not consider the evidence relating to whether Holmes observed appellant coming into the store as being material. Coming into the store did not directly relate to the stealing, nor did it tend to show lack of probable cause, since the charge against her was based, not upon her coming into the store, but upon observation of her actions after she arrived; malice is not shown by proving inconsistent statements regarding immaterial matters. We find no merit in this contention.
It is next contended that the court erred in permitting witnesses to testify, over objections of appellant, that they had suspected appellant of shoplifting. There are divergent views as to whether testimony, wherein witnesses state inferences or opinions, formed as a result of their observations, is admissible. Here, there is no necessity for discussion of this question, for this point can be disposed of without such a determination. Jerry Lynn Bradley testified that appellant was in the store for close to two hours, and that she watched her. When interrogated as to why she watched her, she replied:
“A. Because we had suspicioned her before. She was looking around, and when you ask a customer, and they are looking, and that was such a period of time, that gives you, as a sales clerk, room for suspicion.
Q. How long did you watch her, Jerry Lynn?”
At this point, counsel for appellant objected, stating that “suspicion is a conclusion drawn by the witnesses and not based upon any facts that are in evidence. We think it is prejudicial, immaterial, and it is inadmissible. ’ ’ The court overruled the objection. Subsequently, Mrs. Dorothy Warren was asked why she noticed appellant, and the witness likewise replied, “Because we had suspected her of shoplifting, and we had been watching her. ” The witness further testified with reference to two dresses, which had been tried on by the daughters of Mrs. Reynolds on a previous date when appellant was present, and which, according to her testimony, subsequently “disappeared”. This testimony was objected to, and the objection at first overruled. Within a few minutes, however, the court ordered all the testimony about the dresses stricken from the record, told the jury that such evidence was being withdrawn from its consideration, and instructed the jury specifically to not consider the testi mony in any manner. “You must treat it as though this testimony had never been introduced during this trial.” Shortly thereafter, after proceedings in chambers, and at the request of appellant, the court instructed the jury to disregard the answer of the witness, “* * * because we suspected her of shoplifting, and we had been watching her.” The court further stated: “You are instructed you are to disregard that testimony and give it no consideration; that you are to treat it as though you never heard it because it, too, is being stricken from the record and you are specifically and cautiously instructed to use care and caution and to wipe it completely out of your mind.” It does not appear from the record that the court specifically told the jury to disregard the similar statement made by the first witness, Jerry Lynn Bradley, though there is an inference during the examination of Holmes that all of this testimony had been excluded. Holmes, the last witness on behalf of appellee, was asked:
‘ ‘ Q. What was the first thing that called her to your attention?
A. Well, it has been brought out in testimony we had suspected her before.
BY MR. ERWIN:
If Your Honor please, it is not brought out in testimony; it was excluded from the consideration of the jury.
BY THE COURT:
Sustained.”
At any rate, it was apparent that the court had changed its mind since first admitting this evidence, and if appellant desired that the specific statement of Miss Bradley be stricken, she should have made such a request to the court. However, appellant’s principal argument on this point is not directed to the fact that the Bradley testimony was not specifically excluded, but rather to the fact that the court’s admonition to disregard the testimony “ * * * . did not remove and could not remove prejudice created in the minds of the jury.” This contention relates principally to the testimony of Mrs. Warren. In Horton, Guardian v. Smith, 219 Ark. 918, 245 S. W. 2d 386, a witness was asked whether' one Charles Sherman “* * * is a careful or reckless driver? A. I know that he is a reckless driver.” On appeal, this Court said:
“The first assignment in the motion for new trial is that the court erred in permitting appellee to answer the question, in refusing to exclude the answer, and in failing to instruct the jury not to consider it. The record reflects an objection by appellant after the question was answered. In sustaining appellant’s objection, the trial court said: ‘Yes, gentlemen, that is incompetent, and you will not consider the last answer of the witness. It is taken from you. ’ There was no further objection nor was a mistrial requested. In these circumstances, any prejudice arising from the excluded testimony was removed by the action of the trial court.”
Here, the court went even further, and made a rather lengthy statement admonishing the jury that the evidence should not be considered. If it were felt that the court’s statement to the jury would not remove any possible prejudice, a motion for mistrial should have been made in the first instance. This was not done.
Holmes testified, from his own knowledge, that his annual average loss from shoplifting was $2,000. This evidence was based upon records in appellee’s possession. Appellant states that this evidence was immaterial and irrelevant, but highly prejudicial. We think the evidence was competent to show appellee’s state of mind, and probable cause for instituting the criminal action, as well as tending to show a lack of malice. Of course, one who had suffered losses from theft would be much more concerned than one who had not. As stated in Richter v. Neilson, 11 Cal. App. 2d 503, 54 Pac. 2d 54:
“As the authorities point out, malice being the main indispensable element of an action of this kind, not only is a plaintiff given a very wide range in proving facts and circumstances tending to establish such element, but likewise the defendant is given the same full opportunity to disprove it. 16 Cal. Jur. 748. As said in Griswold v. Griswold, supra, and again in Burke v. Watts, 188 Cal. 118, 204 P. 578, whatever tends to prove good faith tends to disprove malice and must be admitted. ’ ’
Nor are we able to see where this testimony was prejudicial, since there was no evidence submitted to the jury to connect appellant with the $2,000 loss.
Appellant complains that the size 8 pin tag found on the floor near the sweater counter was never offered in evidence, and she calls attention to the fact that though Martha Spears and Gene Warren testified about the finding of the tag, neither Jerry Lynn Bradley nor Holmes were asked any questions with reference to it. Of course, there was nothing to prevent appellant from interrogating Miss Bradley, Holmes, or any other witness at length with reference to the tag, or why it was not introduced. In addition, no objection was made to the evidence of witnesses Spears and Warren concerning the tag.
Appellant alleges error in the refusal of the court to permit the clerk to read to the jury the pre-trial order made by the court following a pre-trial conference on November 29, 1957. This request was based on the fact that the original answer of appellee stated that the prosecution was instituted in good faith upon the advice of the deputy prosecuting attorney of Jackson County; at the pre-trial conference appellee obtained leave to amend his answer so as to allege that he consulted Taylor, the chief of police, and had acted upon the advice of Taylor in commencing the prosecution. Appellant desired to introduce the order as indicating “ever-shifting” defenses of Holmes. The statute relating to pre-trial conferences (Ark. Stats., § 27-2402, 1959 Supp.) provides:
“Actions taken at the conference, amendments allowed to the pleadings, rulings of the court, stipulations to be considered in evidence, and, agreements made by the parties on any of the matters considered, will be made a part of the record in the case. ’ ’
Though the pre-trial order is a part of the record, we think this point is immaterial. The original answer was read to the jury. While the testimony of Holmes reflected that some discussion was held with the chief of police, no mention was ever made by appellee that he consulted the deputy prosecuting attorney. Appellee also admitted on cross-examination that at the previous trial, he had testified' the charge had been filed at the suggestion of Taylor. Accordingly, this conflict was called to the attention of the jury, and no prejudice could have resulted from the court’s ruling.
Appellant complains about the giving of the court’s instruction No. 6 and the failure to give appellant’s requested instruction No. 20. As to the first, there was no objection to the instruction; as to the second, the contents of the requested instruction were covered by other instructions given.
Finally, it is urged that the court erred in not excusing venireman David Paul Burton for cause. Burton stated on voir dire that he had heard about the occurrence at the Ben Franklin Store through relatives of appellee, and had formed an opinion; the relatives were not witnesses. However, he said that he had no bias, and in response to interrogation by the court, stated that he could go into the jury box, lay aside any opinion, and base his decision solely on the evidence introduced during the trial, and the law as given by the court. We have several times held that the facts relied upon by appellant are not sufficient grounds for challenge. See St. Louis 1. M. & S. Ry. Co. v. Stamps, 84 Ark. 241, 104 S. W. 1114, Rowe v. State, 224 Ark. 671, 275 S. W. 2d 887.
Finding no reversible error, the judgment is affirmed.
Johnson, J., dissents.
Lawrence Reynolds, husband of appellant, testified that this question was asked by the Judge, and the answer given by Holmes. The parties stipulated that Judge Vernon Ridley, if present, would testify that he did not recall the details of the testimonv-
For instance, in Corpus Juris Secundum, Vol. 32, § 459, p. 101, we find: “The modern tendency is to regard it as more important to get to the truth of the matter than to quibble over distinctions which are in many cases impracticable, and a witness is permitted to state a fact known to or observed by him, even though his statement involves a certain element of inference.”
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Ed. F. McFaddin, Associate Justice.
This is a declaratory judgment proceeding (§§ 34-2501 et seq. Ark. Stats.) brought by the appellant against Southern Ice Company, John Dulce, The Borden Company, Curtis Gober, and Bill Herron, all of whom are appellees herein. Each defendant counter-claimed against the plaintiff; and the Trial Court found for each such counter-claiming defendant. From such judgment, the appellant brings this appeal.
The present case was No. 4252 in the Hot Spring Circuit Court, and is the third in a series of three cases arising out of the same mishap. We will identify the cases by the number each had in the Circuit Court. In 1957 The Borden Company was engaged, inter alia, in the distribution of dairy products at Malvern, Arkansas. Curtis Gober was Borden’s agent; and he employed Bill Herron as a delivery truck driver. The Equity Mutual Insurance Company (sometimes hereinafter called “Equity Company”) issued its policy of automobile liability insurance, which covered The Borden Company, Curtis Gober, and Bill Herron; and under the policy the Equity Company was obligated: (1) “To pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of bodily injury . . . sustained by any person, caused by accident and arising out of the ownership, maintenance or use of the automobile”; and (2) to “. . . defend any suit against the insured alleging such injury, . . . and seeking damages on account thereof, even if such suit is groundless, false or fraudulent; . . .”
John Arnold, a 13-year-old boy, frequently rode with Bill Herron on the Borden delivery truck and helped with deliveries, and sometimes Herron gave the boy 50# or 60#. On August 27, 1957 (while Equity Company’s said policy was in force) Herron drove the truck to the Southern Ice Company in Malvern to get crushed ice to cover the dairy products in the truck. John Arnold accompanied Herron; and while John Duke, an employee of Southern Ice Company, was crushing the ice to put in the truck, the little 13-year-old Arnold boy put his hand in the crusher and received injuries which precipitated the three cases herein mentioned.
In November 1957 John Arnold, by his father and next friend, filed Case No. 4168 in the Circuit Court, seeking damages against Southern Ice Company and John Duke for the hand injury. In that said case, Southern Ice Company and John Duke filed a third party complaint against The Borden Company, Curtis Gober, and Bill Herron, alleging, inter alia:
‘ ‘ On August 27,1957, John Arnold was injured while, as said invitee and permittee of the third party defendants, he was engaged in the icing of the dairy truck at the defendants and third party plaintiffs’ place of business. . . .
“The third party defendants were guilty of negligence which caused or contributed to the injuries, if any, sustained by John Arnold in either or all of the following particulars, to-wit:
“ (a) In permitting and inviting a minor to assist in the operation of a dairy truck, under circumstances resulting in his injury, in violation of the law.
“(b) In failing to properly warn a minor under circumstances which resulted in his injuries.
“(c) In failing to properly instruct, guard, watch and supervise a minor’s activities under the circumstances which resulted in his injuries.
“(d) In allowing, under the circumstances of this ease, a dairy truck to become an attractive nuisance by inviting and permitting a minor to assist in the operation thereof when they knew or by the exercise of ordinary care should have known that said minor would be attract ed thereto and was likely to be injured in the course of the operation thereof.
“(e) In allowing, permitting and inviting a minor to perform the normal and customary duties incident to the icing of the dairy truck under the circumstances which resulted in his injury. ’ ’
The Borden Company, Curtis Gober, and Bill Herron, requested Equity Mutual Insurance Company to defend the said third party complaint; but such request was refused because Equity Company contended that, ■“the policy did not cover the injuries suffered by John Arnold . . .” While Equity Company was denying to its insureds any duty to defend the litigation, Southern Ice Company and John Duke settled with John Arnold for the injuries to his hand, and obtained a full release for the total amount of $3,045.50.
Then Southern Ice Company and John Duke filed in the Hot Spring Circuit Court, Case No. 4210, naming as defendants The Borden Company, Curtis Gober, and Bill Herron, alleging that the Arnold claim had been settled for $3,045.50, and also making the same allegations as those contained in the third party complaint in Case No. 4168, as heretofore copied. The prayer of the complaint was, that the Southern Ice Company recover from the three named defendants the full amount of $3,045.50 and interest and costs. The Borden Company, Curtis Gober, and Bill Herron again called on Equity Company to defend the Case No. 4210; and, again, Equity Company refused for the same reasons it had assigned for refusing to defend the third party complaint in Case No. 4168. Thereupon, each of the defendants in Case No. 4210 undertook a separate defense. The Borden Company and Curtis Gober filed separate answers; and the case is still pending against those two parties. But a default judgment was rendered for Southern Ice Company and John Duke, against Bill Herron, in the sum of $3,045.50 and interest and costs. Execution against Bill Herron was returned nulla bona; and it is stated, and not denied, that he is insolvent. •
Finally, on October 13, 1958, Equity Company filed the present declaratory judgment proceeding, as Case No. 4252 in the Circuit Court, naming as defendants Southern lee Company, John Duke, The Borden Company, Curtis Gober, and Bill Herron, and made factual allegations substantially as hereinbefore stated. Each named defendant answered the declaratory judgment complaint and sought affirmative relief against Equity Company; and at the trial, from whence comes this appeal, the Circuit Court rendered judgments against Equity Company as follows: (a) in favor of Southern Ice Company and John Duke for $3,228.23 (being the $3,045.50 and interest) and 12% penalty, plus $500.00 attorney’s fee; (b) in favor of The Borden Company for $600.00 for attorney’s fee; (c) in favor of Curtis Gober for $600.00 for attorney’s fee; (d) in favor of Bill Herron for $200.00 for attorney’s fee. It is from these judgments that Equity Company brings this appeal, presenting the matters now to be discussed.
I. The Judgment In Favor Of Southern Ice Company And John Duke. The Trial Court refused to hear any evidence offered by Equity Company, and held that the default judgment against Bill Herron, together with the declaratory judgment complaint of Equity Company, entitled Southern Ice Company and John Duke to a summary judgment against Equity Company. Equity Company made proffer of its evidence, and it is before us. We hold that the Trial Court was in error in refusing to hear the evidence tendered by Equity Company for a finding of fact thereon. It is not for us to say what the finding of fact should have been; but we do hold that Equity Company had a right to present its evidence, and receive a factual finding.
As heretofore pointed out, the insurance policy issued by Equity Company was an obligation to pay on behalf of the insured (i.e., Bill Herron, as one such insured), “all sums which the insured shall become legally obligated to pay as damages because of bodily injuries . . . sustained by any person caused by accident, and arising out of the ownership, maintenance, or use of the automobile”. This is the “obligation to pay”, as distinct from “obligation to defend”, which will be later discussed. Equity Company claimed that the mishap to the Arnold boy did not arise within the insurance coverage, as above quoted. The taldng of the default judgment against Bill Herron did not determine whether the mishap was within the insurance coverage. Somewhere in the course of the litigation, Equity Company had a right to have determined whether it was obligated to pay the judgment against Herron; and it chose to file this declaratory judgment proceedings to have the question determined. It was certainly entitled to present its evidence and have the factual questions decided.
Our original declaratory judgment statute was Act No. 274 of 1953 34-2501 et seq. Ark. Stats.); and Section 2 of the 1953 Act omitted all reference to “contracts”. In Lumberman’s Mutual Casualty Co. v. Moses, 224 Ark. 67, 271 S. W. 2d 780 (decided in 1954), we held that our then existing statute did not authorize a declaratory judgment involving an insurance contract. But the Arkansas Legislature, by Act No. 35 of 1957, amended Section 2 of the 1953 Act so as to include “a written contract or other writings constituting a contract”. The 1957 amendment made Section 2 of our Declaratory Judgment Act read exactly like the Uniform Declaratory Judgment Act. Thus, insurance contracts now come within the purview of our declaratory judgment statute; and in U. S. F. & G. v. Downs, 230 Ark. 77, 320 S. W. 2d 765, we rendered a declaratory judgment in litigation involving insurance contracts.
There are many cases in which declaratory judgment proceedings (under the Uniform Law) have been invoked by insurers in similar or analogous situations. Some of them are: State Farm Mut. Auto Ins. Co. v. Skluzacek, 208 Minn. 443, 294 N. W. 413; Farm Bureau Mutual Auto Ins. Co. v. Houle, 118 Vt. 154, 102 Atl. 2d 326; Hartford Accident & Indem. Co. v. O’Connor-Regenwether Post No. 3633, 247 Iowa 168, 73 N. W. 2d 12; Standard Cas. Co. v. Boyd, 75 S. D. 617, 71 N. W. 2d 450; Penn. Cas. Co. v. Suburban Service Bus Co., Mo. App., 211 S. W. 2d 524; and State Farm Mut. Auto Ins. Co. v. Cardwell, 250 Ala. 682, 36 So. 2d 75. The Equity Company had a right to use the declaratory judgment proceedings in this case to have determined its duty to pay and/or defend, just as was done in the cases previously cited. The Equity Company alleged, inter alia-. (1) that the status of the Arnold boy made him an employee of The Borden Company; and (2) that the automobile insurance policy here involved specifically excluded employees. The factual issues required determination; and Equity Company was entitled to have the facts determined in the declaratory judgment proceedings.
If Southern Ice Company had proceeded against the Equity Company under the provisions of § 66-526 et seq. Ark. Stats., Equity Company, as the alleged insurer, could still have made the defense that the policy did not cover the situation out of which the injury arose. (Home Indemnity Co. v. Snowden, 223 Ark. 64, 264 S. W. 2d 642). The Trial Court should have heard the evidence offered by Equity Company insofar as regards Southern Ice Company and John Duke. For that error, the judgment in favor of Southern Ice Company and John Duke against Equity Company is reversed and the cause is remanded for a trial and factual determination.
II. The Judgments In Favor Of The Borden Company And Curtis Gober. These judgments were for the attorneys ’ fees expended by these two parties in defending the third party complaint in Case No. 4168; in defending the direct complaint in Case No. 4210; and in defending against Equity Company in the present case, which was No. 4252. These judgments are correct. No judgment has been rendered against these assureds, The Borden Company and Gober, in favor of Southern Ice Company, because these assureds have made their own defense; but they contend that Equity Company should have made the defense; and this brings us to the second part of the insurance policy coverage, which was to “. . . defend any suit against the insured alleging such policy injury . . . and seeking damages on account thereof, even if such suit is groundless, false, or fraudulent”. In Lee v. Aetna Cas. & Sur. Co. (2nd Circuit), 178 Fed. 2d 750, Judge Learned Hand clearly pointed out the obligation of the insurer as regards “the duty to defend”, even though there was no duty on the insurer “to pay”.
We hold that in the case at bar, Equity Company violated its obligation to defend these assureds. We have only to look at the allegations — previously copied — in the third party complaint (Case No. 4168) and the allegations against The Borden Company and Gober in Case No. 4210, to see that the Equity Company has breached its obligation to defend its insureds, as distinct from its duty to pay. The great weight of authority, in cases like this and involving the insurer’s duty to defend, is that the allegations in the pleadings against the insured determine the insurer’s duty to defend.i It is not what the insurance company may have gleaned from its outside investigation: it is the allegations made against the insured — however groundless, false, or fraudulent such allegations may be — that determine the duty of the insurer to defend the litigation against its insured. In Am. Jur. Vol. 5A page 122 “Automobile Insurance” § 119, the holdings are summarized: “As a general rule, the obligation of an automobile liability insurer under a policy provision requiring it to defend an action brought against the insured by a third party is to be determined by the allegations of the complaint in such action.”
In the case at bar, the allegations in the third party complaint against The Borden Company and Gober, were not mere legal conclusions, but were factual allegations; and Equity Company has breached its duty to defend. Very fortunately for Equity Company, no judgment has gone against The Borden Company or Gober; and Equity Company may, if it so desires, defend the Case No. 4210 still pending against The Borden Company and Gober; but Equity Company must pay the reasonable attorneys’ fees which its insureds have paid. The Trial Court heard testimony about these amounts and rendered judgments against Equity Company; and the evidence sustains the judgments rendered. On appeal, The Borden Company and Gober ask additional attorneys’ fees for services in this Court; and we find that they are entitled to such amounts and fix the same at a total of $250.00 for both The Borden Company and Gober.
III. The Judgment For Bill Eerron Against Equity Company. The Trial Court rendered judgment for $200.00 attorney’s fee and expenses incurred by Bill Herron in the case No. 4168 and the present case; and he has not cross appealed or filed any brief in this Court. The Trial Court’s judgment is affirmed as regards Bill Herron.
CONCLUSION
The judgment in favor of Southern Ice Company and John Duke against Equity Company is reversed; in all other respects the judgment is affirmed; and the entire cause is remanded to reinvest the Circuit Court with jurisdiction for further proceedings not inconsistent with this opinion.
Here are the reasons Equity assigned for refusing to defend its insureds: “(a) That at the time and place the said John Arnold was injured, the said John Arnold was not engaged in loading or unloading the said milk truck operated by Bill Herron, (b) That the said loading of the milk truck with ice as contemplated by the terms of the policy would not begin until the crushed ice was properly sacked and ready for loading upon said truck, (c) That at the time and place the said John Arnold was injured, the ice and ice grinding machine were in the sole and exclusive custody of the said Southern Ice Company and John Duke, and that the ice had not been delivered to the said Bill Herron for loading until it had completed the grinding operation and was enclosed in a sack, (d) That the said John Arnold was an employee of the said Bill Herron and Curtis Gober, and was excluded from coverage under the policy.”
