text
stringlengths 8
185k
| embeddings
sequencelengths 128
128
|
|---|---|
Paul Ward, Associate Justice.
Richard Wootton, appellant herein, was convicted of murder in the second degree and sentenced to 15 years in the State Penitentiary allegedly for killing one Ulice Miller in the late evening of October 17, 1959.
About noon on the above mentioned date appellant and the deceased, after completing a business transaction, planned to have a fish fry that evening at a designated site. It was also mentioned that others might be invited. Pursuant to this plan the deceased and one Dow-ell Clark went by appellant’s home around 3 o’clock that afternoon and loaded appellant’s boat on Clark’s pickup truck and then returned to the home of the deceased. Appellant purchased the necessary groceries and drove by deceased’s home about 4 o’clock when the three white men decided to send three negro men ahead to the “water hole” in Clark’s truck to make preparation for the fish fry. The three white men had some liquor, or one of them had some liquor, when they left the home of the deceased for the fish fry, and on the way they bought and drank some more liquor, arriving at the designated site around 5 o’clock. Appellant took along a .351 caliber rifle, Clark took a .22 caliber rifle, and the deceased took a 12-gauge shotgun. Later, around 8:30 o’clock while supper was being served appellant and Clark engaged in a controversy, and presently in a fight, over a cup of coffee. It seems that one of the negro men filled appellant’s cup too full of coffee after being told to only partially fill it. After this difficulty was apparently settled temporarily appellant and Clark engaged in one or two more fights in which the deceased intervened in behalf of Clark for the alleged reason that Clark was physically handicapped. The outcome of these difficulties was that appellant shot the deceased twice with his .351 rifle.
On appeal appellant relies on four designated grounds for a reversal of the judgment of the trial court. One challenges the sufficiency of the evidence, and relates to an Instruction refused by the trial court. The other three grounds challenge Instructions given by the court.
One. We cannot agree with appellant’s contentions that the evidence is insufficient to support the conviction of murder in the second degree. Appellant’s main point, in this connection, is that there is no evidence from which the jury could find the necessary element of malice. It is pointed out that the three white men involved had been the very best of friends up until the time this unfortunate occurrence took place. We agree that malice is a necessary element to constitute murder in the second degree. In Ballentine v. State, 198 Ark. 1037, 132 S. W. 2d 384 (at page 1039 of the Arkansas Reports) this Court said: “Malice, however, is a necessary element of murder, either in the first or second degree, and it must be either express or implied.”
The testimony relied on by appellant in his brief is substantially as hereafter set out. One of the negro men, known as “Sundown”, testified: We were all sitting around eating and I started to pour Mr. Wootton a cup of coffee; lie said lie just wanted a half a cup and I had it a little fuller than he wanted — he squeezed the paper cup a little too tight and some of the coffee ran out on his hand; I started pouring him some coffee in a glass cup and Mr. Clark spoke up and said “He don’t want no whole cup”; appellant looked around to Mr. Clark and asked what he had to do with it; they talked around a little bit but I don’t know just what they said; I looked around when appellant reached up and snatched Mr. Clark off the bumper of his truck and Mr. Clark just lay there with his legs crossed; the deceased said “You all quit that”; then the deceased pulled appellant off of Mr. Clark, and they started back to eating. Later while I was standing with my back to them I looked around and saw that appellant had Mr. Clark down again; the deceased walked up and said “You boys stop this, we want to have a good time”; the deceased caught Mr. Wootton in the back of his shirt collar and said “Get up off of that boy, Richard” (meaning the appellant); we started eating again when appellant reached for Mr. Clark again and the deceased ran up to stop him and the next thing I knew appellant and the deceased were “tussling” around; the deceased walked toward the fire and appellant walked between the trucks — he took a gun out of a scabbard and said “I am going to kill both of you s — of—h—.” I saw Mr. Miller as he was falling and he didn’t have anything in his hands. Howell Clark’s testimony was substantially as follows: We were eating and “Sundown” was pouring coffee; the cup he poured for appellant was too full and he said “I told you to pour me a half a cup”; “Sundown” got a glass cup and poured appellant coffee in it — I told him to pour a half a cup and appellant jerked me down; the deceased talked to appellant and got him to get up; I got up and appellant ran into me and knocked me down and the deceased helped me up; the deceased got between us and he and appellant scuffled; the deceased got up and started walking toward the fire, and appellant got up and went to his truck and pulled the rifle out and said “I am going to kill both of you s— of-b------.” One of the negro men named Easter testi fied in substance: Appellant told “Sundown” to get some coffee — he didn’t want a full cup; from then on I don’t know what happened until I saw appellant on Mr. Clark; and I didn’t pay much attention; in a little while I saw appellant had Mr. Clark down again and about that time the deceased got on appellant; the next thing that came to my attention was appellant taking a gun out of a scabbard and when I heard the shooting I was gone. The other negro man, Anthony Herron, testified: It seemed like Clark hit appellant on the head with something and then appellant grabbed him around the leg and they went down — the deceased wasn’t in it then but he got up and pulled appellant off of Clark and said “Don’t fight that crippled man”; the deceased got appellant loose from Clark, but they all continued fighting again; while they were out there I heard a gun fire and I left • — ■ later I heard two shots. Appellant testified substantially as follows: About 8:30 o’clock we had just finished eating and a negro poured a cup of coffee — I reached and got my cup; I reached and got the one mug of coffee and Clark said: “I want that cup” and I said your wife ought to have fixed you a cup if you wanted one and the next thing I knew he hit me with a bottle, I just reached and knocked his feet out from under him and we piled up there — we were all three fighting; we fought over an area as big’ as 10 or 15 feet and when I knew anything Clark had got to his pickup and fired a shot; I broke loose from Miller and made for my pickup and Miller ran around to where Clark was — and I came to my truck and opened the door and drug my rifle out and said “S — o—b------ put your guns down and come out” and they said “You put yours down and come out.” I said “No, it’s two against one”. They didn’t say a word and when I knowed anything Miller came around within 50 feet and that is when I shot — it was dark; I fired two shots although I had more cartridges in my gun; I quit shooting because I saw Miller fall. I had known the deceased six or seven years and we were friends; when I first saw the man that I shot he was between the trees and he squared himself with a shotgun; I couldn’t tell in the dim light who it was; I fired the shot at the man I shot to save my life; I saw the gnn and when he fell I quit shooting.
From the above it will be seen that there are some conflicts in the testimony of the eyewitnesses who were present. In the case of Higgins v. State, 204 Ark. 233, 161 S. W. 2d 400, this Court said: “It is a well settled rule that the evidence admitted at the trial will, on appeal, be viewed in the light most favorable to the appellee, and if there is any substantial evidence to support the verdict of the jury, it will be sustained”, citing-cases. Viewed in that light we are unable to say there is no substantial evidence to support the verdict of the court in this instance.
While malice is a necessary element of the crime for which appellant was convicted it is well settled by the decisions of this Court that malice may be implied from the facts and circumstances in the case, and it is our opinion that the facts and circumstances in this case justify an implication of malice on the part of appellant. In the case of Clardy v. State, 96 Ark. 52, 131 S. W. 46, we find this statement: “The law will imply malice where there is a homicide with a deadly weapon and no circumstances of mitigation, justification or excuse appear ; and proof of a homicide under such circumstances will warrant a conviction of murder in the second degree. The passion that will reduce a homicide from murder to manslaughter may consist of anger or sudden resentment, or of fear or terror; but the passion springing from any of these causes will not alone reduce the grade of the homicide. There must also be a provocation which induced the passion, and which the law deems adequate to make the passion irresistible.” We find nothing in the testimony to force the conclusion that appellant was faced with such provocation that it induced in him a sudden and irresistible passion such as would be necessary to reduce the crime of second degree murder to that of voluntary manslaughter.
In view of what we have heretofore said we cannot, of course, agree with appellant’s contention that the court committed reversible error in refusing to give the Requested Instruction No. 2. This Instruction reads: “You are instructed to find the defendant not guilty of murder in the second degree.”
Two. It is here insisted that the trial court erred in giving its Instruction No. 1. This is a very lengthy general Instruction covering the different degrees of homicide and it would serve no useful purpose to set it out in full. Appellant’s principal contention is that the instruction was argumentative and placed special emphasis on murder in the second degree. We are unable to agree with this contention. In this Instruction the court first told the jury that “Under the indictment it is competent for you, if you think the evidence justifies it, to convict the defendant of murder in the first degree, murder in the second degree, or of manslaughter, or to acquit him outright.” Appellant cannot complain that he was convicted of a lower degree of crime when he could have been, under the Instruction, convicted of a higher degree. See Bone v. State, 200 Ark. 592, 140 S. W. 2d 140. We have read the Instruction carefully and cannot agree with appellant that the Instruction places special emphasis on the crime of murder in the second degree.
In addition to the above it is pointed out that appellant made no proper objection and exception to the above mentioned Instruction. Before any of the court’s Instructions, consisting of sixteen in number, were given but after they had been discussed with the court appellant offered “a general objection to all of the Instructions to be given by the court.” This being a general objection en masse it does not properly present a question for the decision of this Court if any one of the Instructions is good. Some of the sixteen are not challenged. See Neal et al v. Peevey, 39 Ark. 337 and Jones v. State, 226 Ark. 566, 291 S. W. 2d 501. In addition to the form of the objection referred to above we fail to find that appellant saved his exceptions to the giving of the Instruction. This was necessary. See Yarbrough v. State, 206 Ark. 549, 176 S. W. 2d 702, and the cases cited therein.
Three. It is insisted by appellant that the conrt erred in giving its Instruction No. 7 regarding the law of self-defense, to parts of which he had a proper objection and exception. In this Instruction, among other things, the court said: “If there was no danger, and his belief in the existence thereof be imputable to negligence, he is not excused, however honest the belief may be.” We find, however, that this same language was approved in the case of Smith v. State, 59 Ark. 132, 26 S. W. 712.
It was insisted by appellant that Instruction No. 7 was erroneous in that it permitted the jury to find that appellant provoked or invited the deceased to make the attack on him. Again we are unable to agree with appellant’s contentions. As pointed out above, and taking the evidence in the light most favorable to the State, there was testimony, we think, from which the jury might have reached that conclusion.
Four. Finally, appellant insists that the court erred in giving its Instruction No. 11 regarding reasonable doubt. We have read this Instruction carefully and in our opinion it is a correct statement of the law. It is also pointed out that the objection to this Instruction was the same as that made to Instruction No. 1 heretofore discussed, and that likewise no exception was saved to the giving of the Instruction. Therefore, as heretofore pointed out, no question is properly presented for this Court’s consideration.
In addition to the above appellant brought forward a number of alleged errors in Ms motion for a new trial, many of which relate to instructions given and refused by the court. In most instances we find no proper objections were made and no exceptions saved, however, we have carefully examined each of these assignments and find in them no reversible error.
It is our conclusion, therefore, that the judgment of the trial court must be, and it is hereby, affirmed.
Affirmed.
Johnson, J., dissents. | [
81,
-6,
-36,
-97,
10,
96,
58,
-70,
-63,
-30,
103,
115,
45,
-45,
5,
97,
-13,
-3,
85,
123,
-59,
-73,
35,
64,
-80,
-13,
-21,
-43,
49,
111,
117,
-41,
8,
96,
-114,
85,
-26,
8,
-31,
-36,
-50,
12,
-71,
-15,
-46,
18,
48,
118,
116,
-121,
37,
-98,
-77,
42,
20,
-61,
-23,
44,
75,
47,
64,
57,
-86,
-113,
-3,
18,
-94,
7,
-66,
5,
-6,
45,
-104,
-79,
32,
104,
123,
-106,
-118,
116,
111,
-104,
12,
98,
99,
10,
73,
73,
-88,
-119,
47,
-81,
-83,
-121,
-98,
32,
99,
100,
-97,
-99,
118,
20,
46,
112,
-3,
-59,
89,
100,
3,
-41,
-76,
-93,
-83,
56,
-114,
-48,
-21,
-95,
20,
113,
-35,
-22,
92,
101,
88,
-5,
-116,
-78
] |
Paul Ward, Associate Justice.
Appellant, Manhattan Credit Co., Inc., repossessed a Ford automobile belonging to appellee, Mrs. Pat Brewer, under the provision of a chattel mortgage because of delinquent payments. Appellee sued for conversion, and the trial court, sitting as a jury, gave her judgment in the sum of $200. Appellant here seeks a reversal on the ground that there is no substantial evidence to show a wrongful taking of the automobile.
The chattel mortgage executed by appellee, dated April 22, 1959, shows that appellee was to pay $919.65 in fifteen equal monthly installments of $61.31. Pertinent language in the chattel mortgage reads as follows:.
“In case default be made in the payment of said debt ... or any of the payments above scheduled . . . said Mortgagee at his option, without notice, is hereby authorized to enter upon the premises of the Mortgagor or other places where said property might be, and take possession of and remove said property, . . . and without legal procedure, sell the same and all equity of redemption of the Mortgagor therein . . . and out of the proceeds of said sale pay all costs . . .; and apply the residue thereof toward the payment of said indebtedness . . . rendering the surplus, if any, unto said Mortgagor. . . .”
It is not denied that appellee was delinquent in her payments at the time of the taking, and she does not challenge the right of appellant to repossess the automobile under the above provisions of the chattel mortgage provided the repossession had been made in a proper manner. She does insist however that the retaking in this instance was not proper but that it was wrongful, and that the evidence so shows. Appellant takes the opposite view, and that constitutes the prime issue presented on this appeal.
Before reaching the prime issue it is necessary to dispose of two other questions that have arisen.
FIRST. It is stated by appellant that a mortgagee (in a chattel mortgage such as this) has the same right under our decisions to repossess without legal process that the seller has under a conditional sales contract, citing White River Production Credit Association v. Fears, 213 Ark. 75, 209 S. W. 2d 294, and Starling v. Hamner, 185 Ark. 930, 50 S. W. 2d 612. We find that most of our decisions in this connection have dealt with conditional sales contracts, and we do not find that the above cited cases are sufficiently clear and in point to fully sustain appellant’s contention. However, we deem it unnecessary to decide this particular issue one way or the other in view of the conclusions hereafter reached. Bather than to do so, without the benefit of proper briefing, we choose to give appellant the benefit of any doubt and treat the chattel mortgage as if it were a conditional sales contract.
SECOND. Appellee first takes the position that this court should not re-examine the sufficiency of the evidence to sustain the judgment of the trial court because appellant did not make a motion for a directed verdict at the close of all of the testimony. To sustain this point appellee cites Hot Springs Street Railway Company v. Hill, 198 Ark. 319, 128 S. W. 2d 369 and Dinet v. Rapid City, 222 F. 497. Again we by-pass a full discussion and definite determination of this rule as it applies to our procedure for the reason that we think it would have no application in this particular case where the trial court acted both as judge and jury. In arguing the case before the trial court it would have been a useless gesture for appellant to have filed a motion asking the judge to direct himself to direct a verdict in its favor. The question of the sufficiency of the evidence was squarely before the trial judge and he could have in no way been misled.
The prime issue is whether there is substantial evidence to support the trial court’s finding to the effect that appellant’s acts in repossessing the automobile amounted to conversion. The applicable rule (briefly stated) as set forth in many of our decisions, appears to be that there is a conversion if force or threats of force are used to secure possession of the automobile.
In this case the act of taking the automobile is conceded. The circumstances of the taking are not materially in dispute, and in setting them out we view them in the light most favorable to sustain the judgment. Appellant’s agent went to appellee’s home and found the automobile in the driveway at a time when appellee was in the bathtub. "While the agent was attempting to attach a towbar to the car appellee called her attor ney who told her the agent had no right to take the ear without legal process. She so informed her husband and he in turn told the agent that they objected to him taking the car. The agent disregarded these objections and, without consulting appellee, towed the automobile to a service station to pick up a spare tire (belonging to the car) left for repair. While the agent was in the process of obtaining the spare tire appellee and her husband drove up to the filling station and demanded the agent to unhook the automobile. This the agent refused to do. Then appellee went to the right side of the agent’s car and told him he couldn’t take it, but this warning was ignored. At about this time appellee’s husband went to the other side of the car and, while the agent was getting into the car, turned off the ignition. Thereupon the agent turned the ignition back on starting the motor, and started backing out of the filling station, causing Mr. Brewer to have to get out of the way. Thereupon the agent drove away with the automobile.
The ease of Kensinger Acceptance Corp. v. Davis, 223 Ark. 942, 269 S. W. 2d 792, presented a factual situation somewhat similar to the situation in this case. Davis had left his Ford truck with the finance company barring some kind of a settlement, and the company refused to let him remove the truck. The question appeared to be whether or not the company had threatened force to prevent Davis from removing his truck. As set out in the opinion the branch manager, Mr. Enochs, testified: “Q. Did you at any time touch Mr. Davis or threaten any bodily harm to him? A. No, sir. Q. You told him he couldn’t drive it off? A. I told him he wasn’t going to leave in the truck.” Following this the court said: "This was at a time when Davis was sitting in the truck with the key in his hand. It was not shown just how Enochs was going to prevent Davis from leaving in the truck except through violence. The evidence justifies a finding' that Enochs ’ statement was a threat of violence, was so intended by him and so understood by Davis.” (Emphasis supplied.) It appears to us that the court, in the above cited case, was saying that Davis could not have driven the truck away without using force himself. Likewise in the case under consideration, it appears equally clear that Mrs. Brewer could not have prevented appellant’s agent from driving her automobile away without her having to exercise force to prevent it.
The purpose of the rule against the use of threats of violence in these kind of cases appears to be that the conditional vendors may retake possession without legal procedure where and when they can do so peaceably and without incurring the risk of invoking violence. In the case of Ellis v. Smithers, 206 Ark. 247, 174 S. W. 2d 568, the court approved the following statement: “The conditional seller’s right to possession of the goods sold on default of the buyer may be exercised without recourse to the courts by retaking possession provided this can be done peaceably; and this is especially true where the contract expressly so provides.” In support of its right to take the automobile in this instance without legal process appellant relies upon our holdings in Barham v. Standridge, 201 Ark. 1143, 148 S. W. 2d 648; Ellis v. Smithers, supra, and Rutledge v. Universal C. I. T. Credit Corporation, 218 Ark. 510, 237 S. W. 2d 469. We find however that these cases are not in conflict with what we have heretofore said. In the Barham case the opinion states that there was evidence “that after the collision Mrs. Standridge brought the car to the motor company’s garage and surrendered it, stating at the time that she was unable to pay for it.” This testimony was contradicted by Mrs. Standridge, thus presenting a factual question for the jury. In the Ellis case the opinion states that: “Possession was obtained by appellees peaceably and without fraud. ’ ’ In the Rutledge case the opinion contained this statement: “Appellant did not give his permission, but he did not object. Massey then drove the car to appellant’s house where Mrs. Rutledge removed some personal effects from the car.”
From what we have heretofore said, it follows therefore that the judgment of the trial court must be, and it is hereby, affirmed.
Affirmed.
McFaddin, J., concurs. | [
80,
122,
88,
108,
10,
96,
42,
-102,
114,
-85,
39,
-45,
-77,
-61,
4,
45,
-10,
125,
117,
106,
85,
-77,
7,
8,
-46,
-69,
-7,
93,
-75,
79,
101,
-57,
76,
32,
66,
-107,
-58,
-118,
-3,
92,
-50,
-122,
24,
101,
-40,
64,
48,
-5,
16,
73,
113,
-114,
-13,
44,
59,
111,
104,
40,
91,
61,
-48,
-72,
-87,
13,
123,
3,
-95,
37,
-68,
101,
-8,
10,
-112,
113,
1,
-24,
122,
-74,
-122,
118,
39,
-97,
9,
34,
102,
-126,
32,
77,
-6,
-88,
42,
-50,
63,
-121,
-109,
121,
3,
97,
-66,
-97,
77,
0,
5,
-4,
-50,
-123,
29,
-28,
3,
-18,
-44,
-111,
-114,
116,
-102,
-117,
-1,
-110,
34,
113,
-51,
-14,
93,
71,
122,
-85,
-114,
-15
] |
Sam Robinson, Associate Justice.
Appellants were convicted of the crime of robbery. The only witness that connects the appellants with the offense is Mary Salmon. In these circumstances if she was an accomplice, the conviction cannot stand. The State proved that on the night of February 12, 1958, R. J. Wilson was robbed of about $195 in a liquor store at West Memphis. There is no evidence whatever which tends to show that appellants committed the offense except the testimony of Mary Salmon. She testified that she had known the defendants since 1956; that Marvin Sanders was her lover; that on the night of February 12th she and the defendants drove to West Memphis; that she knew the defendants had no money when they went there; that Marvin Sanders took a pistol out of the glove compartment of the automobile and put it under his belt; that the two men then got out of the car but that she stayed in the car; that the men were gone a few minutes and returned; they had one-half pint of liquor and she saw one of them stuffing money in his pocket; she knew at that time that they robbed the liquor store; she asked them if they had hurt the man in the store. She testified that she was charged with the robbery involved here but later the case was nolle prossed. She stated that she still loves Sanders; that he is the father of her child; that her husband is in the penitentiary; that she lived with another man named Chuck Tutor as his wife, at a time when she was married to her present husband. She testified that after the robbery was committed she and the two men went to her apartment in Memphis and there the men divided the money; they counted it out on a table in her presence. She denied that she got any part of it but stated that Froman stayed in her apartment until about 2 or 3 o’clock in the morning and that Sanders stayed there until the next day. She stated that she told Sanders’ stepmother about the crime having been committed, but told no one else about it for more than a year, when she told the Memphis police. The evidence shows conclusively that as a matter of law the prosecuting witness, Mary Salmon, is an accomplice.
Ark. Stats. § 41-120 provides: “An accessory after the fact, is a person who after a full knowledge that a crime has been committed, conceals it from the magistrate, or harbors and protects the person charged with or found guilty of the crime.” [Emphasis ours.] According to the undisputed testimony, Mary Salmon knew at the time that the men committed the robbery. She testified:
“Q. You knew they robbed something and you knew they robbed that liquor store, didn’t you?
A. Yes, sir.
Q. You came back to Memphis and you counted the money didn’t you? How was this money, currency or silver?
A. It was in bills and silver.”
Immediately following the robbery she harbored the men in her apartment. Undoubtedly she was an accessory after the fact. An accessory after the fact is an accomplice. In Polk v. State, 36 Ark. 117, the Court said: “An ‘accomplice’, in the full and generally accepted legal signification of the word, is one who, in any manner, participates in the criminality of an act, whether he is considered, in strict legal propriety, as a principal in the first or second degree, or merely as an accessory before or after the fact.” In Stevens v. State, 111 Ark. 299, 163 S. W. 778, the Court quoted with approval from State v. Jones, 91 Ark. 5, 120 S. W. 154, as follows: “ ‘. . . where a felony has been committed, the felon stands charged with the crime, and it is the duty of all persons, who know or have reason to believe that he is guilty of a felony to arrest him. One who, with a full knowledge that the crime has been committed, harbors and protects the felon, is guilty as accessory and may be punished as such, whether the principal offender be arrested or not. Any other view of the statute would permit a person to go unpunished who has been guilty of the most flagrant act of harboring and protecting a felon before a warrant of arrest could be procured, or an indictment could be returned.’ ” The Court also said in the Stevens case: “There is a conflict of authority as to whether an accessory after the fact is an accomplice, hut the decisions of this court are to the effect that he is.” On rehearing in the Jones case, Judge McCulloch said: “Under the statute now under consideration, it is unimportant how the knowledge is received by the alleged accessory; it is sufficient to constitute the offense if he knows, at the time he harbors and protects the felon, that the latter has committed the felony named in the indictment.”
In attempting to explain why she waited for more than a year after the alleged crime was committed before giving the information to the police, the witness, Mary Salmon, stated that she was scared, but she said she was not afraid of Sanders, and she does not indicate that she was afraid of Froman, and she stated that she was not afraid of the police. In fact, she gives no explanation of her asserted fear. In Wharton’s Criminal Evidence, 12th Ed., Vol. 2, p. 238, it is said: “Nor is one an accomplice who through fear of immediate danger to life or member conceals the commission of the crime. But ordinarily, ‘a person who aids and assists in the commission of a crime or in measures taken to conceal it and protect the criminal, is not relieved from criminality as an accomplice on account of fear excited by threats or menaces, unless the danger be to life or member, nor unless that danger be present and immediate as above announced. . . .” [Emphasis ours.]
In Henderson v. State, 174 Ark. 835, 297 S. W. 836, the Court said: ‘ ‘ The general test to determine whether a witness is or is not an accomplice is, could he himself have been indicted for the offense, either as a principal or accessory?” The witness, Mary Salmon, was indicted, although later the indictment was nolle prossed. But certainly, according to her own testimony in this case, her participation in the offense was sufficient to sustain a conviction on such an indictment if a jury had returned a verdict of guilty.
In Havens v. State, 217 Ark. 153, 228 S. W. 2d 1003, the Court said: “We have approved the follow ing test generally applied to determine whether one is an accomplice: ‘Conld the person charged (as an accomplice) be convicted as a principal, or an accessory before the fact, or an aider and abetter upon the evidence? If a judgment of conviction could be sustained, then the person may be said to be an accomplice. . . .5 ”
In Underhill’s Criminal Evidence, 5th Ed., Vol. 1, p. 335, it is said: “The burden is on the defendant to show that the witness for the state is an accomplice. This is usually determined by the court as a question of law. But if the evidence is conflicting as to the participation of the witness in the commission of the crime, the matter should be left to the jury under proper instructions as to intent and participation. ’ ’ Here there is no conflict in the evidence as to Mary Salmon’s participation in the crime. She waited in the automobile near the scene of the crime while the robbery was perpetrated; she knew the crime was committed; she permitted the two men to go to her apartment and divide the money obtained in the robbery; she harbored one of the men until 2 or 3 o’clock in the morning and the other until the next day.
It being established that she is an accomplice, the question that follows is whether there is any evidence corroborating her testimony connecting the appellants with the crime. Ark. Stats. § 43-2116 provides: “A conviction can not be had in any case of felony upon the testimony of an accomplice unless corroborated by other evidence tending to connect the defendant with the commission of the offense; and the corroboration is not sufficient if it merely shows that the offense was committed, and the circumstances thereof. . . .”
It will be noticed that the corroborating evidence must tend to connect the defendant with the crime. Corroborating evidence that the crime was committed and the details thereof are not sufficient. The corroborating evidence must be independent of evidence given by the accomplice. In Underhill’s Criminal Evidence, 5th Ed., Vol. 1, p. 401, it is stated: “The test of suf ficiency of corroboration has been stated to be whether, if the testimony of the accomplice is eliminated from the case, the testimony of the other witnesses be sufficient to establish the commission of the offense and the connection of the accused therewith.”
True, Mrs. Salmon knew the details of the crime; it was shown that the robbers tore the phone from the wall. She testified that she heard the men say they tore the phone loose. Mr. Wilson, the victim of the robbery, testified as to the denomination of the money taken in the robbery, and Mrs. Salmon testified that the money the robbers divided in her apartment was of similar denomination. But when the evidence is analyzed it is perfectly clear that if Mary Salmon’s testimony were eliminated, there would not remain a scintilla of evidence which tends to connect the defendants with the crime.
The jury returned separate verdicts finding each appellant guilty of robbery, but it is stated in each verdict that the jury are unable to agree on the punishment, leaving it to the court to fix the punishment, which the court did. Appellants contend that the statute authorizing the court to fix the punishment in certain cases is unconstitutional. Ark. Stats. § 43-2306 provides: “When a jury find a verdict of guilty, and fail to agree on the punishment to be inflicted, or do not declare such punishment in their verdict, or if they assess a punishment not authorized by law, and in all cases of a judgment on confession, the court shall assess and declare the punishment, and render judgment accordingly.”
Article 2, § 7 of the Constitution of Arkansas provides: “The right of trial by jury shall remain inviolate, and shall extend to all cases at law, . . .” Article 2, § 8 provides: “. . . but if, in any criminal prosecution, the jury be divided in opinion, the court before which the trial shall be had may, in its discretion, discharge the jury, and commit or bail the accused for trial at the same or the next term of said court; . . .” Article 2, § 10 provides: “In all criminal prosecutions the accused shall enjoy the right to a speedy and public trial by impartial jury. . . .” Article 2, § 21 provides: “No person shall be taken or imprisoned, or disseized of his estate, freehold, liberties or privileges; or outlawed, or in any manner destroyed or deprived of his life, liberty or property, except by the judgment of his peers or the law of the land; . . .”
The great weight of authority is that statutes similar to ours permitting the court to fix the punishment under certain circumstances are not unconstitutional. We agree with that view. State v. Hamey, 168 Mo. 167, 67 S. W. 620; Woods v. State, 130 Tenn. 100, 169 S. W. 558, L.R.A. 1915F, 531; Ward v. Hurst, 300 Ky. 464, 189 S. W. 2d 594; Lee v. Buchanan, Ky., 264 S. W. 2d 661. See also 31 Am. Jur. 575; 50 C. J. S. 784.
Since the accomplice’s testimony connecting the defendants with the crime is not corroborated, the judgment must be reversed. It is so ordered.
McFaddin, J., dissents.
George Rose Smith and Ward, JJ., concur. | [
80,
-18,
108,
-36,
58,
-96,
42,
-82,
-126,
-110,
-75,
-14,
-87,
70,
64,
105,
37,
-19,
84,
105,
-106,
-89,
7,
35,
-14,
-109,
-8,
-63,
-73,
-53,
-28,
-11,
68,
48,
-50,
89,
102,
90,
-25,
26,
8,
21,
-22,
-48,
122,
82,
48,
63,
-128,
7,
-11,
-98,
-13,
40,
20,
78,
105,
46,
79,
59,
80,
35,
14,
-123,
-33,
116,
-77,
100,
-102,
5,
-8,
58,
-104,
49,
0,
40,
113,
-106,
2,
68,
107,
-103,
-116,
98,
114,
0,
-100,
-119,
-88,
-123,
78,
119,
-99,
-113,
112,
73,
1,
37,
-65,
-99,
111,
81,
38,
-16,
-13,
77,
25,
96,
44,
-50,
-76,
-80,
45,
56,
18,
-13,
-13,
49,
32,
97,
-51,
34,
93,
53,
114,
-69,
-50,
-15
] |
Paul Ward, Associate Justice.
Appellee, Earl H. Stewart, was employed by Ben Pearson, Inc. for approximately eleven months in 1956 where he received $1.05 an hour as a nonunion laborer. He was then employed for several months by the International Paper Company at Pine Bluff, where, as a member of a labor union, he performed common labor for $1.50 per hour. Appellee was laid off from work by the Paper Company on June 13, 1958. Appellee then registered for work at the Employment Security Local Office, by which office he was referred to his former employer, Ben Pearson, Inc., where employment was offered to him as a truck driver at $1.05 per hour for the duration of the job.
Appellee refused to accept employment with Ben Pearson, Inc. on the terms above stated. The reason .appellee refused to accept employment was, as he con tends, because the rules of tbe labor union to which he belonged subjected him to a fine and possible discharge from the union for accepting a job paying less than the union scale.
The Local Office disqualified appellee pursuant to Section 5 (c) of the Employment Security Act (§ 81-1106 of Ark. Stats.) for failing without good cause to accept “available suitable work when so directed by the Employment Office ’ ’. The Appeal Section and the Board of Review affirmed the disqualification by the Local Office, also holding claimant ineligible pursuant to Section 4 (c) of the Employment Security Act (§ 81-1105 of Ark. Stats.) on the grounds that appellee had not done “those things a reasonable, prudent individual would be expected to do to secure work” and was, therefore, “not available for such work”. The Circuit Court, upon appeal to it, reversed the decision of the Board of Review on the ground that Section 5 (c) (2) (c) of the Employment Security Act (§ 81-1106 (c)(2)(c) of Ark. Stats.) made the work at Ben Pearson, Inc. unsuitable. Apparently the Circuit Court’s decision was based on the belief that to require appellee to accept employment with Ben Pearson, Inc. at wages less than union scales amounted to requiring appellee to resign from his labor union. Prom the above decision of the Circuit Court, C. P. Thornbrough, Commissioner of Labor, has prosecuted this appeal.
The pertinent facts in this case are not in dispute. Appellee lost his job with the International Paper Company without blame on his part. He was, for all purposes of this opinion, entitled to receive benefit payments under the Employment Security Act UNLESS he forfeited his right to receive such payments by refusing to accept employment with Ben Pearson, Inc.
Whether or not appellee did forfeit his right to benefit payments presents a question of law involving the interpretation of a portion of the Act heretofore mentioned. The portions of said Act with which we are here concerned are found in Ark. Stats. § 81-1106. Under Subsection (c) [in the Supplement] of the above Sec tion appellee became disqualified to receive payments if he “failed without good cause to . . . accept available suitable work” when it was offered to him. It is not denied here by appellee that suitable work was offered to him except for one thing, that is, he would be subjected to the possibility of being fined or discharged by his union if he accepted work for less than union wages. It was, therefore, contended by appellee that he had good cause to refuse the job and that he was protected (from disqualification) by Subsection (c) (2) (c) of said Ark. Stats. § 81-1106 which reads: “. . . if as a condition of being employed, the individual would be required to join a company union or to resign from or refrain from joining any bona fide labor organization”.
The trial court held, in effect, that the threat to appellee of being fined or discharged by his union amounted to requiring him to resign from his union. In so holding we think the trial court fell into error. It is true that the trial court had no precedent laid down by this Court by which to be governed in reaching its decision, but we find the question has been uniformly resolved adversely to appellee’s contention by numerous decisions of other jurisdictions.
A similar factual situation under essentially the same statute with which we are here concerned was resolved as above indicated by the Supreme Court of Ohio in Chambers v. Owens-Ames-Kimball Co., et al, 146 Ohio 559, 67 N. E. 2d 439, 165 A. L. R. 1373. In that case the Court, in answer to the same contention here made by appellee, among other things, said:
“. . . the interpretation of appellee would make the operative effect of a refusal to work depend entirely upon the whim or caprice of an organization to which the applicant for unemployment compensation might belong. It is within the range of possibility that a labor organization might adopt a rule that no member could work where negroes are employed, or where the employment calls for more than four hours as a day’s work, or where the place of business of an employer is more than a mile from the residence of the unemployed member, or where an employer fails to maintain certain facilities relating to the conditions of employment, even though not required by law so to do, or where an employer does not pay a wage equal to the union wage for the same kind of work.
Under such an interpretation, the right of the applicant for unemployment compensation would not be fixed or determined by the provisions of the statute but by rules adopted by organizations in which the applicant has membership. Such interpretation of the statute, and as a consequence its administration in conformity to such interpretation, is clearly untenable.
Under appellee’s interpretation of the statute, an unemployed nonunion workman would be obliged to accept the same job which the appellee refused to accept and would be required to work without right to participate in the unemployment compensation benefits. ’ ’
We have set out the above quotations for the reason that they set forth the basis upon which the Court made its determination, and because we think the reasoning set forth therein is sound and convincing.
Our research reveals that the conclusion and the reasoning in the Chambers case, supra, appears to be universally adopted in other jurisdictions. Among such decisions we call attention to the following: Paulee Mills v. Mississippi Employment Security Commission, 228 Miss. 789, 89 So. 2d 727, 56 A. L. R. 2d 1010; Bigger v. Unemployment Compensation Commission, 4 Terry 553, 43 Del. 553, 53 A. 2d 761; Barclay White Company v. Unemployment Compensation Board of Review, Department of Labor and Industry, 159 Pa. Super. 94, 46 A. 2d 598; Dwyer v. Appeal Board of Michigan Unemployment Compensation Commission, et al, 321 Mich. 178, 32 N. W. 2d 434; and Unemployment Compensation Commission v. Tomko, et al, 192 Va. 463, 65 S. E. 2d 524, 25 A. L. R. 2d 1071.
It is our conclusion, therefore, based on the foregoing, that the judgment of the trial court must be, and it is hereby, reversed and tbe cause of action is dismissed.
Reversed and dismissed. | [
48,
-22,
-40,
-100,
27,
-32,
26,
-110,
83,
-95,
39,
83,
-17,
-41,
20,
81,
-13,
45,
53,
43,
-36,
-109,
17,
105,
-62,
-13,
-21,
-15,
-67,
107,
-12,
84,
76,
48,
10,
-43,
-26,
64,
-52,
-104,
78,
36,
104,
-17,
120,
0,
40,
59,
-80,
75,
17,
-106,
-77,
44,
24,
75,
104,
44,
127,
-96,
-48,
-15,
26,
-116,
127,
84,
-77,
69,
-66,
5,
-8,
47,
-104,
49,
0,
-8,
58,
-90,
-122,
118,
107,
-71,
13,
98,
99,
16,
-95,
-121,
-20,
56,
6,
-6,
29,
-90,
-111,
56,
75,
74,
-98,
-103,
124,
20,
6,
126,
-14,
5,
31,
36,
3,
15,
-16,
-95,
-115,
100,
-108,
-117,
-21,
2,
19,
113,
-50,
-94,
93,
103,
122,
31,
-121,
-104
] |
J. Seaborn Holt, Associate Justice.
This is an action in which appellee, Nancy Fair, seeks to set aside a divorce decree on the ground of fraud in the procurement of said divorce. The record reflects that Mark L. Fair (deceased) and Nancy Fair (appellee) were married in 1938 and separated in March 1944. The last time that Mr. and Mrs. Fair communicated directly with each other was sometime around Easter 1946. During August, 1950, Mr. Fair filed suit in Crittenden County, Arkansas, for divorce alleging that he and his wife had lived apart three years without cohabitation and prayed that he be granted a divorce. On October 16,1950 he was granted a decree of divorce from Mrs. Nancy Fair. On June 19, 1958 Mr. Fair died and Mrs. Fair, appellee, was notified of his death on June 21, 1958. Shortly thereafter, while checking on a burial policy of Mr. Fair’s and in talking to the manager of the Thompson Brothers Funeral Home, it appears that Mrs. Fair was first apprised of the fact that her husband had procured a divorce. This was confirmed on August 8,1958 when a certified copy of the divorce decree was procured from the court records of Crittenden County, Arkansas. Mrs. Fair filed the present suit to set aside the above decree of divorce primarily on the ground that fraud was used in the procurement of it and that she was never notified of the filing or pending of said divorce suit. On a trial the lower court, after hearing all the testimony, set aside the divorce decree and the administrator of Mr. Fair’s estate, Norman Brooks Fair, has appealed relying on the following points for reversal: (1) Fraud was not proved, (2) Mrs. Fair is guilty of laches, and (3) the trial court was without jurisdiction to hear the case. We have reached the conclusion that the decree should be affirmed on the ground that appellee’s proof shows that the decree of divorce in favor of Mr. Fair was fraudulently procured during Ms lifetime.
I
The appellee, in charging Fair with fraud in the procurement of the divorce, asserts that he supplied his attorney and the attorney ad litem with an improper address as the place of Mrs. Fair’s residence, with the result that she.received no notice whatever of the pendency of the divorce proceeding. This charge, if supported by the weight of the evidence, constitutes such a fraud as to justify the court in setting aside the decree. Murphy v. Murphy, 200 Ark. 458, 140 S. W. 2d 416; Lewis v. Lewis, 214 Ark. 454, 217 S. W. 2d 346. In the Murphy case, upon essentially similar facts, we said: “Another fraud more subtle and, therefore, more egregious was his action in giving an improper address as the place of his wife’s residence. This prevented her from knowing that she had been sued until after she had been divorced. Such frauds will not be tolerated. ’ ’
Fair, in filing suit for divorce in Crittenden County, gave two possible addresses for his wife, both of wMch were insufficient and resulted in the letters of the attorney ad litem being returned to him by the postal authorities. The first address given was 171 Merton Street, 'Memphis, Tennessee. The proof shows that Mrs. Fair had never lived at this address. Mr. Fair, however, was familiar with the property, as he had formerly owned it. At the time of the divorce case a Mr. and Mrs. Richter were living at 171 Merton Street. Mrs. Richter was a sister of Fair’s daughter-in-law, and Mr. Richter was one of the two corroborating witnesses who testified for Fair in the divorce ease. In the present proceeding Richter testified that in 1950 he knew that Fair was getting a divorce and that when the letter for Mrs. Fair arrived he turned it back and “just put on there she didn’t live there.” Thus there are strong reasons for concluding that Fair well knew that a letter sent to 171 Merton Street would never reach his wife.
The second address given was General Delivery, Vicksburg, Mississippi. Mrs. Fair had lived in Vicksburg as a girl and in 1950 still had a post-office box there, in her maiden name, which was used by her mother and other members of her family. Fair had often visited in the family home and undoubtedly knew the address of his mother-in-law there. That the address given was insufficient is of course established by the fact that the letter was returned. Just as in the Lewis case, supra, the fact that Fair made no effort to reach his wife through her mother strongly indicates a lack of good faith on his part. There is also the additional fact that Mrs. Fair was working in a bowling alley in Memphis, just across the river from Crittenden County, that Fair had visited her at the bowling alley on two or more occasions, and that he could easily have used that address to notify her of the divorce case. Hence the weight of the evidence shows clearly, indeed almost conclusively, that Fair practiced a fraud in obtaining the divorce decree.
II
We cannot agree with the contention that the appellee was guilty of laches in not filing the present complaint until April, 1959. Fair’s fraudulent conduct prevented her from knowing about the divorce case when she was sued, and she did not learn of the decree until after Fair’s death in June, 1958. There was no lack of diligence on her part, nor was the appellant adversely affected by the delay of a few months between the appellee’s discovery of the divorce decree and the institution of this proceeding to set it aside.
The appellant also argues that the complaint to set aside the decree is defective in failing to allege a meritorious defense to the original action. Ark. Stats., Anno. (1947) § 29-508; Wims v. Wims, 214 Ark. 811, 218 S. W. 2d 85. This contention we hold to be without merit. Fair obtained the divorce on the ground of three years separation, and it was impossible for the appellee to assert a meritorious defense to the cause of action for divorce, as she admits the fact of three years separation. Hence, under the statute, Fair had a right to a divorce. Ark. Stats., Anno. (1947) § 34-1202. But the statute says that the question of who is the injured party shall be considered in the settlement of property rights and alimony. Upon that point the appellee’s complaint does assert a meritorious defense, by alleging that the parties lived together until December 6, 1945, “when the said Mark Lee Fair deserted her (the appellee).” The complaint therefore asserts the only defense that could be asserted — that the appellee was the injured party.
Ill
The appellant’s third contention, that the court was without jurisdiction, is based upon the argument that nothing would be accomplished by setting aside the divorce decree now that Fair is dead, since his death freed the appellee from the bonds of marriage. But, as stated in the headnote to Jackson v. Bowman, 226 Ark. 753, 294 S. W. 2d 344: “Chancery courts have the power to set aside a default decree of divorce, even after the death of one of the parties, if property interests of the survivor are affected.” In this case it appears that Fair left a substantial estate, situated in Florida, and the vacation of the Arkansas divorce decree is evidently a necessary step to enable the appellee to assert her rights as Fair’s widow.
Finding no error, the decree is affirmed.
McFaddin, Ward, and Johnson, JJ., dissent. | [
48,
-20,
-12,
29,
42,
-96,
10,
-86,
98,
-87,
39,
83,
-19,
114,
68,
121,
110,
41,
112,
120,
-43,
-73,
23,
96,
114,
-13,
-39,
-49,
-80,
109,
38,
-42,
-20,
32,
-62,
-43,
70,
-118,
-125,
16,
-122,
2,
9,
-19,
89,
-60,
48,
-17,
86,
13,
81,
-82,
-45,
-87,
63,
-49,
108,
44,
91,
50,
80,
-80,
26,
68,
127,
2,
-77,
6,
-122,
-123,
88,
46,
-104,
57,
0,
-7,
59,
-74,
-46,
116,
99,
-5,
0,
112,
99,
81,
-123,
-81,
-72,
-120,
-106,
122,
-99,
-90,
-106,
72,
99,
5,
-74,
-108,
100,
16,
-102,
-2,
124,
-123,
29,
100,
43,
-50,
-42,
-79,
20,
58,
-100,
11,
-29,
-29,
16,
113,
-51,
-32,
92,
70,
19,
-101,
-50,
-78
] |
J. Seaborn Holt, Associate Justice.
Tbis is an action for damages for alleged false arrest and false imprisonment. A trial resulted in a judgment for the defendants [appellees here] and this appeal followed. The evidence reveals that the appellant, Mrs. Ruby A. Wells, and her late husband, L. L. Wells, were doing business as the “Arkansas Tastee Freez Company,” and as such entered into a franchise agreement with the Harlee Manufacturing Company of Chicago, Illinois. Under the terms of this agreement, Mr. and Mrs. Wells were granted the exclusive privilege for the sale and distribution of Harlee Ice Cream Freezers in a designated territory in Arkansas which included St. Francis County. In addition, the Wells were entitled to lease one Harlee automatic ice cream feeder, a dispensing device, for each ice cream freezer sold in the territory. The Wells, in turn, sold ice cream freezers and leased automatic ice cream feeders in their designated area to individual proprietors of dairy stands who catered to the public by selling ice cream. One of the conditions upon which the feeders were leased by the Wells was that only an ice cream mix known by the trade name of “Tastee Freeze” would be used in the feeders and that violation of the terms of the condition would entitle the Wells, without notice or legal action of any kind, to take possession of the feeders free and clear of any claim of the lessee. In 1953, Mr. Charles Adams procured equipment from Mr. Wells to set up a dairy stand in the town of Hughes. Included in the equipment was an automatic ice cream feeder. At the trial it was contended by Mrs. Wells that the feeder was leased; Adams, on the other hand, maintained that he purchased the feeder from Mr. Wells. Another provision under which the feeders were leased, was that they would be serviced by appellant, Wells. On June 13, 1958, Mrs. Wells testified that she was in the town of Hughes to service the feeder, having received a complaint from Adams that the feeder was not working properly. During the course of inspecting the machine and repairing it, Mrs. Wells discovered that an ice cream mix other than “Tastee Freez” was being used in the feeder contrary to the express provisions of her alleged agreement. Upon discovery of this fact, Mrs. Wells informed the attendant at the stand that she would have to take the feeder with her and loaded it in her car. Shortly thereafter, Adams was notified of what had happened by one of his employees and upon receiving this information, he radioed the city police from his ear and an officer, Wil liam L. Harris, was dispatched to aid Adams in the search for Mrs. Wells. Mrs. Wells was located, and though the record is in dispute, it appears that she either voluntarily or involuntarily went to the City Hall and either voluntarily or involuntarily remained there for some two and one-half to three hours while attempting to call her attorney. Mrs. Wells testified that she was released when she removed the keys to her car from her bosom where she had secreted them. The keys were taken, a search made of her car, and the feeder recovered. As indicated, Mrs. Wells filed the present suit alleging in her complaint that she was falsely arrested and falsely imprisoned and prayed that she be awarded damages.
Appellees answered with a general denial. Trial was had before a jury and a verdict returned in favor of the defendants [appellees]. This appeal followed.
The sufficiency of the evidence to support the verdict is not an issue on this appeal since appellant, Mrs. Wells, admitted that the evidence was sufficient to support the jury’s finding that she was not falsely imprisoned but for reversal she relies on the following points: “I. The court erred in giving defendants’ Instruction No. 1 and refusing to give plaintiff’s requested Instruction No. 5. II. The court erred in giving plaintiff’s requested Instruction No. 3, as modified by the court. III. The court erred in allowing the introduction of defendants’ exhibits No. 7 and No. 8.”
-I-
We have reached the conclusion that appellant is correct in her first contention above that the trial court erred in giving Instruction No. 1 over her objections. This instruction contained this provision: “You are instructed that false imprisonment is a trespass committed against the person of another by unlawfully arresting and detaining him without any legal authority, or by instigating such unlawful arrest. It must be proved that the arrest was without legal authority before an action can be founded upon a false imprisonment.” We hold that the vice in the above instruction lies in the language of the last sentence -which clearly imposed the burden on the plaintiff [Mrs. Wells] of not only proving imprisonment but also the burden of proving that the imprisonment was unlawful. We think that this instruction is in conflict with our holding in Missouri Pacific Railroad Company v. Yancey, 180 Ark. 684, 22 S. W. 2d 408, where we said: “* * * The action was one for false imprisonment, and, the arrest having been proved by the undisputed evidence, the burden was upon the defendant to show that it was by authority of law. Every imprisonment of a man is a trespass; and in an action to recover damages therefor, if the imprisonment is proved or admitted, the burden of justifying it is on the defendant, [appellees here] Citing cases.” Also in support of this statement, the Supreme Court of Michigan in the case of Elmer Burlingame Donovan v. James S. Guy and Edwin James Ward, 347 Mich. 457, 80 N. W. 2d 190, said: “As general proposition, it must be admitted that it is only necessary for the plaintiff, in action for false imprisonment, to show that he has been imprisoned or restrained of his liberty; the presumption then arises that he was unlawfully imprisoned, and it is for the person who has committed the trespass to show that it was legally justified.”
-II-
Appellant’s next contention is that Instruction No. 3 of the plaintiffs [appellees] as modified by the court in which the court instructed the jury that if it found that the plaintiff [Mrs. Wells] had been imprisoned and had suffered damages thereby, they would be justified in awarding such damages. The appellant says that false imprisonment is a trespass and every trespass carries with it at least nominal damages to which she was entitled. While this seems to be a correct statement of the law, this court has many times held that we would not reverse for failure to award nominal damages. Yampert v. Johnson, 54 Ark. 165, 15 S. W. 363, Laflin v. Interstate Construction Company, 181 Ark. 1110, 29 S. W. 2d 280, Brown v. Bradford, 175 Ark. 823, 1 S. W. 2d 14.
-ni-
The third point urged for reversal is that the trial court erred in admitting in evidence a search warrant supplied by appellee, Adams, to show lack of malice and good faith on the part of appellees. Appellant insists that good faith and lack of malice must be specially plead and cannot be in issue on general denial. We do not agree. The plaintiff [appellant] put the issue of punitive damages in the case by her pleadings. Since exemplary or punitive damages are not allowed in this state without a showing of malice, wantonness, or lack of good faith, Kroger Grocery & Baking Company v. Waller, 208 Ark. 1063, 189 S. W. 2d 361, the appellees had the right to deny that part of appellant’s complaint asking for punitive damages and by so doing, show that they acted in good faith and without malice. The search warrant and the affidavit for it, as going to show good faith, were properly admitted. In Elrod v. Moss, et al, 4 Cir., 278 F. 123, an invalid search warrant was held to be properly admitted to refute the charge of malice and show good faith on the part of the officers in a false imprisonment suit. The court there said: “The so-called John Doe search warrant in the possession of the defendant Gosnell as a federal officer, although properly held invalid by the court, was clearly admissible to refute the charge of malice and wantonness. The search warrant under which Moss acted, even if its period of validity had expired, was admissible for the same purpose.” See also the case of Richardson v. Huston, 10 S. D. 484, 74 N. W. 234, where it was held the defendants were entitled to show under a general denial, all the facts and circumstances connected with an arrest in order to disprove the malice and thereby prevent a judgment for exemplary damages, and accordingly it was held error to exclude such evidence even though it might have some tendency to raise the defense of justification which had not been pleaded. To the same effect is Adair v. Williams, 24 Ariz. 422, 210 P. 853.
Accordingly, for error indicated the judgment is reversed and the cause remanded. | [
113,
-36,
-51,
-114,
30,
96,
58,
-98,
67,
-93,
39,
115,
-85,
-44,
21,
107,
-9,
111,
84,
121,
-109,
-73,
7,
2,
-46,
-5,
-39,
-45,
-79,
-55,
108,
-44,
76,
52,
-126,
69,
-26,
-54,
-27,
-104,
-58,
32,
43,
-32,
83,
3,
48,
107,
84,
11,
113,
-122,
-69,
46,
17,
-57,
-88,
36,
73,
47,
80,
-15,
58,
77,
93,
22,
-80,
6,
-110,
5,
90,
14,
-102,
-72,
1,
-24,
114,
-74,
-62,
116,
33,
-103,
0,
98,
99,
-73,
-115,
-17,
-20,
30,
-105,
-1,
13,
39,
-48,
65,
3,
12,
-67,
29,
122,
16,
-118,
-16,
110,
-60,
27,
112,
-125,
-54,
-108,
-127,
-114,
-75,
-108,
30,
-21,
7,
48,
117,
-59,
-90,
92,
6,
127,
-33,
-50,
-110
] |
OPINION OF
THE COURT.
This was a suit originally brought by Bell against Bil-lingsley, before a justice of the peace, who rendered judgment for Bell, and from which Billingsley, on the day of trial, prayed an appeal to the Crawford circuit court, which was granted, and a transcript of the proceedings sent up to that court. Upon the calling of the cause, Bell moved to dismiss the appeal, and this motion was sustained.
From the bill of exceptions, it is apparent that the court acted under a misapprehension of the fact that an appeal had been prayed by Billingsley on the day of trial. Such being the fact, the court erred, for the law is express that notice to the opposite party need only be given where the appeal is not prayed on the day of trial. Geyer’s Dig. 391. It has been said that, as the appeal bond was not entered into on the day of trial, the appellant could give bond within ten days. This is true, and as the bond in this instance was executed in that time, it is sufficient Geyer’s Dig. 390. Reversed. | [
116,
120,
-100,
-113,
10,
32,
2,
-102,
81,
-29,
-29,
83,
-87,
-45,
4,
107,
-77,
125,
85,
107,
-35,
-73,
119,
97,
-6,
-13,
-45,
-43,
-79,
94,
-25,
127,
76,
32,
-62,
-43,
102,
-54,
-51,
-48,
-114,
-123,
9,
-20,
-39,
80,
48,
59,
86,
11,
65,
-98,
-29,
42,
24,
-17,
-23,
40,
-53,
61,
80,
112,
-101,
-83,
95,
6,
-111,
38,
-100,
7,
122,
62,
-112,
53,
3,
-8,
114,
-122,
-128,
20,
105,
-71,
40,
102,
102,
1,
101,
-1,
-88,
40,
94,
86,
-107,
-90,
-112,
72,
73,
108,
-74,
-97,
39,
20,
-89,
124,
-18,
-106,
80,
44,
1,
-49,
-74,
-73,
-115,
122,
-106,
9,
-29,
35,
48,
113,
-50,
-22,
92,
103,
51,
-37,
-114,
-108
] |
McHaney, J.