The prayer of the complaint of Equity Company was, that the Court determine and adjudge: “1. That none of the Defendants is entitled to recover from the Plaintiff any sum for damages suffered or for expenses incurred. 2. That each of the Defendants be restrained from instituting any action or continuing any action now instituted against the Plaintiff for the recovery of any sums as damages or expenses incurred. 3. That there is no liability on the part of the Plaintiff under the provisions of the aforementioned policy to defend the action on behalf of any of the Defendants herein. 4. That there is no liability on behalf of the Plaintiff under the policy to pay any part or all of any damages that might be awarded against any of the Defendants herein as hereinbefore set out. 5. That the plaintiff recover its costs. 6. For all other proper relief to which the Plaintiff might be entitled.”
For informative articles regarding declaratory judgment proceedings, we mention the following: Annotation in 13 A.L.R. 2d p. 777, entitled, “Jury trial in action for declaratory relief”; and annotation in 142 A.L.R. p. 8, entitled, “Application of declaratory judgment acts to questions in respect of insurance policies”.
For informative articles on the duty of the insurer to defend, see: Annotation in 50 A.L.R. 2d p. 458, entitled: “Allegations in third person’s action against insured as determining liability insurer’s duty to defend”; annotation in 49 A.L.R. 2d p. 694, entitled: “Consequences of liability insurer’s refusal to assume defense of action against insured upon ground that claim upon which action is based is not within coverage of policy”; and article in 11 Ark. Law Review p. 26, entitled: “Obligations of insured and insurer under automobile liability policies”. | [
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Carleton Harris, Chief Justice.
This is an appeal by Walter Green, a real estate broker of Pulaski County, from a judgment entered against him in the Pulaski Circuit Court in the sum of $2,000. Jones-Murphy Properties, Inc., is an Arkansas corporation, whose principal stockholders and officers are Drs. Kenneth Jones and Horace Murphy, the corporation being principally engaged in purchasing properties for investment. Ten acres, belonging to Mrs. A. D. Taylor and the heirs of her deceased husband, were purchased by appellee through appellant. Appellee paid $15,000 for the tract, and subsequently learned that the Taylors only received $13,000. The $2,000, less closing expense, was retained by Green as his commission. Appellee contended that Green was acting as its agent, and had thus wrongfully retained the amount in excess of the selling price. Green contended that the amount was simply his commission on property which had been exclusively listed with him for sale by the Taylors, i.e., he was an agent for the Taylors, rather than for appellee. Suit was instituted by the corporation for the $2,000 difference between the amount paid for the property by the company, and the amount received by the seller from the company, it being alleged that appellant wrongfully concealed the fact that he had entered into an agreement with Mrs. Taylor; that she had agreed to sell the property for $13,000, and that Green had made a personal profit of $2,000 in violation of his fiduciary relationship with appellee. On trial, the jury returned a verdict for appellee. Judgment was entered in accordance with the verdict, and from such judgment comes this appeal. For reversal, appellant contends that there was no proof of employment of Green as an agent, and further avers that the court erred in giving its instruction number two.
Proof on the part of appellee was as follows: Dr. Jones testified that in early November of 1958, while on his way to Rotary Club, he passed the property owned by the Taylors, and observed a homemade sign, “10 acres for sale”; the witness and Dr. Murphy had discussed the purchase of land for long term investment, and this unimproved land interested him; he became acquainted with appellant in the Rotary Club, and asked Green if he was familiar with the property. Appellant informed Jones that he was familiar with it, and that the price was too high. Subsequently, Jones purchased another ten acres from Green and Mrs. Josephine Graham for $10,000. In the meantime, Jones learned from Mrs. Taylor’s daughter that the Taylor property was still for sale. The evidence reflects, that sometime between the middle of November and the first of December, Jones called Green and informed him that he and Murphy were still interested in purchasing that property, and asked appellant to contact, in their behalf, the Taylor family, and see if the price £ £ could not be brought down. ’ ’ According to the witness, Green agreed to do this. Jones considered that Green was working for appellee for the purpose of obtaining the best price possible for the Taylor property, The witness stated no mention was made relative to compensation, it being his thought that the fee for services would be discussed when the deal was closed. According to the Doctor, sometime between the 10th and 15th of December, Green advised him that he had talked with the Taylor family, and the property could not be purchased for less than $15,000. Appellant considered this a “good price”. Relying upon the broker’s judgment, Jones, on December 20th, in behalf of appellee, entered into an offer and acceptance ’ ’ agreement, which was signed in the following manner:
“10. This offer is binding upon Bnyer if accepted within 2 days from date.
(Signed) Walter Green Kenneth G. Jones, M.D. Agent Buyer
The above offer is accepted this Dec. 20, 1958.
(s) Mrs. A. D. Taylor Seller
By W. Green, Agent Seller.”
In January, 1959, Green informed Jones there was a defect in the title to five of the ten acres; that they should go ahead and close the five acres without defect, but that the other five would have to go through guardianship proceedings. According to J ones, after some persuasion by Green, he agreed to this procedure. Appellant brought the papers and closing statement to his office for signing, though he did not read the papers in detail, and did not remember their contents. On January 31, 1959, sale of the five acres without title defect was consummated, and title conveyed to appellee; on the same date, unknown to appellee, a new contract for the sale of the remaining five acres was executed with signatures as follows:
“10. This offer is binding upon Buyer if accepted within............days from date.
Walter Green Jones-Murphy Prop., Inc.
Agent By Walter Green,
Buyer Agent
The above offer is accepted this J an. 31, 1959.
Jessie Taylor, Seller
Jesse Taylor, agent for heirs of
A. D. Taylor”
In the latter part of February or early March, Jones learned that the Taylor family had agreed to sell the property for $13,000, and he confronted Green with this fact.
Appellant testified that he had talked to Mrs. Taylor and her daughter about selling the property on several occasions prior to his discussions with Jones, but that he only obtained his exclusive listing contract on December 6, 1958. Admittedly, he did not tell Jones that he had the exclusive listing; likewise, he admitted that he did not place a sale sign on the property. The witness stated that he did not consider himself an agent for Jones, and had no reason to think that Jones regarded him as an agent; that the only contract he had was with Mrs. Taylor. Green testified that he had been out some expense in closing the transaction, and only realized $1,-453 for his commission. Relative to obtaining the exclusive listing, Green testified:
“Mrs. Taylor not being versed in real estate, being the only piece of property she had owned, she asked me to give her a guaranteed net price on the property and me pay all the expenses. When I had talked to her about the property, I talked to her daughter first, and she told me she wanted eighteen thousand for the property. When I called at their home I asked her to bring her family in to my office and discuss the lowest possible price she would accept and after figuring the price I would have to sell it to the doctors for to get my 10% commission, she agreed to accept, she told me, she said, ‘I have got to have $13,000 net to me. Anything you get above that, I don’t care what you get.’ I was acting as agent for Dr. Jones and Murphy, I mean agent for Mrs. Taylor to sell the property to Jones and Murphy because I had no written contract at all with Jones and Murphy prior to their making me an offer and acceptance contract. The only contract I had was with Mrs. Taylor, she wanted me to guarantee her $13,000, she didn’t care who I sold it to.”
He testified that he signed the January 31st agreement as agent of Jones-Murphy Properties as a matter of ‘ ‘ convenience. ’ ’ On re-direct:
“I couldn’t get Kenneth or Horace to come down. I had to take it to their office. At the suggestion of the insurance company and somebody at Pulaski Heights Bank, they had already pnt all the money up, they felt like there ought to be another contract drawn and signed by Mrs. Taylor and Jones and Murphy, and it was merely a contract of convenience more than anything.”
On cross-examination, he testified:
“Q. Did you tell Dr. Jones you signed that contract?
A. No, he said whatever I saw fit to do.
Q. After signing that contract did you tell him you had signed it?
A. I told him everything was all right.
Q. Did you tell him about this?
A. I don’t think I mentioned it.
Q. Did you furnish him a copy of it?
A. I don’t know. Everything was left up to me. I would call him maybe three days before I would hear from him.”
Under appellant’s primary contention of error, we are only concerned with whether there was sufficient evidence to support the verdict of the jury. Walthour v. Pratt, 173 Ark. 617, 292 S. W. 1017 (1927), is a case very similar to the one at bar. As here, the broker was instructed by the buyer to ascertain the amount that the owner of certain lots would accept for purchase, and there was no written agreement, or express oral agreement, that the broker would serve as agent for the buyer of the lots. On judgment being rendered against Walthour, he appealed to this Court, and in affirming the trial court’s judgment, this Court held the contention to be without merit, stating:
“The appellant earnestly contends that there is no evidence to show that he was the agent of appellee, and that, for that reason, the court should have directed a verdict in his favor. As to whether he was the agent of Mrs. Pratt is a question of fact properly submitted to the jury, and, under the facts as developed in this case, the jury might have found either way. They might have found that there was no agency. They however found that the agency did exist, and there is some substantial evidence to support this finding, and their finding of this fact is binding on this court.
It has been held many times that the findings of a jury on questions of fact, where there was any substantial evidence to support it, could not be disturbed by this court. It is not necessary, in order to establish agency, that the evidence show any express agreement.
‘It is not essential that any actual contract should subsist between the parties or that compensation should be expected by the agent; and while the relation, in its full sense, invariably arises out of a contract between the parties, yet the contract may be either express or implied. * * * Whatever evidence has a tendency to prove an agency is admissible, even though it be not full and satisfactory, and it is the province of the jury to pass upon it. Direct evidence is not indispensable — indeed, frequently is not available — but, instead, circumstances may be relied on, such as the relation of the parties to each other and their conduct with reference to the subject-matter of the contract.’ 21 E. O. L. 819-820. # # *
In the case at bar the evidence tends to show that the appellee requested appellant to see the owner of the lots, and appellees testify that the appellant told them it was Mr. Cox; that an offer of $1,850 was made; that afterwards appellant told appellee the offer had been accepted, a contract was signed, and afterwards deeds were executed and money paid. Tipton Cox testified that, when Walthour came to him or talked to him, he understood that Pratt was purchasing the lots, or that Pratt was the one making the offer, and that he was to make the deed to Bailey because some financing was to be done. * * *
. . . we think there was substantial evidence from which the jury might have found that the appellant was the appellee’s agent, and, while acting as her agent, pur chased the property from Mr. Cox for $1,500, and had the deed made to Bailey and then conveyed to appellee for $1,850.”
In the case at bar, there was evidence that Jones requested Green to talk to the Taylors about the lots before Green obtained the exclusive listing contract, and that Green agreed to do this; no indication was given by appellant that he had obtained the exclusive listing contract from the Taylors, nor did he tell Jones the net price to Mrs. Taylor; Green never placed his own sign on the property, and in fact, the evidence reflected that the old homemade sign remained on the premises. Appellant admitted that in his discussion with the Taylor family, Mrs. Taylor agreed to the listing after he figured the price that the property would have to be sold for, in order for him to obtain the desired commission. Green likewise admitted that he had appellee in mind at the time as the sale prospect, and of course, the signing of the offer and acceptance agreement on January 31st by Green as agent of Jones-Murphy was rather potent evidence. Counsel for appellant point out in their brief, that Green also signed as agent for Mrs. Taylor, but we are not concerned with other possible agency relationships held by Green. As was stated in the Walthour case:
“He also objects to the instruction because he says that he was entitled to represent both Cox and Bailey and entitled to a commission from each. There is no doubt but that he was entitled to represent anybody he wished and charge a commission for representing them, but the question here is whether he was representing the appellee, and whether he made a secret profit, and these questions were both submitted to the jury, and its verdict settles these questions against the appellant. It was not necessary to prove fraud in order to entitle plaintiff to recover in this case. It is the duty of an agent representing a principal to faithfully represent that principal and to be loyal and faithful to his interest, and he cannot acquire any interest for himself in opposition to the interest of his principal. And the fact that an agent acts gratuitously and without commission does not relieve him of liability for wrongful acts or negligence, whether they amount to fraud or not.”
We conclude that there was sufficient evidence to support the verdict of the jury that Green was the agent of appellee.
Appellant contends that the court’s instruction No. 2 was erroneous, in that it permitted the jury to find that there was an agency, even though Green did not understand that he was being looked upon as an agent, and no specific contract had been entered into. We think that the Walthour case, heretofore quoted, answers this contention. Likewise, in 2 American Jurisprudence, § 24, pages 26 and 27:
“Whether an agency has in fact been created is to be determined by the relations of the parties as they exist under their agreements or acts. If relations exist which will constitute an agency, it will be an agency whether the parties understood the exact nature of the relation or not. * * * If an act done by one person in behalf of another is in its essential nature one of agency, the former is the agent of the latter, notwithstanding he is not so called.”
At any rate, no specific defect in the instruction was called to the trial court’s attention, a general objection only being made. Unless, therefore, the instruction was inherently erroneous, the general objection was not sufficient. This instruction was not inherently erroneous, and in fact, appellant admits that, under some circumstances, the instruction would be a proper statement of the law. The contention is without merit.
No reversible error appearing, the judgment is affirmed. | [
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Sam Robinson, Associate Justice.
Appellant was convicted in the Pulaski Circuit Court on the charges of driving while under the influence of intoxicating liquor and leaving the scene of an accident. On appeal he argues two points: First, he says that the evidence is not sufficient to sustain the conviction. There is no merit at all in this contention. A car involved in the collision was driven away from the scene of the accident. By various means, including a trail of water caused by a damaged radiator, the car was traced to where it was parked in the street. Officers located appellant in a house nearby. He admitted he was driving the car involved in the collision and that he drove away from the scene of the accident. He was under the influence of liquor, but at the time of his arrest he said it had been two hours since he had taken a drink. This was about 45 minutes after the accident occurred. All of the evidence considered together constitutes substantial evidence of the appellant’s guilt on both charges.
Appellant next contends that the charges against him should be dismissed because he was arrested without a warrant on alleged misdemeanors and that such alleged offenses were not committed in the presence of the arresting officers. True, the charges against appellant were only misdemeanors and the officers had no authority to make the arrest in the circumstances. Ark. Stats. § 43-403. The officers acted at their peril in making the arrest. Edgin v. Talley, 169 Ark. 662, 276 S. W. 591, 42 A.L.R. 1194; Watkins v. State, 179 Ark. 776, 18 S. W. 2d 343. But the fact that the officers had no warrant does not call for a dismissal of the charges. Certainly, one guilty of murder would not have to be released and turned scot-free because the arrest happened to be illegal in the first instance. If as a result of the arrest the officers had obtained incriminating evidence, perhaps such evidence could be suppressed. Clubb v. State, 230 Ark. 688, 326 S. W. 2d 816. But no evidence of that kind was discovered by virtue of the arrest. True, appellant made voluntary statements to the officers that were used against him, but appellant was in no way coerced into making such statements. A voluntary statement made by the accused at the time of an unlawful arrest is not considered as evidence obtained in an unlawful manner. Quan v. State, 185 Miss. 513, 188 So. 566.
Affirmed. | [
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George Rose Smith, J.
This is a death claim under the workmen’s compensation law, filed by the appellee as the widow of Guy Sedberry. The commission allowed the claim, finding that Sedberry’s death from a heart attack arose out of and in the course of his employment by the appellant. This appeal is from the circuit court’s affirmance of the award.
The only material conflict in the evidence is in the medical testimony. Sedberry had worked for the appellant for fifteen years. At the time of his death he was the senior member of a maintenance crew. On the afternoon of December 18, 1958, the crew finished repairing a heavy cooler and moved it back into position. The proof indicates that this work was not unusually strenuous and did not involve extraordinary exertion. After resting a few minutes Sedberry began to write out a list of things his crew needed in its work. While so engaged Sedberry suffered a coronary occlusion, was taken to a clinic, and died within an hour after the onset of the attack.
As witnesses for the employer Dr. Agar and Dr. Kahn, specialists in internal medicine, testified that in their opinion the decedent’s coronary occlusion was the result of a diseased condition within the heart and was not caused or contributed to by his work on the day of his death. On the other hand Dr. Hamilton, another internist testifying for the claimant, believed that Sedberry’s work caused the attack or contributed to it. The opposing views of the medical witnesses cannot be reconciled.
The case is controlled by our decision in Bryant Stave & Heading Co. v. White, 227 Ark. 147, 296 S. W. 2d 436, where we upheld an award of compensation based upon proof that the claimant’s ordinary work, without unusual strain or exertion, had aggravated a pre-existing condition. The principle has since been followed in cases involving heart seizures. Safeway Stores v. Harrison, 231 Ark. 10, 328 S. W. 2d 131; Reynolds Metal Co. v. Robbins, 231 Ark. 158, 328 S. W. 2d 489.
The appellant insists that in the case at bar the commission’s opinion discloses a misunderstanding of our recent decisions, in that the commission regards any heart attack occurring on the job as being automatically compensable. Such a view would indeed be a mistake, for the Sryant case stressed the necessity of there being a causal connection between the claimant’s work and his disability. See also Ark. Power & Light Co. v. Scroggins, 230 Ark. 936, 328 S. W. 2d 97. But we have carefully studied the commission’s opinion in the case at hand, and we do not find that it reflects any misconception of the law as announced by this court. To the contrary, the commission discussed the matter of causation, reviewed the conflicting medical testimony, and explained its reasons for accepting the opinion of Dr. Hamilton, “whose unequivocal view,” said the commission, “is that there was a causal relationship between the heart attack of G-uy Sedberry and his exertions on the day of his death.” The question before the commission was fundamentally one of fact, and we find its decision to be supported by substantial evidence. This concludes our inquiry.
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Paul Ward, Associate Justice.
This is an automobile collision case in which the appellants (plaintiffs below) secured a jury verdict and now appeal therefrom on the sole ground that the defendant’s attorney committed reversible error in asking a certain question on cross examination of the doctor who was their witness. No facts are in dispute.
On May 30, 1959 appellant, Lucy Keathley, attended by her ten year old daughter, Brenda, while driving her husband’s automobile on 3rd Street in North Little Rock, had a collision with a tractor-truck being driven by appellee, W. J. Yates, Jr. As a result, so it is alleged, Mrs. Keathley and Brenda were injured and the car was damaged. They filed suit in circuit court against Yates to recover for said injuries, and they were joined by Woodrow Keathley (husband of Lucy and father of Brenda) to recover for loss of consortium and for medical expenses. Yates filed an answer, and a trial resulted in the following jury verdicts; for Lucy, $225; for Brenda, $50, and; for Woodrow, $275.
Prom the judgments entered on the above verdicts the Keathleys prosecute this appeal. The Designation of the Record called for only the following; the judgments, the order overruling the Motion for a New Trial, the testimony of Doctor Carruthers (a witness for appellants), and the objections to the cross examination of the said doctor. Appellants’ only point relied on for a reversal reads:
" The lower court erred in not sustaining appellants ’ objections to a highly prejudicial question asked by appellee’s counsel to one of appellants’ witnesses, resulting in the assessment of grossly inadequate damages by the jury to each of the appellants.”
After Doctor Carruthers had testified concerning the extent of the injuries received by Lucy and Brenda and the treatment given therefor the following occurred on cross examination:
Q. “In other words, you mentioned tension in the muscles of the neck causing her continuing discomfort. Is it not the history of cases like this that when the lawsuit is over the patient is relieved and gets much better ?’’
MR. MOODY.
“Object to asking about her actions when the lawsuit is over.”
THE COURT.
“He has laid a foundation for it. Let’s see what the doctor has to say about it?”
Q. “Is it not the history and have not studies been made in injuries of this type that when the lawsuit is over that the patient is relieved and that the patient gets much better?”
MR. MOODY.
“Object to that. He don’t know anything about that. ’ ’
THE COURT.
" Overruled."
MR. MOODY.
“Save our exceptions.”
A. “I don’t know whether they would or not.”
Q. “Haven’t these competent medical studies been made?”
A. “I don’t know.”
Appellants contend that the above question was prejudicial and therefore calls for a reversal. Appellee cites medical authorities tending to show justification for the question, contending that it was a proper one. We do not deem it necessary here to decide the propriety of the challenged question for the reason that no prejudice is shown or appears from the record which justifies a reversal.
The general principle regarding harmless errors frequently announced by this and other courts is well stated in 5A C. J. S., Appeal & Error, page 677, § 1676, in this language: “ It is a fundamental principle of appellate procedure which is universally recognized and applied that a party cannot assign as error that which is not prejudicial to him; and harmless error, that is error unaccompanied by prejudice or injury, is not ground for reversal. ’ ’ The fact that no prejudice resulted here is shown by the negative answer given by Doctor Carruthers, as above set forth. The same contention made here by appellants for a reversal has many times been rejected by this court. In Bodcaw Lumber Co. v. Ford, 82 Ark. 555, 102 S. W. 896, where an admittedly improper question was asked, the court, at page 560 of the Arkansas Eeports, said:
“We see nothing prejudicial in the question, since it was answered in the negative. Though the question was improper, the answer removed all prejudice. Of course, we can imagine a case where an improper question might be repeated often enough to become prejudicial, even though each time it elicited a negative answer. But that was not done in this case.”
For similar announcements by this court see: St. Louis, Iron Mountain & Southern Railway Co. v. Freeman, 89 Ark. 326, 116 S. W. 678; Harrelson v. Eureka Springs Electric Company, 121 Ark. 269, 181 S. W. 922, and Zorub v. Missouri Pacific Railroad Company, 182 Ark. 232, 31 S. W. 2d 421.
It follows from what we have said above that the judgment of the trial court must be, and it is hereby, affirmed.
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J. Seaborn Holt, Associate Justice.
This appeal comes from a judgment of the Pulaski Circuit Court denying appellants’ petition for a Writ of Prohibition against Judge Quinn Glover, a municipal judge of Little Bock, Arkansas. Appellants were accused of committing certain misdemeanors triable in the Little Bock Municipal Court. While the cases were pending, appellants, on October 1, 1959, filed applications for change of venue, alleging that the Judge of the Court was so prejudiced against them that they could not obtain a fair and impartial trial. Accompanying appellants’ motions were affidavits of two persons who stated in their opinion the appellee was so prejudiced against the appellants that they could not obtain a fair and impartial trial before the court. The court overruled appellants’ motions after hearing and determining that the affiants used in support of their motions were not credible witnesses as contemplated by Ark. Stats. §§ 22-721 — 22. Thereafter, on October 15, 1959, appellants attempted to file an amended and substituted application for change of venue identical to the first application except a substitution of different persons as supporting affiants. The Municipal Court refused to allow this latter application for change of venue as a substituted application for change of venue, but allowed it to be filed as an amendment to the original application of appellants.
Thereafter, on October 28, 1959, appellants filed a petition for a Writ of Prohibition against appellee to prohibit him from continuing to hear the actions. On November 21, 1959, Pulaski County Circuit Court denied the Writ of Prohibition. This appeal followed.
Appellants, for reversal, rely on the following point: “The Court erred in determining as a matter of law that the change of venue statutes, i.e., Ark. Stats., Anno., (1947) §§ 22-721 and 22-722 were not mandatory upon the Municipal Court, and by virtue of the said ruling, the decision of the lower court is contrary to the law, the evidence, and the law and evidence.”
We do not agree with this contention. The sections of our statutes relied upon by appellants provide: ‘ 'Ark. Stats. § 22-721. Change of venue — Affidavit for change— In all Counties within the State of Arkansas wherein there are two or more Municipal Courts the defendant in any criminal case pending either for trial or preliminary examination before any such Municipal Court may take a change of venue from the Municipal Court in which said cause is pending to some other Municipal Court within said County; provided, the defendant shall, at or before the commencement of such trial or examination, file in the Municipal Court in which said cause is pending an Affidavit setting forth that the Judge of said Court is a material witness in said cause, or that such Judge is so prejudiced against the defendant that he cannot obtain a fair and impartial trial before said Court.” And — “Ark. Stats. § 22-722. Verification of affidavit — of two credible persons — The application of any defendant for a change of venue as herein provided for shall be verified by the affidavit of said defendant setting forth the grounds upon which said change of venue is sought, and shall he supported by the affidavit of at least two (2) other credible persons.”
It is conceded by appellee that there is more than one municipal court in Pulaski County and that appellants had the right to apply, i.e., “may” apply, for a change of venue upon a proper showing that the trial judge (appellee) was so prejudiced against them that they could not obtain fair and impartial trials before him. However, such change of venue was not a mandatory right in favor of appellants, as they insist, just by merely applying for change of venue. They must go further and support their application for change of venue by the affidavits of at least two other credible persons and we hold this appellants failed to do.
We have consistently adhered to the rule which we announced in Dewein v. State, 120 Ark. 302, 179 S. W. 346, as follows: “A credible person is one who has the capacity to testify on a given subject and is worthy of belief; and one who lacks knowledge on the subject under investigation is not a credible person to be accepted as worthy of belief in that particular inquiry. ’ ’ The use of these words, “credible persons”, means that the supporting affiants should have fairly accurate information of the facts alleged by appellants seeking a change of venue, Williams v. State, 162 Ark. 285, 258 S. W. 386, and Hedden v. State, 179 Ark. 1079, 20 S. W. 2d 119.
Appellants introduced two witnesses. Their first, Mrs. R. G. Taylor, testified: “Q. Do you think those defendants can get a fair trial in this court? A. No, sir, I do not. Q. Will you tell the Court why you think — believe that, please? A. Your Honor, let me assure you that I mean no reflections on this Court or the Judge of this Court, but due to the circumstances and the environment surrounding this Court I do not believe that they can get a fair and impartial trial. That is the reason that I come with this request. THE COURT: You don’t know me, personally? A. I have known of you, Judge Glover, for years; yes, sir. THE COURT: You hold no prejudice? A. I hold no prejudice against you as judge, let me assure you of that. THE COUBT: All right, do you have another witness ? MB. GUTHBIDGE: That is sufficient with her? THE COUBT: Yes, sir.”
Their other witness, A. E. Cooper, testified: “Q. Did you and Mrs. Taylor, who just testified, are you the two who filed those affidavits for each of these defendants in each charge? A. Bight. Q. You did? A. Yes sir. Q. Now, you swore that you thought that those defendants could not get a fair and impartial trial in this court, is that true? A. I did. * * * Q. Would you please state to the court on what you base your belief ? A. I just think there is a prejudice among the City Officials at this particular time against the defendants. And as I have no interest, personally, in all due respect to the Court, so far as that is concerned, I just think there is a feeling of prejudice against the defendants among the City Officials. Q. You don’t think they can get a fair trial in this Court due to that prejudice which you believe is rampant in the City Hall? A. Bight. Q. I would like to ask him this, Your Honor. Do you know Judge Glover, personally? A. No, sir, I do not. Q. You don’t. In other words, it is based on the atmosphere, not directed against him, personally, is that right? A. Bight. Q. As a man? A. Nothing whatever. * * * Q. Mr. Cooper, specifically, is there anything that you know of of your own knowledge regarding the City Hall that would lead you to believe the City Hall has such a prejudice? A. Well, not anything more than has been stated — the atmosphere and the feeling that has been from the newspapers and radio and reports. # * * Q. Have you ever heard anyone in the City Hall express prejudice regarding this particular matter? A. No, I haven’t. * * * Q. Do you know of any evidence of Judge Glover’s prejudice in this matter? A. No, I do not.”
We hold that the testimony of these two witnesses falls far short of proving that Judge Glover was so prejudiced against the appellants that they could not obtain a fair and impartial trial before him. It will be ob served that there was no testimony as to any statement or assertions by Jndge Glover to anyone indicating any prejudice against appellants. In fact, witness Cooper did not know Jndge Glover personally, as indicated by Mr. Cooper’s testimony: “Q. Do yon know of any evidence of Jndge Glover’s prejudice in this matter! A. No, I do not. ’ ’ And Mrs. Taylor testified: ‘£ THE COURT: Yon don’t know me, personally! A. I have known of yon, Jndge Glover, for years; yes, sir.”
Finding no error, the judgment is affirmed.
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Ed. F. McFaddin, Associate Justice.
This case is an eleventh hour attempt — by original action in this Court — to prevent proposed Constitutional Amendment No. 51 being submitted to the voters at the November 1960 General Election.
The General Assembly of Arkansas at its 1959 session adopted Senate Joint Resolution No. 4, which may be found on pages 1973 et seq. of the Acts of Arkansas for the year 1959. The entire Joint Resolution need not be copied, but we set out enough of it to identify what we will later discuss:
“SENATE JOINT RESOLUTION NO. 4.
“Re It Resolved by the Senate of the State of Arkansas, and by the House of Representatives, a Majority of All Members Elected to Each House Agreeing Thereto:
“That the following is hereby proposed as an amendment to the Constitution of the State of Arkansas, and upon being submitted to the electors of the State for approval or rejection at the next general election for Representatives and Senators, if a majority of the electors voting thereon at such an election adopt such amendment, the same shall become a part of the Constitution of the State of Arkansas, to-wit:
“SECTION 1. In addition to other powers granted by constitutional or statutory authority, cities of the first and second class may issue, by and with the consent of a majority of the qualified electors of said municipality voting on the question at an election held for the purpose, bonds in sums and for the purposes approved by such majority at such election as follows: . . .”
To prevent this Senate Joint Resolution No. 4 being submitted to the voters of Arkansas at the November 1960 General Election, as proposed Constitutional Amendment No. 51, the present case was filed as an original action in this Court on October 18, 1960. It is claimed that the ballot title is defective and misleading. The Arkansas Municipal League has intervened to resist this action; and one point of resistance is that the action is improperly brought in this Court as an original proceeding. We find this point to possess merit because this proposed Constitutional Amendment was submitted by the Legislature; and the Arkansas Supreme Court has no original jurisdiction, regarding procedure on proposed constitutional amendments, except those amendments submitted under Amendment No. 7. We will elucidate on these conclusions.
I. Distinction In The Methods Of Submitting Amendments. There are two entirely different methods (ways) by which constitutional amendments may be submitted to the voters of Arkansas. One is for the Legislature to propose an amendment; and the other is for the People to initiate a proposed amendment. Article 19, Section 22 of the Arkansas Constitution is concerned with amendments submitted by the Legislature; and Amendment No. 7 to the Constitution is concerned with proposed amendments initiated by the People. In Section 1 of Amendment No. 7 this difference is recognized in these words:
“The legislative power of the people of this State shall be vested in a General Assembly, which shall consist of the Senate and House of Eepresentatives, but the people reserve to themselves the power to propose legislative measures, laws and amendments to the Constitution, and to enact or reject the same at the polls independent of the General Assembly; and also reserve the power, at their own option, to approve or reject at the polls any entire act or any item of an appropriation bill.”
In Coulter v. Dodge, 197 Ark. 812, 125 S. W. 2d 115 (decided in 1939, which was several years after Amendment No. 7 had been declared adopted), this Court recognized the distinction between constitutional amendments proposed by the Legislature and those initiated by the People; and Mr. Justice Frank G. Smith used this language in the opinion:
“Let it be remembered that we are considering now only proposals to amend the Constitution submitted by the General Assembly. An entirely different procedure is applicable to amendments proposed under the Initiative and Referendum Amendment No. 7.”
The plaintiff insists that Section 6 of Amendment No. 7 (in the heading, “Definition”), and Section 10 of Amendment No. 7 (in the heading, “Majority”), show that Amendment No. 7 was designed to include both kinds of amendments — i.e., legislatively proposed and initiated; but we find these contentions by the plaintiff to be without merit. We hold that amendments proposed by the Legislature are entirely different from those initiated under Amendment No. 7 and are governed by an entirely different procedure.
II. Jurisdiction. With the point established that Amendment No. 7 does not apply to the procedure of amendments submitted by the Legislature, we turn now to the vital question of jurisdiction. In Section 16 of Amendment No. 7 there is this language in regard to the original jurisdiction of this Court:
‘ ‘ The sufficiency of all State-wide petitions shall be decided in the first instance by the Secretary of State, subject to review by the Supreme Court of the State, which shall have original and exclusive jurisdiction over all such causes. . .
So in any case involving an amendment submitted under the procedure outlined in Amendment No. 7, the Supreme Court of Arkansas has original jurisdiction. But there is no language in Article 19 of Section 22 of the Constitution — regarding a constitutional amendment proposed by the Legislature — that gives the Arkansas Supreme Court any original jurisdiction in litigation challenging the validity of submission of such proposed amendment. On the contrary, the Constitution in Article 7 of Section 4 restricts the jurisdiction of the Arkansas Supreme Court to appellate jurisdiction. Here is the germane language:
“The Supreme Court, except in cases otherwise provided by this Constitution, shall have appellate jurisdiction only, which may be coextensive with the State, under such restrictions as may from time to time be prescribed by law. It shall have a general superintending control over all inferior courts of law and equity; and, in aid of its appellate and supervisory jurisdiction, it shall have power to issue writs of error and supersedeas, certiorari, habeas corpus, prohibition, mandamus and quo warranto, and, other remedial writs, and to hear and determine the same. . . .”
In Sauve v. Ingram, 200 Ark. 1181, 143 S. W. 2d 541, this language appears:
“Section 4 of art. 7 of the Constitution of the State of Arkansas provides, among other things, that except in cases otherwise provided, the supreme court shall have appellate jurisdiction only. This court has no authority to decide a question like this unless it has been decided by tbe lower court. In other words, we have no original jurisdiction, but only appellate jurisdiction.
“This court said, in the case of Road Imp. Dist. No. 4 of Prairie County v. Mobley, 150 Ark. 149, 233 S. W. 929: ‘The jurisdiction of this court is, under the Constitution, merely appellate and supervisory, except in the single instance of the exercise of original jurisdiction in the issuance of writ of quo warranto. Constitution of 1874, art. 7 §§ 4 and 5. The various writs authorized to be issued by this court are merely in aid of such appellate or supervisory jurisdiction. Ex parte Jackson, 45 Ark. 158; Arkansas Industrial Co. v. Neel, 48 Ark. 283, 3 S. W. 631. . .' "
A careful study of the Constitution and all of its Amendments fails to disclose any provision that gives the Arkansas Supreme Court original jurisdiction in a case like the present one, which is attacking the regularity of submission to the voters of a constitutional amendment proposed by the Legislature. Such an action should have been filed in the Chancery Court and not in the Supreme Court. So we must conclude that we cannot take original jurisdiction in this case; and such conclusion makes it improper for us to discuss any of the other issues raised.
The ease is dismissed.
This Section reads: “Either branch of the General Assembly at a regular session thereof may propose amendments to this Constitution, and, if the same be agreed to by a majority of all members elected to each house, such proposed amendments shall be entered on the journals with the yeas and nays, and published in at least one newspaper in each county, where a newspaper is published, for six months immediately preceding the next general election for Senators and Eepresentatives, at which time the same shall be submitted to the electors of the State for approval or rejection; and if a majority of the electors voting at such election adopt such amendments the same shall become a part of this Constitution; but no more than three amendments shall be proposed or submitted at the same time. They shall be so submitted as to enable the electors to vote on each amendment separately.”
In the dissenting opinion in Dixon v. Hall, 210 Ark. 891, 198 S. W. 2d 1002, the sections of Amendment No. 7 are numbered and identified; and such numbering is used herein.
McAdams v. Henley, 169 Ark. 97, 273 S. W. 355, 41 A. L. R. 629, involved the procedure whereby the Legislature submitted an amendment; and that case reached this Court by appeal from the Chancery Court. On the other hand, original actions were filed in this Court in each of the following cases which involved attacks on measures initiated under Amendment No. 7, to-wit: Hope v. Hall, 229 Ark. 407, 316 S. W. 2d 199; Washburn v. Hall, 225 Ark. 868, 286 S. W. 2d 494; Ellis v. Hall, 219 Ark. 869, 245 S. W. 2d 223; Pafford v. Hall, 217 Ark. 734, 233 S. W. 2d 72; Sturdy v. Hall, 201 Ark. 38, 143 S. W. 2d 547; Hargis v. Hall, 196 Ark. 878, 120 S. W. 2d 335; Walton v. McDonald, 192 Ark. 1155, 97 S. W. 2d 81. | [
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J. Seaborn Holt, Associate Justice.
On June 22, 1958, Mr. Frank F. Fuller and his wife, appellee, Mrs. Verna Fuller, along with their two children, were occupants of an automobile driven by Orville E. Smith which collided with an automobile driven by A. C. Taylor and as a result of this collision, Mr. Fuller was killed and his wife, appellee, seriously injured. After emergency treatment Mrs. Fuller, a veteran of the U. S. Armed Forces, was admitted to a Veterans Administration Hospital after she had signed a form statement provided by the V. A. Hospital stating that she was unable to pay the necessary expenses of hospital treatment and domiciliary care. Her medical expenses at the V. A. Hospital amounted to $1,681.67. She was sent a bill for these expenses which she later paid. In September of 1958, Mrs. Fuller, appellee, filed suit against A. C. Taylor for personal injuries sustained in the automobile collision. When the V. A. learned of this suit, Mrs. Fuller, at its request, assigned to the V. A. any recovery of damages that she might obtain against a third party, Taylor, in payment for medical treatment resulting from her injuries. The Y. A. charge for hospital care for appellee was $1,681.67, the reasonableness of which is not in dispute.
Thereafter, the V. A. Hospital notified appellee’s attorney of their claim and forwarded copies of the assignment. Continuous demands were made by the Y. A. Hospital on appellee’s attorney until appellee finally paid the hospital bill out of funds which she received from her damage suit against A. C. Taylor. Appellee first made demand on the Southern Farm Bureau Casualty Insurance Company (insurer of Orville E. Smith, driver of the car in which the Fullers were riding) for payment of the Y. A. charges against her and for payment of other medical expenses actually incurred and this company paid all the bills except the Y.A. charges in amount of $1,681.67 which they refused to pay. At the time of the collision and injuries to appellee, as indicated, Frank Fuller, appellee’s husband, had in force an automobile insurance policy with appellant, State Farm Mutual Automobile Insurance Company, which contained these provisions: “Coverage C — Medical Payments. To pay all reasonable expenses incurred within one year from the date of accident for necessary medical, surgical, X-ray and dental services, including prosthetic devices, and necessary ambulance, hospital, professional nursing and funeral services. ¶ Division 1. To or for the named insured and each relative who sustains bodily injury, sickness or disease, including death resulting therefrom hereinafter called ‘bodily injury,’ caused by accident, while occupying or through being struck by an automobile. ’ ’ This policy was issued in Louisiana. Premiums were paid and the policy was in effect at the time of the accident above described.
Upon appellant’s refusal to pay, appellee filed the present suit against appellant, insurance company, in which she sought recovery in amount of $1,681.67, plus statutory penalty and reasonable attorney’s fee. Trial was had on September 1, 1959, before the court without a jury on stipulation of facts with, exhibits introduced. No witnesses were called by either party. Following the hearing, the court took the case under advisement and on November 12, 1959, entered a judgment for appellee in the amount sued for, $1,681.67, a 100% penalty, $336.33 as fee for appellee’s attorney, or a total judgment of $3,-699.67, together with costs. This appeal followed.
For reversal, appellant relies on the following points: “I. The court erred in concluding from the undisputed facts that the cost of the VA hospital care furnished appellee was medical expense incurred by appellee within the terms of appellant’s Family Automobile Policy. II. (A) The court erred in applying the law of Louisiana instead of the law of Arkansas to the assessment of statutory penalty and attorneys’ fees against appellant. (B) If the Louisiana law governs, the court applied an incorrect provision thereof.”
Appellant states its position and contention as follows: “Appellant refused to pay to appellee the amount of the VA bill for the reason that it did not represent medical expense ‘incurred’ by her. The VA did not charge appellee for the cost of her hospital care. ¶ Appellee had first made demand upon Southern Farm Bureau Casualty Insurance Company for payment of the VA charges and for payment of other medical expenses actually incurred. Southern Farm paid all of these bills but refused to pay the VA charges. ¶ * * * Appellant admitted its policy was issued to Frank F. Fuller; that it was in force at the time of the collision in June 1958; that appellee was hospitalized at the VA Hospital in Little Rock; and that $1,681.67 was the cost of hospital care. Appellant denied liability under its policy for the reason that the purported charges of the VA Hospital were not medical ‘expense incurred’ within the terms of its policy because appellee qualified for admission to said hospital under laws of the United States as a veteran entitled to free care and treatment for her injuries ; that the VA was without authority to make any charges against her for care and treatment; that any charges attempted to be made against her would not constitute a legal obligation; that the VA did not attempt to make any charge against her.”
In short, it appears to be appellant’s contention that appellee, Mrs. Fuller, was not entitled to be reimbursed for her hospital bill in amount of $1,681.67 on the grounds that these expenses “were not incurred” by Mrs. Fuller since she was a veteran and could have obtained hospitalization in the veterans hospital free of charge. We do not agree. It appears undisputed that at the time appellee entered the hospital she was, in fact, unable to pay for hospital services and had so stated in her written application. Therefore, at the time of her entry, being a veteran, she would have been entitled to free hospital services. However, it is also undisputed that after Mrs. Fuller had left the hospital, spending 79 days therein, on January 19, 1959, she effected a settlement of her damage suit against Taylor and out of the proceeds of this settlement she, on demand, paid the Veterans Hospital $1,681.67. We think that it was the intent of appellant, insurance company, and Frank Fuller, its insured in this case, that appellant company, in return for premiums paid by the insured, would pay the medical and hospital expenses on insured and members of his family in the event that they were injured in an automobile accident such as here.
The Supreme Court of Wisconsin, in a similar situation as here presented, interpreted the meaning of a provision in an automobile liability policy, which provision was identical with that now before us. This Wisconsin case, Herman Kopp v. Home Mutual Ins. Co., 6 Wis. 2d 53, 94 N. W. 2d 224, involved an action on an automobile liability policy by the insured to recover under the medical payment coverage for hospital expenses resulting from an accident while driving insured automobile. In that case it appears that the plaintiff was a subscriber to the Blue Cross Benefit Plan which plan was in addition to plaintiff’s liability policy supra with the defendant insurance policy which included medical pay ment coverage. It further appears that Blue Cross agreed to furnish insured hospital benefits in any affiliated hospital free of charge. The hospital where the insured was hospitalized was an affiliate member. Following the plaintiff’s hospitalization, he submitted to the insurance company a statement for hospital expenses which the insurance company refused to pay on the ground that it was not an “incurred expense” within the provisions of defendant’s policy. As indicated, the provisions of defendant’s policy in that case were identical with those in the present case. The Wisconsin Supreme Court, in holding in favor of the insured plaintiff, used this language: ‘ ‘ The defendant contends that, under the above-quoted policy provisions, it is a condition precedent to the insured’s right of recovery upon the policy for his hospitalization that he shall first have incurred a debt for the same. It is clear from the undisputed facts that no such debt was incurred by the plaintiff to pay for such hospitalization. However, a debt was incurred on the part of Blue Cross to pay such expense to Luther Hospital, and the plaintiff had paid quarterly premiums to Blue Cross as consideration for Blue Cross undertaking so to do. Thus expense was incurred for hospital services furnished ‘to or for’ the plaintiff insured. ¶ The afore-quoted policy provisions do not state who is required to incur the expense in order for the insured to recover for medical or hospital services supplied to or for him. There thus exists an ambiguity. It is a generally accepted rule of construction that ambiguities in a contract of insurance are to be resolved against the insurer who drafted the same and in favor of the insured. * * * Furthermore, policies of insurance are to be given a reasonable construction, and not one that leads to an absurd result.”