On August 25, 1926, the late Congressman, Otis Wingo, and his wife, the appellee, convey ed by warranty deed a certain eleven-acre tract of land adjacent to DeQueen, in Sevier County, Arkansas, to Robert A. Brown for a consideration of $5,500, of which $500 was paid in cash, and for the remainder notes were executed and a vendor’s lien was retained in the deed to secure the payment of the unpaid purchase money, represented by said notes. Said deed contained the following clause: “It is further agreed that, upon full compliance with all of the conditions herein set out, the grantor will release the lien herein retained upon any lot or parcel of said land, and upon the payment to the legal holder of the notes of 3% cents per square foot, embraced in the said lot, provided that interest due at the subsequent semi-annual interest payment periods is paid, which said payments shall be applied upon the indebtedness.”
This clause was placed in the deed to enable Brown, who was constructing a number of residences in DeQueen and vicinity at that time, to construct houses on certain lots in said eleven-acre tract, clear the title thereto by procuring a release of the vendor’s lien to such lots without paying the whole of the balance of the purchase money due on the whole tract. This enabled him to borrow money to construct the houses by showing a clear title to any particular lot or tract on which he decided to build a house. The tract in controversy is a lot 100 by 110 feet. Brown began the construction of a residence and garage thereon in the fall of 1926. He applied to appellant for a loan of $2,000 thereon for the purpose of completing the construction of said building, and, in order to clear the title, he procured a release deed from Mr. Wingo to said lot, which was placed of record. Thereafter appellant approved Brown’s application for a loan, advanced to him the sum of $2,000 on January 14, 1927, taking a mortgage on said plot of ground which described the plot the same as in the release deed from Wingo to Brown which was executed on the 3d day of December, 1926. Brown completed the residence and garage, and he built two other residences on the eleven-acre tract in the same way. Brown failed to pay for certain materials and labor entering into the construction of said buildings, and mechanics’ liens were filed against them. Suits were brought to enforce said liens in which Wingo was made a party, and he filed an answer and cross-complaint, alleging default of Brown in the payment of his notes, and prayed a foreclosure of the lien retained in his deed to Brown. It was granted as to the entire tract less three small lots upon which buildings had been erected and which had been released from his vendor’s lien. Appellant’s mortgage on the lot in controversy was held to be second and subsequent to the materialmen’s liens which were adjudged against it. The property was sold under the decree of foreclosure, and Mr. Wingo became the purchaser of all the land not released, and appellant became the purchaser of the lot in controversy, said sales being duly approved and deeds thereto acknowledged and approved. In all these proceedings the lot in controversy was described as in the release deed from Wingo to Brown above mentioned. Later, appellant sold the lot in controversy to one McCown, taking a mortgage from him and wife for the purchase price. In December, 1930, appellant foreclosed the McCown mortgage and reacquired the property at the foreclosure sale, and in all these proceedings said lot was described as in Wingo’s release deed to Brown. Mr. Wingo died testate in 1930, and, under the terms of his will, appellee became the owner of his real estate, subject to all of the rights and liabilities attaching to it at the time of his death. In October, 1932, appellee wrote appellant a letter stating that in running the lines on her property known as Wingo Hill, she found that the house owned by appellant, being the tract in controversy, was on. a part of her property; that one-half of the garage, two door steps, the southwest corner of the house and all of the front yard were on her land. She demanded $500 rent for the use of it, and offered to sell sixteen feet of it on the east side, forty feet on the south side, and fifty feet on the west side, in order to enable appellant to handle its property. Mr. Byington, agent for appellant at DeQueen, and a surveyor, assisted the appellee in making the survey in which it was discovered that the house on the appellant’s tract of land extended over the lines, and onto appellee’s property as heretofore stated. There after appellant instituted this action to reform the release deed from Wingo to Brown and all subsequent transactions affecting the title to said lot so as to describe a tract of ground 100 by 110 feet on which the improvements' would be situated without extending over to appellee’s property. The court denied reformation, and this appeal is from that decree.
We think the court erred in refusing to reform the release deed in question, and all other instruments thereafter affecting the title to said lot based on said description. It is clear from the language used in the deed from Wingo to Brown that it was the intention of Mr. Wingo to release any particular plot or tract of ground which Mr. Brown desired to have released, upon the payment to him or to the holder of the notes of 3% cents per square foot. It was manifestly the intention of Brown and of Wingo in the execution of the release deed to the plot in controversy to release from the vendor’s lien the ground on which Brown was then building the improvements mortgaged to appellant. His failure to do so was the result of a mutual mistake. While Brown did not testify and Wingo is now dead, we think all the facts and circumstances clearly indicate that Brown did not intend to build a house or any improvements on land belonging to Wingo, and that Wingo did not intend that he should do so. The error was due to Brown’s failure to properly describe the tract he wished released. Brown intended to get released the land on which he was then building a house, the foundation of which had already been laid, and it was Wingo’s intention that this should be done. Brown’s error in describing the tract was also Wingo’s error in releasing it. This makes a clear case of mutual mistake. This court has many times held that courts of equity are vested with jurisdiction to reform instruments, including deeds and mortgages, in order to give effect to the intention of the parties. Clark v. Roots, 50 Ark. 179, 6 S. W. 728, 8 S. W. 569; Smith v. Kaufman, 145 Ark. 548, 224 S. W. 978; Glover v. Bullard, 170 Ark. 58, 278 S. W. 645; Foster v. Dierks Lumber & Coal Co., 175 Ark. 73, 298 S. W. 495. The general rule is that equity has jurisdiction to cancel or reform written in struments, either where there is mutual mistake or where there has been mistake of one party, accompanied by fraud or other inequitable conduct of the other. "We held in Sherwin-Williams Co. v. Leslie, 168 Ark. 1049, 272 S. W. 641, that, where the uncontroverted proof showed that it was the intention of the parties to a deed that certain lands should have been included, and that it was omitted through the oversight of the scrivener who prepared the deed, as between such parties, the deed will be reformed. Many other eases might be cited. This court has also held in Blackburn v. Randolph, 33 Ark. 119, that: “Where a mistake in description of land occurs in a series of conveyances, under such circumstances as would entitle any one of the vendees to a reformation as against his immediate vendor, the equity will work back through all, and entitled the last vendee to a reformation against the original vendor,” to quote the second syllabus. This same rule was reaffirmed in the case of Modica v. Combs, 158 Ark. 149, 249 S. W. 567.
Nor do we agree with appellee that the decision in the mechanics’ lien case herein referred to constituted res judicata of appellant’s rights. All these proceedings were based upon the erroneous assumption that the description in Mr. Wingo’s release deed was correct. This holding will work no injury to appellee, but the contrary holding would work a great loss to appellant.
The. decree will be reversed, and the cause remanded with directions to reform the release deed of Mr. Wingo, and also all subsequent instruments incorrectly describing the tract of land, in accordance with the prayer of appellant’s complaint. | [
117,
111,
-8,
108,
-86,
-64,
10,
-104,
122,
-120,
112,
-33,
-1,
-118,
84,
109,
-29,
-67,
85,
107,
-92,
-14,
7,
-46,
-46,
-77,
-45,
85,
-79,
-51,
-28,
-44,
72,
36,
-54,
21,
-62,
-64,
-83,
88,
-114,
1,
11,
68,
-43,
64,
52,
47,
0,
79,
101,
-74,
-14,
44,
117,
78,
108,
62,
-39,
45,
1,
-70,
-67,
29,
-3,
7,
-95,
103,
-104,
1,
106,
12,
-112,
49,
-116,
-24,
95,
-90,
-122,
68,
67,
-103,
40,
38,
102,
2,
-19,
-17,
-16,
-100,
7,
-1,
-115,
-90,
-62,
105,
3,
105,
-66,
-100,
89,
0,
70,
120,
-25,
-59,
25,
108,
-113,
-18,
-44,
-125,
-115,
60,
-100,
3,
-5,
15,
32,
117,
-49,
-25,
92,
-25,
123,
27,
-114,
-5
] |
Johnson, C. J.
This action was instituted by appellants, Bridge Tire Company, Boy M. Johnston and Ben B. Johnston, against appellees, Massachusetts Bonding and Insurance Company and B. E. Patterson, to enforce an alleged liability for dishonest use and misapplication of funds, merchandise and personal property belonging to appellants and to establish liability against a fidelity bond executed by appellee, Bonding & Insurance Company, by the terms of which appellants were indemnified against dishonest misuse of funds and property by Patterson amounting to larceny or embezzlement. The fidelity bond provides:
“Whereas, Bay E. Patterson, Fort Smith, Arkansas, hereinafter called the ‘employee,’ has been employed as manager by Bridge Tire Company, Fort Smith Arkansas, hereinafter called the ‘ employer, ’ and has been required to furnish a bond for his honesty in the performance of his duties in the said position.
“Now, therefore, in consideration of a premium paid for the period from the 1st day of March, 1928, to the 1st day of March, 1929, at twelve o ’clock noon, it is hereby agreed that, subject to the conditions set forth in this bond, the Massachusetts Bonding & Insurance Company hereinafter called the ‘ surety, ’ shall within three months next after proof of loss has been furnished to it, as hereinafter set forth, reimburse the employer to an amount not exceeding five thousand and 00/100 dollars ($5,000), for such pecuniary loss as the employer shall sustain of money, securities or other personal property belonging to the employer or for which the employer is responsible, by any act or acts of larceny or embezzlement on the part of the employee while in the performance of the duties of the office or position in the service of the employer as hereinbefore stated, and which shall have been committed during the life of this bond and discovered within six months after the expiration or cancellation thereof, or within six months after the death, dismissal or retirement of the employee from the service of the employer prior to such cancellation, subject to the following express conditions, which shall be conditions precedent to any recovery hereunder. ’ ’
The chancellor, after hearing the evidence, found as follows:
“The court finds that there was no effort of defendant, Patterson, to cover up or disguise any of his acts or transactions; that he was negligent and exercised poor judgment, but that not one of the items of shortage sued for is impressed sufficiently with dishonesty or fraudulent intent on defendant Patterson’s part to constitute either larceny or embezzlement, as used in the terms of the bond sued on. It is therefore considered, ordered, adjudged and decreed that plaintiff’s complaint be dismissed for want of equity, and that defendants recover their costs herein.”
The undisputed evidence reflects that, beginning in the year 1928, Mr. Patterson, the manager of appellants business in Fort Smith, began paying" his personal obligations from his employer’s funds. For instance, on January 23, 1929, he paid to Sutton Chevrolet Company, out of his employer’s funds, $33.50' and charged this item upon the books of his employer to “service auto expense,” when the fact was and is that this was a payment on his personal automobile and a discharge of his individual liability. On January 4, 1929, Patterson paid to Stein Wholesale Dry Goods Company $6 out of his employer’s funds and charged it upon his employer’s books as “sundry expense,” when the fact was this item represented the purchase price of one pair of blankets purchased for Patterson’s personal use. On December 12, 1928, Patterson paid out of his employer’s funds to Morris Morton Drug Company, $16,50 and charged same on his employer’s books to “sundry expense,” when in truth and fact this item represented the purchase price of one tea set purchased for Patterson’s individual use. On August 10,1931, Patterson paid out of his employer’s funds the sum of $13.55 to Armour & Company and charged-same on his employer’s books to “sundry expense, ’ ’ when in truth and fact the charge was for a bill of groceries purchased and used by Patterson personally. On May 17,1932, Patterson deducted $9.10 from his gross pay roll and charged this item to cash disbursements and never accounted to his employer therefor. The items just referred to will serve to show the trend of all transactions complained of and the kind and character of testimony which the chancellor construed as being insufficient to warrant a finding of liability against the fidelity bond.
The fair and reasonable construction of the fidelity bond is that the bonding company guaranteed the honesty and fidelity of- Patterson in performance of his duties as employee to his employers against furtive or dishonest misuse for his own benefit of funds or property placed in his custody amounting to larceny or embezzlement. Equitable Surety Co. v. Bank of Hazen, 121 Ark. 422, 183 S. W. 743; U. S. F. & G. Co. v. Bank of Batesville, 87 Ark. 348, 112 S. W. 957; Fidelity & Deposit Company of Maryland v. Cunningham, 177 Ark. 638, 7 S. W. (2d) 332; Fidelity & Deposit Company of Maryland v. Cunningham, 181 Ark. 954, 28 S. W. (2d) 715; 19 Cyc. 518, and cases there cited.
It is true we held in U. S. F. & G. Company v. Bank of Batesville, supra, and other subsequent cases that fidelity bonds restricted by their terms to larceny or embezzlement of the employee did not cover every loss which might he sustained by their employer, but when the loss is due to dishonest misuse or dishonest misapplication of the funds or property by such employee which amounts to larceny or embezzlement when used in their generic sense as distinguished from a criminal technical sense, liability should and does f ollow.
Neither can we agree that this fidelity bond does not cover the losses due to Patterson’s dishonest misuse of the funds, because he was a partner and interested in the business, because the insurer was fully advised of this fact prior to executing the bond, and it will not now be heard to say that it is not liable thereon, thereby nullifying its obligation from its inception. American National Ins. Co. v. Hale, 172 Ark. 958, 291 S. W. 82; Travelers’ Protective Ass’n of America v. Stephens, 185 Ark. 660, 49 S. W. (2d) 364; Metropolitan Ins. Co. v. Minton, 188 Ark. 456, 66 S. W. (2d) 627; 14 R. C. L., p. 1166, and cases there cited.
Next appellees urge that the chancellor’s finding of no liability against appellees should not be disturbed because not against the preponderance of the evidence. As heretofore pointed out, Patterson’s liability for practically all, if not all, the items in controversy were admitted by him, but he seeks to avoid responsibility therefor by showing that he reimbursed his employers for the funds and merchandise dishonestly misused and misapplied. The burden of showing reimbursements was upon Patterson and the insurer, and, after most careful consideration of all the testimony introduced, we have come to the conclusion that appellees have not discharged this burden. True, Patterson and his wife say they have reimbursed the employer for all misused and misapplied funds and merchandise, but no receipts, vouchers, proof, canceled checks, book entries or other corroborating facts dr circumstances are offered in support of their general statements of reimbursements, and we are unwilling to accept their general statements as proof sufficient to overcome the prima facie case made by appellants.
We now proceed to the only remaining question, the amount to which appellants are entitled to recover. The general course of dealings by Patterson with the prop erty and funds intrusted to his care and management is exemplified by the items heretofore set. out, and we shall deal with all remaining items in a general way only tested by the rules of law heretofore stated. The aggregate of all items falling within the rule stated is $3,413.67, and judgment should have been rendered for this sum in the lower court.
For the reason stated, the cause is reversed, and judgment will be entered here in favor of appellants, and against appellees for the amount indicated. | [
48,
127,
-8,
-100,
10,
96,
58,
26,
-101,
-24,
-91,
82,
-71,
-26,
4,
107,
-27,
127,
-43,
114,
-11,
-77,
51,
127,
-46,
-109,
-55,
-59,
-79,
75,
-12,
-42,
12,
48,
-118,
-43,
-82,
-56,
-59,
-38,
-50,
0,
122,
-28,
89,
80,
48,
63,
20,
95,
113,
30,
-5,
42,
17,
79,
109,
42,
106,
-87,
-48,
-15,
-103,
-123,
125,
21,
-79,
71,
-104,
13,
-8,
47,
-104,
49,
-115,
-8,
115,
-90,
-58,
84,
107,
-99,
8,
98,
-30,
0,
-79,
-29,
-76,
-120,
38,
-74,
13,
-122,
-110,
121,
3,
14,
-65,
-99,
86,
4,
-122,
124,
-6,
5,
87,
40,
3,
-113,
-16,
-94,
13,
-20,
-106,
-121,
-1,
-95,
48,
96,
-60,
-32,
92,
119,
59,
27,
-105,
-83
] |
Butler, J.
The appellee school districts obtained a judgment in the Cleburne Chancery Court against the treasurer of the county and his bondsmen. An execution was regularly issued on January 5, 1933, and returned by the sheriff indorsed: “Returned unserved as Legislature relieved 'Shemwell and his bondsmen. W. B. Ghent, sheriff.” On April 25, 1933, a second execution was issued and delivered to the sheriff, who, on May 31 following, returned the execution unserved and indorsed: ‘ ‘ This execution which came to my hand on the 26th day of April, 1933, is hereby returned unsatisfied because, (1), the fees for making levy and for advertising have not been paid nor tendered me; and because, (2), I am advised that under act of the 1933 Legislature of the State of Arkansas, the defendants were relieved from liability.” On June 13, 1933, a third execution was issued and tendered to the sheriff on June 17, which was not served. Appellees instituted a proceeding by which they sought to compel the sheriff by mandamus to serve the execution.
At the trial the court found that the executions, which were copied in the complaint, were delivered or tendered to the defendant and the requisite fees for the service thereof were paid or tendered to him. The court made other findings of fact and declarations of law which we deem immaterial at present, and held that the petitioners (appellees) were entitled to the relief prayed, and ordered the writ of mandamus to issue.
A number of assignments of error are contained in the motion for a new trial, but we need notice only the following contentions that mandamus does not lie in this case. These are that to issue the writ was to compel the sheriff to do an act forbidden by law; that the petition was insufficient because it failed to allege that the petitioners had no other adequate remedy; that discretionary powers will not be controlled by mandamus; that the allegations of the response were admitted to be true by the demurrer filed thereto, and that therefore the judg ment sought to he enforced by execution was nullified by an act of the Legislature; that, as the execution was not in the hands of the sheriff, the mandamus would require him to do an impossible thing, and that, payment or tender of fees for service being necessary, if not paid or tendered, mandamus would not lie to compel the sheriff to act.
An answer to all of these contentions is that the petitioners had a legal right, were entitled to the specific remedy invoked to enforce it, and the sheriff was under the imperative duty to enforce this specific' remedy but failed to do so. The court specifically found that the executions were issued and delivered to the sheriff and the fees paid, or tendered, and the evidence, although in conflict, was ample to sustain the findings of the court. The sheriff was not clothed with discretion with respect to the levy of the execution. It was regular on its face, issued pursuant to the judgment of a court of competent jurisdiction, and was to enforce a legal right already established. It has often been held, and is no longer a controverted question, that when a public officer is called upon to do a plain and specific public duty which is required by law and which requires no exercise of discretion or official judgment, a writ of mandamus is an appropriate remedy to compel the performance of the duty when it is neglected or refused. It is true, as contended by the appellant, that mandamus will not issue where the petitioner has another and adequate remedy, but the modes by which a petitioner may enforce a judgment suggested by the appellant, i. e., garnishment, an action against the sheriff and his bondsmen, and a transfer of funds by the county court from the funds belonging to the agencies of the county which were beneficiaries of money improperly paid by the treasurer — are not adequate remedies within the meaning of the law. It might be that, by one of the methods pointed out, they might secure the amount of the judgment awarded by the court, but the statute gives to the judgment creditor the specific remedy of execution which he is entitled to have enforced by the sheriff, notwithstanding the fact that he might have other means by which his judgment may be collected.
As stated, the petitioner had a legal right and a specific remedy to enforce the same, and, under the rule announced in Board of Improvement v. McManus, 54 Ark. 446-48, 15 S. W. 897, it was entitled to a writ of mandamus to compel the sheriff to perform his duty. The act commanded by mandamus was not one forbidden by law, but rather one required by it, and the averments in the petition of the judgment, the issuance and deliverance to the sheriff of the writ of execution, and his failure and refusal to levy the same, were sufficient to allege that petitioner had no other adequate remedy. The term, “adequate remedy at law,” has a well-defined legal meaning and is a remedy which is plain and complete and as practical and efficient to the ends of justice and its proper administration as the remedy invoked. In this case the particular duty sought to be enforced by mandamus was the levy of the execution. An adequate remedy, as contemplated by the law, must be one which itself enforces in some way the performance of the particular duty, and not merely a remedy which in the end saves the party to whom the duty is owed unharmed by its nonperformance. This is the reason why the particular remedies pointed out by the appellant, if effective in the end, would not be adequate remedies so as to.preclude resort to mandamus.
It was not the business of the sheriff to consider the effect of act No. 58 of the Acts of 1933, referred to in his indorsement, but to levy the execution, and then, if the judgment debtor was aggrieved, his remedy was ample to protect his. interests without the aid of the sheriff. The order of the court to the. effect that the sheriff levy the execution “to be issued and delivered to him,” under the peculiar facts in this case, was not a commandment to do an impossible thing as contended by him. That this is true is so obvious nothing more need be said regarding this contention.
Much has been said in the briefs of appellant and appellee relative to the validity or invalidity of act No. 58 of the Acts nf 1933, but the question as to its consti tutionality need not now be decided for the reason that, whatever may be the effect of that act it did not relieve the sheriff of his duty to obey the law.
We find no reversible error. The judgment and order of the trial court is therefore affirmed. | [
112,
-20,
-11,
46,
10,
65,
26,
-104,
-45,
-93,
36,
83,
-19,
38,
1,
113,
99,
105,
85,
121,
-59,
-74,
119,
105,
-77,
-13,
-55,
-41,
55,
111,
-18,
-3,
10,
48,
-54,
85,
-26,
66,
-59,
-40,
-114,
-95,
-119,
-2,
-39,
-125,
48,
-25,
117,
-113,
37,
-82,
-29,
42,
20,
66,
108,
44,
89,
-81,
-48,
-79,
-104,
-115,
127,
6,
-95,
-89,
-104,
1,
-16,
-82,
-100,
53,
16,
-8,
114,
-90,
2,
84,
13,
9,
8,
98,
38,
35,
-91,
-49,
-72,
-120,
38,
-2,
-115,
-90,
-102,
89,
106,
9,
-106,
29,
126,
22,
7,
124,
-28,
-123,
92,
44,
9,
-114,
-108,
-77,
-123,
36,
-98,
10,
-29,
44,
48,
85,
-115,
-10,
85,
103,
114,
-101,
-126,
-104
] |
Mehaffy, J.
Mrs. Willie Vandeventer Crockett died in Tulsa, Oklahoma, in June, 1933, leaving surviving her the appellee, Elizabeth Crockett Oldham, and the appellant, Charles Crockett III, a grandson, the only child of Charles Crockett, who was the son of deceased.
A petition was filed in the Pulaski Chancery Court by Elizabeth Crockett Oldham in July, 1933, to establish what was alleged to be the lost will of deceased. The petition alleges that the will was made on January 3, 1932, and that it was the intention of the deceased to distribute her property as provided in said will; that is, $100 to Charles Crockett III, and the entire remainder of the estate to the petitioner, Elizabeth Crockett Oldham,
There was attached to the petition a form of will prepared by Dwight L. Savage, an attorney of Fayetteville, Arkansas. There was considerable evidence on the question of where the deceased resided, but no contention is now made as to her residence, and it is therefore unnecessary to set out this evidence.
After hearing the evidence, the chancery court found that Mrs. Willie Vandeventer Crockett did make a last will and testament, which was a holographic will, and that same was lost, and that it was in words and figures the same as the form prepared by Mr. Savage. The court also found and decreed that Mrs. Willie Vandeventer Crockett was a resident of Little Bock, Arkansas, before and at the time of her death, and that Elizabeth Crockett Oldham, as executrix, is entitled to act according to law, and ordered that the property belonging to the estate that is in the hands of the administrator, Earl Shook, be turned over to Elizabeth Crockett Oldham, executrix under said will, and that the restraining order theretofore made be made permanent. To reverse this decree, this appeal is prosecuted.
This is a proceeding to restore a lost of destroyed will. The law provides: “Whenever any will shall be lost, or destroyed by accident or design, the court of chancery shall have the same power to take proof of the execution of such will, and to establish the same, as in the case of lost deeds.5 ’ Section 10,542, Crawford & Moses ’ Digest.
Section 10,545 reads as follows: “No will of any testator shall be allowed to be proved as a lost or detroyed will, unless the same shall be proved to have been in existence at the time of the death of the testator, or be shown to have been fraudulently destroyed in the lifetime of the testator; nor unless its provisions be clearly and distinctly proved by at least two witnesses, a correct copy or draft being deemed equivalent to one witness.”
Appellant first contends that there is no evidence that the will was in existence at the time of the death of Willie Vandeventer Crockett.
■ Mrs. Elizabeth Crockett Oldham testified that she was the daughter of the deceased; that she knew Mrs. Esther Smith Center, and had written several letters to her while this suit was pending. One of the letters stated that the original copy of her mother’s will had been lost, and that she had to ask the court to establish the will from a copy which was drawn up by Mr. Dwight Savage. She asked Mrs. Center in the letter to tell Mr. Donham, who had been appointed guardian aé litem for the child, that she, Mrs. Center, knew of no other will, and to let this copy of Mr. Savage’s go on, and they could settle the whole matter in a few days. When asked if she ever saw the will that her mother was purported to have made, witness said: “No; it was destroyed.” This witness never saw the will, never saw the handwriting. The copy prepared by Mr. Savage was found at witness’ house by Mrs. Ed Vandeventer, who is the wife of witness’ uncle.
Deceased told witness that she had made a will, but there was never anybody who claims to have actually seen the will in writing. Witness said there was no fraud or collusion, but that deceased wanted her to have all her property.
Mrs. Dollie M. Storey, a Christian Science practitioner, whose advice was frequently sought by deceased, who was a member of the same denomination, testified that deceased consulted her relative to making a will some time in January or February, and that she was positive as to what deceased’s wishes would be; that she wished all her property left to Elizabeth, her daughter. Deceased told this witness that she would make a will and leave everything to her daughter, Elizabeth Oldham. When asked if deceased ever talked to her afterwards about the will, she said that they talked about it for 10 days or two weeks, and one day she came to the office and said: “Well, I have attended to that business. I am thoroughly relieved that I have done the right thing. ’ ’
This witness testified that she never read the will and never saw it. Deceased said that the will should be in her own handwriting, but witness does not know whether she did that or not. Witness testified that deceased was a truthful woman, and she would believe absolutely anything she said. Witness said she did not know whether the will was in existence, but knows that deceased talked to her about its being in existence.
Mrs. Bernice Ratcliffe testified that she could not give the date or even the proximate date, but when she had called to see Elizabeth, they got on the topic of wills, and Mrs. Crockett stated that she had made a will, and she also told witness the same that Elizabeth had testified to. She said everything went to Elizabeth. She never showed witness any will, but just stated she had made her will. Witness does not know whether it was in existence at the time of her death.
Mr. Dwight L. Savage, attorney at law of Fayetteville, Arkansas, testified that he prepared a tentative copy of a will for Mrs. Willie Yandeventer Crockett, which Mr. Frankel had mailed to him with certain questions, and which instrument he returned.
The following letter, written by Mr. Savage, was introduced in evidence:
“July 15, 1933.
“Mrs. Elizabeth Crockett Oldham,
“1512 Prospect Avenue,
“Little Rock, Arkansas.
“Dear Mrs. Oldham:
“I have your letter of July 13, in which you expressed the hope that your mother’s will might be established. As I recall, the facts involving my connection with the transaction were as follows:
. “Mrs. Crockett decided to write a holographic will. She told me, substantially, what disposition she desired to make, of her property following her death. I dictated to my stenographer Mrs. Crockett’s desires in the matter, so framed as to effectuate her intentions. The stenographer wrote this dictation upon a sheet of long white paper.