Just as the Blue Cross was held to have “incurred” the hospital costs, we think here the federal government, in effect, “incurred” the hospital costs of appellee in consideration for her services in the armed forces. The government provided these services to appellee even though, her disabilities were not service connected, provided she were unable to pay for such needed hospital services. In the present case, just as soon as Mrs. Fuller became able to pay her hospital costs (as indicated, from the proceeds of her recovery of damages against Taylor) she did so in the amount of $1,681.67 and at this point the said medical expenses, which are conceded to be reasonable, were, in fact, “incurred” by appellee within the terms of the policy, and the judgment of the trial court allowing recovery was correct.
Appellant is correct in its contention that the trial court erred in applying the law of Louisiana instead of the law of Arkansas on the assessment of the statutory penalty and attorneys’ fees against appellant.
Appellant’s contention that the trial court’s assessment of 100% penalty was error and that a penalty of only 12% may be allowed under our statute § 66-514 is correct and must be sustained. In a case of this nature the law of the forum, Arkansas, controls. In Aetna Casualty & Surety Co. v. Simpson, 228 Ark. 157, 306 S. W. 2d 117, we held § 66-514 to be a rule of procedure and applicable to an extrastate automobile insurance policy. We there said: “Appellant (liability insurance company) contends that Arkansas Statute § 66-514, providing for the payment of attorneys’ fees, does not apply in this case because a Tennessee contract is involved, although it matured in Arkansas. Notwithstanding the policy of insurance is a Tennessee contract, procedural matters must be in accord with the Arkansas statutes. The statute provides that attorneys’ fees shall be taxed as part of the costs. Where the policy matured in Arkansas and the action is brought in Arkansas, the Arkansas statute providing for attorneys’ fees and penalties applies. (Citing cases).”
The allowance by the trial court of an attorney’s fee of $336.33 appears to be reasonable and will be sustained. Appellee’s contention that her attorneys should be allowed additional compensation on appeal will not be granted because appellant has effected a substantial reduction in the judgment as heretofore indicated.
Modified and affirmed. | [
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Jim Johnson, Associate Justice.
The question for decision is: Did the Racing Commission act contrary to the law and the evidence in cancelling the temporary franchise of the Hot Springs Kennel Club, IncJ
A general review of the events leading up to the cancellation of appellee’s temporary franchise will, we believe, lead to a better perspective of the issues here involved. Yery briefly they are as set out below.
March 8, 1957, Act 191 of 1957 (Ark. Stats. §§ 84-2801 to 84-2842) was approved, authorizing dog racing in Arkansas under the supervision of the Arkansas Racing Commission.
December 6, 1957, the Hot Springs Kennel Club, Inc., was incorporated. Eleven days thereafter the articles of incorporation were amended to issue 500,000 shares of promotional stock.
February 6, 1958, the Kennel Club filed with the Racing Commission its application for a temporary franchise. It was known by everyone at that time that dog racing would first have to be approved by the electors in G-arland County.
On May 6, 1958, an election was held. It was not known whether the results of the election were favorable to dog racing until the decision of this court became final on May 20, 1959 — holding that dog racing had been approved.
By July 1, 1959, it had become known that there were disputing factions existing in the Kennel Club. The directors appeared before the Commission where these disputes were examined by the Commission. Ned Stewart, as chairman and spokesman for the Racing Commission, warned the Kennel Club that it must get its house in order or their franchise would be revoked.
On August 12, 1959, it appearing to the Commission that the Kennel Club had not heeded the warning of the Racing Commission, the Kennel Club’s temporary franchise was revoked.
On September 4, 1959, after the Kennel Club had requested a hearing, a full hearing was held before the Racing Commission, and the revocation was sustained and made permanent.
Following the revocation, the Kennel Club filed a petition for a Writ of Certiorari in the Circuit Court of Pulaski County. Upon that hearing before the Circuit Court the record made before the full Commission on September 4th was reviewed, and the order of the Racing Commission (revoking the temporary franchise) was reversed. From that decision of the Circuit Court an appeal is now prosecuted by the Racing Commission.
The Judgment of the Circuit Court. This judgment was based on two propositions, both of which we think were erroneous. One, the order of the Commission is void because no notice was given to the Kennel Club. Two, the order of the Commission was void because it amounted to the taking of the Kennel Club’s property without due process of law.
One. While it is true that the revoking order issued on August 12,1959, might be subject to the charge that no notice was given, however, it must be remembered that some 40 days previously the Kennel Club was warned that it must set its house in order or its franchise would be cancelled. The record reflects aboundingly that this warning was not complied with. Regardless of whether the above amounted to notice, it is undisputed that a full hearing was held on September 4, 1959, at the request of the Kennel Club. At this hearing a voluminous record was made, containing the testimony of officers of the Kennel Club and specific findings by the Commission. This record was the basis of seeking redress in the Circuit Court and it is the basis of this appeal. Appellee has had its day in court with ample notice.
Two. What we have said above also refutes the finding of the Circuit Court that property was taken from the Kennel Club without due process of law. It is well recognized by all authorities that a franchise granted by the State to conduct dog racing, just a franchise to sell liquor, is a privilege and not a property right. The State gives the privilege and it can take away that privilege by the same token. In this instance it appears from the record that the Kennel Clnb had spent approximately $70,000 at the time its temporary franchise was revoked. This, of course, does constitute a loss of money by the Kennel Clnb, however, Ark. Stats. § 84-2826 (A) makes it very clear that if the law is not complied with the Kennel Clnb could have its franchise cancelled after it had spent approximately a million dollars. The Kennel Club had access to ‘‘due process of law” when it had a full hearing before the Racing Commission, before the Circuit Court, and now before this Court.
However, regardless of the reasons assigned by the trial court for reversing the Commission, it still remains to be considered whether the Commission was justified, under the law and the facts, in cancelling the temporary franchise. The several arguments presented by appellee to sustain the judgment of the Circuit Court in reversing the order of the Commission are included under the f ollowing groupings: (a) The franchise could be revoked only for one of the canses contained in the statutes and, in the alternative, (b) the testimony given at the hearing did not justify the Commission in revoking the temporary franchise.
(a) We cannot agree that the temporary franchise could be revoked only for one of the two causes mentioned in the statute. The statute referred to is Ark. Stats. § 84-2826. In substance, this statute provides that the temporary franchise shall be forfeited if appellee fails to acquire a site and commence construction of buildings and facilities within 90 days after notification of the result of the election. It further provides if such construction is begun and appellee fails to complete it and be open for business within one year after the end of the aforesaid 90 day period, in accordance with the plans and specifications, the Commission shall cancel the temporary franchise. In the first place it will be noted, and we think it is significant, that in these instances the Commission has been given no discretion. To so limit the power of the Commission to cancel a temporary franchise would make it an automation, and would not he in harmony with other provisions of the dog racing statute. Ark. Stats. § 84-2819, which defines the power and duty of the Commission, among other things, provides that the Commission shall “hear and determine all matters properly coming before the Commission, and grant rehearings thereon. Take such other action, not inconsistent with law, as it may deem necessary or desirable to supervise and regulate, and to effectively control in the public interest, Greyhound Racing in the State of Arkansas.” (Emphasis supplied.)
It is not disputed that the Commission has the right and duty to investigate thoroughly in selecting the character of people who propose to conduct dog racing before a temporary franchise is issued. This is in line with the Commission’s duty to protect the public interest. If, after the Commission had selected proper personnel and had issued a temporary franchise, the personnel should be changed to include undesirable characters, it would be almost ridiculous to say that the Commission was powerless to revoke the franchise. To accept appellee’s contention in this matter would amount to eliminating all distinction between the words ‘ ‘ temporary franchise ’ ’ and “permanent franchise”, and would leave the Commission powerless to protect the public interest.
(b) Was the Commission Justified by the Evidence. Having arrived at the conclusion that the Commission has the power to exercise discretion, we now proceed to consider whether or not it was justified in this instance in revoking appellee’s temporary franchise. However, before proceeding to this discussion it is necessary to determine the rule by which the Circuit Court must review the findings of the Commission on a Writ of Certiorari.
If the Circuit Court in this instance was authorized and empowered to try the issue de novo, this fact would lend support to an affirmance of its judgment reversing the Commission, but even then, we think, it would not be a justification. However, the Circuit Court in this instance had no right to try the case de novo. In the case of Merchants & Planters Bank v. Fitzgerald, 61 Ark. 605, 33 S. W. 1064, among other things, said: “but it does not follow that the court, on hearing the writ, proceeds de novo and tries the case as if it had never been heard in the inferior court . . . the office of the writ . . . is merely to review for errors of law. ’ ’ See also Hall v. Bledso, 126 Ark. 125, 189 S. W. 1041; Dixie Downs, Inc. v. Arkansas Racing Commission, 219 Ark. 356, 242 S. W. 2d 132, and North Hill Memorial Gardens v. Hicks, 230 Ark. 787, 326 S. W. 2d 797. In the Hicks case the Cemetery Board, pursuant to Act 250 of 1953, issued a permit to one Russell to construct and maintain a cemetery near North Little Rock. Aggrieved parties applied to the Chancery Court to enjoin Russell. Following a hearing the Chancellor revoked the Board’s permit. On appeal this Court reversed the Chancellor and in doing so approved this rule: “It has been uniformly held by this Court that where Boards are lawfully appointed and charged with the duty to investigate and determine certain facts, the court cannot substitute its judgment for the judgment of the Board, and the judgment of the Board provided for the purpose of ascertaining the facts is controlling unless there is evidence that it was arbitrarily exercised.” (Emphasis Supplied) In addition to the above, this Court in that same case also said: ‘ ‘ The burden of proving that the Board’s action in granting appellants’ permit was arbitrary rested on the appellees.” In applying the above announced rules to the case under consideration, it is in order to see whether the Commission was justified by the testimony in revoking the temporary franchise. This question we now proceed to examine.
A careful reading of the voluminous testimony taken before the Commission on September 4, 1959, reveals, in substance, the following situation with reference to the Kennel Club at the time of the hearing. When the application for a temporary franchise was filed February 6,1958, the Kennel Club had been incorporated. The application showed that among others the directors included Charles S. Harriman, Alex T. Jamieson and Milan S. Creighton. It developed later that these were the main promoters of the organization. Included among the directors also were J. O. Bennett of Lonoke, Leo Kuhn of Texarkana, W. P. Davis of Newport, James J. Dowds of Hot Springs, J. Bruce Streett of Camden and Jim Evans of Hot Springs. It is noted here that the last six directors later resigned or were deleted from the board, and their testimony in this connection will be set out later. It was stated in the application that two million shares had been authorized and that sufficient stock had been sold to promote the purposes of the corporation.
It appears further that a stockholders meeting was held in December 1951, (prior to the filing of the application) at which time, and after objections, the directors authorized the issuance of 500,000 additional shares (of which one-half carried no voting privileges) for promotional purposes. None of this was shown in the application which was filed February 6, 1958. Following that the election was held resulting in an appeal to this Court. Almost immediately after the decision of this Court became final, the latter part of May 1959, authorizing dog racing, there was another meeting of the Board at which time there arose the controversy which resulted in the action of the Commission. At this meeting it seems that four promoters, headed by Creighton, wanted the Board to give them 59,000 additional shares for promotional purposes. The promoters refused to tell the other members of the Board exactly the reason for this additional stock. In somewhat hazy phraseology, Creighton contended that it was necessary to pay promotional expenses. Also, at this meeting there was a proposal to hire Mr. Harriman at a salary of $18,000 per year plus an unlimited expense account. The controversy that arose over these and other matters apparently caused the removal of the above mentioned six directors, and it apparently brought on and engendered much litigation which finally resulted in a warning from the Commission on July 1,1959, that if things were not straightened out the Commission would revoke the temporary franchise. A summary review of the testimony given at the hearing is sufficient, we think, to justify the action of the Commission.
J. O. Bennett. Mr. Bennett testified that when Mr. Creighton approached him about stock in the Kennel Club that he asked Mr. Creighton “. . . if this was going to be for the benefit of the people of Arkansas, and be governed by the people of Arkansas, and he assured me it was, and I said in a case like that I will be glad to go along with you, but if it’s going to result in two or three hogging it up, and be in court like this West Memphis track, then I didn’t care to get into it. ’ ’ He said that Creighton assured him that he and Mr. Harriman would take approximately 20% of the entire issue to promote the deal. He further stated that: “We find now that there was very little stock that had been used for promotion.” Q. “Now what was the purpose in asking for the additional 50,000 ? ” A. “ Something they promised somewhere, they wouldn’t tell us. Wé asked if they would give us the names it was going to and they wouldn’t give us the names.” Bennett further testified that he objected to hiring Mr. Harriman at $18,000 a year plus an unlimited expense account. He also stated: ‘ ‘ Personally I can’t go along with that and I will resign and you can get someone in my place . . . and that is the last meeting I attended.” The witness stated that he still owned 5,000 shares of stock for which he paid $2,500, although his name apparently did not appear on the books (a partial explanation of this was offered).
BRUGE STREETT. This witness has 5,000 shares of stock for which he paid $2,500. He testified, “I do not agree with the policies of Mr. Creighton and Harriman . . . and very openly and perhaps rather bluntly expressed my disagreement.” He stated that he was testifying merely because he had been given a subpoena, and that he held no ill will toward anyone. Mr. Streett further stated that he was astonished when Mr. Creighton first made the proposition that he and the other three promoters wanted 500,000 shares. He stated that when Creighton first talked to him about it he asked him this question: “Creighton, is the thing going to be eaten up with, a lot of promotional stock which happened in West Memphis, or is it to be operated by Arkansas stockholders and controlled by Arkansas people, and he assured me only a nominal amount of organizational or promotional stock would be required. ’ ’ He further stated that Creighton told him that the stock would be worth a minimum of $2.00 per share shortly after it got on the market. Witness stated that this would give the four promoters a million dollars and that he “thought it represented a rather high price tag on the value of the services of these men.” In speaking of the stockholders meeting, the witness said: “Some changes were made in the minutes. I never attended a stockholders meeting, but at that time I said, according to my memory, the minutes of the stockholders meeting did not speak the truth . . . ” Witness further stated that according to his recollection, “Mr. Creighton said that that stock was to be voted for not only services rendered up to then, but services they would continue to render, these four men, in carrying through the election period and any litigation which might follow . . . ” Streett is no longer a member of the Board.
JIM EVANS. This witness ’ testimony was similar to that given by Mr. Streett. He also owned 5,000 shares of stock for which he paid $2,500. He likewise objected to the issuance of 59,000 shares of stock to the four organizers for promotional purposes, and is no longer on the Board.
LEON KUHN. This witness owned 5,000 shares of stock for which he paid $2,500, and likewise objected to the issuance of the promotional stock and particularly the extra 59,000 shares heretofore mentioned. In speaking of what occurred at one of the directors meetings the witness had this to say: “Well, of course, there was some discussion . . . and then something come up there about we need some more stock to be issued to take care of some things we had to do to get this thing done and, of course, that’s when I hit the ceiling and a few more of us in the same bunch sitting on that side of the table hit the ceiling, and that’s what brought the fly in the ointment, and from then on step by step it went from bad to worse.” Kuhn is no longer a member of the Board.
RICHARD W. HOBBS. This witness was originally the attorney for the organization and was paid $5,000 for his services. He stated that when he filed the application on February 6, 1958, for a temporary franchise that he made it out like Mr. Creighton told him to, and no mention was made of promotion stock. He testified that the application stated that: “The present stockholders have purchased and fully paid for a sufficient amount of stock so as to enable the corporation to proceed with its corporate purpose and by agreement no stock will be sold to anyone other than the original stockholders unless the original stockholders do not fully subscribe to all of the authorized issue. In any event whatever stock remains unsold will be offered to the citizens of Arkansas.” In speaking of the directors meeting the witness stated that: ‘ ‘ Mr. Creighton was then questioned as to why they had used such a small proportion of the half a million shares when they were supposed to use the stock and why they in turn used the corporate cash rather than the stock in getting the election over and for promotional purposes, and they had no explanation other than they had used that much and that was all.” In speaking of what occurred at the directors meeting, the witness further stated: “I told them I didn’t want to have any part of that (referring to promotional stock). I had rather not even listen to it, and I asked to be excused, and I left the room.” Q. “Well, why didn’t you want to know!” A. “I will say I think I discussed it with Mr. Streett at the time and I told him I didn’t like the smell of it.”
Mr. Creighton testified at length and although he was pressed to do so he failed to give the Commission any explanation of what use he had made of the promotional stock or the money paid into the corporation by the stockholders relative to the expense of the election and the litigation. The record reveals that over $50,000 had been paid for stock and that less than $11,000 was in the treasury. Also, this appears in his testimony: Q. “Mr. Creighton, there has been some litigation filed against this Kennel Club with which the Commission is familiar. Let me ask you this, what percentage of the stock does your group represent?” A. “Our group represents in excess of, I believe it’s in excess of 90 per cent; might be 1 or 2 points either way, but approximately.”
So the picture before the Commission was that Creighton and his group, who were supposed to have 20% of the stock to get the “show on the road” now has 90% of the stock, and the treasury is nearly depleted; large sums of money had been and were still to be expended for suspicious and unexplained purposes, and; the activities of Creighton and his group were such that some of the original stockholders felt obliged to sever their connections with the Board even at the risk of losing the money they had invested.
In view of that picture, this Court is unable to say the Commission acted arbitrarily or even that it acted against the weight of the evidence. Consequently the judgment of the Circuit Court should be, and it is hereby reversed.
George Rose Smith and Robinson, JJ., dissent. | [
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J. Seaborn Holt, Associate Justice.
This case comes to this court on appeal and cross-appeal from an award of $113,875.00 to appellees, P. C. Upton and wife for certain lands condemned hy the City of Little Bock for a dam site and water reservoir known as Lake Maumelle. The City acquired 15,000 acres in all for this project but only 975.4 acres, the property acquired from the Uptons, is involved in this litigation. The Uptons contend that the amount of damages awarded to them by the City was insufficient and the City, on the other hand, contends that, in effect, it paid them too much damages.
The record reflects that shortly after World War II, increased population and industrial growth in the Little Bock area made it apparent that an additional supply of water would be needed to supplement the City’s then supply of water from Lake Winona Beservoir. As early as 1947 this need became so apparent that the Little Bock Water Commission employed a firm of engineers to make a study of the possibilities of expanding existing facilities and to determine additional reservoir sites that might be available. Several sites were then considered and a tentative decision was made on another site (called the Congo site) and some land was acquired at that site. The Uptons, as early as 1942, purchased 351 acres in the Maumelle site and acquired additional acreage between 1942 and 1954, prior to the decision of the Waterworks Commission to locate a reservoir in the Maumelle area. In 1945 Upton drilled test holes for a dam position on both sides of the present dam and, during 1947, impounded about 12 to 15 acres of water by building an earthen dam, the purpose being to test the soil under actual reservoir conditions. In 1950 the Uptons employed Max Mehlburger to make a survey to determine the feasibility of creating a lake by a dam at the approximate location of the Commission’s present Maumelle Dam. Mehlburger made an extensive study of the site and concluded that the Maumelle site offered an opportunity to supply a large quantity of good quality water for either municipal or industrial purposes. Three dam sites were suggested in his report, one of which (the Maumelle site) the Commission later acquired through condemnation. After Mehlburger concluded his deductions, Upton began to canvass a number of potential water users, his idea being to build a reservoir and sell water to such users. No successful negotiations were made, however.
Mehlburger was so convinced that the Maumelle River site was the proper one for the City that he asked to be relieved of his employment by the Uptons to be able to present the Maumelle Project on his own to the Commission. Upton acquiesced in this matter and as a result, Mehlburger and Mr. LePever, another Little Rock engineer, offered to make a report on the Maumelle site for the Little Rock Waterworks Commission without charge. This offer was accepted by the Commission without a commitment, and the report of these two engineers to the Commission caused it to consider seriously for the first time the Maumelle site. Thereafter, after further consideration, the Commission employed an independent engineering firm to make a recommendation of the various sites involved, including the Maumelle site, and the report of this firm overwhelmingly recommended the Maumelle site. A bond issue was floated by the Waterworks Commission to finance the project. About the time construction of the Maumelle Dam was to be commenced, the property owners within the Maumelle area and the Commission had reached no agreement as to the value and extent of the land to be taken. At the request of the Commission, and in order not to delay the construction program, the Uptons, on July 5, 1956, granted the Commission permission to take possession of the lands needed for the dam’s construction and when further negotiations failed to bring about an agreement on the price of the land, the Commission filed suit to condemn the land. The trial court, after hearing voluminous testimony and being favored with extensive briefs by both parties, awarded a total of $113,875.00 to the Uptons for the 975.4 acres of land involved here and, as indicated, both parties have appealed from the decree. For convenience of discussion, the various contentions of the parties have been grouped under separate categories.
The Dam Site: It is the rule in this state that private property may not be damaged or appropriated for any public use by any agency, whether state or municipal, without just compensation to the individual. Ark. Const. Art. 2, § 22; Ark. State Highway Comm. v. Partain, 192 Ark. 127, 90 S. W. 2d 968. The generally accepted standard in arriving at just compensation is the fair market value of the property involved. See Orgel, Valuation under Eminent Domain, § 17; Little Rock Junction Ry. v. Woodruff, 49 Ark. 381, 5 S. W. 792. The market value is the value to which the property can best be put, or value for the best use of the property, and not necessarily the use to which the property is presently being put. See Little Rock & Ft. Smith Railway Co. v. McGehee, 41 Ark. 202; Orgel, Valuation Under Eminent Domain, § 30; Yonts v. Public Service Company of Ark., 179 Ark. 695, 17 S. W. 2d 886.
In the case at bar it is contended by the Uptons, and denied by the City of Little Bock, that the highest and best use of the land involved below the 290' elevation was for dam site purposes. The gist of the City’s argument is that an owner should not be allowed to value his land for the very purpose for which the City wishes to condemn the land. In Yonts v. Public Service Company of Arkansas, supra, a dam was to be built in the neck of a gorge. The defendant’s land extended some distance up the gorge and in the valley. This land was to be used for reservoir purposes. The land owned by the Yonts was adapted for a dam site across a creek. The gorge, having almost perpendicular sides, came to a narrow neck and a creek supplying ample water flowed through the gorge and through the lands owned by tbe Yonts. There was other evidence that this was the only suitable place for a dam or reservoir in the area of Booneville. We there said: “* * * the owner had the right to obtain the market value of the land, based upon its availability for the most valuable purposes for which it can be used, whether so used or not. In other words, while the testimony of these witnesses as to the value was admissible, the owners in this case had the right to a judgment for the market value of the land for a damsite and reservoir, and not for agricultural purposes. They had the right to have a judgment for its value based upon its availability as a damsite and reservoir.”
Another case is that of Gurdon & Fort Smith Railroad Co. v. Vaught, 97 Ark. 234, 133 S. W. 1019. The railroad built a roadbed through a gap owned by Vaught. The evidence showed that the defendant’s land was the only feasible place the railroad could lay its tracks for the proposed railroad line due to the mountainous terrain. On the measure of damages we said: “* * * The measure of the compensation which the landowner is entitled to recover from a railroad company which has appropriated same for its right-of-way is the market value of the land so taken. In estimating that market value it is perfectly competent to consider the availability and adaptability of the land for the very purpose for which it is taken by the railroad company as an element of value which would attract any buyer for that purpose.”
We conclude that it was proper in the present case to consider the value of the land as a dam site for the purposes of condemnation.
Bloating Clay Deposits: Up from the dam site and forming the bottom of part of the reservoir is a large acreage of bloating clay from which a lightweight aggregate can be processed and used in the making of building blocks. It is the contention of the Uptons that this clay is extremely valuable and the total award is inadequate because it does not reflect the value of these deposits. On the other hand the City of Little Bock maintains the deposits were comparatively worthless when viewed in the light of other deposits of a similar nature underlying nearly the entire county. Just a sampling of the testimony will show how hotly disputed the issue was.
Mr. Upton, owner of the property in question, stated that he thought the clay deposits were worth $2,055,-000.00 but gave no basis for his opinion. Mr. Bickel, a man of limited experience in the manufacture of lightweight aggregate, testifying for the owner, stated he thought the clay deposits were worth between $754,000.00 if he were representing the buyer and double that figure if he were representing the seller. Mr. Williams, a man engaged in the manufacture of lightweight aggregate in Texas, testifying for the owner, stated he valued the lands at $900,000.00 but on cross-examination revealed that he did not know of the presence of other clays in the county and conceded that the supply might have an effect upon the price paid for land. The last witness for the landowner was Mr. Vaughan, a professional appraiser of extremely wide experience, whose estimate on the value of the clay deposits was $473,000.00.
The following witnesses appeared for the City of Little Rock. Mr. McElwaine, a graduate geologist with many years of experience in locating clay and mineral materials in Arkansas, testified he had investigated the Pulaski County area to determine the availability and supply of bloating clays. On one exhibit alone he showed the presence of 500,000,000 cubic yards of clay, or a 4,444 year supply at the present rate of consumption in the State of Arkansas. A second witness, Mr. Willson, a highly qualified engineer-businessman who has been in the cement and aggregate business most of his life and an engineer acting as vice president of Texas Industries, the largest lightweight aggregate company in the world, whose company operates some 32 plants in the United States engaged in the manufacturing of heavy and lightweight aggregate, ready-mix concrete, concrete pipe, blocks and related concrete lines, testified that in all his experience he had never known of land being purchased for lightweight aggregate purposes other than on the basis of the going value of the land; meaning the price the land is being offered and sold for in the area without regard to the presence of the clay, — the reason being the abundance of such a clay in the mid-western area of the United States.
In view of the highly conflicting testimony which the chancellor had before him and further in view of the fact that the award was a lump sum so that we cannot tell how much consideration the chancellor gave to the clay deposits in arriving at its value, we cannot say that the award was against the preponderance of the evidence either as being excessive, as argued by the City, or as being inadequate as argued by the Uptons. Incidentally, for the same reason we cannot say the chancellor was wrong in fixing the value of the dam site.
Value of Land Taken Above 290' Mark: The Uptons also contend the trial court erred in rejecting certain evidence relative to the value of the land taken above the 290' level because of its alleged enhanced value the lake would create. Again we do not agree. The evidence does not show what amount was allowed for the land taken above the high water mark, or the 290' line. The Uptons further argue that the City condemned and took more land above the 290' elevation than was necessary. We think this contention is without merit. We will not set aside what constitutes an appropriate taking unless there has been an abuse of discretion. See State Game & Fish Comm. v. Hornaday, 219 Ark. 184, 242 S. W. 2d 342; Woollard v. State Highway Comm., 220 Ark. 731, 249 S. W. 2d 564 and Patterson Orchard Company v. Southwest Arkansas Utilities Corp., 179 Ark. 1029, 18 S. W. 2d 1028, 65 A.L.R. 1446. However, here there is an abundance of testimony to show there was a necessity to take acreage above the water mark and along the lake front to prevent pollution of the water from possible sewage affluent and contamination from any undesirable farming practices which might be carried on. Also, a preponderance of the evidence shows that the land taken below the dam is necessary for protection of the dam. We cannot say from a review of the evidence there was an abuse of discretion.
Finding no error, we affirm on both direct and cross-appeal. | [
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Carleton Harris, Chief Justice.
Jennie Sherman, a resident of Hot Springs, executed her last will and testament on December 4, 1953, and died the following July at Miami Beach, Florida. The will was admitted to probate by the Garland Probate Court July 14, 1954, and letters testamentary were issued to the appellant executor, Richard W. Hobbs. The deceased was survived by her husband, Samuel Sherman, a son, Nathan Sherman, and a daughter, Edna Karp Cobb, also called ‘ ‘ Ginger”; two sisters, Becky Hunt and Mildred Shapiro, and two granddaughters, Joyce Karp and Ellen Sherman.
A short time prior to her death, Mrs. Sherman purchased a hotel in Hot Springs, and this hotel, known as the Sherman Hotel, was devised to her trustee, Richard W. Hobbs, in trust, granting the power to retain this hotel, or to sell, lease, mortgage, or dispose of the property or any part thereof, and to re-invest in securities or other properties which the trustee might deem advisable. However, the instrument provided that in the event of the sale of the hotel, the trustee should pay to the testatrix’ son and daughter the sum of $55,000, each to share equally, the payment to the son to be made in a lump sum, and the daughter, appellee herein, to be paid at the rate of $300 per month until she should reach the age of 35 years, at which time the balance of her share would be paid to her in a lump sum. Item 7 then directs the trustee to distribute the remainder of the balance of the pur chase price over and above the sum of $55,000 as follows:
“$1,000.00 to be given and paid unto my sister, Becky Hunt; $1,000.00 to be given and paid unto my sister, Mildred Shapiro; $200.00 unto the Iiadassah Medical Organization of Hot Springs, Arkansas; $300.00 to the Jewish Temple of which I may be a member at the time of my death.”
Item 8 then provides that after payment of the aforementioned bequests, the remaining balance shall be disposed of by paying one-half to her husband, and one-half to her grandchildren, Joyce Karp and Ellen Sherman.
On July 17, 1956, Mrs. Cobb (then Karp) filed a petition asking the court to construe the will, and alleging the invalidity of the provisions vesting title to the hotel property in Hobbs, as trustee; the invalidity of the section conferring upon the trustee the right to retain, sell, lease or mortgage the property, and asserting the provisions to be contrary to public policy and the law against perpetuities. In August, the executor filed a petition requesting authority to sell the hotel, and also setting forth that the best interests of the estate would be served by compromising and settling certain lawsuits filed against the estate by Samuel Sherman in Florida, and suits filed by the estate against Sherman. The order sought was granted by the court, and the executor was directed to sell the hotel for $85,000; from such amount, Samuel Sherman was to be paid $17,300 in full settlement of his claims, the balance of the money to be held subject to the orders of the court. On November 7, 1956, the court passed upon the petition filed by Mrs. Karp in July, and entered its order finding that the provisions of the trust relative to appellee were null and void, and that she should share under the proceeds of the estate in the same manner as her brother; the executor was directed to pay to appellee her share of the estate. Subsequent thereto, the executor filed his petition for partial distribution of the estate, and for the payment of executor’s and attorneys’ fees, and on November 14th, the court entered its order directing the payment of these fees, and ordered the balance of the monies in said estate, less $1,000 (for possible expenses), to be paid to Nathan Sherman and Mrs. Karp. On March 25, 1957, the executor filed a written motion, setting up that the petition for partial distribution was in error, and that the order entered thereon should be amended nunc pro tunc to show, inter alia, that the parties had agreed that it was their intent to pay the special bequests, heretofore set out in paragraph two of this opinion. The executor further stated that Mrs. Karp had been overpaid in the amount of $533.33, and that this amount was due to the estate from Mrs. Karp. In compliance with the petition, the court entered its order finding that the order entered November 14th should be amended to provide, inter alia, for the payment of the items reflected in the petition, and on June 24th, an order was entered directing Mrs. Karp to refund the sum of $500 to the estate, finding “that there are not sufficient funds or assets in the hands of the executor to pay the debts of the estate and the special bequests mentioned therein.”
On July 11th, the executor filed his accounting with the court, and on July 15th, appellee and Nathan Sherman, through their attorneys, P. E. Dobbs and Michael B. Heindl, filed a second petition to construe Mrs. Sherman’s will, alleging that the accounting filed by the executor provided for the payment of the special bequests, and that they (petitioners) were entitled to all of the proceeds remaining in the hands of said executor which had been derived from the sale of the hotel, in that the petitioners had not received a sum equal to $55,000. The executor filed his response to this petition, asserting that petitioners had previously asked for a construction of the will, “were bound to raise all questions pertaining to the construction of the will at that time, and therefore are estopped to raise further issues as to the construction of said will”; that partial distribution of the estate had already been made, such distribution being based on a settlement between petitioners and Samuel Sherman, the settlement also including the provision that the special bequests in the amount of $2,500 would be paid to the several legatees. The latter, through their attorney, also filed a response to the petition, setting up that they had approved the compromise settlement, and “that said heirs are estopped to raise any question relative to the special bequests by reason of the aforementioned settlement.” Mrs. Karp, on November 10, 1958, then filed a motion asking that the order requiring her to refund $500 be set aside. Following a hearing, and the taking of testimony, the court, on February 1, I960, entered its order quashing the prior order wherein appellee was ordered to repay $500, and further finding “that the petition to construe the will as providing that the contingent beneficiaries mentioned in paragraph seven take nothing thereunder until after petitioners are paid the sum of $55,000, should be granted. ’ ’ From this order, the executor brings this appeal.
While the recitation of pertinent facts is rather lengthy, the litigation can really be disposed of through determination of one issue, vis., have the provisions of the will been superseded by what is commonly known as a family settlement? Family settlements are recognized and enforced in Arkansas. See Sursa v. Wynn, 137 Ark. 117, 207 S. W. 209; Pfaff, Administratrix v. Clements, 213 Ark. 852, 213 S. W. 2d 356 (1948). The executor, Hobbs, testified that all the parties agreed to the payment of the special bequests, and that this agreement was reached on the basis of a compromise between the children and husband of the deceased; that appellee and her brother were not on good terms, and that Samuel Sherman, the surviving spouse, and step-father of Edna and Nathan, “was fighting both of the children.” Hobbs stated that the two children desired the bequests paid, since close relatives were the recipients, and likewise agreed to the payment of the bequests to the Jewish Medical Association and Temple since such bequests were in small amounts. According to his testimony, the payment of the special bequests was approved by both appellee and her attorney, Mr. Heindl. Robert Ridgeway and B. W. Thomas, attorneys for the estate, likewise testified that the agreement was reached. The only testimony offered on the part of appellee was by Mr. Heindl. He testified that he made no agreement with respect to the contingent beneficiaries being paid, nor did he definitely understand that they were to be paid. Mr. Heindl did agree that, through error, appellee had been overpaid to the extent of $500. Appellant offered in evidence copies of two letters, one dated September 19, 1956, and the other, March 21, 1957. The former letter was directed to Mr. Heindl by Mr. Hobbs, and set out, first, that the hotel could be sold for $85,000 cash; thereafter, listing the charges against this amount, including the figure for special bequests, and finally, stating the balance to be divided between appellee and her brother. The latter letter, directed to Mr. Heindl and Mr. Dobbs, stated:
“I am enclosing herewith a copy of a Motion to Amend Order for Partial Distribution in the above styled cause which we will ask an order to be entered on Monday, March 25, 1957, at 10:00 A.M. I am also enclosing herein a copy of the Order which the Court will be asked to enter and in the event either of you, as attorneys for G-inger Sherman and Nat Sherman, have any objections to the motion and order, Mr. Thomas and I request that they be raised at that time.”
Mr. Heindl stated that he presumed he received both of these letters. He admitted that he made no objection to the suggested order, stating: “I never saw any necessity for it, if I was satisfied there was a clear understanding between all of the lawyers involved that the special bequests would lay dormant until such time involving the two children and the father were taken care of, and this took care of the two children and the father.”
The testimony aside, we think the agreement was clearly established. The record reflects that the amount which Samuel Sherman was to receive under the agreement, $17,300, was paid to him on November 15, 1956, and Mr. Sherman had executed a Renunciation on September 13th, renouncing all rights under the will. It will be recalled that, since the property was sold, Mr. Sherman, under the terms of the will, “came behind” the legatees who were to receive the $2,500, i.e., he was to receive nothing under the instrument until these bequests had been paid. It is therefore apparent that the provisions of the will were disregarded, and the money distributed in accordance with some agreement. It is also obvious that Samuel Sherman could not have been paid, as herein stated, except with the approval of the legatees of the smaller bequests.
It is true that the amount received by Mrs. Karp and her brother was considerably less than $55,000, and it is likewise true that the other bequests were not to be paid under the terms of the will until Mrs. Sherman’s children had received that amount. It cannot, however, be successfully argued that the beneficiaries of the lesser amounts, incurred no detriment under the compromise, because they would not have taken anything under the will itself, and therefore suffered no loss. In Pfaff, Administratrix v. Clements, supra, it is stated:
“Likewise, it is not essential that the strict mutuality of obligation or the strict legal sufficiency of consideration — as required in ordinary contracts — be present in family settlements. It is sufficient that the members of the family want to settle the estate: one person may receive more or less than the law allows; one person may surrender property and receive no quid pro quo. Thus, in Turner v. Davis, 41 Ark. 270, there was claimed that one — Watkins — had no interest in the property sufficient to support a family settlement; but in disposing of that contention, Mr. Justice Eakin said: ‘We cannot go behind the agreement to ascertain the interest of Watkins. It is a matter of no consequence whether he had curtesy or had nothing . . . The agreement stands on the ground of family settlements . . . They are supposed to be the result of mutual good will, and imply a disposition to concession for the purpose, regardless of strict legal rights; always excepting cases of fraud, of which nothing, in this case, appears.’ ”
While the persons directly affected by the court’s order, which occasions this appeal, are those who were recipients of the bequests, the executor was a proper party to act in behalf of these beneficiaries. As stated in Corpus Juris Secundum, Vol. 33, § 142, p. 1099:
“An executor or an administrator acts in a representative capacity, representing and acting for all parties and all interests in the estate. It is said that he occupies a double role, being not only the personal representative of decedent, but also, to a very great extent, the representative of the creditors, and of the heirs, legatees, or distributees.”
Mr. Hobbs was under a $10,000 bond. Certainly, with particular regard to the fact that Samuel Sherman, who, under the terms of the will, was to receive nothing from the proceeds of the sale until after the payment of these legacies, the executor acted circumspectly and properly in seeking to carry out the provisions of the agreement.
The order of the court of February 1, 1960, wherein that court quashed the prior order directing appellee to refund $500 to the estate, and further holding that the “contingent” beneficiaries take nothing until “petitioners are paid the sum of $55,000”, is hereby reversed, annulled, and set aside, and the cause is remanded to the Garland Probate Court with directions to reinstate the order of June 24th, 1957 (wherein appellee was directed to refund the amount of $500), and to authorize the executor to pay the bequests to the “contingent” beneficiaries heretofore mentioned.
Costs of this appeal are to be borne by appellee.
Nathan Sherman had been paid $15,068.18, and appellee had been paid $16,601.51.
Why the order was entered for $500 instead of $533.33 is not explained in the record.
The record does not reflect the reason for the 16 months lapse from the time of the filing of the second petition to construe the will, and the filing of the motion by appellee to quash the order requiring her to refund $500; nor is there any explanation for the 15 months lapse between the time of the filing of this motion and the time of hearing.
The bequests, as mentioned in the will and which are involved in this litigation, totaled $2,500, but the various motions, petitions, and accounting sometimes use the figure $2,500, and at other times, the figure $2,300.
According to the record, Mr. Sherman held legal title to an undivided one-half interest in the hotel property. However, as shown by the testimony, he did not pay any of the purchase price for the hotel, and had executed a promissory note in the amount of $55,000, payable to his wife, together with a mortgage covering his interest in the property. Following the filing of a petition by the executor, the court found that Sherman was in default on the note and mortgage in the sum of $55,000; also, that other sums were due and payable to the estate by Sherman, and authorized the executor to institute suit. Sherman’s possible interest, under the deed, is immaterial in this litigation, for the record reflects that the payment of $17,300 was at least partly in settlement of his claims under the will. In the instrument of Renunciation, Sherman states that for and in consideration of the sum of $17,300, he does “finally renounce and reject for myself and my heirs, legatees, devisees and legal representatives any and all bequests, gifts and share in the Estate of my wife, Jennie Sherman, Deceased, which I might have under the last will and testament of my said wife, Jennie Sherman, Deceased, who died on or about the 3rd day of July, * * * And I further renounce and reject any and all provisions for my benefit under said last will and testament above mentioned and referred to, with any and all interest in the Estate of my deceased wife under said will, and in the Estate of my said wife however such interest may arise, and I refuse to accept any and all provisions of said will.” | [
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Paul Ward, Associate Justice.
The question posed by this appeal is whether the plaintiff who was under guardianship can dismiss a complaint filed in her name. The trial court held that she could, and the guardian prosecutes this appeal for a reversal. The Revenue Commissioner is a nominal party and will be guided by this opinion. Hereafter the word “appellee” will refer only to Mrs. Walrath.
Much of the background of this case is found in a former appeal to this court involving the same parties. See: Parker v. Parker, 231 Ark. 635, 331 S. W. 2d 694. A summary statement of the evidence leading up to this litigation will be helpful to a proper understanding of the issues involved.
On October 23, 1956, Mrs. John M. Parker (appellant) executed an assignment to her daughter, Mrs. Johnie Parker Walrath (appellee), purporting to convey title to a 1955 model Oldsmobile. On September 30, 1957, Mrs. Parker’s son (Parker Parker) was appointed guardian of the estate but not of the person of Mrs. Parker. On October 23, 1957, Mrs. Parker filed a suit in chancery court asking to have the assignment can-celled.
Set out hereafter is a brief summary of what occurred at the hearing before the chancellor. Numerous statements made and letters written by Mrs. Parker prior to the filing of the complaint were introduced on interrogatories to show that Mrs. Parker did not intend to give the automobile to her daughter, that she thought her daughter was taking an unfair advantage of her, and that she wanted to regain possession of the automobile. At the hearing all parties gave testimony in open court. Appellee’s testimony was to the effect that her mother did give her the automobile, that she executed the assignment to her, and that she used the automobile for the pleasure of her mother, that it was available to her mother at any time she wanted it, and that she did not intend to take exclusive possession of the automobile until after her mother’s death. Mrs. Parker testified emphatically that she wanted her daughter to have the automobile and that she wanted the complaint dismissed. Mrs. Parker’s son and guardian, Parker Parker, was made a party plaintiff and objected strenuously to the action of the court in dismissing the complaint.
The principal contention of the guardian on appeal is that the Chancellor had no right or authority to dismiss the complaint, citing as authority Arkansas Stat utes, Sections 57-626, 57-627 and 57-628. In substance, as related to this case, these sections of the statutes are as presently set out. Section 57-626 provides that the guardian of an estate shall take possession of all of the ward’s personal property, the title to which shall be in the ward and not in the guardian. Section 57-627 provides that all actions between the ward or the guardian and third persons shall be prosecuted by or against the guardian. Section 57-628 provides that all contracts for the sale of personal property entered into by a person subsequently put under guardianship may be approved or rejected by a court of proper jurisdiction.
We think it is clear that the first two mentioned statutes are not controlling under the facts of this case for the reason that Mrs. Parker assigned the automobile to her daughter (appellee) a year before she was declared incompetent. The last mentioned statute would not apply because we are not herein dealing with a contract to sell but with a completed gift.
Mrs. Parker was competent to testify. Without referring to any of our decisions which hold that the trial judge, within the exercise of sound discretion, can determine who is or who is not competent to testify, this matter is settled by Ark. Stats. § 28-601, which provides in substance as follows: All persons of unsound mind at the time of being produced as witnesses shall be incompetent to testify in a civil action provided how-, ever “that no person shall be denied the right to testify who is in possession of his or her mental faculties during a lucid interval, and provided further that it shall be within the sound discretion of the Trial Court to permit any person to testify who understands the obligation of an oath and who has sufficient understanding, and the fact that such person has been adjudged of unsound mind shall only affect his or her credibility as a witness, . . .” The record in this case discloses several facts and circumstances which lead us to conclude that the trial court did not abuse its sound discretion in allowing Mrs. Parker to testify, and also in attaching significance to the testimony which she gave. The reason given by the Probate Court for appointing a guardian for Mrs. Parker was that sbe “is suffering from hypertension, arteriosclerosis and cardiovascular disease which prevents her from being able to personally manage her farm and city property.” In the same order the court stated that it found Mrs. Parker “is not physically able to see after her large number of rent houses and farm property.” Apparently an effort was made to have a guardian appointed for the person of Mrs. Parker but the court found that it was not necessary to do so. Also, a reading of Mrs. Parker’s testimony leaves the impression that she was in full control of her mental faculties and that she had definite and sound reasons for assigning the automobile to her daughter.