“When I handed the paper to Mrs. Crockett to read, I suggested to her, if she so desired, in copying it in her own handwriting, she could substitute language less cold and formal, and still obtáin the same effect. Mrs. Crock ett replied that the phraseology was agreeable to her except in one instance, to-wit, that which excluded her grandson, Charles Crockett, from any participation in her estate. She said that such was her desire, but that she preferred to soften the expression thereof. “I then suggested to her that I should furnish her the paper, pen and blotter, withdraw from the office, and thus afford her an opportunity to write the will then and there. This offer she declined, however, saying that she would write it in her room at the hotel. I then gave her several sheets of paper upon which to write, and she left the office. I am unable to recall any further reference by her to the will in our subsequent conversations. I do not know whether or not she actually wrote the will.
“I made no charge for my services, as I always remembered your mother’s kindness to me when I was a student in the University; and it was a pleasure to me to try to reciprocate.
“I should willingly testify to the above facts. Unfortunately, however, such testimony would fall short of the requirement for establishing a will, as I understand the law. With the single exception of wills, it is my practice to keep carbon copies of all instruments I prepare. Many testators, however, from time to time, execute new wills in which they change beneficiaries, or bequests, or both. Because of this fact, I regard it as contrary to the interest of the testator that there should be in existence copies of earlier wills, later revoked. I assure you that I will willingly assist you in the matter of your mother’s affairs in any way that I shall be able.
“Expressing to you my deep sympathy because of the death of your mother, to whom I was devoted, and sending personal regards to Kavanaugh, I am,
‘ ‘ Sincerely yours,
“Dwight L. Savage.
There was also introduced a photostatic copy of the form prepared by Mr. Savage. There was considerable evidence introduced showing that it was the intention of the deceased to make a will leaving everything to her daughter, but there is no evidence that she ever executed- the will, except that numbers of witnesses testified that she said she made the will. No one ever saw it, and no one knew that she ever executed the will, and there is no evidence anywhere in the record that the will, if she did execute one, was in existence at the time of her death.
The appellee says that she thinks § 10,545 of Crawford & Moses’ Digest means that the will must not have been revoked by the testator, but that is not what the statute says. The statute says that no will of any testator shall be allowed to be proved as a lost or destroyed will unless the same shall be proved to have been in existence at the time of the death of the testator, or shown to have been fraudulently destroyed in the lifetime of the testator.
There is no evidence that the will was fraudulently destroyed, and it is not contended that the will was fraudulently destroyed, and there is no evidence that the will was in existence at the time of her death. No will was ever found, and. the parties interested had access to all of deceased’s papers, and certainly, if the will had been in existence at the time she died, it seems that somebody would have found it, especially when several of them say that they knew she intended to make a will, and that she had told them that she had done so.
Appellee cites and relies on the statement "of the law in 28 R. C. L. 380. It is there stated that a will lost or destroyed previous to the testator’s death may, if unrevoked, be established, etc. 'But, if it were destroyed before her death, unless the evidence showed that it was fraudulently destroyed, it could not be probated. It could not be in existence at the time of her death if it was destroyed before her death, and the evidence must show, under § 10,545, that it was in existence at that time. The section relied on by appellee also states as follows: “It seems that the fact of loss or destruction may be proved by circumstantial or direct evidence.” But if it were proved by direct evidence that a will was made, it would still have to be shown by the evidence that it was in existence at the time of the death of the testator. It is alleged that the will here involved was a holographic will. The fifth subdivision of § 10,494 of Crawford & Moses’ Digest describes a holographic will in this State.
It is stated in 1 Page on Wills, p. 584: “Since the Legislature has made specific provision for attested wills, and for'holographic wills which are executed in accordance with certain specified formalities, holographic common-law wills which do not comply with the statutory formalities are invalid. The statutes providing for the execution of holographic wills are mandatory and not directory, and a holographic will is invalid unless it complies therewith.”
Our attention has not been called to any case construing our statute or a like statute of another State. There are many cases, however, construing somewhat similar statutes, and these statutes are generally held to be mandatory and not directory. In order to probate a holographic will, it must, under our statute, be shown to be in existence at the time of the death of the testator. If it be conceded that a holographic will was made, it could not be probated unless the evidence showed that it was in existence at the time of the death of the testator.
Under the North Carolina statute, certain requirements as to the place of finding of a holographic script, testamentary in its nature, must be satisfied in order that it may be established as a will. Our statute does not provide that it must be found among valuable papers, but it does provide that the evidence must show it was in existence at the time of the death of the testator.
The North Carolina Supreme Court said: “One alternative requisition of the statute is that it must ‘be found among the valuable papers or effects’ of the alleged testator. The provisions of the statute are$* of course, mandatory and not directory, and therefore there must be a strict compliance with them before there can be a valid execution and probate of a holographic script as a will; but this does not mean that the construction of the statute should be so rigid and binding as to defeat its clearly expressed purpose. It must be construed and enforced strictly, but at the same time reasonably.” In re Will of W. T. Jenkins, 157 N. C. 429, 72 S. E. 1072, 37 L. R. A. (N. S.) 842. The same court in another case held that the statutory provisions must be followed in all the essential respects. In re Bennett’s Will, 180 N. C. 5, 103 S. E. 917. See also Hooper v. McQuary, 45 Tenn. (5 Cold.) 129.
These cases hold that the statute with reference to the finding of the will after the testator’s death must be complied with. Under our statute, as we have said, it must be shown that the will was in existence at the time of the death of the testator. There is no evidence, either direct or circumstantial, tending to prove that the will was in existence at the time of the death of the testator. If the proof had been clear and explicit, or if it had been admitted that the will was made, still it could not be probated unless it was shown to be in existence at the time of the death of the testator.
Our statute, § 10,494, provides that a holographic will may be established by the unimpeachable evidence of at least three disinterested witnesses to the handwriting and signature of the testator. In order to restore a lost or destroyed will, it must not only be shown by the evidence that' the will was in existence at the time of the death of the testator, but its provisions must be clearly and distinctly proved by at least two witnesses, a correct copy or draft being deemed equivalent to one witness.
There is abundant evidence that the deceased intended to make a will, but no evidence, except her statement, that she had ever made one. So there is a complete failure of proof as prescribed by statute, either that she made a will or its provisions. The copy introduced in evidence is nothing more than a copy of a form prepared by Mr. Savage, and no evidence in the record anywhere that the deceased ever copied this. It is true several witnesses say that she told them that she had made her will, and told them what its provisions were, but the statute requires the provisions to be clearly and distinctly proved by at least two witnesses. If the proof showed that she made the will by copying the form given her by Mr. Savage, then this copy might be introduced and be deemed equivalent to one witness. But there is no evidence that she copied this; and there is no evidence in the record at all that she made a will, except evidence of witnesses who testify that she told them she had.
We do not deem it necessary to discuss at length the question of whether she made a will, because we have already said that there was no evidence that it was in existence at the time of her death.
Appellee, however, says that, if she is correct in her contention that Mrs. Crockett prepared her will according to the draft she had Mr. Savage prepare for her, then the contents are clearly shown; but we have already said that there is no evidence tending to show that she prepared her will according to the draft that she had Mr. Savage prepare. On the contrary, the evidence shows that after Mr. Savage had prepared the form he gave her some paper, and told her that he would retire and leave her in his office to copy the will. She declined to do this, but said she would take it to her room at the hotel and copy it; but there is a total lack of evidence that she copied it at her hotel or anywhere else.
The decree of the chancery court is therefore reversed, and the cause remanded with directions to dismiss the petition. | [
-111,
109,
-12,
108,
40,
-32,
10,
-102,
-45,
-125,
33,
83,
-17,
-46,
5,
111,
98,
75,
-47,
107,
-30,
-73,
95,
44,
-110,
-13,
-115,
-105,
-13,
-39,
-25,
-33,
66,
32,
-120,
-99,
103,
-64,
-127,
-36,
14,
-119,
75,
-12,
89,
123,
56,
43,
4,
15,
-47,
-70,
-9,
42,
28,
102,
-20,
108,
-33,
-86,
88,
-111,
-117,
-122,
127,
23,
-127,
38,
-108,
9,
122,
-116,
-100,
53,
0,
-4,
51,
38,
-106,
116,
86,
-117,
12,
112,
3,
49,
101,
-17,
-76,
10,
6,
-70,
-87,
-89,
-102,
105,
105,
97,
23,
21,
63,
-44,
11,
116,
110,
-59,
92,
36,
-124,
-113,
-42,
-89,
0,
40,
-108,
3,
-29,
79,
48,
113,
-51,
-22,
109,
-57,
-111,
-101,
-58,
-6
] |
Humphreys, J.
This proceeding to annex appellant school district to appellee school district was brought by proper petition in the -county court of Fulton County and there tried, with the result that said districts were consolidated.
An appeal from the order of consolidation was prayed and granted to the circuit court of said county upon the filing of a proper affidavit and a purported bond, as follows:
“In the Fulton County Court, August Adjourned Term, 1933.
“Mammoth Spring School District No. 2, Plaintiff, v. Fairview School District No. 7, Defendant.
“The undersigned, E. L. Stevenin, Lee Burrow and L. F. Burrow, as directors of Fairview School District No. 7, of Fulton County, Arkansas,, acknowledge ourselves to be indebted as said directors of said district in the sum of $100, to be void upon the following conditions:
“Whereas, Fairview School District No. 7 of Fulton County, Arkansas, has appealed from the judgment of the Fulton County Court in an action pending wherein Mammoth Spring School District No. 2 is plaintiff and Fairview School District No. 7 is defendant.
“Now, if the said Fairview School District No. -2 shall prosecute this appeal with due diligence to a decision, and on such appeal said judgment he affirmed, or if, in a trial thereof anew in the circuit court, judgment be given against the said Fairview School District No. 2, they shall pay all costs, not to exceed the sum of $100, then this bond shall be null and void, otherwise to remain in full force and effect.
“L. F. Burrow,
“President of Board of Directors, Fairview School District No. 7. '
“E. L. Stevenin,
“Secretary of Board of Directors, Fairview School District Nq. 7.
“John L. Burrow,
“Treasurer of Board of Directors of Fairview School Dist. No. 7.”
Upon the filing of the transcript in the circuit court of the proceedings had and done in the county court, which transcript contained the bond copied above, appellee moved to dismiss the appeal because the bond did not conform to the statute governing appeals in this class of cases. The statute is, in part, as follows: “* * * Any person or persons, being a party to the record or proceeding in a matter brought before any county board of education (county court), who feels aggrieved by any final order or decision of any such board of education (county court), may prosecute an appeal from any such final order or decision, provided, any such person or persons shall within thirty (30) days from the date of the final order or decision complained of make an affidavit that the appeal taken from such final order or decision of any such county board of education (county court) is not taken for the purpose of delay, and enter into a bond with good and sufficient surety thereon, * * V’
It is argued that the bond contains no filing mark indicating that it was filed within thirty days from the final order or decision of the county court, and was not signed and executed by any surety. The purported bond appears in the transcript of the proceedings of the county court in said cause, so we must presume it was left with the county clerk or court for filing. It is true that the bond was not signed by any surety, but the record before us reflects that appellee offered to amend the bond in this respect and to meet any other defect therein when the motion to dismiss the appeal was filed. Under § 797 of Crawford & Moses’ Digest, this request to amend the bond should have been granted. That section of the statute reads as follows: “Where any bond provided for by the Code is adjudged to be defective, a new and sufficient one may be executed in such reasonable time as the court may fix, with the same effect as if originally executed. ’ ’
Appellee argues that the rule to amend does not apply because the bond herein was no bond at all. We cannot agree that it was or is a scrap of paper. It is in form a bond, but defective because not signed by sureties. Being a defective bond, it was subject to amendment. Morrison v. State, 40 Ark. 448.
On account of the error indicated, the judgment is reversed, and the cause is remanded with directions to permit the bond to be amended and to proceed with the trial thereof. | [
84,
-20,
-12,
108,
-54,
-28,
26,
-98,
75,
-93,
97,
-45,
-17,
92,
5,
105,
-14,
59,
101,
105,
-44,
-77,
83,
64,
-111,
-13,
-49,
-41,
-77,
-34,
-28,
86,
72,
33,
10,
-35,
-58,
-56,
-57,
-36,
-114,
2,
-69,
108,
73,
-30,
56,
101,
58,
13,
33,
-82,
-5,
45,
24,
67,
77,
46,
-39,
43,
80,
115,
10,
71,
-35,
7,
17,
-43,
-102,
-125,
96,
-20,
-104,
49,
1,
-23,
58,
-90,
-122,
116,
1,
25,
-120,
104,
102,
17,
-76,
-1,
-72,
-116,
6,
63,
-67,
-26,
-109,
25,
106,
-115,
-66,
29,
80,
82,
-121,
124,
-89,
-60,
95,
108,
-90,
-50,
-74,
-109,
12,
45,
-102,
3,
-13,
75,
48,
113,
-51,
-58,
92,
-26,
18,
-101,
-54,
-14
] |
Butler, J.
Mrs. J. A. McCann and D. H. Moores filed suit against the City National Bank of Fort Smith and I. H. Nakdimen. There were separate suits, but the cases are similar, the allegations of the two complaints being practically identical except in two particulars, which will be later noticed. The allegations in brief were to the effect that plaintiffs were customers of the bank which had, from time to time, been investing the surplus of the complainants in securities selected by it and its president, Nakdimen. They were, not advised of the value of these securities, but relied solely on the advice of the president of the bank in making investments. In all instances the president represented that the securities purchased for them were “gilt edged” and “as good as gold”; that is to say, that the character of the investments was safe and conservative.
Pursuant to such course of dealings, the complainants purchased from the bank through its president certain bonds of the. East Oklahoma Publishing Company, paying par and accrued interest, Mrs. McCann purchasing bonds of the first issue of $75,000, and Moores buying bonds of a second $50,000 issue. For a time the interest was collected by the bank and deposited to their account, and long after the purchase of the securities they were informed of certain fa.cts which made them doubt the value of the securities, and, on learning that bankruptcy proceedings had been instituted against the publishing company, they made investigation as to the solvenc}?- of said company and market value of the bonds. They charged that the president of the bank had promoted the incorporation of the publishing company; that he had purchased several newspaper plants in Oklahoma for $69,000, formed the said publishing company, capitalized it at $90,000 of which $45,000 was issued to him, and nothing was paid by him and the corporators therefor; that said newspaper plants constituted the sole assets of the corporation, and that immediately after its formation it issued $75,000 of bonds secured bjr mortgage upon said plants made to the Sallisaw State Bank of Oklahoma of which Nakdimen was president. The bonds involved in Mrs. McCann’s suit were a part of said bond issue.
The Oklahoma Constitution prohibits the issue of stock except for money, labor done, or property actually received, and the statutes of that State render stockholders liable for the debts of a corporation to the extent of the amount unpaid on said stock.
The bonds provided that no recourse should be had for the payment of the principal or interest thereon against past, present or future stockholders, directors or officers of the company by virtue of the statutes and Constitution of Oklahoma, or by the enforcement of any penalty or assessment or otherwise. The mortgage securing said bonds has many exculpatory provisions which materially impair the rights of the holders of the bonds, and gives undue privilege and unreasonable immunities to the trustee. Plaintiffs were not familiar with the force and effect of the provisions in the bonds and mortgage, and, if they had read the same, they would have conveyed no definite meaning to their minds as to the effect upon their securities.
It was alleged by plaintiff McCann that the transaction by which she was induced to, and did, purchase the bonds was fraudulent in that the defendants failed 10 inform her that the $75,000 issue was made by a company owning property not exceeding $69,000 in value secured by mortgage on property not exceeding $65,000 in value, ostensibly by a corporation whose capital stock amounted to $90,000 when it had no capital paid in; further, in failing to advise plaintiffs of the clause relieving the stockholders of liability', which had the effect, together with the other circumstances relating to the securities, of rendering the investment a poor one, and not of the character represented by defendants to the plaintiffs that they were making with their money. This entitled the plaintiffs to a rescission and a return of the money invested.
In the Moores complaint the additional allegation was made that a year after the company had issued the $75,000 bond issue it bought three certain newspaper plants at a price far below $50,000, and that the price paid was not in excess of the market value of same; that on October 1,1929, the- publishing company issued $50,000 in bonds purporting to be “first mortgage serial bonds,” and these were secured by a deed of trust similar to the one securing the first bond issue, the same bank being 'named as trustee; that the defendant bank purchased for him $9,000 of these bonds. The property securing this issue was three plants acquired after the first bond issue, and all property included in the deed of trust securing that issue. The mortgage contained covenants that the mortgagor owned the absolute title, free and clear of all incumbrances, liens or charges, and that it was, and would be, kept a first lien upon the trust estate.
That the bonds purporting to be thus secured were not in fact as covenanted, but were only a first mortgage on three plants, and a second mortgage on the remainder of the plants — that is, there were nine plants described in the deed of trust which the mortgage warranted was a first lien on all, but which in fact was only a first lien on three.
That the recitals of the bonds and mortgage were false in so far as they stated that they were first liens on the property; that these were known to be false by defendants when they sold the second bond issue.
Included in Mrs. McCann’s complaint was the allegation that the bank and its president, Nakdimen, purchased two notes for her, executed by W. L. Sharp, which were represented to be a good investment, and secured by a first mortgage on valuable property, whereas, in fact, the security was never adequate; that said notes were due November 1, 1928, a year after the purchase by her, but the principal has not yet been paid and interest only until October 1, 1932; that the total bond issue on the Sharp transaction was $10,000; that $1,000 has been paid on the principal, no part of which has been paid to her, and that she is entitled to her pro rata share thereof. She alleged that the notes wire not such an investment as represented, and that she is entitled, under the agreement between her and the bank, to a repurchase by it of said notes, which she tendered with her complaint.
Based on the allegations of these complaints, the plaintiffs joined in a petition for the production of books, papers and documents of the bank and Nakdimen relating to the transactions involved in the complaints. In the petition it was alleged that all of the transactions and matters relating thereto are contained in the books, papers and documents of the bank and Nakdimen, and that the plaintiffs are entitled to an examination and inspection of them in advance of trial so that they may properly present the facts found therein to the court; that an accountant should be appointed to examine and inspect the books and documents, and to ascertain the facts “hereinafter called for, whichever may seem to the court the best method of ascertaining the facts.” It was alleged that the matters sought to be inquired into were material to the plaintiffs’ causes of action and the defenses interposed herein by the answers. (The answers filed by the bank and Nakdimen contained specific denials of each and all the allegations of the complaints.)
First. It Avas alleged in the petition that an examination of the books of Nakdimen for a short period prior to October 1, 1928, Avill disclose the truth or falsity of the allegations respecting the purchase price paid by Nakdimen for the publishing plants, and it Avas prayed that the court order him to submit his books and papers relating to the purchase of said plants for examination by an accountant with directions to the accountant to ascertain what amount was paid for said plants, to whom paid, and when.
Second. That defendant bank’s books be examined to ascertain whether the sum paid by Nakdimen for the publishing plant passed through said bank, and, if so, that a full account of the transactions shown on its books be ascertained and reported by the accountant.
Third. That it is material to the issues to ascertain the truth or falsity of the allegations in the pleadings relating to the purchase and amount of the bonds involved, and that plaintiffs, through their accountant, examine the books and papers of the defendants with respect to these allegations and ascertain the facts relating to the sale of said bonds, and, if sold to the plaintiffs, whether or not handled individually by Nakdimen. Whether the bank or Nakdimen owned the bonds sold to the plaintiffs, or any part of' said bond issue at the time of their sale, and that it should be ascertained from said books to whom the proceeds of the bonds sold to plaintiffs and other bondholders were paid, and what commission, if any, was charged the East Oklahoma Publishing Company for the sale of the bonds to these plaintiffs and other bondholders.
Fourth. That it is material to the issues to ascertain if the bank acquired the bonds sold to plaintiffs or other bonds of which plaintiffs’ bonds, respectively, were a part, and, if it did not acquire said bonds, in whose behalf it was acting in making the sale.'
Fifth. That the account between the defendant bank and East Oklahoma Publishing Company is material so far as the same may show that the bank was lending money to said Publishing Company and receiving payment from the sale of said bonds for money owing by the company to it, and, if the books of the bank failed to disclose these facts, then the books of Nakdimen should be examined.
Sixth. That the request made was an examination of the books of defendants relative to the account between Nakdimen and the Publishing Compan)', in so far as it relates to the amount paid for the purchase price of the plants which he- sold to the Publishing Company, and how, and from what source, the Publishing Company de- ■ rived the money it paid him for said purchase price when the same was received by him; and, if it was from the proceeds of the bond issues described in the complaint, with a full statement of the transactions between him and said company in regard to said bond issues to be made by the accountant which should include any assessment paid upon his stock, if any, and dividends received therefrom, if any.
Seventh. The request was made for a full statement by the accountant of the account between the bank and the Publishing Company from the date of its organization to the present, showing the amount of indebtedness owed the bank by said company, what payments were made to it and what indebtedness, if any, the company now owes the bank and what securities the bank holds for said indebtedness.
Eighth. In relation to an allegation in the complaint of plaintiff McCann regarding the sale of notes of W. L. Sharp “which were in the main denied in the answer,” request was made that it be ascertained by the accountant from the books of the bank or Nakdimen, which was the seller of the notes to plaintiff, the total amount of the mortgage indebtedness against the lands mortgaged to secure said notes, who owns the other notes secured by the said mortgage, the amount paid by plaintiff for the notes purchased by her, what disposition was made of the money paid for the purchase price, and what amount, if any, Sharp owed the bank prior to the. sale of the notes to plaintiff and others; and a full statement of an account between Sharp and the bank and the disposition made by the bank of the proceeds of the notes which were sold to plaintiff McCann and others.
Ninth. In the case of I). H. Moores, it was alleged that as a part of its business the bank was engaged in selling securities to its customers and the public, receiving a commission and in many instances being benefited by such sales. It was stated that the truth of the'allega tions which were denied by the answer be ascertained and request was made that the accountant be directed to ascertain these facts from an examination of the books of the bank.
Tenth. That it be ascertained from an inspection of the account between the Sallisaw State Bank (the trustee in the deed of trust to secure the bond issues of the East Oklahoma Publishing Company) and City National Bank -what bonds, either of the first or second issue of the East Oklahoma Publishing Company, were handled or sold on commission or otherwise b}7 the City National Bank for account of Sallisaw State Bank.
Over the objections and exceptions of the defendants, the court granted the petition for the production of the books, papers and documents as prayed except as to the ninth paragraph and endeavored to limit the scope and effect of its order by certain preliminary directions providing- “that the accountant shall only examine so much of the books, papers and documents as necessary to obtain the information required, and may transcribe so much thereof as necessary or make memoranda or a summary thereof, and shall not transcribe, copy, or make memoranda or summary of any other matters than those specifically called for in the nine paragraphs hereinafter set out.” The accountant was further ordered, if, in his examination of the books, papers and documents, he should discover matters not related to, or mentioned in, the matters herein inquired of, he shall not disclose such matters to the plaintiffs, their counsel or any other person, and that a violation of this direction should be a contempt of court.
The order further provided that the examination called for should be made by the accountant in the bank at reasonable hours to suit the convenience of its officers and should be made in the presence of a representative of the bank and that a like procedure should be pursued in the examination of the books of the defendant Nakdimen, this examination to be either at his office in the bank or at any place most convenient to him with the right for him to be present in person or by a representative during the examination. It provided further that if the bank or Nakdimen should refuse access to any of the books, etc., which the accountant should consider material in his investigation, he should at once report said fact fully to the court.
The defendants brought this action against the chancellor praying for a writ of prohibition seeking to prevent the enforcement of the aforesaid order.
The majority of the court is of the opinion that this is a proper case for the writ prayed, because the trial court has exceeded its authority and there is no other remedy which will afford defendants protection against the wrong. As interpreted, the petition and the order of the court based thereon would subject the defendants and their affairs to an unwarrantable intrusion and investigation and affect not only the rights of the defendants themselves, but of many persons doing business with the defendant bank which the bank is entitled to have protected. It is thought that, from the very nature of the investigation sought, many matters would come under the observation of the accountant wholly unconnected with the matters in dispute in this case, and that, while the trial court has endeavored to limit the scope of the inquiry by the accountant and prescribes penalties for his failure to observe the directions of the court, these precautions are wholly inadequate if the accountant is minded to observe irrelevant matters and convey the information thus obtained to others. It is obvious that this could be done by the accountant in such subtle fashion that no proof could be made of his disobedience of the orders of the court, and at most but a well-grounded suspicion attach.
The view is taken that the petition fails to make a substantial showing that the books sought to be examined contain material evidence supporting the allegations of the complaint. No particular books are pointed out, but the petition asks and the court permits the accountant selected to range at will among the books and papers of the defendants to discover, if he can, evidence which plaintiffs suspect is contained in some book or books to support the allegations of their complaint. The opinion is that the effect of the court’s order would, and does, authorize a “fishing examination” and offends against the rule that the materiality of the books and papers is not a question to be decided by the applicant but rather by the court.
The rule against which the order is deemed to offend is cited by the defendants and is found at page 1092, 10 B. C. L., as follows : “But a party to a pending action has no right to call for books, papers and documents as to his adversary merely for the purpose of entering into a ‘fishing- examination’ of them. To authorize their production there must be a substantial showing that the book, paper or document sought for contains material evidence in support of the cause of action or defense of the party asking for it. A mere suspicion that it contains such evidence does not warrant an order for its production. The enactments upon the subject generally make, it a condition that the books, etc., required shall contain evidence relating to the merits of the case. ’ ’
Section 1393 of Elliott on Evidence provides: ‘ ‘ The fundamental requirement as to the sufficiency of the motion or petition is that it must be shown upon good and sufficient cause that the 'books, papers or documents sought to be produced or inspected contain evidence material and pertinent to the issues and on behalf of the applicant. * * * It is not sufficient to allege generally the materiality of the books or documents, as this would uot only be the averment of a conclusion, but would permit the question of materiality .to be decided by the applicant instead of by the court. Hence it is not sufficient to allege that such books or papers contain evidence relative to the merits of the action, but it must be made to appear wherein such relation consists. In other words, the rule, as stated by the court is: ‘It is well settled that an order for discovery and inspection will never be granted unless the necessity therefor is clearly shown.’ ”
And § 1396 of the same authority provides: “Another essential requirement of the motion or petition is that it shall definitely and sufficiently designate or describe the books, papers or documents required. A general reference is not sufficient; both the petition and the order should specify, with reasonable certainty, the book or paper which is to be produced.”
The view is taken .bv the majority that, if the petition was otherwise unobjectionable, it is premature. Plaintiffs should first endeavor to establish the allegations of their complaints by the testimony of witnesses and by an examination, by deposition or otherwise, of the defendant Nakdimen and the officers of the defendant bank, thereby laying a foundation for the request for the production and examination of the books. The rule stated in § 1410, Elliott on Evidence, is: “If the discovery is plainly attainable by competent and available testimony other than that of the party, a production of books should not be allowed without special circumstances. If it is attainable by an examination of the part}' as a witness, it should also be refused excexit upou special ground.”
It follows from the views expressed — which are those of the majority and not of the writer, and with which he does not agree, that the writ should be granted, and it is so ordered. | [
52,
109,
-96,
-18,
10,
96,
40,
-102,
91,
-128,
-91,
-45,
-23,
78,
5,
93,
-44,
25,
-43,
105,
-106,
-105,
95,
-18,
-46,
-101,
-7,
-107,
-80,
79,
-28,
-11,
77,
48,
75,
21,
-90,
-128,
-57,
-100,
14,
-127,
40,
104,
-3,
-128,
56,
127,
32,
65,
33,
36,
-13,
40,
22,
74,
72,
46,
-53,
-72,
-47,
-79,
-118,
15,
125,
23,
17,
22,
-102,
-121,
-40,
14,
-112,
49,
60,
-23,
114,
38,
-122,
-11,
111,
89,
12,
102,
98,
2,
-123,
-29,
20,
-84,
39,
-33,
-91,
-121,
-94,
105,
43,
41,
-67,
-103,
27,
0,
-121,
-6,
-73,
20,
24,
104,
-123,
-98,
-42,
-93,
-97,
47,
30,
27,
-25,
-45,
48,
81,
-56,
-94,
93,
-57,
50,
-69,
-114,
-79
] |
Johnson, C. J.
The sole question here presented for determination is the applicability of an affirmative plea of res judicata in bar of appellee’s alleged cause of action. The facts are not in material dispute and may be summarized as follows:
On December 18, 1920, appellant issued its policy of life insurance by the terms of which it agreed to pay to designated beneficiaries $2,500 in the event of the death of the insured, Thomas T. Goodrum. On April 18, 1921, appellant issued a second and additional policy of life insurance identical in all respects to the one issued on December 18,1920, except as to the date of issuance. The insured died on April 9, 1933, at which time both policies, as heretofore described, were in full force and effect. After the death of the insured, proof of loss under each separate policy was made and liability was denied by the insurer under both contracts. Thereafter, on August 7, 1933, a suit was instituted by the beneficiary in succession upon the policy or contract of date December 18,1920, in the Lonoke Circuit Court, and upon trial thereof on September 6, 1933, judgment was rendered in favor of the beneficiary and against the insurer for the face value of the policy plus penalty, attorney’s fees and costs. Thereafter, this judgment was paid and satisfied in full of record. On September 7, 1933, the suit here under consideration was instituted in the Lo noke Circuit Court upon the policy or contract of insurance dated April 18, 1921, and the defense interposed and urged below and insisted upon here was the plea of res judicata. This plea of res judicata is bottomed upon the proceedings had and done under the prior judgment of September 6, 1933. Appellant’s contention is that appellee was required, under the law, to prosecute and maintain in one law action all demands which he had or held against appellant, and that, since appellee failed so to do, the present action is barred by the previous one. The argument is that the death of the insured is the basis of the cause of action, and that the maintenance of two suits upon separate policies of insurance is the splitting of his one cause of action and should not be tolerated by the courts. If we could agree that the insured’s death is the basis of the cause of action, appellant’s contention would be correct, but such is not the fact. The basis and foundation of these suits were the respective contracts of insurance upon the life of the insured. The only reason why any liability existed in favor of the beneficiary and against the insured is by reason of the contract which so provides. All the rights and liabilities of the parties are measured by the terms of the contracts. Therefore, it certainly appears that the basis of the suit is the contracts of insurance and not the death of the insured. The death of the insured was the condition named in the contract of insurance upon which liability attached as against the insurer and is not the basis of such liability. Smith v. Mutual Life Ins. Co. of New York, 188 Ark. 1111, 69 S. W. (2d) 874.
The general rule in reference to the question under consideration is stated in 34 O. J., par. 1246, p. 836, thus: “The rule against splitting causes of action does not require a plaintiff who has distinct and disconnected causes of action against the same defendant, each of which by itself would authorize independent relief, to join them in a single suit, although they existed at the same time and might permissibly be so joined, etc.”
Section 30, Subject Actions, 1 R>. C. L., 351, states the general rule as follows: “With respect to separate and independent contracts, separate actions anay be brought at the pleasure of the party, subject only to the power of the courts to direct them to be consolidated in proper cases.”
Appellant cites Berry v. Linton, 1 Ark. 252; Blakeney v. Ferguson, 18 Ark. 347; Wassell v. Trapnall, 19 Ark. 677, and many other cases as supporting the contention here presented.
Berry v. Linton decided only that separate causes of action could not be joined for the purpose of conferring jurisdiction. Blakeney v. Ferguson decided that a liability on an injunction bond could not be split but that one action must suffice. This doctrine is predicated squarely upon the theory of one bond, one liability and one action for its recovery. This will suffice to show the material distinctions between cases cited and their application to the case under consideration.
Moreover, it has ever been the rule in this State that separate causes of action can not be joined in one action except when authorized by the code. Clements v. Lumpkin, 34 Ark. 508; Riley v. Norman, 39 Ark. 158; Waldo v. Thweatt, 64 Ark. 126, 40 S. W. 782; Hill v. Dade, 68 Ark. 409, 59 S. W. 39; K. C. S. Ry. Co. v. Tonn, 102 Ark. 20, 143 S. W. 577.
Separate causes of action may be joined in one complaint only in the instances prescribed by § 1076, Crawford & Moses’ Digest. Even after joining of separate cause of action as authorized by § 1076, cited supra, % 1077 authorizes the striking of any separate cause of action by plaintiff prior to final submission to the jury. Thus it appears from our statutes on civil procedure that it is discretionary with plaintiff, and that he may elect, whether or not separate causes of action accruing to him under separate contracts shall be joined in one complaint and in one action. It is true that, after separate suits are filed on separate and distinct contracts, the courts are authorized, by §§ 1080 and 1081 of Crawford & Moses’ Digest, to consolidate certain causes for trial purposes, but when such order of consolidation is effected, it in no wise changes the rule in reference to separate causes of action, and, even after such order of consolidation, the causes of action remain separate and distinct. New York Life Ins. Co. v. Farrell, 187 Ark. 984, 63 S. W. (2d) 520.
It follows that by the execution and delivery, by appellant to the insured, of the two separate policies of insurance two separate and distinct causes of action were thereby created, and, under the authorities cited supra, when liability accrues such separate causes of action may be instituted, prosecuted and maintained separately at the election of plaintiff or until consolidation is effected as provided by law.
The judgment appealed from conforming to the views here expressed, the same is in all things affirmed. | [
-16,
126,
-36,
-82,
26,
32,
40,
58,
91,
-88,
101,
83,
-35,
-25,
0,
117,
-50,
109,
85,
122,
-41,
-93,
54,
-96,
-46,
-109,
-15,
-43,
-80,
77,
110,
-2,
12,
48,
-118,
-59,
-58,
74,
-63,
26,
-58,
0,
-104,
-19,
-37,
80,
48,
123,
84,
31,
117,
-50,
-29,
42,
25,
-57,
105,
46,
90,
-71,
-16,
48,
-114,
-123,
125,
21,
-79,
7,
-104,
97,
88,
78,
-112,
57,
0,
-8,
115,
38,
70,
20,
103,
-103,
0,
98,
103,
34,
33,
-21,
-84,
-102,
39,
-102,
15,
-122,
-106,
80,
43,
8,
-74,
29,
116,
0,
7,
116,
-28,
85,
30,
44,
17,
-117,
-10,
-79,
-17,
100,
-97,
3,
-2,
-128,
50,
101,
-113,
98,
92,
103,
127,
-109,
7,
-100
] |
Johnson, C. J.
This appeal involves the liability of appellants to appellee for debt which arose under the following circumstances: On April 7, 1926, F. J. Schmutz and wife executed and delivered their promissory note and real estate mortgage securing payment thereof to appellee, W. B. Worthen Company (the amount of which is not here of importance), which note by its terms matured one year after date. On June 1,1926, Schmutz and wife conveyed the mortgaged property to one Levy, who assumed and agreed to pay the mortgage debt. On November 9, 1926, Levy conveyed the mortgaged property to appellants, who assumed and agreed to pay the mortgage debt. On April 7,1927, the due date of the Schmutz note and mortgage, upon the application of appellants, the mortgagee extended the maturity of the Schmutz note and mortgage until April 7, 1930. On November 6,1928, appellants conveyed the mortgaged property to one Keys, who purchased, subject to the mortgage debt, and not assuming or agreeing to pay the same. Prior to the advanced maturity date of April 7, 1930, upon application of Keys, appellee extended the maturity date of said note and mortgage from April 7, 1930, to April 7,1933. This extension to Keys was granted by appellee without notice to appellants or either of them. From the facts thus adduced, the chancellor determined that appellants were liable for the mortgage debt, and this appeal is prosecuted therefrom.
Appellants’ contention is that on November 6, 1928, when they conveyed the mortgaged property to Keys, thereby their legal status to appellee was converted into one of suretyship and that the extension of time by appel lee to Keys without notice to appellants discharged them from liability.
It is the settled doctrine in this State that a purchaser of mortgaged lands from a mortgagor who assumes and agrees to pay the mortgage debt thereupon becomes personally liable therefor, and this personal liability inures to the benefit of the mortgagee who may enforce it in an appropriate action. Wallace v. Hammonds, 170 Ark. 952, 281 S. W. 902; Felker v. Rice, 110 Ark. 70, 161 S. W. 162; Walker v. Mathis, 128 Ark. 317, 194 S. W. 702; Kirby v. Young, 145 Ark. 507, 224 S. W. 970; Beard v. Beard, 148 Ark. 29, 228 S. W. 734.
In the more recent case of Central Life Ins. Co. v. Thompson, 182 Ark. 705, 33 S. W. (2d) 388, we expressly held that one primarily liable for a mortgage debt was not converted to the status of suretyship therefor by showing a conveyance of his interest in the mortgaged land to a third party plus an extension of the maturity of such mortgage debt by the express agreement of the mortgagee with such third party. We think the doctrine announced in the case last cited is controlling here. Appellants, by assuming and agreeing to pay the mortgage debt recited in their deed, and also by applying to appellee for and receiving an extension of the maturity of such mortgage clebt, became personally and primarily liable therefor, and their subsequent conveyance of said mortgaged lands to Keys and the procuring by Keys of an extension of the mortgage debt from appellee did not have the legal effect of converting their legal status from primary liability to that of suretyship. Appellants, being primarily liable for the mortgage debt, could escape liability only by payment, release or other defenses which might inure to one primarily liable.
It may be that the doctrine thus announced is contrary to the weight of American authority on this question, but, if such be true, it is equally as important that quasi rules of property be stable and permanent, as that court opinions of all States should be uniform.
No error appearing, the judgment is affirmed. | [
-16,
111,
-104,
110,
10,
96,
42,
-120,
-45,
-128,
-89,
-45,
-21,
-62,
21,
109,
-28,
61,
97,
104,
-91,
-77,
55,
8,
-46,
-77,
89,
-43,
-80,
77,
-12,
87,
76,
48,
66,
93,
-58,
-46,
-63,
30,
78,
-127,
-97,
69,
-39,
-46,
48,
123,
84,
78,
21,
47,
-30,
47,
53,
124,
44,
42,
-53,
61,
-48,
-16,
-101,
-115,
123,
23,
17,
101,
-104,
-59,
106,
-104,
-104,
-11,
1,
-24,
118,
-90,
-58,
116,
95,
25,
8,
98,
102,
16,
97,
-21,
-40,
-119,
46,
-46,
-99,
-90,
-112,
89,
10,
40,
-66,
-97,
124,
5,
7,
126,
103,
-107,
29,
109,
7,
-117,
-44,
-80,
15,
116,
18,
-125,
-9,
-125,
32,
112,
-49,
100,
93,
103,
58,
27,
-122,
-3
] |
Johnson, C. J.
Appellants own and operate in public places in this State certain miniature pool tables, marble tables and various types of vending* machines controlled by coin slot devices. By acts 158 and 167 of 1931, amended by act 137 of 1933, the privilege of operating these devices in this State is subjected to a tax.
This suit was brought by appellants against appellee Revenue Commissioner to restrain and enjoin him from enforcing said acts because, as it is alleged, act 158 of 1931 is unconstitutional and void because in conflict with the fourteenth amendment to the Constitution of the United States, and is contrary to and in conflict with § 5 of article 16 of the Constitution of this State; that act 158 of 1931 is void because it did not receive the. necessary vote required by § 31 of article 5 of the Constitution upon passage through the respective houses of the General Assembly; that act 158 is discriminatory against coin operated pool tables, and in favor of standard pool tables, and is therefore void; that act 167 of 1931 repealed act 158 of 1931, in so far as said act 158 applies to miniature pool tables.
Appellee’s demurrer was sustained to this complaint, and this appeal seeks review thereof.
The reasons why these acts are. conceived to be contrary to the Fourteenth Amendment of the Constitution of the United States are not pointed out in briefs, therefore we shall pretermit any discussion thereof.
Appellants’ contention that said acts are contrary to and in violation of § 5 of article 16 of the Constitution of 1874 can not be sustained. This section of the Constitution provides: “All property subject to taxation shall be taxed according to its value, that value to be ascertained in such manner as the General Assembly shall direct, making the same equal and uniform throughout the State. No one species of property from which a tax may be collected shall be taxed higher than another species of property of equal value, provided the General Assembly shall have power from time to time to tax hawkers, peddlers, ferries, exhibitions and privileges, in such manner as may be deemed proper. ’ ’
Appellants’ contention is grounded upon the legal proposition that the Constitution of 1874 limits the taxing power of the. State in two particulars, namely: First, a tax must be ad valorem, equal and uniform; secondly, that the State can not lay a tax for State revenue pur poses upon occupations of common right. The contention that the tax here levied is not ad valorem, equal and uniform has no application to the question here under consideration. The tax here levied is upon the privilege of operating pool tables, miniature pool tables or other devices controlled by coin slot machine devices, and such a tax is expressly authorized by § 5, article 16, of the Constitution as heretofore quoted. We stated the applicable. rule in Fort Smith v. Scruggs, 70 Ark. 549, 69 S. W. 679, as follows:
“The subject-matter of this statute comes, we think, within the general law making power of the Legislature, and, if there be limitations forbidding the exercise of this power in that respect, it must be found in the Constitution. But there is none. Our Constitution expressly provides that the Legislature shall have power to tax privileges in such manner as may be deemed proper.”
Again, in Floyd v. Miller Lumber Co., 160 Ark. 17, 254 S. W. 450, we stated the applicable rule in reference to the severance of growing timber from the soil as follows: “Following the lead of the Supreme Court and the trend of our own decisions, and for purposes of uniformity, a thing to 'be desired, a majority of the court, including the writer, have concluded that the tax imposed by the acts is a privilege, and not a property tax. As a privilege tax it is clearly and definitely authorized by the Constitution. ’ ’
Appellants especially rely upon Stevens & Wood v. State, 2 Ark. 291, and subsequent cases of similar effect, as authority for their position that the tax here levied is a property tax.
It is true we held in Stevens & Wood v. State, supra, that all property in this State must be taxed according to its value, and that the tax thereon must be equal and uniform throughout the State, but we also said in this connection that when property was acquired it must be so kept and disposed of as not to injure any paramount, legal right of another or affect injuriously the public morals or public good.
It is perfectly clear that the holding’ of this court in the last case, cited was that the ownership of a pool table was not per se a privilege, but that its use might be determined a privilege and regulated as such. The distinction here pointed out is fully recognized in all our subsequent eases on this subject.
Neither can we agree that the privilege here taxed is an occupation of common right. We have heretofore distinguished the meaning between the words “privilege” and “occupation” as follows: “The words ‘pursuits and occupations’ are synonymous, and are used in their common acceptation to denote the principal business, vocation, employment, calling or trade of individuals that but for some constitutional or statutory inhibition could be exercised and enjoyed as of common right, but the word ‘privilege’ as used in the Constitution of 1868 is not synonymous with the words ‘pursuits and occupations ’. ”
The slot machine devices here in use are automatic and self-operating, therefore need no one to attend upon them, if needed this be important, while being operated; therefore no occupation of common right is here involved. Moreover, the law is well settled in this State that the police power may be. exercised by the Legislature for the protection of the health and morals of the people unrestrained, unless such regulations are so utterly unreasonable in their nature and purpose, as to unnecessarily and arbitrarily interfere with or destroy personal property and rights without due process of law. See Little Rock v. Reinman, 107 Ark. 174, 155 S. W. 105, which was affirmed by the Supreme Court of the. United States in 237 U. S. 171, 35 S. Ct. 511.
The acts here under consideration were a reasonable exercise of the police power, and in no wise- interfere with the rule in reference to occupations of common right.
Next, it is urged that act 158 is void because not passed by a majority vote of two-thirds of both Houses of the Greneral Assembly. This exact question was before us in Stanley v. Gates, 179 Ark. 886, 19 S. W. (2d) 1000, and we there decided the question as follows: “It is conceded that the first two items, viz., charity fund and common school equalization fund, come respectively under the phrases ‘defraying the necessary expenses of government’ and ‘to sustain the common schools,’ but it is insisted that the concluding part of the section providing- that the remainder of the fund be used solely for the purpose of reducing the State tax on property amounts to a violation of the constitutional provision, because such use is not for any enumerated purpose in the section, and is therefore in violation of the constitutional provision, because the act was not passed by two-thirds majority vote in each House of the Legislature. A majority of the court does.not agree with this contention. ’ ’
The doctrine here announced in no wise conflicts with the opinions in Beloate v. Kaufman, 117 Ark. 352, 175 S. W. 87, or Oliver v. Southern Trust Co., 138 Ark. 381, 212 S. W. 77. In the last mentioned cases, we were dealing with a question altogether different from the one here under consideration. A mere reading of the respective cases will differentiate the conclusions reached.
The contention that this legislation is discriminatory in favor of standard pool tables and against miniature slot operated devices is likewise without merit. If the privilege of operating pool tables is one which may bo granted or withheld by the Legislature, then certainly when the privilege is granted it may be upon such terms as the Legislature may prescribe.
It is also urged, that act 167 of 1931 repeals act 158 of 1931. If repeal exists, it must be by implication and not direct, as act 167 carries no repealing- clause. We have always held that repeals by implication are not favored. Baker v. Hill, 180 Ark. 387, 21 S. W. (2d) 867; Massey v. State, 168 Ark. 174, 269 S. W. 567, and cases there cited.
Without setting- out in detail the provisions, of said acts, it may be said that act 158 lays a tax upon the privilege of operating standard pool tables. Act 167 lays a tax upon the privilege of operating miniature pool tables, vending machines, marble machines or any other machine operated by an automatic coin slot device. We can not perceive any invincible repugnancy between the two acts, and are unwilling to hold that act 167 is a substitute for act 158; therefore the one does not repeal the other.
The chancellor’s determinations conforming’ to the views here expressed, the decree based thereon must in all thing’s be affirmed. | [
-15,
-6,
-36,
124,
58,
96,
2,
-102,
107,
-95,
-89,
19,
109,
90,
-112,
51,
-13,
-1,
80,
115,
-50,
-89,
7,
34,
-80,
-5,
-39,
-43,
-75,
79,
-19,
-43,
12,
52,
-54,
-12,
70,
98,
-19,
20,
22,
40,
43,
-55,
-7,
65,
52,
110,
112,
75,
81,
-113,
-77,
44,
-103,
-61,
104,
46,
89,
-65,
67,
-95,
-99,
-99,
121,
23,
48,
55,
-103,
-63,
-56,
26,
-104,
16,
16,
-88,
115,
-90,
2,
22,
39,
-35,
-128,
96,
99,
2,
33,
-49,
-96,
40,
46,
-106,
-115,
-91,
-106,
89,
35,
15,
-76,
-99,
118,
16,
109,
126,
-26,
-107,
95,
108,
-107,
-114,
-108,
-77,
-83,
120,
-100,
66,
-49,
-77,
16,
113,
-38,
10,
94,
71,
54,
27,
-113,
-52
] |
Humphreys, J.
The question involved on this appeal is whether the city of Searcy may issue revenue bonds to procure $45,000 with which to construct additional sewer mains, and a disposal plant to dispose of the sewage from all the sewer mains in said city, including the present mains, which were built by Sewer Improvement District No. 1 in the year 1900, and which were taken over by the city for the purpose of maintenance and operation, provided the bonds are made payable solely from the revenues of the new improvements.
When the sewer system was constructed, a small septic or disposal plant was built to dispose of the sewage. The septic plant is worn out and allows raw sewage to pass through it into a branch running around the east side of the city and north into Gin Creek. These, streams are dry most of the time during the summer months, and the raw sewage collects in pools, endangering the health of the inhabitants as well as emitting offensive odors. The State health authorities have condemned the septic tank as being a menace to the health of the community. Neither the city nor the improvement district has the money to build a disposal plant of sufficient .size to carry the increased load due to the growth of the city. There is a large territory within the city that cannot be served by the sewer system as originally constructed, and the proposal is to build new mains through this territory and, instead of tying the old mains into the old septic tank, to connect them with the new mains, which are to be built out to and tied into the new disposal plant in the country. The proposal is to charge, each house serviced exclusively by the new mains and disposal plant $1 a month, and those situated in the original district 50 cents a month for the use of the new mains and disposal plant. In keeping with this proposal, said city passed an ordinance authorizing appellees to issue revenue bonds for $45,000 payable to the Public Works Administration of the United States, which are to be paid out of the proceeds to be derived from the monthly charges aforesaid for the use of the. mains and disposal plant, the Public Works Administration of the United States having agreed to pay par for the bonds and in addition to make a free grant of $10,000 to the city to aid in the construction of said mains and disposal plant, the estimated cost thereof being $55,000. Appellant, an owner of property in the city, instituted this suit to enjoin appellees from issuing the bonds and proceeding with the construction of the new mains and disposal plant on the ground that the city was without authority to construct the improvement, and issue revenue bonds to pay for same.
The ordinance was passed pursuant to act 132 of the Acts of the Legislature of 1933. Section 1 of said act provides: “That every city (of either the first or second class) and town in the State of Arkansas is hereby authorized and empowered to own, acquire, construct, equip, operate and maintain within and/or without the corporate limits of such city or town, a sewage collection system, and/or a sewage treatment plant or plants, intercepting sewers, outfall sewers, force mains, pumping stations, ejector stations and all other appurtenances necessary or useful and convenient for the collection and/or treatment, purification and disposal, in a sanitary manner, of the liquid and solid waste, sewage, night soil and industrial waste of such city or town, * * * and to issue revenue bonds to pay the cost of such works and property, * * * payable solely from the funds provided under the authority of this act. ’ ’
This section of said act is unambiguous, and in unmistakable language authorizes a city of the first or second class or any town in the State of Arkansas to construct a sewage collection system within or without the city limits and to issue revenue bonds to pay the cost of same out of the proceeds to be derived from the new construction. Appellant contends that no authority exists under the statute for a city to build additional sewer mains and disposal plants to connect with and dispose of sewage from mains built and owned by an improvement district, and not owned by the city itself. In other words, the interpretation of the statute by appellant is that, before a city can construct additional mains and disposal plants which are necessary, it must acquire the ownership of the original sewer system, which was held for operation and maintenance. We find nothing in the act to that effect. The construction of the new mains and disposal plant and the ownership of them by the city does not in any wise disqualify the city from continuing to hold the. original sewer system for operation and maintenance. It does not destroy any interest the improvement district may have, if any, in the original sewer system. Making use of the new construction as an outlet for the original sewer system does not impair the usefulness of the original system. The most that can be said of it is that the new construction is an aid and help to the old system without becoming an integral part of it. It appears that the old system can serve only a part of the city, and certainly the statute should not receive an interpretation which would prevent the city from constructing a sewage system to serve other territory in the city without first becoming the owner of the original system. We interpret the statute as conferring authority upon cities and towns in Arkansas to construct sewer systems wherever and whenever needed, and to issue revenue bonds to pay for the construction thereof out of proceeds to be derived from the new construction itself.
Act 132 of the Acts of 1933 authorizing the passage of the ordinance in question does not offend against amendment No. 13 of the Constitution of 1874 for reasons appearing in the case of Snodgrass v. Pocahontas, post p. 819, this day handed down.
It does not appear that the charges made against the owners of the several houses in the city are unreasonable, and it goes without saying that cities and towns may impose a reasonable charge upon owners of property connected with a sewer system owned or operated by the city or town.
No error appearing, the decree is affirmed. | [
-12,
108,
-100,
-2,
-102,
32,
26,
-104,
89,
-69,
-27,
127,
-83,
106,
20,
99,
-29,
125,
117,
25,
-27,
-78,
83,
66,
-101,
-13,
-9,
-42,
114,
77,
-28,
-51,
77,
53,
-54,
-103,
70,
-62,
-35,
-34,
-50,
37,
-117,
-56,
-11,
66,
38,
75,
114,
77,
117,
76,
-93,
40,
24,
103,
73,
46,
-39,
45,
83,
-13,
-72,
-123,
-39,
29,
-96,
-57,
-112,
-31,
-22,
106,
-104,
53,
20,
-24,
115,
-90,
-122,
-10,
7,
-103,
-88,
98,
-30,
0,
37,
-7,
-96,
-23,
14,
-34,
-115,
-90,
-123,
57,
75,
-95,
-76,
31,
84,
-122,
7,
-6,
102,
-59,
-33,
108,
-117,
-114,
-108,
-30,
75,
-68,
-120,
-111,
-25,
99,
62,
117,
-58,
-30,
76,
103,
18,
91,
-98,
-8
] |
Humphreys, J.
William Barton, a resident of Stone County, died testate on the 26th day of January, 1933, having provided in his will of date February 16, 1926, that, after payment of his debts and certain bequests, the residue of Ms estate, real, personal, and mixed, should be divided equally among his eight heirs with the following proviso relative to appellee’s one-eighth interest in said estate, to-wit: “Provided my son Frank (appellee) shall receive only the sum of one dollar unless he shall have at the time of my death paid or otherwise satisfied all his indebtedness to me. ’ ’
E. E. Barton, one of the legatees, was designated in the will as executor, and, after the probation of the will and the appointment of E. E. Barton as executor, he paid his brother, the appellee herein, one dollar and took the following receipt from him:
“4-10-1933.
“Received of E. E. Barton, administrator, one dollar & no/100 dollars for settlement in full of estate of Wm. Barton.
“$1.00 “Marshall, Ark.”
Later, appellee demanded his one-eighth interest in said estate, and, when the executor refused to pay same, he filed a petition in the probate court of said county for his distributive share, alleging that the other heirs had then been paid $1,400 each by the executor. He prayed for a full one-eighth share in said estate.
Appellant filed a motion to require appellee to particularly set out and specify upon what grounds and conditions he claimed to be entitled to the share petitioned for.
Appellant also filed an answer alleging that appellee was indebted to Wm. Barton at the time of his death in sums evidenced by four promissory notes as follows:
“Note dated February 27, 1915, $360, 10 per cent, interest; note dated January 7, 1925, $240, 10 per cent, interest; note dated April 21, 1926, $135, interest 6 per cent.; note dated September 24, 1926, $55, interest 10 per cent.”
Also alleging that, on account of appellee’s failure to pay the notes, he was only entitled to one dollar under the terms of the will and that on account of the execution of the receipt set out above, he was estopped to claim a full one-eighth distributive share in said estate.
Upon a hearing of the cause, the probate court sustained the motion to make the petition more definite and certain and dismissed the petition of appellee for the allowance of the claim.
Saving his exceptions to the order of the court, appellee prayed and was granted an appeal to the circuit court.
In the circuit court on trial de novo, the motion to malee the petition more definite and certain was overruled, over the objection and exception of appellant. The cause was then submitted to the court, sitting as a jury, upon the pleadings and testimony, resulting in a finding that appellee was not indebted to the testator at the time of his death, and that he was not estopped to claim his one-eighth interest in said estate by the execution of the receipt, and he was entitled to recover under the will a one-eighth part of the estate less a credit of $401, which had been paid him from the estate.