In view of the above it is our conclusion that the judgment of the Trial Court should be, and it is hereby, affirmed.
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Sam Robinson, Associate Justice.
This action was brought by the State of Arkansas to enforce the collection of certain ad valorem taxes on trucks and equipment used by appellants in hauling for hire into and through the State of Arkansas in interstate commerce, automobiles and other merchandise. The issue is the validity of the tax. The chancellor held that the tax is valid, and the transportation companies have appealed. On motion of appellant Greyvan Lines, Inc., its appeal has been dismissed.
The tax is authorized by Ark. Stats. § 84-601. The property used in interstate commerce and in issue here is divided into two categories: The vehicles used in hauling merchandise into this State, and vehicles used in hauling merchandise through the State. Insofar as this case is concerned, there is no distinction. The vehicles used in both categories are engaged in interstate commerce. No provision of our Constitution is pointed out as prohibiting the act in question. But appellants vigorously argue that the statutes authorizing the tax, and also the action of the taxing officials of Arkansas in attempting to collect the tax, violate Article 1, § 8, the commerce clause of the United States Constitution, and the 14th Amendment.
Conceding that the owners of the equipment involved in this case could not be compelled to pay an excise or privilege tax (State v. American Refrigerator Transit Co., 151 Ark. 581, 237 S. W. 78), the fact remains that only an ad valorem tax is involved here, and the tax is on property that may be found in this State. It is immaterial that such property may not be moved on any regular route or schedule. Conceivably millions of dollars’ worth of transportation equipment belonging to appellants could be in the State at all times, with the owners thereof being afforded the benefits and protection of a duly constituted, organized and functioning state government. And, moreover, the fact that no particular piece or pieces of such equipment would be here for any designated time should not relieve the owners thereof from bearing their fair share of maintaining and operating a state government, with all its ramifications, that serves all the people, including the owners of the transportation equipment found in the State, regardless of where such owners may be domiciled.
Of course, in the circumstances of the property not being in the State 100% of the time and subject to an ad valorem tax in other states, this State can only levy a tax based on a formula “which fairly apportions the tax to the commerce carried on within the state.” Standard Oil Co. v. Peck, 342 U. S. 382, 72 S. Ct. 309, 96 L. Ed. 427. In the case at bar it appears that such a formula was used, but if the formula is not fair, appellants have an administrative remedy. Ark. Stats. § 84-609 — 84-612, § 84-115. Here, however, they did not pursue the administrative remedy to a final conclusion.
This case is controlled by three cases heretofore decided by the United States Supreme Court. First is the case of Pullman’s Car Co. v. Pennsylvania, 141 U. S. 18, 11 S. Ct. 876, 35 L. Ed. 613. There the Court said: “For the purposes of taxation, as has been repeatedly affirmed by this court, personal property may be separated from its owner; and he may be taxed, on its account, at the place where it is, although not the place of his own domicil, and even if he is not a citizen or a resident of the State which imposes the tax. ... It is equally well settled that there is nothing in the Constitution or laws of the United States which prevents a State from taxing personal property, employed in interstate or foreign commerce, like other personal property within its jurisdiction. [Citing cases] ”
Next is Ott v. Mississippi Barge Line, 336 U. S. 169, 69 S. Ct. 432, 93 L. Ed. 585. In that case it was held that the doctrine of the Pullman case is applicable to barges and towboats, moving freight in interstate commerce np and down the Mississippi River. Ad valorem taxes levied on such transportation equipment by Louisiana and the City of New Orleans were upheld.
The third case is Braniff Airways v. Nebraska Board, 347 U. S. 590, 74 S. Ct. 757, 98 L. Ed. 967. The issue was the authority of Nebraska to levy an ad valorem tax on aircraft, the owners of which were domiciled in other states, such aircraft being found in Nebraska but used in interstate commerce. The Supreme Court upheld the right of the State to collect a tax properly apportioned on the basis of the use of the aircraft in Nebraska compared to the over-all use of such equipment.
As shown by the above mentioned cases, the United States Supreme Court has upheld an ad valorem tax when fairly apportioned on railway, barge line and aircraft equipment used in interstate commerce. There is no sound reason why such a tax is not equally valid when applied to vehicles used on the the roads of the State. The State of Arkansas did not levy the tax on the full value of the equipment; a mileage formula was used. This formula determines the percentage of the total time the property may be found within this State and the percentage of time the assets of the appellants are employed here for purposes of ad valorem taxes. Appellants also attack here the formula used, but they did not exhaust their administrative remedy on such question.
Appellants contend also that Article 2, Sec. 23, of the Constitution of Arkansas prohibits quasi judicial commissions from making assessments for ad valorem tax purposes. In McDaniel v. Texarkana C. & M. Co., 94 Ark. 235, 126 S. W. 727, the Court said: “The Legislature has the power to make all property in this State subject to taxation, except property exempted by the Constitution. It has the power to provide where and in what manner said taxes shall be levied and collected; and it may classify corporations and corporate interests for the purpose of taxation, and specify the mode of the assessment, levy and collection of taxes on corporate properties and interests.” But appellants contend that Amendment No. 47 to the Constitution of this State prohibits the levy of an ad valorem tax by the State. Here the State has levied no ad valorem tax. An agency of the State has merely ascertained the value of the property. True, under the provisions of Act 168 of 1953 (Ark. Stats. 84-614) the Commissioner of Revenues collects the tax, but the same act provides that the State Treasurer shall pay the amounts so collected to the County Aid Fund and in turn shall distribute same to the various counties on a proportionate basis as set out therein (Ark. Stats. 84-615). It can readily be seen that this is a county tax merely administered by a State agency for the purpose of efficiency, and therefore is not in violation of Amendment 47.
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J. Seaborn Holt, Associate Justice.
Appellee, Willard Smith, brought suit against appellant, Central Arkansas Milk Producers Association (an association of dairy farmers which was organized under the laws of Arkansas for the purpose of collectively selling milk produced by the members thereof), for appellant’s alleged failure to purchase appellee’s milk truck in accordance with the terms of a previous oral contract, or agreement, between the parties wherein appellant agreed to purchase the truck at its then or above value; and as a further condition of purchase of said truck, appellee, Smith, agreed to assist appellant in obtaining contracts with people for whom he, Smith, hauled milk to become members of Central Arkansas Milk Producers Association, appellant. Appellee alleged that he fully performed his contract or agreement with appellant, but that appellant had refused to purchase his truck.
From a judgment, on a jury verdict in favor of appellee, in the amount of $600.00 is this appeal. For reversal appellant relies on the following points: “(1) The proof in the case clearly fails to establish that a contract was entered into by the Appellant to purchase the Appellee’s truck or any part thereof. (2) If the jury could under the evidence find that there was a contract, the plaintiff completely failed to prove any damage suffered by reason of a breach thereof. (3) Since the most any witness said the truck bed was valued at, at the time of the alleged contract, was Six Hundred Dollars, plaintiff should have been limited to a recovery of Three Hundred Dollars since Defendant in open court at the time of the instructions of the jury offered to pay plaintiff, * *
The record reflects that Smith, appellee, was the owner of a milk route in Carroll County and a truck used in connection with collecting milk along the route. Appellee desired to dispose of his milk route and he contracted appellant to induce it to take his milk route over. Several meetings were held between the appellant’s representative, Dwight Hull, Smith, and the producers along Smith’s milk route. The evidence shows that the general consensus arrived at in these meetings was that the producers would sell their milk to appellant if appellant would purchase the milk truck of appellee. Appellant was equipped for bulk collection of milk and most of the producers had facilities for only canned milk collection and difficulties arose over the collection of the milk. The result was that a number of the producers signed with appellant and the remaining producers found other outlets for their milk.
We think there was substantial evidence adduced that there was a contract or agreement between the parties for appellant to purchase Smith’s truck. Smith testified that appellant agreed to buy his truck: “Mr. Hull (appellant’s representative) never did tell me how many dollars he would pay for the truck, said he would pay more than it was worth. He told me to go down here to the garage somewhere or to some of these dealers and find out what it was worth. ’ ’ Kenneth Pinkley testified that he (appellant’s representative, Hull) stated that appellant would buy Smith’s truck, at its value or above, that the truck was suitable as a bulk tank truck by just putting a tank on Smith’s truck. Witness Hoyt Pinkley testified that there was discussion that appellant would buy Smith’s truck and equipment. Appellant’s representative, Hull, when asked if Smith would be “taken care of,” answered, in effect, that appellant would take care of the hauler, that they had never taken a route yet where they hadn’t taken care of the hauler and they would buy Smith’s truck, — “He told Smith he would reasonably compensate him for the truck, that it was their policy to compensate for the truck when he took their route.”
Logan Stafford testified that it was the general impression of the meeting that appellant would buy Willard Smith’s truck and equipment. King Hale’s testimony was of a corroborative nature. All of the witnesses, in effect, agreed that appellant was to purchase Smith’s truck and the only thing that was not mentioned was the price of the truck which was never agreed upon.
As indicated, we hold that the above was substantial evidence that a contract or agreement was entered into between the parties. But, says appellant, “this record is devoid of any meeting of the minds on the price to be paid Williard Smith by appellant for his truck.” We do not agree. The rule of law seems to be well settled that where, as here, no definite contract price was agreed upon between the parties, this alone does not invalidate the agreement or contract. The law invokes the standard of reasonableness and the fair value of the property may be shown and recovered where, as here, the complaining party has duly performed his side of the agreement. “It is by no means uncommon for those who offer or agree to employ others, or to buy goods, to make no statement as to the wages or price to be paid. The law invokes here (as likewise where an agreement is indefinite as to time) the standard of reasonableness. Accordingly the fair value of the services of property is recoverable on the implied in fact contract. * * Williston, Contracts, Yol. I, § 41 at p. 115. And, “There is no more settled rule of law applicable to actions based on contracts than that an agreement, in order to be binding, must be sufficiently definite to enable the court to determine its exact meaning and fix exactly the legal liability of the parties. Indefiniteness may relate to the time of performance, the price to be paid, work to be done, property to be transferred, or other miscellaneous stipulations of the agreement. If the contract makes no statement as to the price to be paid, the law invokes the standard of reasonableness, and the fair value of the services or property is recoverable, * * *” Corthell v. Summit Thread Co., 132 Me. 94, 167 A. 79, 81, 92 A. L. R. at p. 1394.
Here, as indicated, there was substantial testimony that the price to be paid was the market value or above “what it’s worth”, indicating that the price to be paid was the market value. Here it appears that the trial court had no testimony before it as to the value of the truck, other than the owner’s (Smith) testimony, and he testified that it was worth far more than the jury found it to be worth. It further appears that appellant offered Smith $300.00 for the truck and offered to pay this sum into the registry of the court.
Appellant also contends “that there was no testimony in this record to go to the jury establishing appellee ’s damages for the breach of the alleged contract. ’ ’ The court gave the following instruction on damages: “* * * you are told that the measure of damages would be the difference in the value of the truck at the time it was supposed to have been purchased by the defendant and the value at the time it was refused to be purchased, which I believe, under the evidence, is the sum of twenty-one days. The difference in the change of the value of this article during that time. You are told that it would be limited to $600.00 which, testimony shows, was the value of the bed on the truck, as special damages. There is no evidence that the truck changed in value, but there is evidence that the $600.00 was the cost of the milk bed that was on the truck, which he says he couldn’t find a sale for, or find any use for.” Appellant says, with reference to this instruction, that “the trial court, therefore, decided against appellee’s contention that he was entitled to damages by reason of breach of contract to purchase his truck and took that part of the case away from the jury. There has been no appeal from the court’s ruling. The only question before this court is the correctness of the instruction of the court and the jury’s finding with reference to the milk bed that was on the truck.” As we read the above instruction, it, in effect, told the jury that the only issue in the case to consider was the value of the milk bed which has no other use than for hauling milk. There was testimony by the appellee that it was worth $600.00. In other words, the court found that the evidence showed no depreciation of the truck in the twenty-one day period from the date it was supposed to be purchased by appellant and its value twenty-one days later; but the evidence showed that the milk bed had been destroyed as regard to its value. We think the court was justified in giving the above instruction on the record presented.
Finding no error, the judgment is affirmed.
McFaddin, J., concurs. | [
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Sam Robinson, Associate Justice.
This appeal arises from an action of eminent domain brought by the appellant, Arkansas State Highway Commission, to condemn about one-half acre of land in Saline County belonging to appellees, G. N. Covert and Fannie Covert, his wife. The land was condemned for the purpose of constructing an interchange on Highway 67-70 near Benton.
On January 24,1958, appellant filed a complaint and declaration of taking and deposited $9,500. as estimated just compensation for the land. Upon trial the jury returned a verdict in favor of appellees and fixed their damages at $16,500.
Appellant filed a motion for new trial on the ground that the jury verdict was not supported by substantial evidence. The lower court denied this motion and the sole issue on appeal is whether such denial was error.
Appellees offered the testimony of three witnesses as to the valne of the land. Mr. Covert, the landowner, testified the valne to be $17,500. Mr. John Huchingson, a real estate broker, testified the value to be $16,000 or $16,500. Mr. Fred Harville, a real estate salesman, testified the value to be $15,000. In contrast, appellant offered as evidence the testimony of Mr. Ernest P. Shumaker, the president of mortgage, real estate and appraisal firms, whose value was $9,200, and Mr. Herbert Hooten, an appraisal reviewer for the Highway Department, whose value was $9,500.
Whether there is substantial evidence to support the verdict is a question of law. Ark. State Highway Comm. v. Byars, 221 Ark. 845, 256 S. W. 2d 738; Ark. State Highway Comm. v. Dupree, 228 Ark. 1032, 311 S. W. 2d 791.
Only two of the five witnesses testified that the value of the land taken was as much as the award made by the jury. We must, therefore, examine their testimony to determine if it is of such force as to substantially support this award.
Mr. Covert, who was 78 years of age at the time of trial, testified that he acquired the land in 1945. It is a lot 315' x 80' on which were situated a house and a blacksmith shop. The house was 16' x 50' and contained three rooms and a bath. The blacksmith shop was 30' x 70', constructed of wood, with a paper and sheet roof and a dirt floor. Near the close of Mr. Covert’s testimony, the following occurred:
“Q. Taking into consideration, Mr. Covert, that if you were willing to sell that property and somebody came along willing and able to buy, what would you consider to be the fair market value of the property?
A. $17,500.00.”
As we said recently in Lazenby v. Ark. State Highway Comm., 231 Ark. 601, 331 S. W. 2d 705, the owner of the land being condemned may be allowed to testify regarding the market value of the land if the testimony shows he is familiar with such matters. The record does not reflect that appellee’s right to so testify was questioned.
On direct examination Mr. Huchingson related the location and dimensions of the land and described the improvements. He stated he was familiar with the term “fair market value” as meaning that value arrived at by a seller willing to sell and a buyer willing to buy. He stated the value of the property in his opinion was $16,000 or $16,500.
On cross-examination Mr. Huchingson testified that he arrived at the valuation by using his experience in buying, selling and listing property in Saline County over a period of twelve years. He said there were no sales of similar property with which he could compare appellee’s property. He classified the property as commercial rather than residential and said he figured the property as a unit and did not separate it as to land and improvements. He did not place individual values on the house or blacksmith shop.
This is the type of case that presents one of the most difficult problems this Court must face. It is well established that if there is any substantial evidence to support a verdict, it must be affirmed on appeal. However, whether there is substantial evidence to support the verdict is, as we said earlier, a question of law and not of fact. As we pointde out in the Byars case, supra, the problem becomes more complex in differentiating between any evidence and substantial evidence. Although appellant presents a strong argument to the contrary, we cannot say that the evidence of the two witnesses detailed above does not substantially support the verdict of the jury.
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Ed. F. McFaddin, Associate Justice.
The transcript in this case was filed in this Court on August 4, 1960, and appellant seasonably filed his abstract and brief. Now, in advance of submission of the case on its merits, the appellee has filed a motion asking us to dismiss the appeal because, “The appellant has failed to file an abstract or abridgment of the record in such manner as to give the Court a clear understanding of all the questions presented to the Court for decision.” There seems to be some general misunderstanding as to the effect of the present Rule 9 since we frequently have motions like the present one. Therefore, we again explain the rule, just as was done in Milum v. Clark, 225 Ark. 1040, 287 S. W. 2d 460.
For many years prior to January 10, 1954 we had a Rule 9 which we call “the old rule,” and which read in part:
“In all civil cases the appellant shall . . . file abstract and brief. . . . The abstract or abridgment of the transcript shall set forth the material parts of the pleadings, proceedings, facts, and documents upon which appellant relies, together with other matters from the record as are necessary for an understanding of all questions presented to this Court for decision. . .
Likewise, prior to January 10, 1954, we had a Rule 12 which we call “the old rule,” and which read in part:
“If the abstract and brief have not been filed by the appellant in accordance with Rules 9 and 10 when the case is called for trial the appellee may have the appeal dismissed or the judgment affirmed as of course.”
On January 10, 1954 the foregoing rules were materially and radically changed. We now quote the germane portion of the new Rule 9(d) which reads:
“The appellant’s abstract or abridgment of the record should consist of an impartial condensation, without comment or emphasis, of only such material parts of the pleadings, proceedings, facts, documents, and other matters in the record as are necessary to an understanding of all questions presented to this court for decision. . . .”
And the present Rule 9(e) reads in part:
“Motions to dismiss the appeal for insufficiency of the appellant’s abstract will not be recognized. If the appellee considers the appellant’s abstract to be defective he may, at his option, submit with his brief a supplemental abstract. . . .”
In Milum v. Clark, 225 Ark. 1040, 287 S. W. 2d 460 (decided February 27, 1956), we commented on the effect of the changes in these rules; and of the new rule 9 we said:
“Since the new rule has not previously been discussed in an opinion, an explanatory comment may be of assistance to the bar as a whole. In its old form Rule 9 required the appellant to submit a fair abstract of the record, under penalty of dismissal of the appeal if the abstract were found to be insufficient. The penalty was so severe that it caused lawyers to resolve all doubts in favor of making a complete abstract of everything in the record, whether relevant to the issues on appeal or not. The result was that nearly every abstract was unnecessarily long, to the detriment alike of the lawyer who labored to prepare it, of the client who paid for its printing, and of the judges who were required to study much irrelevant matter.
“It was to remedy this situation that Rule 9 was revised in 1954. The present rule requires that the abstract consist of ‘an impartial condensation, without comment or emphasis, of only such material parts of the pleadings, proceedings, facts, documents, and other matters in the record as are necessary to an understanding of all questions presented to this court for decision.’ The penalty of dismissal for insufficiency of the appellant’s abstract has been eliminated, the rule now permitting the appellee at his option to supplement an abstract thought deficient. Compensation for the cost of the supplement may be awarded by the court in its discretion.
“It is the purpose of the revised rule to encourage the submission of abstracts that are confined to those matters pertinent to the points involved in appeal. . . . ”
Since the adoption of the new rules, as of January 10, 1954, we have a number of cases in which we have affirmed the Lower Court when the appeal was reached in this Court on the merits of the case; but we find no case decided since January 10, 1954 in which we have entertained a motion to dismiss an appeal because of the failure of the appellant to abstract. It is only when the case is reached on the merits that the matter of the abstract arises.
The net result of the present Buie 9 is this: In advance of the hearing on the merits we do not dismiss an appeal for failure of the appellant to comply with Buie 9 as to abstracting. Bather, we permit the case to be submitted in this Court on its merits. If appellee considers appellant’s abstract to be deficient, appellee may supply the deficiency in whole or in part, or may leave the deficiency unsupplied. If this Court cannot adequately ascertain the facts in the situation from the appellant’s abstract, and if the appellant’s abstract has not been supplemented by the appellee to supply the deficiency, then we affirm the case because the appellant has failed to show error to have been committed by the Trial Court. In advance of the submission on the merits we do not consider any motion to dismiss the appeal because of appellant’s failure to abstract. Consideration of such a motion would require us to ferret through the transcript, and compare it with the appellant’s abstract, in order to reach a conclusion. To avoid such labor — and for other reasons — the present Buies 9(d) and 9(e) were promulgated.
In the present case the motion to dismiss the appeal is denied; and the case remains on the docket for submission on the merits when reached in the regular call.
After a paragraph in the motion undertaking to demonstrate the deficiency of the abstract filed by the appellant, the appellee concludes: “Appellee submits that under the decisions in the cases of Speed v. Mays, 226 Ark. 213, Griffin v. Mo. P. Rd. Co., 227 Ark. 312, Smock v. Corpier, 226 Ark. 701, and Ellington v. Remmel, 226 Ark. 569, this appeal should be dismissed or affirmed. Wherefore, appellee prays that the appeal herein be dismissed or affirmed for noncompliance with Rule 9 of this Court.”
The procedural rules of this Court, revised to January 10, 1954, may be found on page 961 et seq. of Volume 221 of the Arkansas Reports. Subsequent revisions to December 10, 1956 may be found on page 1043 et seq. of Volume 226 of the Arkansas Reports. There have been no changes in the rules since December 10, 1956 except in Rule 7 and Rule 11, each of which now requires the filing of seventeen printed copies of the abstract and briefs instead of ten copies, as theretofore. Printed copies of the procedural rules in pamphlet form may be obtained from the Clerk of this Court by any attorney.