A judgment was rendered in accordance with the finding, from which is this appeal.
Appellant contends the court committed reversible error by not requiring appellee to make his petition more definite and certain by stating whether he was indebted to the testator, and, if so, when and how he had paid same. We think appellee stated a good and sufficient cause of action when he alleged that under the will he was entitled to a one-eighth interest in the estate. The burden did not rest upon him to state and prove that he had been indebted to the testator in his lifetime but that he had paid same. If he was not entitled to take a one-eighth part under the will because he had not paid his indebtedness to the testator, it was a matter of defense, the burden of which must have been assumed by appellant. The court therefore did not err in holding that the burden of proof was on appellant, and in overruling his motion to make the petition more definite and certain.
The appellant also contends that the trial court committed reversible error1 in admitting proof of statements made by the testator as to what he proposed to do with •the notes executed by appellee to said testator. C. K. G-oddard testified that the testator when living told him that he. considered the notes of appellee paid, that is, that the indebtedness had been satisfied; that he had made an advancement of $400 to each of the other heirs, and that instead of giving appellee $400 in money, he just g*ave him credit on his indebtedness. Lecil Brown testified that he was tax assessor for Stone County for the years 1929, 1930, 1931 and 1932 and that, when he assessed the property of the testator in those years, the notes executed by appellee to the testator were not assessed because he said the notes had been paid or satisfied. These statements were against interest and were made to third parties after the execution of the will; hence not hearsay. Kirby v. Wooten, 132 Ark. 441, 201 S. W. 115; People’s Savings Bank v. McInturff, 147 Ark. 296, 227 S. W. 400. Neither do they offend against the rule forbidding the varying of written instruments by oral evidence. Bromley v. Atwood, 79 Ark. 357, 96 S. W. 356.
Appellant also contends that the court committed reversible error in finding that appellee was not bound and estopped by the receipt executed to appellant releasing all claim against the estate for $1. Estoppel in this case, was a question of fact, and there is substantia] evidence in the record tending to support the finding that appellee signed the receipt under the belief that it was necessary for him to do it in order for him to get his share of the estate. He testified to that effect himself, and the evidence indicates he was feeble minded. In addition, he was before the court, who had the opportunity to see, observe, and hear him testify. The letter appellee wrote in which he inclosed the receipt was not especially intelligible.
There is ample evidence in the record to sustain the verdict and judgment.
The judgment is therefore affirmed. | [
-10,
109,
-68,
124,
-120,
32,
10,
8,
-46,
97,
53,
83,
109,
-34,
80,
37,
98,
25,
81,
107,
-28,
-77,
94,
49,
82,
-77,
-15,
-41,
-77,
107,
-28,
-42,
72,
40,
106,
-107,
-61,
-62,
-19,
-44,
14,
72,
9,
100,
-39,
64,
50,
-89,
118,
11,
101,
-66,
-9,
43,
57,
105,
108,
109,
-35,
43,
-40,
-88,
-102,
5,
91,
19,
16,
-121,
-40,
9,
74,
24,
-104,
117,
8,
-24,
51,
-90,
6,
84,
39,
25,
9,
102,
-93,
50,
-91,
-17,
-80,
-104,
14,
-82,
-103,
-90,
-106,
121,
-6,
-119,
-66,
29,
127,
-60,
7,
-10,
-28,
5,
92,
56,
0,
-49,
-42,
-127,
-99,
-84,
-104,
10,
-13,
13,
48,
113,
-114,
-30,
85,
-25,
122,
-109,
-121,
-47
] |
Johnson, C. J.
Appellant, J. M. Wagley, presented to appellee, John Roberts, administrator of the estate of Dr. J. L. Sims, deceased, his verified demand against said estate for the sum of $1,215.99, same being evidenced • by a note purporting to have been signed and executed by Dr. Sims. Appellee in bis representative capacity denied the claim upon presentation, and thereafter said demand was presented to the probate court of Boone County for allowance. The claim was allowed by the probate court and classified. Appellee appealed from this probate court allowance to the circuit court, where a trial was had to a jury, which resulted in a verdict and judgment in favor of appellee, and this appeal is therefrom.
Appellee defended against allowance of the demand upon two grounds, namely; first, that the note was not signed and executed by the deceased, and, secondly, that on the date of the. purported execution of the note Dr. Sims was incompetent. Either defense interposed, if established by testimony, would be all sufficient to deny the allowance of the demand. The testimony on the issue of the signing and executing the note was, to the effect that Dr. Sims, on the date of the purported execution, was 80 years of age and very feeble in body and mind, and that the note did not appear to bear the true signature of Dr. Sims. This was the effect of the testimony of Mrs. Roberts and Dr. George Kirby, children of deceased. In addition to the testimony just referred to, the admitted signatures were introduced in evidence for comparison with the signature of the note attached to the claim.
The court instructed the jury as follows: “You should find' for the plaintiff, Wagley, unless you find from a fair preponderance of the evidence that the note sued on is not genuine, and that Dr. Sims didn’t receive the money indicated by the note. ’ ’
Appellant requested the court to give the following instruction: “The note itself as introduced is evidence of its genuineness and of the indebtedness therein mentioned, and the burden rests upon the defendant, John Roberts, administrator, to show by a fair preponderance of the testimony that the signature to the note is not genuine, and that he- is not indebted to the said J. M. Wagley; and unless these facts are shown by a fair preponderance of the testimony, you. will find for the plaintiff, J. M. Wagley.”
This presents the first alleged reversible error. The instruction given by the trial court was more favorable to appellant than he was entitled to under the law. It placed the burden of proof upon appellee to show by a fair preponderance of the testimony that the signature was not genuine and that Dr. Sims did not receive the money indicated by the note. A preponderance of the testimony is the true test under the law in this State and should have been the test here applied.
It is the established doctrine in this State that one can not complain of an instruction more favorable to him than he was entitled to under the proof or the law. Southern Cotton Oil Co. v. Spotts, 77 Ark. 458, 92 S. W. 249; Gurdon & Fort Smith Ry. Co. v. Calhoun, 86 Ark. 76, 109 S. W. 1017; Hamiter v. Brown, 88 Ark. 97, 113 S. W. 1014; Jones v. Dyer, 92 Ark. 460, 123 S. W. 757; St. L. I. M. & S. Ry. Co. v. Hutchinson, 101 Ark. 424, 142 S. W. 527.
Next, appellant urges that the court erred in refusing to give his requested instructions heretofore quoted. This instruction is fully covered by the one given by the court, and trial courts should not give instructions which are covered by instructions already given. Furlow v. United Oil Mills, 104 Ark. 489, 149 S. W. 69.
It is next insisted that reversible error was committed in allowing the cross-examination of witness Jackson in reference to the comparison of certain signatures. This cross-examination was entirely proper as tending to test the knowledge of the witness in reference to signatures generally and the true signature of Dr. Sims in particular.
No reversible error appearing, the judgment is affirmed. | [
-13,
-19,
-88,
-67,
-118,
32,
42,
2,
-13,
33,
54,
83,
-19,
-62,
29,
101,
114,
61,
81,
122,
71,
-93,
103,
96,
-14,
-78,
-23,
85,
-95,
-51,
-28,
-44,
76,
40,
-22,
-107,
70,
-30,
-59,
-112,
76,
41,
-119,
-24,
89,
65,
32,
33,
125,
75,
117,
-114,
-45,
42,
51,
79,
-19,
44,
121,
41,
-64,
-80,
-97,
5,
61,
23,
-112,
-90,
-102,
75,
74,
10,
-102,
49,
-128,
-24,
115,
-74,
70,
-12,
107,
-71,
8,
98,
-26,
48,
-91,
-17,
-80,
-68,
47,
-2,
29,
-90,
-46,
81,
-54,
13,
-74,
-99,
116,
16,
-113,
-10,
-3,
21,
28,
108,
6,
-113,
-106,
-78,
-116,
116,
-98,
10,
-29,
-113,
16,
81,
-113,
-30,
92,
71,
57,
-101,
-122,
-112
] |
Butler, J.
The appellant was tried in the Pulaski County Circuit Court on a charge of murder in .the first degree for the killing of W. G. Carter. The trial resulted in a verdict of guilty as charged, whereupon the court sentenced him to be electrocuted.
On appeal it is not contended that the evidence adduced was insufficient to justify the verdict. The evidence introduced on the part of the appellee is to the following effect: W. G. Carter and G. G. Barham were operating a filling station in Little Rock. At about 7:00 o ’clock on the evening qf January 8,1934, appellant, Bill McGuire, came into the filling station and stated that he had intended holding up the place, but. as they had been so nice to him he had changed his mind. He then walked from the station and stopped a short distance away. Barham saw him return and approach a window through which he discharged a firearm, the shot from which struck Carter in the back, and he died early the next morning as a result of the wound.
One Arthur Lindsey testified that McGuire visited him on January 4th; that he stayed all night, and after he had left the next day witness discovered his Winchester rifle was missing. No one else except McGuire was at witness’ house at the time the gun disappeared. This weapon was found some time after the killing in a small water course near the scene of the killing and was subsequently identified by witness as the one taken from his home during McGuire’s visit to him. On examining the premises where the killing occurred, a discharged rifle cartridge was found which fitted this rifle.
Two other witnesses stated that they had seen McGuire on the night of January 8 in the vicinity of the crime and that he was carrying a Winchester rifle. McGuire was arrested at his home in Little Eock at about 10:30 o ’clock on the night of the homicide, and, when arrested, was in bed. He had on his underwear which the officers discovered was wet and the clothes which he had taken off were also wet. This evidence was accepted by the jury as true and is ample to sustain the verdict.
McGuire not having employed counsel, the court appointed a lawyer to conduct his defense. One of the grounds upon which the request for reversal is based is that the court was negligent in the appointment of the attorney for the reason that he was a young and inexperienced practitioner and known to be such by the court; that he did not have sufficient ability and experience to fairly represent the defendant, and that therefore, defendant was denied a fair and impartial trial such as the law contemplates.
Our attention is called to the case of People v. Blevins, 251 Ill. 381, 96 N. E. 214, where a judgment of the trial court, based on a verdict of guilty of murder was reversed because the trial judge, under a statute similar to our own, appointed two lawyers to represent the defendant who had not been engaged in the practice longer than two years and were inexperienced in the trial of criminal cases. At the time, of their appointment these lawyers protested that they were inexperienced and were overmatched by the array of able and experienced counsel for the State. It appears that there were four eminent lawyers representing the prosecution. From the opinion of the court in that ease it would seem that the rules of evidence and procedure of that State were grossly violated, and from the record 'before the Supreme Court it concluded that the lawyers appointed by the court were totally unsuited to properly present the case of the defendant or to protect his rights during the progress of the trial. For that reason and because of the court’s knowledge of the inexperience of the lawyers as gained by their protest, the Supreme Court concluded that the trial court had abused its discretion, and that the judgment should be reversed.
This question is before us for the first time. A case might be supposed where a trial court would be so negligent and arbitrary in the appointment of counsel where the defendant is unable to procure any himself, and their conduct of the trial might show such lack of ability as to warrant a reversal of the case because of manifest miscarriage of justice. The record before us, however, presents no such case. The only reason stated to show the lack of ability of counsel appointed by the court is that he had been engaged in the practice not more than thirteen months, but the extent and nature of the practice in which he was engaged during that time is not shown nor his skill in the conduct of matters intrusted to his charge. It is altogether possible that this lawyer might have had much more experience in the defense of those charged with the commission of crime and would be able to conduct the defense more skillfully than one who had been admitted to the practice for a much longer time. Indeed, an examination of the record discloses that the defense was conducted in a creditable manner, and no more errors appear than is usual in the conduct of trials of that nature. It is seldom — and almost impossible — to make a record in a murder case without some error appearing, and that the errors appearing in this case were not more grave and prejudicial than those which have been called to our attention is a matter for which the trial lawyer is to be congratulated.
The only error complained of in the conduct of the trial was the admission of improper testimony. This testimony is found in that given by the officer Barrett. He had described the arrest and stated that the clothing of the defendant was wet at the time. In this connection he was asked, “what did he say about his clothes being wet?” The answer was, “He said he had been in a stream of water — he had been hiding out because he said he was an escaped convict from the penitentiary.” There was no objection interposed to this answer, no request that it be stricken, and no instruction given to the jury to disregard it. This waived the error. “It therefore appears to be the settled rule of this court that, although in capital cases exceptions would not have to be saved, objection must be made at the time before this court will be authorized to review it, and, as to the admissibility of the testimony complained of, no objection was made at the time.” Howell v. State, 180 Ark. 241, 22 S. W. (2d) 47.
Moreover, there could have been no prejudice to the defendant, for he elected to take the stand and the same evidence was brought out on his cross-examination. It is well established in this State that, when a defendant in a criminal case takes the witness stand, he is subject to the same rules of cross-examination as any other witness and can be asked about former convictions for the purpose of testing his credibility. Hollingsworth v. State, 53 Ark. 387, 14 S. W. 41; Shinn v. State, 150 Ark. 215, 234 S. W. 636; Bieard v. State, ante p. 217.
Counsel who prepared the brief for the appellant in this case and who orally argued the case did not represent the defendant in the trial below. In his excellent brief and oral argument he has called attention to a number of matters extraneous ..to the record which, he contends, cast grave doubt on the guilt of the defendant and also which tend to establish the fact that his mind, on the night of the alleged homicide, was in such condition as to prevent him from forming a specific intent to take human life. These matters have been presented in a most persuasive way, but are such as should be addressed to the Governor and not to us.
We have examined the record with care and have reached the conclusion that the trial was fairly conducted, and that no prejudicial error was committed. The judgment is therefore correct, and must be affirmed. | [
113,
-21,
-28,
95,
10,
96,
8,
24,
82,
-95,
117,
-13,
45,
-62,
73,
105,
107,
123,
85,
105,
-92,
-121,
99,
96,
-102,
-77,
41,
-41,
50,
78,
-4,
-11,
5,
104,
106,
93,
-26,
66,
-19,
90,
-114,
5,
-87,
-16,
89,
80,
52,
108,
124,
15,
33,
-114,
-25,
42,
22,
-53,
109,
40,
-53,
-66,
80,
121,
-118,
-123,
-81,
20,
-79,
-122,
-100,
5,
-8,
26,
-40,
53,
0,
-8,
115,
-92,
-128,
117,
101,
-119,
44,
98,
38,
38,
-67,
-21,
32,
-71,
79,
-82,
-111,
-89,
-104,
41,
65,
33,
-98,
-99,
106,
116,
14,
116,
-11,
116,
85,
104,
-123,
-98,
-12,
-77,
-85,
40,
-102,
-70,
-53,
39,
54,
113,
-51,
-94,
92,
69,
120,
-101,
-113,
-112
] |
Mehaffy, J.
On the 14th day of November, 1931, the appellee, Louis Balmat, with two companions, Jack Reed and Stanley Price, between twelve and one o’clock, left Little Rock in Balmat’s car, a Chevrolet roadster to attend a football game in Pine Bluff. After eating supper, Balmat and his companions started back to Little Rock in Balmat’s car with Jack Reed driving. At a point near Woodson, about fifteen miles from Little Rock, the car turned over and Reed was severely injured. Balmat and Price were not injured. Shortly after the car turned over, a man and woman in a Ford two-door sedan came along going to Little Rock and proposed to take Balmat and his party to Little Rock. It was decided, however, to leave Price in charge of the wrecked roadster and that Balmat would accompany Reed, the injured man, in the Ford sedan. The driver of the Ford then proceeded towards Little Rock with Reed and Balmat riding in the back seat. On arriving at Sweet Home, about five miles from Little Rock, Balmat had the driver of the Ford to stop his car while Balmat ’phoned for an ambulance to come out and meet the Ford car and take Reed to a hospital. Balmat called appellants, Healey & Roth. Balmat had formerly been in the employ of appellants, and had ridden on ambulances when responding to emergency calls. Appellee’s ’phone call was received by Hugh Revely, an employee of appellants. Appellee told Revely that Reed had been severely injured and instructed him to come out and meet the Ford and take Reed to a hospital. In order that Revely might identify the car in which Reed was riding, appellee told him that the driver of the Ford would flash his lights as a signal when he saw the ambulance approaching. Balmat then resumed his place in the Ford, which proceeded towards Little Rock, and the driver of the Ford was told that the ambulance was coming out to meet them, and that he was to signal the ambulance by flashing the lights of the Ford when the ambulance came in sight. When the Ford reached a point near the Little Rock city limits he saw the ambulance approaching. He stopped his car on the east side of the highway, the right-hand side facing Little Rock, and began flashing his lights as a signal for the ambulance to stop and pick up the injured man. The ambulance pulled up and stopped on the west side of the highway, which was the right-hand side facing Pine Bluff. When the ambulance came to a stop, the two left wheels were about five feet from the west edge of the pavement, the right front wheel was over on the west shoulder of the highway. As soon as the ambulance had stopped, the- injured man got out of the Ford assisted by appellee, on the east side, walked around the rear end of the Ford, across the highway to a position at the rear of the ambulance. The driver of the ambulance and his assistant had in the meantime gotten out the ambulance cot and placed it on the pavement lengthwise of the highway, immediately back of the ambulance. The cot was about seven feet long, mounted on wheels and was about two feet above the surface of the highway. Reed lay down on the cot and appellee took a position on the highway at the -ear of the cot, west of the center line of the highway and about twelve feet behind the ambulance. Elijah Jackson, a negro preacher, who lived near where the ambulance had stopped, appeared and took a position near appellee. The driver of the ambulance and his assistant were on opposite sides of the cot preparing to lift Reed into the ambulance when Elijah Jackson called, “Look out, white folks!” Some one shoved the cot upon which Reed was lying off the highway and everyone got to a place of safety except appellee who was struck by an automobile which had approached from the direction of Little Rock and was going towards Pine Bluff. The automobile was going at a rapid rate of speed and appellee was knocked down and severely injured, and, immediately after striking appellee, the automobile collided with the rear end of the' ambulance and an explosion of gasoline followed, resulting in severely burning the face and head of appellee. The car which struck appellee was occupied by two young men and two young women, and was driven by Henry Blake.
This suit was begun on December 14, 1932, by appellee against appellants and Henry Blake, to recover damages for the injuries he had received. He alleged that the driver of the ambulance negligently stopped it and left it standing on the public highway in such a position with reference to the automobile, which was parked on the opposite side of the highway, that traffic could not pass between the two vehicles.
Appellants filed answer, denying the material allegations of the complaint, denying that it was guilty of any negligence, and denying that the position of the ambulance was the proximate cause of appellee’s being struck by the Blake automobile. Henry Blake filed separate answer. There was a trial and a verdict and judgment against Henry Blake and appellants for $8,000. Blake did not appeal. The appellants filed motion for new trial which was overruled, exceptions saved, and the case is here on appeal.
The rear light and dome light on the ambulance were burning.
Henry Blake testified that he was going about thirty miles an hour, it was misting rain,, and when he approached the place of the accident he saw the Ford car standing on the east side of the highway and its lights were on and created a glare on the pavement which shone in his face, and he could not see the ambulance. When he discovered the ambulance, he put on the brake, but he could not go between the cars, and his front fender hit the ambulance but he did not remember hitting any person. He did not see the lights on the ambulance. When Blake’s car hit the ambulance, it knocked it several feet. -The two cars, the Ford and the ambulance, blocked the road to traffic, and, if the ambulance had gone a little further, there was an open space where it could have stopped, and there would have been room for traffic.
This was an emergency call'by the ambulance, and the drivers of the ambulance were in a hurry to get the injured man to the hospital and paid no attention to the parking.
Appellants first contend that the court erred in refusing to direct a verdict in their favor. It is contended that the operator of the ambulance violated no traffic law and was guilty of no negligence. It is not contended by appellee that the traffic law was violated, but the cause of action is based solely on the negligence of appellants in stopping the ambulance opposite a car which was already parked on the highway in such a manner as to block traffic.
Appellants call attention to American Company of Arkansas v. Baker, 187 Ark. 492, 60 S. W. (2d) 572. The court, however, said in that case: “It appears to us that the negligence, if any, was the sudden stopping of the truck without giving any signal or warning of that intention to one who might be driving closely behind it. * * * This court has no power to vacate a verdict of the jury or the judgment based thereon on the weight of the evidence, but we are obliged on appeal to view the evidence in the light most favorable to the appellee, giving to ft every reasonable inference in support of the verdict, and. however much we may think the evidence preponderates against the finding of the jury, we may not interfere. This court has repeatedly pointed out that this is a duty and power resting’ solely with the trial judge, to be exercised whenever in his opinion the verdict is against the clear preponderance of the evidence, and on that question his judgment is conclusive if there is any substantial conflict therein.”
In the instant case, the undisputed proof shows that the ambulance was so parked with reference to the other car, which was already parked there, that it was impossible for vehicles to pass. The road- was wet and slippery, and whether under the circumstances in this case the appellants were guilty of negligence in blocking traffic as they did when they were bound to know that other vehicles would be on the highway was a question for the jury, and, if there is any substantial evidence to sustain the verdict, we cannot set it aside, although we might think that the preponderance of the evidence showed that appellants were not guilty of any negligence. The jury might have found that there was ample space within a'few feet of the place where the ambulance stopped where it could have been stopped without interfering with traffic.
Instruction No. 10 given by the court submits this question to the jury. It is true the ambulance was on the highway at this place a very short time before it was struck by Blake’s car, but the jury was justified in finding that it was not necessary to stop the ambulance for any length of time so as to obstruct traffic.
Appellants say that the ambulance was on an errand of mercy. It is true it was an emergency call, and it was endeavoring to get an injured person to the hospital as quickly as possible. This, however, did not relieve it from the consequences of its negligence, if it were guilty of negligence. One cannot, even on an errand of mercy or in an effort to relieve an injured person and remove him to a hospital, block the traffic in such a manner as to endanger others, especially when in a few feet of the place the ambulance might have been parked without any interference with the traffic.
' Appellants contend that the ambulance had a superior right to the immediate use of the highway by virtue of the traffic regulations, but the traffic regulations did not give appellants any right to commit an act of negligence endangering others. Moreover, the court instructed the jury that an ambulance, when operated upon official business, has a superior right on the highway to other traffic so long as the operator does not exercise that right in an arbitrary manner, and in the same instruction told the jury that, if it found that the ambulance was blocking the highway but further found that in doing so said operator was not acting arbitrarily and in wilful disregard of the rights of other persons who might be using the highway in a proper manner but was acting as a person of ordinary prudence would act under similar circumstances, it would not be justified in finding against appellants.
It is next contended by appellants that the appellee was barred from recovery by his own negligence. The undisputed evidence shows that the cot was behind the ambulance, and that appellee was standing behind the cot when he was struck by the automobile. The court under proper instruction, submitted the question of appellee’s contributory negligence to the jury, and the jury’s finding on this question is conclusive here.
Appellants then contend that the stopping of the ambulance was not the proximate cause of the accident complained of. It was certainly not the sole cause. The undisputed proof shows that Blake was driving on the wet, slippery road at about thirty miles an hour, and he was unquestionably guilty of negligence, as the jury found, but the accident could not have happened if the ambulance had not been parked so as to obstruct the traffic. “As a general rule, it may be said that negligence, to render a person liable, need not be the sole cause of an injury. It is sufficient that his negligence, concurring with one or more efficient causes other than plaintiff’s fault, is the proximate cause of the injury. So that, where several causes combine to produce injuries, a person is not relieved from liability because he is responsible for only one of them, it being sufficient that his negligence is an efficient cause without which the injury would not have resulted to as great an extent, and that such other cause is not attributable to the person injured. But it must appear that the person sought to be charged was responsible for one of the causes which resulted in the injury. The concurring negligence of. another cannot transform the remote into the proximate cause of an injury, or create or increase liabilities therefor. ’ ’ Coca-Cola Bottling Co. v. McAnulty, 185 Ark. 970, 50 S. W. (2d) 577; 45 C. J. 920.
As we have already said, whether this conduct on the part of the drivers of the ambulance was negligence was a question for the jury.
It would serve no useful purpose to set out or comment- at length on the instructions. We have carefully examined the instructions given, those modified, and those refused, and have reached the conclusion that there was no error in giving, refusing or modifying instructions. The only serious question in this case is whether the appellants were guilty of negligence in parking the ambulance as they did under the circumstances. As we have already said, this was a question for the jury, and, although we might believe that the jury’s verdict was against the preponderance of the evidence, we have no authority to set it aside for that reason.
We find no error, and the judgment is affirmed. | [
112,
-15,
-12,
46,
9,
96,
26,
26,
-45,
-93,
103,
19,
-59,
-51,
13,
33,
-22,
61,
117,
105,
-75,
-73,
7,
50,
-62,
55,
57,
-59,
-80,
-53,
108,
-67,
79,
104,
-54,
-99,
38,
74,
-51,
92,
-34,
-92,
-1,
-4,
-39,
-109,
56,
110,
-124,
10,
37,
-114,
-62,
42,
16,
107,
-19,
106,
123,
42,
-48,
112,
-56,
-124,
-1,
2,
-95,
-30,
-104,
1,
-16,
30,
-112,
49,
88,
-4,
114,
-90,
-126,
125,
33,
-119,
12,
32,
102,
65,
21,
-31,
-24,
-88,
30,
-88,
-123,
-90,
50,
25,
32,
9,
-98,
29,
123,
24,
6,
88,
-8,
77,
93,
96,
34,
-54,
-44,
-95,
-27,
32,
-108,
13,
-29,
-33,
54,
116,
-116,
-10,
93,
69,
-2,
-77,
87,
-78
] |
Butler, J.
Allen L. Glover brought suit in the White Circuit Court against the Missouri Pacific Railroad Company to recover for personal injuries received on February 4, 1933. There was a verdict and judgment in his favor, from which the railroad company has appealed.
At the conclusion of the testimony, the defendant moved for a directed verdict, which motion was overruled. The case was thereupon submitted to the jury.
The appellant contends that the trial court erred in not directing a verdict in its favor and in refusing to give instructions Nos. 3, 5 and 7, requested by it.
The evidence in the case is practically undisputed and tends to establish the following state of facts: Glover sustained his injuries while engaged in loading cattle on one of the cars of the appellant at Beebe, Arkansas. Practically all of the cattle were steers and were loaded from the regular stock pen by means of a cattle chute made of plank constructed with a bottom and sides. The cattle were passed from the loading pen into this chute and driven up it by Glover. He was behind the bunch of steers in the chute “pushing them up into the car.” While so engaged, one of the hindmost steers stepped upon a plank in the bottom of the chute, causing* it to break. The steer’s hind legs fell through the opening, thus made in the bottom of the chute and Glover stepped through it at practically the same time. At the point where the plank broke the bottom of the chute was about four feet above the ground. As Glover’s leg went through the hole, the steer, which weighed approximately 1,000 pounds, fell back on him, which resulted in a severe injury to him.
Instruction No. 5, requested by the defendant and refused by the court, in effect told the jury that, if the plaintiff could have seen the hole by the use of ordinary care and failed to use such care, and in so doing was guilty of negligence which caused his injury, the jury should return a verdict for the defendant.
Instruction No. 7, requested by the defendant and refused by the court, is as follows: “The jury are instructed that the plaintiff was a man of mature years, and had been engaged in the line of loading cattle prior to this time; was familiar with the stock pens and loading chute of the defendant company, and whatever dangers and risks there was attendant-upon his said duties, you are instructed that the plaintiff assumed all the dangers necessary and incident to his work.”
The refusal of the court to give these instructions is assigned as error, and also the giving of instruction No. 1, requested by the plaintiff, which is as follows: ££ The jury is instructed that, if you find from a preponderance of the evidence that the plaintiff’s injury was caused by the floor of the chute of the stock pen breaking through as plaintiff was helping to load some cattle' into a car on the Missouri Pacific Railroad at Beebe and causing a steer to fall on plaintiff and injure him, and that the floor of the chute broke because the plank was rotten and unsound, and that the defendant railroad company, in permitting the chute of said stock pen to be in such condition, failed to exercise ordinary care for the safety of persons loading stock at said chute, and that the plaintiff was not guilty of contributory negligence, you should find for the plaintiff.”
The testimony fails to show that there was any observable defect in the plank which broke, but that when this occurred Glover noticed that the cause of the break was that the plank was rotten underneath. The law is that, when the defendant engaged in the business of common carrier and constructed stock pens and chutes for the purpose of loading cattle upon its cars, the duty rested upon it to construct and maintain them in a reasonably safe condition, and that the failure to do so resulting in injury to one rightfully using the same would be negligence. The question as to whether or not the defendant had performed this duty was submitted to the jury by instruction No. 1, with directions to find for the plaintiff if it should find that the defendant was negligent in maintaining the chute, if the plaintiff him self was not guilty of contributory negligence. There was no error in the giving of this instruction of which the appellant can complain.
By instruction No. 2, given at the instance of the plaintiff and immediately following instruction No. 1, contributory negligence was defined, and the question of the plaintiff’s contributory negligence was submitted to the jury. These two instructions fairly presented the plaintiff’s theory.
The court did not err in refusing to give instruction No. 3 as requested by the defendant, or in modifying it and giving it as modified. That instruction, as requested, told the jury that, if the plaintiff, by the exercise of ordinary care, could have seen the hole in the chute, and by the use of such care could have kept from falling through it, but that he fell on account of his own carelessness, he would notfbe entitled to recover. The court modified this instruction by adding the words “in time to avoid the injury” immediately after the clause: “could have seen the hole in the chute,” and gave it as modified. There was no error in the modification, for, if the evidence was that the plaintiff could not have seen the hole in the exercise of ordinary care in time to avoid the danger, certainly he could not be negligent for not having observed it sooner.
There is, however, a better reason, which is also sufficient to justify the court in its refusal to give instructions Nos. 5 and 7, and that is that there was no testimony to support either instructions 3, 5 or 7. If the condition of the chute was so obviously dangerous because of the hole in it that it would be negligence for one to attempt to load cattle over it, it was the duty of the defendant to prove such condition. This it failed to do. On the contrary, the inference is unmistakable that there was no danger apparent to one engaged as Glover was, for there was no hole in the chute until the plank was broken by the steer. The defect in the plank was not observable from above because the .plank was decayed underneath.
There was no error committed by the trial court of which the defendant may complain in the giving or refusal of any of the instructions, or in the modifications made. The evidence was ample to sustain the verdict, and the judgment of the lower court is therefore affirmed. | [
48,
109,
-99,
15,
74,
106,
56,
-104,
85,
-126,
38,
83,
-19,
66,
-123,
37,
-27,
61,
85,
107,
-60,
-109,
91,
-30,
19,
-41,
59,
-121,
53,
107,
36,
-27,
77,
80,
66,
21,
-26,
-56,
-63,
28,
-114,
4,
-21,
-24,
89,
-112,
56,
110,
52,
86,
49,
31,
-14,
42,
60,
99,
109,
44,
123,
45,
-56,
112,
-46,
7,
127,
2,
-95,
38,
-98,
5,
-40,
56,
-104,
49,
0,
-8,
114,
-80,
-125,
84,
97,
-103,
12,
34,
103,
43,
29,
11,
24,
-88,
15,
-65,
-117,
-121,
-104,
4,
91,
34,
-74,
-99,
98,
84,
-106,
120,
-11,
76,
29,
100,
3,
-114,
-112,
-77,
-81,
36,
-100,
-109,
-21,
-123,
52,
117,
12,
-14,
93,
69,
118,
-97,
-113,
-77
] |
Carleton Harris, Chief Justice.
Kenneth Bell and Joan Bell, appellants herein, executed a note and mortgage to Jim Walter Corporation, covering certain property in Cleveland County, Arkansas. On February 24, 1964, a mistake in the description having been discovered a revised note and mortgage were executed, the description being as follows:
Starting at a point on the North right of way boundary of State Highway No. 212, 413 ft. South of the Northwest corner of the SWM, MEM of Sec. 12, Twp. 8 South, Range 12 West. Thence run North 88M degrees East 1320 ft. along the North right of way boundary of said highway No. 212 to a point of beginning. Thence North 210 ft. Thence North 88H degrees East 210 ft. parallel with said highway No. 212. Thence South 210 ft. to the North right of way boundary of said highway No. 212, thence South 8814 degrees, West 210 ft. along the North right of way boundary of said Highway No. 212 to the point of beg. Containing one acre more or less.
On March 7, 1964, Jim Walter Corporation executed an assignment of the note and mortgage to Mid-State Homes, Inc. The Bells became delinquent in their monthly payments, and on July 20, 1967, suit was instituted to foreclose the mortgage. Appellants answered with a general denial and request for admissions were filed and served on the Bells, the latter admitting that they had executed the note and mortgage heretofore mentioned; that they had been delinquent in making payments on the note since March 5, 1967, and that the balance owing on the note was $3,415.62. On February 10, 1969, a decree of foreclosure was entered, and Mid-State Homes, Inc., appellee herein, purchased the property. When appellants refused to surrender possession, a Writ of Assistance was obtained. The Bells filed a motion with the court setting out that appellee did not have a valid description to the property on which the home is located, and occupied by appellants and they desired to show they were not occupying any property for which appellee was seeking a Writ of Assistance.
Appellee filed a response praying that the motion be overruled; that the Writ of Assistance be specifically enforced, and that the erroneous distance be corrected in all papers material to the cause. On hearing, the court held that the motion should be overruled and that the Writ of Assistance should be enforced. From the order so entered, appellants bring this appeal.
The “control point” is shown as a point on the North right-of-way boundary of State Highway No. 212, 1733 ft. South of the Northwest corner of the SVJVi of the NEMof Section 12, Township 8 South, Range 12 West, and from the “control point” on Highway No. 212 the description correctly runs North 88/4 degrees East 1320 feet along the North right-of-way boundary of Highway No. 212 to a point of beginning. In comparing this with the description used in the mortgage, we note that the only error is the number of feet from the Northwest corner of the SWM of the NEM, to the North right-of-way of Highway No. 212. In other words, if the figure 413 feet were changed to 1733 feet, the description would cover the property foreclosed. We agree that the control point remains the same since it is fixed as a point on State Highway No. 212, regardless of its distance South of the Northwest corner of the SWM of the NEM. We agree with appellee that actually there would be no error if the distance were not stated at all. At any rate, the fact that the distance from the section corner to Highway No. 212 is incorrectly stated, does not render the description of the tract void. We have held that monuments control over courses and distances. Arkansas State Highway Commission v. Waddell, 239 Ark. 1103, 396 S. W. 2d 840. In Garrett v. Musgrave, 215 Ark. 835, 223 S. W. 2d 779, we said:
“The controlling consideration is that if buyer and seller, who are familiar with real property, deal with reference to particular things and places they have seen, it must be presumed that these natural objects were of paramount importance, otherwise they would not have contracted with reference to them.”
In the case before us, it will be observed that there are no less than five references to State Highway No. 212, and it would appear that the intention is made evident from the face of the instrument.
At any rate, we are firmly of the opinion that circumstances show that it was the intention of the parties to place the mortgage on the property upon which the home is located. The home tract does front on Highway No. 212. Appellants rely upon the testimony of Quenton Bell, the father of Kenneth, the elder Bell testifying that in deeding the acre to his son, he only had in mind “to give my son 1 acre of land wherever the county surveyor put it”. He said he did not care whether the one acre tract was on the highway or some other location. Of course, the father knew the son was living in the house on the highway. The error in the description was not discovered until an abstract was prepared, which was subsequent to the time that Quenton Bell executed the deed to his son.
Appellants also point out that the survey was made by appellee’s agent, and that appellee was thus responsible for the erroneous description. That is true, but we do not consider that fact as controlling. Rather, the question is what tract of land was intended by the parties to be mortgaged as security for the debt.
We think it clear that the answer to this question is that the parties fully intended that the property, upon which the house was located, be mortgaged to appellee’s assignor at the time the mortgage was given. In the first place, one would normally expect this defense, if the intention of the parties had been otherwise, to have been raised by appellants in their answer when the foreclosure suit was filed. Instead of raising this question, appellants simply filed a general denial. The note given to the corporation was in the amount of $6,710.40, and the mortgage was executed as security for that amount. While the record does not reflect the value of lands in Cleveland County, it would certainly be unusual if one acre of vacant property, with no highway frontage, could be valued at that amount.
Prior to the foreclosure, Kenneth Bell testified, but not at any place in his testimony do we find any statement that the intention was to mortgage vacant property rather than the land upon which the house was located. In fact, Bell was asked on cross-examina tion if he had not received a letter telling him that appellee would not “foreclose on your home if you paid $202.20”, which was the amount needed to make it current. Bell replied, “I am sure I did. I don’t remember you stating you would not foreclose. I remember receiving a couple of registered letters from you”.
When asked if he received three payments back from the company that he had sent in (but which would not bring the account current), Bell replied in the affirmative. The question was then asked as to what action he took. The witness answered:
“At that time I thought that you had the wrong property description and I thought that if I could talk with you people and get it paid off less attorney’s fee then I would borrow the money and pay the thing off and be done with Mid-State Homes but I haven’t got anything concrete on what the pay off is yet.”
It is thus apparent that Bell at least suspected that the description in the mortgage was erroneous, and that his home actually was not covered by the instrument, but still, there was no contention that the home property was not to be mortgaged. The Chancellor himself commented that he was reluctant to enter a foreclosure decree, stating that he had a “great deal of sympathy for a man who is trying to pay for his home”, and though rendering a judgment for appellee, gave appellants 30 days in which to refinance the property.
We have held, that to reform a mortgage, the proof must be clear, unequivocal, and convincing. Arkansas Bank & Trust Co. v. Bank of Poplar Bluff, 166 Ark. 538, 266 S. W. 977.
In Craig v. Pendleton, 89 Ark. 259, 116 S. W. 209, we held that where a mortgage, through mistake, incorrectly describes the land intended to be mortgaged, the mortgagee was entitled to reforma don against the mortgagor or any. subsequent purchaser with nonce of the mistake.
From what has been said, it is obvious that we consider the proof to be clear and convincing that it was the intention of all parties to mortgage that property upon which the house is located. We think it well, however, that the instrument be reformed to show the description as “1733 feet” instead of “413 feet”.
The decree is affirmed, but the case is remanded for the purpose set out in the preceding paragraph.
For that matter the mistaken description could be corrected by changing Northwest corner of SWM of the NEM to read Northwest corner of NWM of the SEM. The point on Highway No. 212 lies 413 feet South of this point. | [
113,
120,
-16,
124,
8,
-96,
26,
-102,
114,
33,
-92,
83,
-17,
-62,
4,
109,
-30,
45,
85,
121,
-11,
-77,
99,
96,
-48,
-77,
-47,
-43,
-72,
95,
-28,
87,
76,
32,
-54,
85,
-26,
0,
-59,
28,
-50,
7,
27,
84,
89,
18,
48,
59,
16,
15,
21,
-115,
-14,
44,
61,
74,
104,
40,
-55,
44,
-48,
-8,
-101,
20,
95,
23,
-79,
37,
-102,
5,
122,
8,
-112,
53,
0,
-8,
86,
-90,
-58,
116,
65,
-97,
44,
96,
102,
8,
-63,
-17,
-16,
9,
6,
-42,
-107,
-89,
-112,
24,
67,
32,
-97,
-99,
124,
85,
71,
-2,
-27,
-123,
31,
108,
-119,
-17,
-106,
-79,
-99,
122,
20,
3,
-17,
-121,
-80,
112,
-54,
-32,
93,
71,
51,
-101,
-114,
-79
] |
Lyle Brown, Justice.
This case was before our court in Satterfield v. State, 245 Ark. 337, 432 S. W. 2d 472 (1968), wherein we reversed a conviction on a charge of arson. On retrial Satterfield received the same punishment as on the first trial. The action of the trial court in instructing the jury on the statutory minimum and maximum punishment; in permitting the introduction of a transcript of testimony of two witnesses taken at the first trial and who were not present for the second trial; and in allowing the case to be submitted to the jury — those are the points upon which appellant seeks reversal.
Appellant was convicted on the testimony of three young companions who testified as to remarks made by appellant which could be interpreted to mean that he intended to burn the barn; they further testified that they were in the car with him when he drove to the farm and they saw the blaze originate after appellant made a trip to the barn; and that appellant returned later and watched the barn and its contents of dry hay burn. The owner testified that the barn was not wired for electricity and that the materials of which it was constructed were not combustible; and also that the portion in which the hay was stored was not boxed in. We will not further detail the testimony, referring interested parties to the facts set forth in the first opinion. Such other facts as are necessary to explicate this case will be detailed as we presently set out and discuss the three points for reversal.
Point I. Appellant having received a one-year sentence at the first trial, it was error to submit to the jury a possible sentence exceeding one year. The trial court instructed the jury that it could fix punishment at between one and ten years as provided by Ark. Stat. Ann. § 41-501 (Repl. 1964). Appellant objected and urged, on constitutional grounds, that when .an accused obtains a reversal and new trial he cannot, on the second trial, receive a sentence greater than that fixed at the first trial. That same issue was raised in the recent case of Fuller and Walton v. State, (April 21, 1969), 439 S. W. 2d 801. (Certiorari denied November 17, 1969, 60 S. Ct. Reporter 260.) There we said:
We hold that under the law of Arkansas a new trial granted in a criminal case for error committed in the first trial constitutes a new trial as to penalty imposed by the verdict, as well as to guilt or innocence where the verdict in the second trial is for the same degree of crime as the first verdict, and the penalty assessed by the second verdict is of the same nature and within the statutory limitations for the degree of the crime involved.
Appellant argues that Fuller has been overruled by the later case of North Carolina v. Pearce, 395 U. S. 711 (1969), and Simpson v. Rice, consolidated with Pearce. Pearce and Rice were sentenced after retrial in the States of North Carolina and Alabama, respectively. In those States the court sets the punishment after a verdict of guilty is returned by the jury. In the cited cases the court held, among other things, that the equal protection clause of the Fourteenth Amendment does not impose an absolute bar to a more severe sentence upon reconviction, nor does the double jeopardy clause of the Fifth Amendment impose such a bar. It was held that the due process clause requires that “vindictiveness against the defendant for having successfully attacked his first conviction play no part in the sentence he receives after a new trial.” To insure against .that motive a sentencing judge imposing a more severe sentence after the second trial must point up the factual data upon which the increased sentence is based.
For yet another reason appellant’s Point I is without merit. That is because he received identical sentences in both trials, being the minimum punishment, hence there was no prejudice. Shaddox v. State, 244 Ark. 747, 427 S. W. 2d 198 (1968).
Point II. A good faith effort was not made to obtain the presence of two witnesses who testified at the first trial; it was therefore error to permit the reading of their prior testimony to the jury in the second trial.
Two State’s witnesses, Jerry Turner and Larry Dunn, were reportedly out of the State on the date of the second trial. Over appellant’s objection the court permitted the introduction of their testimony given at the first trial.
It has long been the rule in our State, as well as in many other jurisdictions, that the right of confrontation by a witness may be dispensed with when that witness is unavailable and has given testimony in a previous proceeding against the same defendant, provided the witness was subject to cross-examination in the first proceeding by that defendant. The most com mon excuse for the exception heretofore recognized has been the absence of the witness from the trial court’s jurisdiction; regarding that excuse the Supreme Court recently made this pronouncement:
Whatever may have been the accuracy of that theory at one time, it is clear that at the present time increased cooperation between the States themselves and between the States and the Federal Government has largely deprived it of any continuing validity in the criminal law. Barber v. Page, Warden, 390 U. S. 719 (1968).
In Pointer v. Texas, 380 U. S. 400 (1964), it was held that the right of confrontation granted by the Sixth Amendment is obligatory on the states through the Fourteenth Amendment.
Reverting to the holding in Barber, it was there held that a witness is not “unavailable” for the purpose of excusing the confrontation requirement “unless the prosecutorial authorities have made a good faith effort to obtain his presence at trial.” Barber also says the right to confrontation is basically a trial right and “includes both the opportunity to cross-examine and the occasion for the jury to weigh the demeanor of the witness.” See Britton v. Maryland, 298 F. Supp. 641 (1969).
We have combed the record in this case and have concluded that the efforts of the State to obtain the presence of witness Larry Dunn were far too feeble to constitute “good faith effort.” Early in August 1969, a subpoena was issued for Dunn to appear in court on August 15, a pretrial date. (It seems to be the custom to subpoena all witnesses for the pretrial date, at which time the cases are set for a day certain and the witnesses then and there re-subpoenaed for the later date.) The sheriff was unable to subpoena Dunn because he could not find him in Fulton County. At pretrial the case was set for August 26. Four days after pretrial a subpoena was issued for Dunn for the trial date. Again the sheriff was unable to locate Dunn, and upon inquiry learned that he was in Kentucky in attendance at a trade school. Upon ascertaining that Dunn was in another state, the sheriff, according to his own testimony, abandoned any further effort to obtain the witness. He testified that he did not inquire as to the particular town in Kentucky in which the school was located.
It is apparent from the circumstances that the State was put on notice before the pretrial date that Dunn was not in the jurisdiction; yet no effort was made to ascertain his whereabouts until a few days before the actual trial date. It was shown that Dunn’s people lived in the county, and since he was attending school, as opposed to being on a transient trip, it is just as logical that his address in Kentucky could have been obtained by simple inquiry. In fact the State actually was in contact with the Dunn family because Pat Dunn, Larry’s sister, was a witness for the State. Incidentally, she testified that Larry was not aware of the new trial. Also, and as a very practical matter, a telephone call to Dunn could have been fruitful in obtaining his presence even at the late date on which it was discovered he was in Kentucky. Finally, we would note that earlier discovery of Dunn’s whereabouts would have made it practical to have instituted proceedings under Ark, Stat. Ann. § 43-2006 (Repl. 1964), being part of a uniform act for obtaining witnesses from without the State.
We point out a particular reason why Dunn’s presence was important. On the first appeal we held that Dunn was a possible accomplice and that the jury should have been so instructed. That possible status made it particularly necessary that the jury be afforded the opportunity to observe his demeanor.
It must be remembered that the burden was on the State to justify its motion to read into evidence the testimony of the absent witness. The State failed to meet the burden and we must hold it to have been an abuse of discretion to permit the introduction of Dunn’s testimony.
Point III. The evidence was as a matter of law insufficient to support the verdict. The testimony was substantially the same as in the first trial. The facts on which the State relied are detailed in the majority and dissenting opinions on the first appeal. It would be pure repetition to here delineate the facts and circumstances already recited on the first appeal and would be of no value to our jurisprudence. Suffice it to say that we have carefully re-examined them for substantiality and hold the evidence to be legally sufficient to support the verdict.
For the error in permitting the reading of Dunn’s testimony the case is reversed. | [
112,
-18,
-47,
62,
9,
96,
58,
-72,
82,
-71,
-30,
-46,
-17,
-33,
4,
45,
-93,
109,
85,
105,
-42,
-74,
23,
65,
34,
-37,
17,
-43,
-72,
79,
63,
-33,
74,
112,
-62,
85,
-26,
-120,
-59,
84,
-122,
-121,
-71,
96,
64,
64,
52,
46,
86,
11,
33,
30,
-29,
42,
22,
-50,
73,
40,
75,
45,
88,
-79,
-104,
79,
47,
3,
-93,
36,
-98,
7,
120,
110,
-100,
49,
16,
-24,
115,
-106,
-122,
84,
79,
-104,
12,
102,
98,
0,
37,
79,
-88,
-120,
54,
63,
-83,
-89,
24,
72,
11,
76,
-74,
-97,
98,
52,
30,
122,
-27,
-59,
57,
100,
5,
-49,
-108,
-73,
-51,
44,
-46,
82,
-21,
39,
17,
117,
-49,
-26,
92,
71,
115,
-101,
-114,
-97
] |
James E. Hyatt, Jr., Special Justice.
This is a Will contest and comes here on appeal from the Order of the Polk County Probate Court admitting to probate the Will of Rose N. Gordon, dated January 7, 1968, and the codicil thereto dated January 23, 1968, (hereinafter called Will 2) offered for Probate by the Appellee, and dismissing the Appellants’ objections to and contest of that Will and their offer to probate an earlier Will dated October 3, 1967, (hereinafter called Will 1).
The undisputed facts are: Rose N. Gordon, a 72 year old widow, who lived a more or less secluded life on her 80 acre farm in Polk County, Arkansas, following the death of her husband in 1965, died testate on March 17, 1968. She had no children, but was survived by three sisters, a brother and a niece, all of whom were non-residents and with whom she had had little or no association for the past twenty or thirty years. She was also survived by a 40 year old foster son, whom she never adopted, Paul E. Sarver, sometimes referred to as Earnest E. Sarver, who was in the Navy stationed in California, with his wife and four children. At the time of her death the decedent owned an 80 acre farm in Polk County on which she lived (which she and her husband had acquired in 1956), the household furnishings situated therein, certain cattle, farm machinery and motor vehicles, shares of stock in various corporations and cash on deposit in a bank.
Mrs. Gordon, in the approximately 5 months preceding her death, made two different Wills and a Codicil to the latter, each of which was prepared by a highly respected member of the Bar. The first Will, which we shall call Will 1, was dated October 3, 1967, and was prepared by Mr. Nabors Shaw, the family attorney since 1956, at his office at Mena, Arkansas, and was duly executed there by Mrs. Gordon and attested as required by law, and left in the attorney’s vault, for safekeeping. Under this Will, Mrs. Gordon devised and bequeathed her entire estate to the foster son Paul E. Sarver and his wife for their lives, and then on their death, to this couple’s four children in fee simple, naming a local banker as Executor.
This Will remained in the attorney’s office five or six weeks until the middle of November 1967, when Mrs. Gordon sent for it and had it brought to her home. Upon receiving it, she read it before the people present, then tore the Will proper from the attesting Affidavit and handed it to one of the persons present asking him to put it on the fire to burn in the fireplace in front of which she was sitting, which he did. The Will was burned at her direction and she retained only the Affidavit.
The second Will, which, together with the Codicil thereto hereinafter mentioned dated January 23, 1968, we shall call Will 2, was made approximately six weeks after Will 1 was burned and dated January 7, 1968. This Will was prepared by Mr. Max Witt, an attorney of Mount Ida, for whom she had sent, in the home of Mrs. Gordon on that date, a Sunday, and was duly executed there by Mrs. Gordon and attested as required by law. Later a Codicil to this Will was prepared by Mr. Witt at his office and sent to Mrs. Gordon on January 23, 1968, at the Mena Hospital, where she was then a patient, where it was executed by Mrs. Gordon and attested as required by law.
Under this Will, which contained a standard revocation clause, and the Codicil thereto, Mrs. Gordon bequeathed her household furnishings, cattle, farm machinery and motor vehicles, except one car, which she left her Executor, to Clark Cude and Wayne Cude, two neighboring teenage boys, to whom she had previously deeded her 80 acre farm (in which deed she had reserved unto herself a life estate), the sons of a friend and neighbor who had assisted or worked for her about her farm during the last several years of her and her husband’s life, and who had assisted in caring for her during the last months of her life. She disposed of the remainder of her property by specific bequests of a baby grand piano to a niece, Margaret Stimsman; 100 shares of common stock in the Polk County Farmers Association to the Seventh Day Adventist Church in Hutchinson, Kansas; 318 shares of stock in the El Paso Electric Company to the Salvation Army in El Paso, Texas; 120 shares of stock in the El Paso Natural Gas Company to a sister, Anna Black of Teague, Texas; and the cash on deposit in the bank to her Executor to pay the taxes and farming expenses on the farm which she had previously deeded to Clark Cude and Wayne Cude.
In Will 2, which not only revoked all 'prior Wills, Mrs. Gordon specifically excluded the foster son, to whom she had devised and bequeathed her entire estate in Will 1, by the following provision, and we quote:
“Eight-. I have helped raise a boy, EARNEST E. SARVER, and he has already been provided for, and IT IS MY WILL, AND I EXPRESSLY STATE THAT EARNEST E. SARVER RECEIVED ABSOLUTELY NOTHING, FROM MY ESTATE OR PROPERTY.”
She named Archie Cude, a neighbor and the father of Clark and Wayne Cude, the principal beneficiaries under Will 2 and the persons to whom she had deeded her farm, as Executor of her estate without bond, and provided that in the event that he was unable to serve as such Executor, that her attorney, Max Witt, was to serve as Executor without bond.
Upon Mrs. Gordon’s death on March 17, 1968, Archie Cude, as the person nominated as Executor in Will 2, filed and offered for Probate Will 2 (the Will dated January 7, 1968, and the Codicil thereto dated January 23, 1968) together with the required proofs of attesting witnesses, with the request that he be appointed Executor of Mrs. Gordon’s estate as directed by said Will. Mr. Cude also filed a separate intervention requesting the Probate of Will 2 and the denial of the Petition for the Appointment of a Successor Guardian to administer Mrs. Gordon’s estate filed by John W. Gordon and Earnest E. Sarver (which said .Petition does not appear in the record).
The three sisters- and brother of Mrs. Gordon, the foster son and his wife and four children, contestants below and Appellants herein, filed objections to the Probate of the proffered Will dated January 7, 1968, and Codicil thereto dated January 23, 1968, contesting mainly on three grounds: that Mrs. Gordon was mentally and physically incapable and unduly influenced by Archie Cude to make a new Will and in attempting to revoke the Will which she had made on October 3, 1967; that Mrs. Gordon was mentally and physically incapable of making either the October 3, 1967, Will, or the January 7, 1968, Will and the Codicil thereto, and that the Court should make a determination that she died intestate; and that the proponents of Will 2 exercised undue influence over the Testatrix and fraudulently and deceitfully obtained the execution of Will 2 and deprived Testatrix of the assets of her estate.
The contestants (Appellants) urged the probate Court to refuse to Probate the January 7, 1968, Will and Codicil thereto dated January 23, 1968, by reason thereof and' make a finding that the decedent was mentally and physically incapable . and unduly influenced in attempting to revoke the Will which she had made on October 3, 1967, and, in the event the Court determined that the deceased was mentally and physically incapable of making either the October 3, 1967, or January 7, 1968, Will and the Codicil thereto, make a finding that the deceased died intestate; and for attorney fees, etc.
After an extensive hearing thereon consisting of the oral testimony of 25 witnesses, with exhibits, the deposition of 1 witness, numerous exhibits and the excellent Trial Briefs by Counsel for both sides, the Probate Court rendered its Order and Judgment admitting to Probate Will 2, the Will dated January 7, 1968, and the Codicil thereto dated January 23, 1968; found that the objections raised and relief asked for by the contestants to the Probate of that Will and Codicil should be and were denied and dismissed; appointed Archie Cude, the party nominated in the January 7, 1968, Will, Executor and directed the Clerk to issue Letters Testamentary to him.