Here are such cases: Speed v. Mays, 226 Ark. 213, 288 S. W. 2d 953; Ellington v. Remmel, 226 Ark. 569, 293 S. W. 2d 452; Smock v. Corpier, 226 Ark. 701, 292 S. W. 2d 260; Porter v. Time Stores, 227 Ark. 286, 298 S. W. 2d 51; Griffin v. Mo. P. Rd. Co., 227 Ark. 312, 298 S. W. 2d 55; and Farmers Union Co. v. Watt, 229 Ark. 622, 317 S. W. 2d 285. | [
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Jim Johnson, Associate Justice.
This case involves an offer and disputed acceptance for the sale of a house and lot. The appellees are the joint owners in an estate by the entirety of a one story, two bedroom house located at 1716 South Buchanan Street in Little Rock. On August 13, 1959, appellees gave an exclusive listing for the sale of this property at $14,500 to Jack Collier East Company, Inc., a real estate firm. The listing was signed by Mr. Hunt as the owner and by Mrs. Hunt, as wife, who agreed to execute a warranty deed conveying her dower and homestead in the property. On August 22, 1959, appellants were shown the property by a sales man employed by the real estate firm and while still on the premises the appellants executed an offer to purchase the property at $14,500 upon the customary printed real estate form furnished them by the salesman and earnest money in the amount of $202.50 in the form of a check was tendered with the offer. The offer was then presented to the appellee, Mr. Hunt, and he accepted the offer by signing his name. Mrs. Hunt was not at home while this transaction was taking place. Before leaving, Dr. Hood and Mr. Hunt went into the back yard where Mr. Hunt called attention to the fact that a part of the wire fence had been removed and that he planned to replace it with a white picket fence. Mr. Hunt offered to build the picket fence but Dr. Hood said he preferred the wire fence to be replaced since he had a dog. Mr. Hunt agreed to replace the wire fence and in accordance with this agreement did replace it.
When Mrs. Hunt returned home later that afternoon she was informed of the sale. She inquired about the necessity of her signing the acceptance and was told by the salesman for the real estate firm that this was not necessary since she had already signed the listing in which she obligated herself to execute a deed should a purchaser be found in accordance with the listing.
After the Hoods left (August 22nd) other prospects came by to see the house but Mrs. Hunt informed them that the house had been sold and did not show it to them.
The Hunts, thinking that their house was sold, purchased another residence and signed the papers therefor either on Wednesday or Thursday following the Hoods’ offer on Saturday. On the following Friday morning Mrs. Hunt phoned Mrs. Hood that mail had come for the Hoods. It turned out that the Hoods had bank checks printed showing their new address to be 1716 South Buchanan and this was the mail which had arrived. In the course of that conversation Mrs. Hunt informed Mrs. Hood that they could have possession on September 1st, which was agreeable with Mrs. Hood. In the meantime, Mrs. Hunt had communicated her acceptance of the offer to the representative of Jack Collier East Company, Inc., who were the agents for the Hoods in making the offer. On Friday afternoon when Mrs. Hood came by to pick up the mail, she informed Mrs. Hunt that Dr. Hood had been transferred to another city where they would be furnished living quarters. The Hoods refused to go through with the transaction. Appellees filed a complaint in the Pulaski Chancery Court to specifically enforce a sale of the property. Abstract of title and a proper deed were tendered by appellees. The Chancellor granted specific performance and this appeal followed.
The only real question presented here is whether the contract lacked mutuality of remedy.
Appellants very persuasively argue that since Mrs. Hunt did not sign the acceptance and because this was an estate by the entirety, Mrs. Hunt was not bound, and since she was not bound, neither were the Hoods. However, the record reveals that it is undisputed that Mr. Hunt did actually sign the acceptance of the Hood offer thereby making him legally obligated to give a good conveyance; consequently there was mutuality as between Mr. Hunt and the Hoods. It is further undisputed that he tendered such a conveyance in which his wife joined as grantor. Based upon these facts we are bound by our rule that it was sufficient that Hunt was able to make a good conveyance any time before the decree for specific performance was rendered. See: Drennan v. Boyer, 5 Ark. 497; Chrisman v. Partee and Wife, 38 Ark. 31; Elliott v. Hogue, 113 Ark. 599, 168 S. W. 1097. Also see: 49 Am. Jur. Specific Performance, § 37; 81 C. J. S. Specific Performance, § 11, p. 429; 5 Corbin Contract, 1185 and 1195.
The Chrisman case, supra, is directly in point and the doctrine it enunciates has been followed and approved by this Court repeatedly, the most recent case being Ray v. Robben, 225 Ark. 824. 285 S. W. 2d 907.
The record further reveals that not only did Mrs. Hunt join in the execution of a deed with her husband, which was tendered to the appellants, but she also joined in the suit as a plaintiff and thus ratified her husband’s acceptance. The above cited authorities hold that her joining in the deed was enough to supply mutuality but the fact that she submitted herself to the jurisdiction of the court likewise supplied mutuality. See: Vance v. Newman, 72 Ark. 359, 80 S. W. 574.
The Chrisman case, supra, holds that the incapacity to perform a contract must be judged not at the time the contract is made but at the time its performance is sought. Consequently, when one comes into court seeking specific performance and submits himself to the jurisdiction of the Court, “the institution of the suit supplies the mutuality which was wanting in the first instance. ’ ’
Affirmed.
George Rose Smith, J., not participating. | [
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Paul Ward, Associate Justice.
This litigation was instituted by appellant, Dollie K. Dunn, against the Manager and Board of Directors of the City of Little Rock to recover retirement pay in accordance with the provisions of City ordinances. The Circuit Judge, sitting as a jury, resolved the issue against appellant and this appeal follows.
Appellant’s Complaint, filed February 24, 1959, contained the following material allegations: She was in continuous employment of the City of Little Rock from May 19, 1946 to December 31, 1958; on or about the 16th day of December of 1958 she was ordered to quit work due to ill health by her personal physician, and she did quit three days later due to ill health; on or about December 20, 1958 and again on January 6, 1959 sbe gave notice for retirement under tbe provisions of City Ordinance No. 6775; on January 29, 1959 sbe received written notice that ber claim for disability retirement had been denied by tbe Board of Directors of tbe City of Little Bock; sbe was not present at tbe bearing before tbe Board of Directors, bad no notice of said bearing, and does not know why ber claim for disability retirement was denied; and, she was receiving a salary of $200.00 per month, and, under the provisions of tbe ordinances above mentioned, sbe is entitled to receive said salary for fifteen months or a total of $3,000.00. Tbe above Complaint was later amended to include City Ordinance No. 10783.
After tbe Circuit Court bad denied appellees’ Demurrer to tbe above Complaint they filed an Answer, containing a general denial.
Both sides introduced testimony to support their contentions, and tbe Trial Judge, sitting as a jury by agreement of tbe parties, found: that City Ordinances No. 6775 and No. 10783 do not “create a pension system for the City, but are only an announcement of policy by tbe City. That any disability benefits created under these ordinances is a mere gratuity and creates no vested right in City employees to any benefit whatever. That tbe plaintiff did not sustain the burden of proof in establishing injuries or disability claimed by ber or in showing that they were in any way related to or arising out of ber employment”. Thereupon the Court dismissed appellant’s Complaint with prejudice.
That portion of tbe above mentioned City ordinances which has any relevancy to tbe issue in this litigation is Section 8 of Ordinance No. 10783 which reads as follows:
“A. It shall be tbe policy of tbe City to continue to pay disabled employees of the non-uniformed group, retirement pay, as in tbe past; until such times as a better retirement plan is worked out, '
B. This shall include only, classified regular employees of the non-uniformed personnel who are compelled to retire from the City’s employ because of sickness or because of a permanent disability growing out of an injury incurred in line of duty.
C. The retired employee must furnish a certificate from his physician stating the reasons or cause for retirement request and submit to a complete examination by the City Health Director, who must approve the employee’s request for the disability retirement.
D. If request is granted the employee will be retained on the pay roll of the department by which he was last employed prior to retirement, for a period of months equal to the number of years for which said person had been employed by the City of Little Rock, and for a fractional period of a month to correspond with that fractional period of a year which he has been employed by the City of Little Rock. Upon death of employee payments shall cease.
E. The use of the masculine pronoun in the above shall include the feminine as well.
F. Members of. the Police and Fire departments are excluded from the above provisions, because at the present time they have pension and retirement provisions created under the State statutes.”
After careful consideration we have concluded that the judgment of the trial court must be affirmed on the ground that there is substantial evidence in the record to support the Trial Judge’s finding that “the plaintiff did not sustain the burden of proof in establishing . . . disability claimed by her . . .” In reaching this conclusion we understand that appellant is relying on ill health and not on a disability to establish her claim. We interpret the. ordinance to mean that ill health need not grow out of an injury incurred in the line of duty. Consequently, we do not pass upon the legal question whether the City Manager and the Board of Directors could arbitrarily refuse to make payments to appellant assuming the proof clearly showed she had to quit work because of her health.
Substantial Evidence. It is not disputed that appellant began working for the City of Little Rock on May 19, 1946 in the Women’s Detention Center; that she continued to work until about December 19, 1958 or that she had high blood pressure when she began working for the City. In support of appellant’s contention that she was forced to quit work because of ill health Dr. William A. Snodgrass, Jr. testified substantially as follows: I am a physician and surgeon and have been the family physician of appellant since August of 1946; I have treated her mainly for hypertension, high blood pressure due to arteriosclerosis; I had her in the hospital in April of 1958 and treated her for hypertension— she stayed in the hospital five days; on April 25, 1958 I wrote Dr. Lawson (the City Health Officer) advising him of her hypertension and recommending regular working hours; from April 25, 1958 to December 1, 1958 appellant made seven calls to my office mainly for hypertension; in November of 1958 she went into a mild congestive failure and her blood pressure dropped too rapidly; on December 16, 1958 I again wrote Dr. Lawson advising him that she had very high blood pressure and a mild congestive failure and told appellant to quit working immediately; and I saw her again on December 19, 1958 and her blood pressure was high and I ordered her to bed. I did not feel that she was able to work during the month of December and it is my opinion that she is unable to work now. On Cross-Examination the doctor stated that appellant’s blood pressure was high in 1946 being 170/100 and that in his opinion she could have done housework in 1958.
Appellant testified that she began work as matron of the Women’s Detention Center on May 19, 1946; that she alternated working days and nights; that after she came back to work in April of 1958 she worked until December 19, 1958 on which date she had a severe headache and the doctor ordered her to go to bed; she stated that she had dizzy spells while working but managed to keep on; that she received notice on December 18, 1958 that her job was discontinued and it was on December 19, 1958 during the lunch hour that she was forced to go home and go to bed. She made application for retirement on December 20, 1958 by a letter to Dr. Lawson and on January 29, 1959 she received notice that the Board of Directors had denied her application. On Cross-Examination she stated that she received a letter from the City Manager on December 18, 1958 and became ill at noon the next day and had to leave work with a severe headache; that she had had such severe headaches before; she further stated that she remained in bed three days after going home on December 19th and that her doctor told her on December 16th she would have to retire. Appellant admitted to hearing rumors that her job would be abolished.
Dr. Mason Lawson, Public Health Director of the City of Little Eock, testified in substance: Appellant was under my supervision as matron of the Detention Center; I considered her work not too strenuous; I examined appellant on April 22, 1959 and she did have hypertension but I only gave her a superficial examination — a clinical examination; according to appellant’s work record for the past ten years it is shown that she was off an average of 5.2 days per year which for a person of her age would indicate fairly good health; on the day I examined her I believe she could have worked. There had been some talk about closing the Detention Center and in November of 1958 it was definitely decided to do so and I believe I discussed this with appellant, however, I did not tell her in exact words that her job would be abolished. I believe that the letter to appellant stating that her job would be abolished might have caused emotional distress and the mild congestive failure, and might have caused her blood pressure to rise. On Cross-Examination, Dr. Lawson stated that he did not believe appellant’s work at the Detention Center was any harder than the work done by the average housewife and that he tried to give them every consideration. Her further stated that he did not know the condition of appellant from November of 1958 to December of 1958 but that according to the records she was working during that period and never complained to him and never asked for relief. On Ee-Direct Exami nation the doctor stated that he passed upon appellant’s application for disability retirement but did not recommend that she receive disability retirement payments for the reason he thought she quit because she knew her job was going to be abolished.
Under the law and the peculiar facts of this case we must conclude that there is substantial evidence to support the findings and judgment of the trial court. Paragraph C of Section 8 of Ordinance No. 10783 sets out the things to be done by appellant before she would be entitled, under any circumstances, to retirement pay. First, she must furnish a certificate from her physician stating the reasons or cause for her retirement request, then she must submit to a complete examination by the City Health Officer, then the City Health Officer must approve her request. It is not contended here by appellant that the City Health Officer approved her request. It is also conceded, as shown by the record, that the Board of Directors denied appellant’s request for retirement pay. The established rule appears to be that the courts will not override the findings of a Board unless it is first shown that the Board’s action was fraudulent, arbitrary or capricious. Under the facts in this case we are unwilling to say that the Little Rock Board of Directors acted fraudulently, arbitrarily or capriciously. Such a principle has often been announced both by text writers and in judicial opinions. In Volume 3, pp. 561-562 of McQuillin, Municipal Corporations, you will find this statement:
“Unless the action of such officer or body is shown to have been fraudulent, arbitrary or capricious, usually it is held final, because the courts decline to substitute their judgment for that of the officer or body”.
To the same effect we find in 40 Am. Jur., pp. 992-993 under “Pensions”, Section 39, this statement:
“In an action by a city employee for a pension which had been denied to him by the pension governing body after a finding of facts by the body, which it was empowered by statute to make, that he was not entitled to the pension, it was held that in the absence of an allegation in his petition that the action of the governing body was arbitrary and capricious, it did not state a cause of action and that the action of the governing body was final and not reviewable by the courts”.
In the case of Herring v. Stannus, 169 Ark. 244, 275 S. W. 321, this Court in affirming the action of the City Council of Little Rock relative to a zoning situation made this statement: “The question is not what a member of the court might decide if the question were submitted to him as a matter of discretion, but rather is whether it can be said that the council abused its discretion, and we may not say that such was the case-unless that fact clearly appears”. Likewise in the case of McKinney v. City of Little Rock, 201 Ark. 618, 146 S. W. 2d 167, this Court, in upholding the action of the City Council relative to a zoning ordinance, and in approving the action of the trial court in sustaining the City Council, had this to say: “It was then tried by the chancery court, and it held that the classification was reasonable and the lower court’s decision was not against the preponderance of the evidence. Moreover to set aside the decree and the finding of the Council would be substituting our judgment for that of the zoning authorities who are primarily charged with the duty and responsibility of determining the question. This we should not do unless we can say from the evidence that the action of the Council and the decision of the court are unreasonable and arbitrary”.
We think the situations set forth in the above cited eases are somewhat similar to the situation in the case under consideration and that the rules above announced are applicable here. Also, the record shows that the City has no funds with which to make retirement payments in a case like this one. The administration of the entire program is in charge of the Health Officer, the City Manager and the Board of Directors. All of these have found that appellant was not entitled to retirement pay. The Circuit Judge, sitting as a jury, has approved the finding of the City authorities. We are unwilling to say that the findings of the trial court are not supported by substantial evidence or that the City officers acted arbitrarily. Consequently, the judgment of the trial court must be, and it is hereby, affirmed.
Affirmed.
Johnson, J., dissents.
Robinson, J., not participating. | [
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Ed. F. McFaddin, Associate Justice.
This is a Workmen’s Compensation case in which the Commission denied recovery and the Circuit Court reversed the Commission. The decisive question is, whether there is substantial competent evidence to sustain the Commission: if so, the Circuit Court was in error in reversing the Commission. Such is our well established rule. Lundell v. Walker, 204 Ark. 871, 165 S. W. 2d 600; J. L. Williams & Sons v. Smith, 205 Ark. 604, 170 S. W. 2d 82; Moore v. Long-Bell Lbr. Co., 228 Ark. 345, 307 S. W. 2d 533; and Chapman v. Finkbeiner, 230 Ark. 655, 324 S. W. 2d 348. In J. L. Williams ds Sons v. Smith, supra, we said:
‘ ‘ The circuit court cannot go into the question of the weight of the evidence. The only issue confided, by the act, to its determination is whether there is sufficient evidence as a matter of law to warrant an honest and reasonable trier of facts in making the finding which was made. There was sufficient competent evidence to warrant the finding of fact of the commission and the circuit court erred in setting it aside.”
With the foregoing rule in mind, we examine the case at bar. The claimant, Henry H. Howard, was employed as a sheet metal worker for the Wonder State Manufacturing Company in Paragould on August 28, 1958. Howard went to work at 7 A. M. and after about 25 minutes’ work he became ill and went to the hospital, where his condition was diagnosed as peptic ulcer and myocardial infarction. He was unable to resume work until October 30,1958, and this is a claim for total temporary disability. The Commission found that the claimant had failed to establish any connection between his work and his disability, and disallowed the claim. We quote at length from the Commission’s opinion:
“There is little, if any, controversy with respect to facts relating to claimant’s employment and his becoming disabled on August 28,1958. He had previously had great discomfort either as a result of a stomach ulcer or from pains resulting from a heart condition. The Surgeon’s Report following claimant’s treatment in the hospital at Paragould described the nature of claimant’s injury as ‘acute anterior myocardial infarction.’ Dr. Andrews testified that X-ray reports indicated that the claimant had a stomach ulcer of long standing duration. An electrocardiogram was made and claimant gave a history of hard work for the past few days and Dr. Andrews stated that as a basis of the electrocardiogram and the history of very heavy work, he could not say with certainty that the work caused the heart attack, but he was of the opinion that it did.
‘ ‘ On cross-examination, Dr. Andrews stated that such a heart condition as claimant had is often brought on by hardening of the arteries and that heart attacks are less common among hard working people than people who have sedentary work. After considerable cross-examination, Dr. Andrews made the following statement: ‘Well, as I understand it, the man started having symptoms the day before and on the day he left work he had only been there a little while and, in other words, I see no connection between the work on the morning that he left work and any possible heart attack that morning.’ Then follow the following questions and answers:
“ 'Q. Then as far as the work he was doing on the morning when he quit, you see no relation between that work and his heart attack? A. I see no strong relation as far as heavy work causing a heart attack, no sir. Q. Nothing to indicate to you that that work he was doing that morning produced that heart attack? A. None in the history, no, sir. Q. Now, from what you know of this case from the history that has been given, Doctor, isn’t it a fact that it would be impossible for you to put your finger on the time that this man had his heart attack? A. That is true.’
“We shall now dwell on the testimony given by Dr. Stern. The claimant was examined by Dr. Stern on January 20, 1959. He closed his report on this examination with the following paragraph:
‘ ‘ ‘ The degree to which the heart attack is related to the work is difficult to assess. The underlying disease or coronary .arteriosclerosis was present previously, was the basic cause of the attack and has no relationship to his work. It is quite possible that the exertion of his work was the precipitating incident that caused the attack to occur at the time it did. These attacks, of course, will occur spontaneously at rest, so that it cannot be proven that the work was the precipitating cause; on the other hand, since the attack did come on while working, there must be a presumption that the work contributed to the initiation of the attack.’
" Counsel for claimant is of the view that Dr. Stern’s report supports the claim of a compensable injury in this paragraph, wherein it is stated that there must be a presumption that the work contributed to the initiation of the attack. With reference to this statement in his report, Dr. Stern testified as follows:
“ 'A. I would like to change that sentence to read: It may have contributed to the initiation of the attack. It may, in other words, have contributed theoretically, and there is no way of telling which particular piece of physical exertion will contribute to the attack. There is a theoretical way in which an expenditure of energy can precipitate an attack, some movement may have contributed to the starting of the heart attack. Q. It is a fact, is it not, Doctor, that these attacks occur in all stages of one’s life? A. That is correct. It may occur without any precipitating cause. Q. Quite frequently occur in sleep? A. Yes, sir. Q. And it would be absurd to say that sleep contributed to it? A. It may be entirely coincidence, and one cannot say about that. Q. Confining it to reasonable medical certainty, can you make any statement as to whether or not it may have caused or contributed towards causing the heart attack? A. I can say with reasonable medical certainty that it probably did not precipitate the attack, but I cannot say with medical certainty that it absolutely did not.’
“In view of this testimony, the Commission is unable to find that the claimant has furnished sufficient proof to establish his contention that he received an accident that arose out of or in the course of his employment.”
The claimant urges that the case at bar is ruled by such cases as Simmons Natl. Bank v. Brown, 210 Ark. 311, 195 S. W. 2d 539; Scobey v. Southern Lbr. Co., 218 Ark. 671, 238 S. W. 2d 640; Triebsch v. Athletic Mining Co., 218 Ark. 379, 237 S. W. 2d 26; Bryant Stave Co. v. White, 227 Ark. 147, 296 S. W. 2d 436; and Bettendorf v. Kelly, 229 Ark. 672, 317 S. W. 2d 708. The employer urges that this case is ruled by such cases as Moore v. Long-Bell Lbr. Co., 228 Ark. 345, 307 S. W. 2d 533; Ark. P. & L. Co. v. Scroggins, 230 Ark. 936, 328 S. W. 2d 97; Shipp v. Tanner, 229 Ark. 815, 318 S. W. 2d 821; and Chapman v. Finkbeiner, 230 Ark. 655, 324 S. W. 2d 348. We conclude that the case at bar is ruled by such cases as J.L. Williams & Sons v. Smith, supra, wherein we held that the findings of the Commission must be sustained if supported by substantial competent evidence. There is evidence in the record which would have sustained an award in favor of the claimant: likewise, there is evidence in the record that sustains the Commission’s finding in favor of the employer. The claimant admitted that he was sick all the night before August 28th, with pressure in the upper part of his stomach and in his chest. From that evidence, and from the medical evidence, the Commission could have found that the heart attack suffered by the claimant had already occurred before he reported for work on the morning of August 28th. Such a finding would have been in line with Chapman v. Finkbeiner, supra. Without further detailing of the evidence, we conclude that the Commission’s findings should not have been reversed by the Circuit Court.
The Circuit Court judgment is reversed and the cause is remanded to the Circuit Court with directions to affirm the Commission.
Johnson, J., dissents. | [
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Ed. F. McFaddin, Associate Justice.
This case results from a traffic mishap in the City of Harrison. Appellee, Flora Belle Villines, was a passenger in the taxicab owned by appellant, Swafford, doing business as People’s Taxi. The taxicab was then operated by Swafford’s agent, Erotha Oxford, a woman. There was a collision between the taxicab and a car driven by Alta Dixon, a man, resulting in property damage and personal injuries. Flora Belle Villines sued Swafford, Oxford, and Dixon, for damages. Dixon denied liability; and cross complained against Swafford and Oxford for his damages. Swafford and Oxford denied liability to Yillines and cross complained against Dixon.
Each driver claimed to be free of negligence, and alleged the other driver to have been guilty of negligence. At the trial, the jury returned a verdict for Yillines for $10,000.00 damages; and apportioned the damages, $9,-000.00 against Swafford and Oxford, and $1,000.00 against Dixon. No damages were allowed as between Swafford and Oxford on the one side, and Dixon on the other. Prom the judgment, Swafford and Oxford have appealed against both Yillines and Dixon; and Dixon has cross appealed against Swafford and Oxford, and also against Yillines. We will refer to Oxford and Swafford as appellants; to Yillines as appellee; and to Dixon by name. When the notices of appeal were given, there was a designation of the record and a statement of points relied on, just as provided by the statute. (§ 9 of Act 555 of 1953, as found in § 27-2127.3 Ark. Stats.) Some of the points originally stated by appellants have been abandoned; but there are three that are now urged.
I. The Jury Finding That Appellants Were Guilty Of 90% Of The Negligence, And Dixon Guilty Of Only 10% Of The Negligence. The case was submitted to the jury on interrogatories. The jury answered Interrogatory No. 1 affirmatively, finding that Oxford was guilty of negligence in the operation of the taxicab, “. . . and that such negligence contributed to cause, or proximately cause, the collision”. The jury answered Interrogatory No. 2 to the effect that Dixon was guilty of negligence in the operation of his automobile, “. . . and that such negligence contributed to cause, or proximately cause, the collision”. The Court also submitted this question to the jury:
“Interrogatory No. 3: If your answers to both Interrogatories No. 1 and No. 2 are Yes, then answer this question: Using 100 per cent to represent the total negligence involved in the collision, what percentage of negligence do you find that each of the defendants, Oxford and Dixon, contributed to cause the collision?”
The jury answered the interrogatory as follows: “Defendant Oxford 90; Defendant Dixon 10% ”. Swafford was liable for the negligence of his agent, Oxford; and the Court rendered judgment, apportioning 90% against Swafford and Oxford, and 10% against Dixon.
Appellants strenuously insist that there is no evidence in the record from which the jury could find that Oxford was guilty of 90% of the negligence. Appellants urge: that the collision occurred at a street intersection in Harrison around 6:45 in the evening in March of 1959; that it was dark enough to require the burning of headlights; that Dixon did not have on his headlights; that Oxford had driven the taxicab almost out of the street intersection, whereas Dixon had only travelled seven feet into the intersection; and that the front of Dixon’s ear hit the right rear side of the taxicab. Thus, appellants contend that if Oxford was guilty of any negligence, it could not have exceeded 10% ; and that Dixon’s negligence — if not 100% — was certainly 90%. But all of these matters were questions to be submitted to and decided by the jury. The speed of the Oxford car was disputed; the speed of the Dixon car was disputed; Dixon said Oxford speeded up to get into the intersection in front of him, whereas, he slowed down; it was shown that Dixon had skidded his car several feet in order to try to stop, whereas, Oxford had speeded up the taxi. It was further shown that, after the impact of the cars, Oxford’s vehicle dragged Dixon’s car several feet before the cars disengaged and the taxicab overturned. Firemen, who went to the scene of the accident, testified that it was not dark enough to have on headlights; and other witnesses disputed such testimony.
In short, there was a bitterly disputed question of fact, between appellants and Dixon, as to which party, if either, was negligent; and in such a dispute we leave it to the jury, who saw the witnesses, heard them testify, and evaluated their testimony, to determine the degree of the negligence. There was ample testimony to support the verdict, believing some witnesses and disbelieving others, as the jury had a right to do. The jury system is the great bulwark of legal rights. As was very wisely said:
“It is this class of cases and those akin to it that the law commits to the decision of a jury. Twelve men of the average of the community, comprising men of education and men of little education, men of learning and men whose learning consists only in what they have themselves seen and heard, the merchant, the mechanic, the farmer, the laborer; these sit together, consult, apply their separate experience of the affairs of life to the facts proven, and draw a . . . conclusion. This average judgment thus given it is the great effort of the law to obtain.”
II. The Testimony Of Dr. Breit About The X-ray Films. In the collision, Oxford, the driver of the taxicab, was injured; and she sued Dixon, the driver of the other vehicle, for personal injuries and other damages. In the course of the trial, Dixon called Dr. Breit to testify about x-ray films of Oxford which Dr. Breit had examined. He sent Oxford to a technician, who took the films, and gave them to Dr. Breit, who was not physically in the room when the x-ray films were taken, but who examined the films and read them, and testified as to his findings from the films.
The objection urged was, that since Dr. Breit was not physically present in the room when the films were taken, he could not testify as to what the films showed. The Court overruled the “hearsay objection”, and permitted Dr. Breit to testify. We think the Court committed no error. Dr. Breit testified that he sent the patient to the technician to take the films; that he went to the laboratory where the films were taken, picked up the films, and read them. A logical chain of events was shown: there was no suggestion that anybody had switched films. The jury, as reasonable people, could decide whether the doctor’s testimony was worthy of credence. We think that Dr. Breit was sufficiently “present” to constitute a prima facie authentication, or verification, of the x-ray films, since no question of identity was raised. In 20 Am. Jur. 615, in discussing the preliminary proof before the admission of x-rays, the rule is stated:
“The sufficiency of the verification of the x-rays is within the discretion of the trial judge . . . It is said that the identification of x-ray plates by the physician or surgeon under whose general direction and for whose use they were made, and by whom they were used in making a diagnosis of the patient’s condition, is sufficient to admit them in evidence, although the pictures were not taken or developed in his presence, . . .”
III. Villines’ Instruction No. 1. This is the strongest contention of the appellants. The instruction told the jury that Swafford, as the owner of the taxicab, owed to the passenger, Villines, the highest degree of care; and that Dixon, as the driver of the other vehicle in the mishap, owed to Villines ordinary care. There can be no doubt about the correctness of that part of the instruction. In Black and White Cab Co. v. Doville, 221 Ark. 66, 251 S. W. 2d 1005, we said:
“In National Fire Ins. Co. v. Yellow Cab Co., 205 Ark. 953, 171 S. W. 2d 927, we said: ‘The weight of authority is to the effect that the standards of care which prevail as to common carriers, generally, apply to those engaging in the business of operating taxicabs. 4 Blashfield, Automobile Law, § 2201, p. 46.’ See, also, 37 Am. Jur. 598.”
In 37 Am. Jur. 598, the holdings are summarized in this language:
“It has been held, in cases involving the right of a passenger to recover from a taxicab company, that a company of this character, which holds itself out to serve all who apply for transportation for a fixed or agreed fare, is a common carrier of passengers, and as such is bound to exercise that high degree of care for the safety of passengers for hire that is imposed on carriers generally with respect to their passengers, that is, the highest degree of care for the safety of its passengers, consistent with the proper conduct of its business.”
The challenged instruction is not a model of rhetoric, but it is not inherently erroneous; and the only objection offered to the instruction was: “It is confusing and will confuse the jury as to the degree of negligence of the defendants ’ ’. This was nothing more than a general objection. In Emerson v. Stevens Grocer Co., 105 Ark. 575, 151 S. W. 1003, there was an objection to an instruction because it was “confusing and misleading to the jury”; and this Court, speaking by Mr. Justice Hart, said:
“If instruction numbered 4 was not satisfactory to appellants for the reason that they thought it might be confusing and misleading to the jury, in fairness to the court, they should have specifically pointed out their objections, to it to the end that the court might correct it. If they had done so, doubtless the court would have changed the verbiage of the instruction so as to meet their objection. Having failed to make a specific objection to the instruction, we do not think that the judgment should be reversed for giving it.”
This instruction told the jury that if both the taxicab operator and Dixon were guilty of negligence, then the jury would so indicate. In another instruction the Court told the jury:
“As tryers of the facts in this case, the following are issues for your determination:
‘ ‘ 1. Which, if either, of the defendants, Oxford and Dixon, was guilty of negligence, which caused, concurred in, or contributed to cause the injuries complained of.
“2. The proportion of negligence attributable to each in the event you find more than one party guilty of negligence as a cause of their injuries.
‘ ‘ 3. The extent of the damages which each suffered as a result of their injuries, if any, expressed in money values.”
When we take this instruction, along with the special interrogatories submitted to the jury, as previously copied, and see the answers that the jury made, we conclude that such answers definitely establish that tthe challenged instruction did not confuse or mislead the jury.
Finding no error, the entire judgment is affirmed and costs taxed against the appellants.
Dixon’s cross appeal against Villines was really to protect his rights in the event of a reversal obtained by Oxford and Swafford. What we say in Topic I infra disposes of Dixon’s claim that he was not negligent.
This is from the case of Sioux City & Pac. RR. Co. v. Stout, decided hy the Supreme Court of the United States on January 26, 1874; 17 Wall. 657, 84 U. S. 657; 21 L. Ed. 745.
No question is raised as to the patient-physician relationship; but it is claimed that Dr. Breit could not testify about the x-ray films because it would be a violation of the hearsay rule: that is the only point.
The instruction, as finally given, reads: “You are instructed that it is not disputed that at the time of the accident here involved the Plaintiff, Flora Belle Villines, was a fare paying passenger in the taxicab of defendant, Swafford, being operated by his agent, Oxford, within the scope of her employment. You are further instructed that in that relation and circumstances that the defendant, Ward Swafford d/b/a People’s Taxi Co., owed the duty of exercising the highest degree of care for the safety of its passenger, Flora Villines. Therefore, if you find from a preponderance of the evidence in this case that defendant Swafford, d/b/a People’s Taxi Co., through his agent and employee, failed to exercise the highest degree of care for the safety of plaintiff Villines, and that such failure was the sole proximate cause of her injuries, if any; or, if such failure, combined with a concurrent failure of the defendent Dixon to exercise ordinary care, as defined in other instructions, if you so find was the proximate cause of her injuries, if any, then you will find for the plaintiff and.against the defendants, Swafford and Dixon, or either of them, in such sum as you find will reasonably compensate her for her damages, if any.” | [
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Carleton Harris, Chief Justice.
This appeal results from a decree of the Conway Chancery Court wherein the complaint of appellants was dismissed for want of equity, and title to certain lands was confirmed in appellee, Darby Payne. Mr. and Mrs. T. B. Bobbins of Center Bidge were the owners of approximately 195 1/2 acres of land in Conway County for a number of years prior to November 17, 1954. An additional 80 acres was also owned by Mrs. Bobbins, but this latter acreage is not involved in this appeal. On November 17, Mr. and Mrs. Bobbins conveyed, by warranty deed, the 195 1/2 acres to their daughter, Darby Payne, who was living with her parents at the time they moved to the property in 1930. Mrs. Payne married in October, 1931, and she and her husband continued to live on the premises. In 1938, Mrs. Payne married a second time, moved away for a short while, but subsequently returned, and lived with her parents until their deaths. The deed from the parents to the daughter recites:
“This land is being conveyed to the said Darby Payne, our daughter, for and in consideration of her living with us and taking care of us the rest of our lives since we both are above the age of 84 years of age and need someone to care for our physical needs. The said Darby Payne is not able to care for us financially but can care for us otherwise. It is further agreed and understood that we can live on the said land the remainder of our lives.”
In 1956, Mr. Bobbins, 92 years of age, died, and in 1957, Mrs. Bobbins died at 87 years of age. Appellants, Mrs. L. A. Mulligan, Mrs. W. E. (Della) Maxey, Sr., Hervey Bobbins, and Berneice Bichey, are also children of Mr. and Mrs. Bobbins. Suit was instituted by these children against their sister, Darby Payne, in which they alleged that in 1954, their father and mother desired to become welfare recipients, and to receive monthly checks from the Welfare Department as grants to aged people, but that their parents owned too much land and cattle to qualify as needy persons under the regulations of the State Welfare Department; that persons owning more than 80 acres of land at that time were ineligible for welfare payments. It is then alleged that Mr. and Mrs. Bobbins “conceived a sham deed to divest themselves of the ownership of all lands in excess of 80 acres * * *,” and that solely for the purpose of coming within the eligibility requirements for welfare payments, the parents conveyed the 195 1/2 acres to appellee; that it was necessary that title be divested without the Bobbinses receiving any substantial consideration (since that would likewise make them ineligible for benefits), and the clause in the deed, heretofore set out, was inserted for that purpose. The- complaint alleges that all the parties knew the purpose of the deed, and that it was understood by all that the property was to be divided equally among the children upon the death of the parents. It is further alleged that, still for the purpose of meeting welfare requirements, the Robbinses conveyed to their daughter, Berneice Richey, all of their cattle; but that Mrs. Richey did not actually own the cattle, and though checks for the milk were directed to her, the money was actually turned over to the parents. The complaint further asserted that Mrs. Payne “now contends that she is the sole and exclusive owner of the 1951/2 acres” but “in truth and fact, the said Darby Payne holds naked legal title to the said 195 1/2 acres as the trustee for all the plaintiffs herein”, and the prayer was that the court “impress an implied or constructive trust” upon the lands, and “find that the said Darby Payne holds said legal title as trustee for the use and benefit of all the children and heirs at law of the said T. B. Robbins and Ida Ann Robbins * * Prom the court’s decree dismissing the complaint and quieting title in appellee, appellants bring this appeal.
The issue in this case is purely one of fact; there is no dispute as to the legal principle involved. It is simply a matter of whether appellants met the quantum of proof necessary and essential to the establishment of their contention. Nine witnesses, including three of the parties, were called to the stand on behalf of appellants ; two others were grandchildren, one a husband of the granddaughter, and one a niece of the deceased Robbinses. The testimony of another, Arlie Bryant,, strongly favored appellee. Seven witnesses, including the appellee, and Juanita Bailey, a daughter of appellant Berneice Richey, testified in her behalf.
Appellants, through their testimony, endeavored to show that the deceased parents desired to obtain welfare payments, and executed the conveyance to appellee sim ply as a means of getting the title out of themselves. Mrs. Jewell Gordon, daughter of Mrs. Mulligan, her husband, Olen Gordon, and Ruth Morrow, the niece, all testified that Mr. Robbins told them that the land had been deeded to Darby in order that they (the parents) could qualify for welfare benefits, and that appellee was to divide the land among all the children following the death of Mr. and Mrs. Robbins. Mrs. Mulligan testified that Darby told her, following the death of her father, and in the presence of her mother, that she would “turn the deed back — set the deed aside, and give each child his part.” Hervey Robbins, a son, testified that “my Mother said she made most of the land over to Darby, and she knew Darby would divide the land up after their death”, though he said Darby had never made any such promise to him. Mrs. Maxey, a daughter, testified that appellee stated the deed was “just for a sham to get relief for them.”
Arlie Bryant, though called by appellants, testified that he took the Robbinses to Edwin Bird, a Notary Public, for the purpose of executing a deed to Darby, and that this service was rendered at the request of the grantors. He stated that Mr. and Mrs. Robbins told him that they wanted Darby to have the land, and that Mrs. Robbins made this statement in the presence of his wife and Berneice Richey. According to the witness, at the time Mr. and Mrs. Robbins signed the deed, the father stated, in response to a query from the Notary Public as to whether the old people knew what they were doing:
“Yes, sir, that’s why we come up here for is to deed it to her, that we feel that she ought to have it, and she is entitled to it by being there and never has been away from home, and stayed with us, and I don’t know what we would have done if it hadn’t been for her staying there.”
Bryant also assisted the Robbinses in getting on the welfare rolls. Counsel endeavored to show that Bryant had made prior statements inconsistent with his testimony. According to Joe Brinkley, a grandson, he had heard Bryant state that the welfare turned the Bobbinses down because they owned too much land, and he (Bryant) had gone back to the old people, and talked to them about deeding all the property to Darby except 80 acres. Juis Carr, a merchant of Center Bidge, testified that Bryant had talked with him about getting Mr. and Mrs. Bobbins on welfare, and that they owned too much land.
Several apparently disinterested witnesses testified on behalf of appellee. Audrey Atkinson and Mrs. Bryant both testified that Mr. and Mrs. Bobbins stated that they wanted Darby to have the land. Atkinson testified that Mrs. Bobbins had related to him in 1946 that she and her husband had been able to pay off an indebtedness to the Federal Land Bank with the help of Darby. Mrs. Audrey Atkinson testified that Mrs. Bobbins had told her that the place was going to be deeded to Darby, so the latter would have a home. Edwin Bird, who prepared the deed and acknowledged same, stated that he asked Bobbins if he knew what he was doing, and the latter stated that he did, and was deeding the property to Darby because she had been good to her parents, and stayed with and taken care of them. Ollie Moses testified that Mrs. Bobbins had stated to the witness that she had the “place fixed just like she wanted it. Said Darby had a home now and wouldn’t be rooted out.” In addition, Juanita Bailey, daughter of Mrs. Bichey, testified that her grandfather and grandmother had told her that they felt Darby should have the place. Appellee testified that her father had advised her, at the time a mortgage was given to the Federal Land Bank, that if she would work on the place and help her parents pay off the indebtedness, a deed or will would be executed, giving her the property. Some time later, she stated that her father said, “You know, I’m ninety-one years old, and nature teaches me that your Mother and I can’t be here much longer. We’ve got to do something about this property”; that they went to the house for dinner, and the mother agreed with the father that the property should be deeded to Darby. She testified that her mother or father never mentioned anything about appellee making a deed to the brother and sisters; she denied making any statements to anyone to the effect that the deed was executed only as a matter of getting the parents on welfare, and likewise denied that she had indicated to any of the heirs that the property would be divided among the children after the death of the parents.
We think it apparent that the proof on the part of appellants falls far short of meeting the burden required in this type of case. As stated in Nelson v. Wood, 199 Ark. 1019, 137 S. W. 2d 929:
“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 parole either a resulting trust 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. ’ ’
Appellants insist that circumstances, such as the fact that the Robbinses began to draw welfare payments soon after executing the deed, establish the truth of their assertion. But, of course, there are also other circumstances in the case; for instance, the fact that appellee lived and worked with her parents for many years, while the other children were away, and only returned for occasional visits. For that matter, it could well be that the desire for welfare payments contributed to the Robbinses ’ decision to make the conveyance at that particular time, rather than by later deed or by will. At any rate, irrespective of other considerations or contributing factors, the testimony is rather potent that the father and mother desired that Darby have the property. Appellants complain that the Chancellor paid too much attention to the testimony of the Notary Public; there is nothing in the record which indicates that he paid particular attention to this evidence because Bird was a Notary Public, but it may well be that the testimony of the disinterested witnesses (of which Bird was one) carried considerable weight with the Court in reaching its decision. While, of course, parties are perfectly competent witnesses, and decisions may well be based upon the evidence of those interested in the litigation, still, the testimony of those without pecuniary interest, or apparent bias toward any party, would normally be noted and considered in the deliberations of a Chancellor.
Be that as it may, we are of the opinion, and hold, that appellants have not shown by clear and convincing evidence, that there was an intention on the part of the parents, in deeding the property to appellee, to create a trust for the benefit of all the children, i. e., no resulting trust was established; nor is it shown by the required quantum of proof that the circumstances surrounding the execution of the deed, gave rise to a constructive trust.
Decree affirmed.
Mrs. Richey did not testify in the case.
Black’s Law Dictionary, 4th Edition, defines Resulting trust as follows: “One that arises by implication of law, or by the operation and construction of equity, and which is established as consonant to the presumed intention of the parties as gathered from the nature of the transaction. It arises where the legal estate in property is disposed of, conveyed, or transferred, but the intent appears or is inferred from the terms of the disposition, or from the accompanying facts and circumstances, that the beneficial interest is not to go or be enjoyed with the legal title.” Constructive trust is defined as: “A trust raised by construction of law, or arising by operation of law, as distinguished from an express trust. Wherever the circumstances of a transaction are such that the person who takes the legal estate in property cannot also enjoy the beneficial interest without necessarily violating some established principle of equity, the court will immediately raise a constructive trust, and fasten it upon the conscience of the legal owner, so as to convert him into a trustee for the parties who in equity are entitled to the beneficial enjoyment.” | [
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Jim Johnson, Associate Justice.
Appellant J. A. Hardin, a white man, was convicted of the crime of concubinage which is a felony. See Ark. Stats. §§ 41-806, 41-807. It was established that J. A. Hardin took a negro woman to a tourist court and had sexual intercourse with her. There was no effort on the part of the State to prove that Hardin and the Negro woman ever lived together in any way except in the act of sexual intercourse at the tourist court.
Hardin contended in the lower court and contends here that sexual intercourse standing alone is not sufficient evidence of the crime of concubinage. He raises other questions in this Court but we'need not discuss them.
This ease of Hardin was consolidated for oral argument in this Court with the case of Poland and Stephens v. State, 231 Ark. 669, 339 S. W. 2d 421, and the opinion delivered this day in the Poland and Stephens appeal clearly disposes of the present case. Therefore, in light of the opinion in the said Poland and Stephens, supra, the judgment of the Circuit Court in this case is reversed and the cause dismissed. | [
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