From that Order comes this appeal.
For reversal, Appellants contend that the lower Court’s finding (1) that decedent did not lack testamentary capacity at the time she executed the Will and Codicil thereto is not supported by a preponderance of the evidence; (2) that the decedent executed the Will and Codicil thereto of her own free will and act and not as a result of coercion, fraud or undue influence is not supported by a preponderance of the evidence; and (3) the Court erred in failing to recognize that the burden of proof shifts from will contestants to the will proponents where the proponent procures the making of the Will, and that then the proponent must show beyond a reasonable doubt that testatrix had both such mental capacity and such freedom of will and action as are requisite to render a valid will.
We cannot agree with counsel for Appellants in these contentions. Simply stated, the issues raised are (1) the rule of this Court on de novo hearings on appeal, (2) mental or testamentary capacity to revoke or make a will, (3) undue influence, and (4) burden of proof in will contest cases.
General Testimony: Mrs. Gordon lived alone on her farm after her husband’s death with her cattle, numerous birds and cats, and operated it herself with the help of friends and neighbors. She was a strong willed person, with certain peculiarities. From 1962, after an operation, to November 1967, she had a friend and companion named Alice Ferguson, who normally drove her. She had little or no contact with her sisters and brother, and had been visited by the foster son only five times since she came to Arkansas in 1956 to the time of her death in 1968.
In the fall of 1967, Dr. Calvin Austin discovered she had advanced caricnoma of the rectum, without hope of cure. When she learned of this, she sent for the foster son to come to Arkansas and visit with her, and after he arrived explained her situation to him and attempted to persuade him to come live with her, but he did not choose to do so.
On October 3, 1967, she and the foster son went to her family lawyer where she made Will 1 leaving all of her property to the foster son and his wife and. children. She left the Will and other papers with the attorney for safe keeping. After that the son returned to California.
Surgery was recommended for Mrs. Gordon by Dr. John Wood, and on October 17, 1967, she entered the Mena Hospital, where Dr. Wood performed a colostomy. During this time the foster son and his wife came back to Arkansas to be with her, at which time they stayed on the Gordon farm.
When the foster son was home and Mrs. Gordon in the hospital, she requested he bring her a package from the home which she contended contained money. When the package was delivered to her she contended some $1,500.00 or $1,600.00 Dollars supposedly in the package was missing from it, and accused the foster son of taking it. Some silverware, a violin and furs also were alleged to have disappeared from the home. This was extremely vexing to Mrs. Gordon and caused her to be distrustful of the foster son.
After the operation in October, Dr. Wood recommended that Mrs. Gordon go to a nursing home until she could adjust to the colostomy and care for herself. At first Mrs. Gordon accepted the idea, but later rebelled. The surgeon recommended that a guardian be appointed for her to look after her affairs and place her in a nursing home. Unknown to her, the foster son went to the family lawyer, who had prepared Will 1, and had him prepare a Petition to have Mr. Crowell the Executor named in Will 1, appointed guardian for Mrs. Gordon so she could be placed in a nursing home.
Mrs. Gordon was served with notice of the application for appointment of a guardian for her in the hospital and without prior notice. She became infuriated at the foster son, the family lawyer and the nominated guardian and suspicious of all connected therewith, as all being a conspiracy against her to get her in a nursing home. She from that point until her death was distrustful of those named, stating she was not going to a nursing home, but wanted to return to die with her birds and cats in her own home.
Archie Cude, a friend and neighbor for a number of years, whose wife was in the hospital at the same time, with his wife visited Mrs. Gordon at this time. Mrs. Gordon expressed to him her fear and apprehension of the action taken by the foster son and the others and told him of her desire to go home rather than to a rest home. She was very upset. She asked him to see what he could do to help her. The hearing was to be the next day and she was upset about that as well as the missing money. Cude contacted the lawyer to get him to postpone the hearing for a week until she could do something, and it was put off indefinitely. Mr. McMillan also intervened in her behalf. When Alice Ferguson refused to help her, Cude offered to look after her and her property and help her until she could get someone or hire somebody. Mrs. Gordon’s attitude towards the foster son, doctor, lawyer and Alice Ferguson changed from that point on. After this Cude and his family helped Mrs. Gordon with them doing the physical work and her making the decisions and managing things.
Mrs. Gordon remained in the hospital until November 4, 1967, during which time Charlie McMillan, a close friend and fellow church member of Mrs. Gordon, at her request, obtained from the proposed guardian all the papers given him by the foster son after the Petition for his appointment as her guardian was filed and also her first Will (Will 1) from the attorney who was holding it and delivered them to Mrs. Gordon.
After Mrs. Gordon returned home and received the papers from the proposed guardian and the first Will, she burned the Will in the presence of witnesses stating that she was through with it, but retained the Affidavit as that was the first attorney’s opinion that she was competent. She then wrote notes to and called several attorneys outside of Mena, stating she wanted one totally unconnected with her former friends, to get their assistance in making a new Will and disposing of her property.
After several unsuccessful attempts to obtain a lawyer who could come to her home, she finally sent a note by Archie Cude to Max Witt at Mount Ida, who with his wife drove to Mrs. Gordon’s home one Sunday, where, on January 7, 1968, he prepared Will 2, and a Warranty Deed conveying the farm to Clark and Wayne Cude, the minor sons of Archie Cude, retaining a life estate unto herself, both of which were executed as required by law. The Deed was recorded January 8, 1968. On January 22, 1968, Max Witt, at the written directions of Mrs. Gordon, prepared a Power of Attorney authorizing Archie Cude, her nominated Executor in Will 2 and the father of Clark and Wayne Cude, to manage her property and affairs and another Warranty Deed of the farm to the Cude boys to correct and make clear her intent in the January 7th deed, both of which were duly executed and acknowledged as required by law and then recorded.
It would unduly burden this opinion to further detail the testimony and would serve no useful purpose, but briefly stated contestants offered proof that Mrs. Gordon was competent when she made Will 1, but that when she attempted to revoke it by burning it five or six weeks later she was incompetent due to mental incapacity and the undue influence of Archie Cude, who they further contend was a beneficiary and the procurer of the making of Will 2.
The proponents offer the testimony of twelve (12) witnesses including the attorney who prepared Will 2 and his wife and the attesting witnesses to both the will and codicil, each of whom clearly and unequivocally testify as to the normalcy of the facts and circumstances surrounding Mrs. Gordon at the time she dictated the terms to be inserted in her Will, and executed it, and the deed, as well as at the time the Codicil, Power of Attorney and new deed were made and to the complete competency to make a will .under the rules followed by this Court as hereinafter set out, as well as to the absence of fraud or undue influence on the part of Cude. Even Mrs. Gordon’s regular physician, called by contestants, testifies that in his opinion she was competent, although he does question her business judgment.
The contestants offer the testimony of ten (10) witnesses including that of the beneficiaries under Will 1 and the Deposition of a sister, all of whom had become more or less alienated from Mrs. Gordon, either by their long period of absence from her or because of what Mrs. Gordon felt their actions towards her warranted. Little of this testimony bore directly upon the mental condition of Mrs. Gordon at the date and time of the execution of the Will, Codicil, Power of Attorney and Deeds, or immediately before and after that date and time so as to be persuasive. Some testimony is offered to try to establish a relationship and plot on the part of Archie Cude to Mrs. Gordon to raise a presumption of fraud and undue influence, but there is no positive testimony on these points and that offered is not persuasive or convincing.
After carefully weighing and analyzing all of the testimony presented in this record (834) pages) and the excellent briefs of counsel and opinion of the Trial Judge, who had an opportunity to personally observe and weigh the testimony of each witness and thus was in a better position than this Court to determine the weight to be given such testimony, we 'think the clear preponderance of the testimony supports the finding and Order of the Trial Judge.
The rules of law applicable to the contentions and subjects in this case, and which guide us in reaching a decision herein are set out in the following separate headings.
FIRST — TRIAL DE NOVO.
The rule is well established that will contest cases on appeal come before this Court for trial de novo, and unless this Court can say that the Order of the lower Court is NOT supported by a preponderance of the testimony, it will be the duty of this Court to affirm. Welch v. Farber 188 Ark. 696, Parette v. Ivey, 209 Ark. 364, 190 S. W. 2d 441, Thiel, Special Administrator, v. Morley, 223 Ark. 175, 265 S. W. 2d 507, Sullivant v. Sullivant, 236 Ark. 95, 364 S. W. 2d 655, Short v. Stephenson, 238 Ark. 1048, 386 S. W. 2d 501.
SECOND — MENTAL OR TESTAMENTARY CAPACITY
Mental or testamentary capacity as must be possessed by a testator in order for him to make a valid will has been defined by this Court many times in two lines of cases, which are:
The rule has been generally expressed that sound mind and disposing memory, constituting testamentary capacity, is (a) the ability on the part of the testator to retain in memory without prompting the extent and condition of property to be disposed of; (b) to comprehend to whom he is giving it; and (c) to realize the deserts and relations to him of those whom he excludes from his will. Taylor v. McClintock, 87 Ark. 243, 112 S. W. 405; Boone v. Boone, 114 Ark. 69, 169 S. W. 779; Mason v. Bowen, 122 Ark. 407, 183 S. W. 973, Ann. Cas. 1917D, 713; Griffin v. Union Trust Company, 166 Ark. 347, 266 S. W. 289; Puryear v. Puryear, 192 Ark. 692, 94 S. W. 2d 695; Petree v. Petree, 211 Ark. 654, 201 S. W. 2d 1009.
Testamentary capacity means that the testator must be able to retain in his mind, without prompting, the extent and condition of his property, to comprehend to whom he is giving it, and relations of those entitled to his bounty. Tatum v. Chandler, 229 Ark. 864, 319 S. W. 2d 513; Sullivant v. Sullivant, 236 Ark. 95, 364 S. W. 2d 665; O’Dell v. Newton, 228 Ark. 1069, 312 S. W. 2d 339.
Complete sanity in a medical sense is not essential to testamentary capacity, provided power to think rationally exists when a will is made.
A will executed in a lucid interval is valid. Thus, the time to be looked into in determining a testator’s mental capacity to make a will is when the document was executed. In dealing with this subject, this Court in Scott v. Dodson, Executor, 214 Ark. 1, 214 S. W. 2d 557, said:
“Fifth — The Applicable Law. — The test is whether Mrs. Boykin, on September 13, 1938, had a fair comprehension of the nature and extent of her property, of her relationship to those who had claims upon her, of their situation as it affects financial need, or financial sufficiency; and of other obligations existing at the time she acted.
Complete sanity, in a medical sense, is not essential; provided, that the power to think rationally exists when the individual’s will to act is exercised. The word ‘will’ of itself connotates purpose, intent, deliberation, violation, freedom from unreasonable restraint, voluntariness, desire, the power to choose, discretion.”
In 56 Am. Jr., page 89, under subject of “WILLS” and under the sub-head of “Lucid Intervals” it is stated: which is quoted with approval in Thiel, Special Adm’r v. Mobley, 223 Ark. 167, 265 S. W. 2d 507, “A will executed in a lucid interval by one who was before and after a confirmed lunatic is valid. .” The following section, also in point here, states that “The time to be looked to in determining the capacity of a testator to make a will, in reference to his mentality, is the time when the will was executed”. See also Puryear v. Puryear, 192 Ark. 692, 94 S. W. 2d 695.
The same degree of mental capacity is necessary to revoke a will as to make one.
Revocabil'ity is an essential characteristic of a will. Except where a testator subsequently becomes incompetent, he retains the power of revocation as long as he lives. Thus the same test of mental capacity applies to the revoking of a will as to the making thereof. See 57 Am. Jur. 458, Wills, page 322.
We adhere to these rules and find that the lower Court’s finding of competency of the decedent at the time of the revocation of Will 1 and execution of Will 2 is supported by a preponderance of the evidence.
All of the witnesses for the proponents testified to facts, according to these rules, which established the competency of the decedent at the time she made the Will and other documents. Witnesses for contestants testified that in their opinion she was not able to make a will,- but did not testify to facts or acts which supported their opinion. True she may have had peculiarities or eccentricities, but these are not sufficient to indicate mental incapacity.
As heretofore stated, we have examined the entire record and have reached the conclusion that the Order is supported by a preponderance of the evidence, and, therefore, the Order should not under this rule be disturbed.
THIRD — FRAUD AND UNDUE INFLUENCE.
The fraud and undue influence which the law condemns as voiding a will is defined by this Court in Thiel, Special Adm’r v. Mobley, supra, when it quoted with approval from Puryear v. Puryear, 192 Ark. 692, 94 S. W. 2d 695:
“ ‘As we understand the rule, the fraud and undue influence which is required to -void a will must be directly connected with its execution. The influence which the law condemns is not the legitimate influence which springs from natural affection, but the malign influence which results from fear, coer cion, or any other cause which deprives the testator of his free agency in the disposition of his property. And the influence must be specifically directed toward the object of procuring a will in favor of particular parties. It is not sufficient that the testator was influenced by the beneficiaries in the ordinary affairs of life, or that he was surrounded by them and in confidential relation with them at the time of its execution’ ”.
See also also McCulloch v. Campbell, 49 Ark. 367, 5 S. W. 590, and Orr v. Love, 225 Ark. 505, 283 S. W. 2d 667.
The charge of fraud and undue influence is based primarily upon the fact Mrs. Gordon revoked her Will of October 3, 1967, in which she left all of her property to a foster son and his family and by deed and her Will of January 7, 1968, deeded or devised all of that property to her neighbors, Archie Cude and his sons.
It is evident from the testimony that after the episode in which the foster son sought to have a guardian appointed for Mrs. Gordon and the subject of the missing money and other articles from the home, Mrs. Gordon became estranged from the foster son and alienated from his family and sought new friends for help and solace, the Cudes. The Cudes cared for Mrs. Gordon and apparently abided by her wishes with respect to seeing to her health and physical needs as well as looking after and managing her property.
The rule in this State has been for many years that so long as a testator has the required capacity to make a will he may leave his property to whom he chooses no matter how capricious or frivolous it may seem to others.
In Parette v. Ivey, Executor, 209 Ark. 364, 190 S. W. 2d 441, this Court said,
"The undue influence which avoids a will is not the influence which springs from natural affection, or is acquired by kind offices, but it is such as results from fear, coercion, or any other cause that deprives the testator of his free agency in the disposition of is property. And it must be directly connected with the execution of the will and specially directed towards the object of procuring a will in favor of particular parties.
“See, also, Taylor v. McClintock, 87 Ark. 243, 112 S. W. 405, wherein this court said: 'Testators are not required by law to mete out equal and exact justice to all expectant relations in the disposition of their estates by will, and the motives of partiality, affection or resentment, by which they naturally may be influenced, are not subject to examination and review by the Courts. Barricklow v. Stewart, 163 Ind. 438, 72 N. E. 128; Clapp v. Fullerton, 34 N. Y. 190, 90 Am. Dec. 681. If one has the capacity indicated to make a will then he may make it as eccentric, injudicious and unjust as caprice, frivolity or revenge can dictate. Schneider v. Vosburgh, 143 Mich. 476, 106 N. W. 1129; In re Spencer’s Estate, 96 Cal. 448, 31 Pac. 453; Rivard v. Rivard, 109 Mich. 98, 66 N. W. 681.
“There was other testimony that tended to show that an estrangement had grown up between appellant and his deceased sister, and indifference and neglect on appellant’s part. Many facts- and circumstances may be considered in determining-whether the deceased at the time she made her will was conscious of the ‘deserts and claims’ which her relatives had upon her. No hard and fast rule may be employed. In - this connection, the testator may take into account, when considering his duties to relatives-, past neglect, indifference, estrangement, and the like.”
The testimony does not support the contention that Archie Cude held a confidential relationship with Mrs. Gordon at the time of the execution of the Will and other -documents, or that he was a beneficiary thereunder within the meaning of these rules, but shows that he was her helper, messenger or benefactor.
FOURTH: BURDEN OF PROOF.
It is well established in this State that the burden of proving mental incompetency, undue influence or fraud which will defeat a will is on the party contesting it: Werbe v.Holt, 218 Ark. 476, 237 S. W. 2d 478; Walsh v. Fairhead, 215 Ark. 218, 219 S. W. 2d 941; McWilliams v. Neill, 202 Ark. 1087, 155 S. W. 2d 344; Smith v. Boswell, 93 Ark. 66, 124 S. W. 264; Thiel, Special Adm’r v. Mobley, 223 Ark. 265, McDaniel v. Crosby et al, 19 Ark. 533, Sullivant v. Sullivant, 236 Ark. 95, 364 S. W. 2d 665.
And just as in Sullivant v. Sullivant, supra, the appellants in this case, attempt to shift the burden of proof to the proponents (appellee) of the Will 2 by relying on the rule in Orr v. Love, 225 Ark. 505, 283 S. W. 2d 667, where this Court said:
“When it is shown that the will is drawn or procured by a beneficiary, there is a presumption of undue influence. It is incumbent on those, who, in such a case, seek to establish the will, to show beyond reasonable doubt, that the testator had both such mental capacity, and such freedom of will and action, as are requisite to render a will legally valid.”
In that case the testatrix made four wills in less than a month. The proponent of the last will, the daughter-in-law, was one of the principal beneficiaries who had her own lawyer prepare the will according to her individual instructions and contrary to the terms of the first will.
In the case at bar, Mrs. Gordon dictated to the attorney the terms she wanted in her will, specified that certain property and stocks go to particular beneficiaries and dictated the terms of a deed, a clear reading of which in itself shows the decedent to have the capacity to retain in her mind without prompting the extent and condition of her property and to comprehend to whom she is giving it, and that the only part Archie Cude played in this was acting as her messenger. The testimony does not show him to be the procurer or beneficiary so as to raise a presumption of undue influence.
Appellants also contend that under the Orr rule, not only did the burden of proof shift to the proponent but also that the proponent must prove beyond reasonable doubt that the testatrix had both such mental capacity, and such freedom of will and action, as are requisite to render a will legally valid.
We do not agree with Appellants in either contention.
We adhere to the rule that the burden of proving mental incompetency, undue influence and fraud which will defeat a will is upon the party contesting it. We hold this burden, in the sense of the ultimate risk of nonpersuasion, never shifts from the contestant. This does not however, conflict with the rule concerning the burden of going forward with the evidence or burden of evidence. As stated in 29 Am. Jur. 2d, 156, Evidence Section 125: “In short, the burden of proof, in the sense of the ultimate risk of nonpersuasion, never shifts from the party who has the affirmative of an issue, although the burden of going forward with the evidence may shift at various times during the trial from one side to the other as evidence is introduced by the respective parties.”
From all of the testimony we are unable to say that the findings and Order of the Probate Court were against the preponderance and contrary to the law as herein stated.
The Order of the Probate Court is affirmed.
Harris, C. J., and George Rose Smith, J., dissent.
Jones, J., not participating. | [
113,
110,
-36,
30,
24,
-14,
26,
-102,
114,
-62,
101,
87,
-19,
-50,
21,
41,
43,
-81,
85,
-23,
-25,
-77,
85,
36,
82,
-5,
-79,
-47,
-77,
-55,
52,
-12,
76,
96,
-118,
-43,
-58,
-126,
-83,
80,
-50,
81,
-37,
100,
27,
-14,
52,
43,
84,
15,
117,
-98,
-9,
-83,
125,
-10,
104,
108,
-39,
44,
80,
-80,
-118,
12,
-19,
22,
-112,
-28,
-98,
-93,
72,
14,
16,
53,
32,
-88,
51,
-74,
18,
84,
43,
-103,
12,
32,
102,
65,
-19,
-17,
-88,
-120,
23,
126,
-115,
-89,
90,
25,
-22,
65,
-100,
-98,
125,
16,
11,
-36,
-75,
85,
60,
100,
8,
-49,
-106,
-79,
67,
-88,
-100,
11,
-29,
37,
48,
117,
-55,
-30,
125,
70,
113,
-101,
-57,
-78
] |
Conley Byrd, Justice.
Appellants Joe Liberto and James H. Mothershed were convicted of keeping a gambling house contrary to Ark. Stat. Ann. § 41-2001 (Repl. 1964), which provides:
“Every person who shall keep, conduct or operate, or who shall be interested, directly or indirectly, in keeping, conducting or operating any gambling house, or place where gambling is carried on, or who shall set up, keep or exhibit, or cause to be set up, kept or exhibited, or assist in setting up, keeping or exhibiting, any gambling device, or who shall be interested directly, or indirectly in running any gambling house, or in setting up and exhibiting any gambling device or devices, either by furnishing money, or other articles for the purpose of carrying on any gambling house, shall be deemed guilty of a felony, and on conviction thereof, shall be confined in the State penitentiary for not less than one [1] year nor more than three [3] years.”
For reversal, appellants rely upon the following eight points:
“I The court erred in overruling the defendants’ motion to suppress the evidence and quash the search warrant.
II. The court erred in permitting Clyde Miller, a witness for the State, to introduce and testify that certain pieces of paper were betting slips based upon hearsay evidence- or what an informant told him they were.
III. The Court erred in permitting Bill Young, a witness for the State, to testify as to conversations he had with persons on the telephone while the officers were in the process of executing the search warrant.
IV. The Court erred in permitting Forrest Reynolds, a witness for the State, to testify about telephone calls placed to and from the telephones in the defendant Mothershed’s home, based upon the records of the local Southwestern Bell Telephone Company.
V. The Court erred in permitting Johnny Etter, a witness for the State, to testify pertaining to blocks of accoustical material with numbers thereon which he had no personal knowledge of.
Vi. The Court erred in overruling the defendants’ motion for a directed verdict at the conclusion of the State’s case.
VII. The Court erred in refusing to give defendants’ requested instructions number one, two and three.
VIII. The verdict of the jury is based upon speculation and conjecture.”
The record shows that Ralph Hampton, a Fort Smith Police officer, was investigating alleged gam bling law violations. About 8:55 A. M. on February 11, 1969, he was in the Continental Restaurant and observed Mr. Liberto enter and go to the cashier’s stand where he deposited a substance of paper resembling a folded newspaper. When Hampton went by the cashier’s stand he observed on the paper the words “daily racing form” and that the female cashier put it under the stand. At about 9:05 A M. on the same date he observed Mr. Liberto on Midland Boulevard going to an establishment with a sign outside, “Martin’s Garage”. On February 14, at 8: A. M. he again observed Mr. Liberto at the Continental Restaurant. Mr. Liberto there got out of his vehicle with a sheaf of folded paper about 'A inch thick. Mr. Liberto went into the restaurant and came out in a minute or two empty-handed. Officer Hampton then followed Liberto and observed him make a series of stops at various businesses. In each instance Liberto got out of his car with a folded piece of paper in his hand, entered the business, stayed very briefly and came out empty-handed. Again Liberto went to Martin’s Garage on Midland Boulevard and stayed until officer Hampton left.
Captain Bill Young of the Fort Smith Police Department was also engaged in investigating gambling activities in the city. He knew both Mr. Mothershed and Mr. Liberto. At about 10:00 A. M. on February 10th he saw Mr. Mothershed in the Continental Restaurant. When Mothershed finished his coffee he went to the check-out stand, paid his check and handed the waitress a piece of rolled-up paper with some money sticking out of it, which she put in her pocket. He had seen Mothershed carry papers that looked like newspapers in and out of his apartment. Captain Young was at Mothershed’s apartment when officers were searching the apartment. While there he answered three telephone calls; one lady wanted “Joe” to bring some racing forms, one lady wanted to place a bet and a man asked if the “scratch” sheet was out. This all occurred while the raid was going on. Captain Young did not give Mr. Mothershed an opportunity to talk to any of the people that called.
Officer Clyde Miller testified that he also was engaged in investigation of gambling activities. On February 10, he saw Mr. Mothershed at the Continental Motel Restaurant. When Mothershed finished eating, walked to the cash register and paid his bill, he handed the waitress a guest check with some money which she put under the counter. On February 11, he saw Mr. Liberto go to apartment 7 at 1118 North J Street (Mothershed’s apartment) with a racing form. On the 13th, Mr. Liberto again went to the apartment with racing forms — in fact, both defendants had been seen going to the apartment with racing forms. On February 17, Officer Miller, together with other officers, went to Mothershed’s apartment with a search warrant for apartments No. 4 and 7. At that time officer Miller served the search warrant upon Mr. Mothershed and Mr. Liberto who were in Apartment No. 7. In the apartment they found two racing forms, two telephones, one numbered SU 3-4702 in the living room, and SU 3-4786 in the bedroom. Mr. Liberto tried to stuff some papers, etc., down the drain but Captain Miller stopped him. In this raid they obtained a black notebook marked off with letters A, B, C, D, E, F and so forth. Also a small hand stapler, a box of staples, rubber bands, scratch pads and betting slips were found in a cabinet drawer. In the trash can they also found some scratch pads and torn-up betting slips. During the search of the apartment, appellant Mothershed stated to the officers, “Boys, that’s what you’re looking for,” referring to betting slips and other articles introduced as evidence. Mothershed also stated to Captain Miller, “Boys, we’re going to do it. You may as well leave us alone. Gambling is just like drinking whisky. People are going to gamble — they’re going to drink whisky. It’s my job. I’m not going to stop.”
Another officer, Johnny Etter, testified that he found some peg boards underneath a kitchen cabinet in apartment 7 and that he did not know what Mothershed was using the peg boards for.
Forrest Reynolds, a Southwestern Bell Telephone Company employee, testified about telephone company records of numerous calls made from the telephones in appellants’ premises to various cities and collect calls from various cities to appellants’ telephones. Some of the cities were Hot Springs, Las Vegas, and San Pedro, California. No objection was made to the testimony of this witness but when the records were introduced appellant did object but saved no exceptions.
POINT I. Appellants, in arguing that there was no probable cause for the issuance of search warrants, admit that the affidavit on its face might be sufficient grounds for issuance of the search warrant, but then argue that when we examine the facts upon which the affidavit was based they fall far short of the standards of probable cause for the issuance of a search warrant required by Aguilar v. Texas, 378 U. S. 108, 12 L. Ed. 2d 723, 84 S. Ct. 1509 (1964), and Spinelli v. United States, 393 U. S. 410, 21 L. Ed. 2d 637, 89 S. Ct. 584 (1969).
The affidavit sworn to by Officer Miller, upon which the search warrant was issued, provides:
“That he has reason to believe that on the premises known as 1118 North J Apartments No. 4 and No. 7 in the City of Fort Smith, County of Sebastian, State of Arkansas, there is now being concealed certain property, namely telephones SU 3-4702, SU 3-4786, scratch pads, racing forms, receipt books, business cards with phone numbers SU 3-4702, SU 3-4786, note books, ledgers, rubber stamps, which are believed to have been and are being used in connection with betting on horses.
“And that the facts tending to establish the foregoing grounds for issuance of a search warrant are as follows: Personal observation of this affiant of known gamblers entering and leaving the premises with racing forms in their possession, and personal knowledge of affiant that telephones over which bets have been placed are listed as being in the premises.”
At a hearing on the motion to supress the evidence obtained in the search, it was shown thát Officer Miller did not actually have personal knowledge of bets being placed over the phones but that the knowledge was that of Officer Burns, also involved in the investigation. In addition to the information received by Officer Burns, the officers had received what might be termed a calling card, rubber stamped with the two telephone numbers. When counsel for appellants objected to introduction of testimony showing probable cause contrary to that contained in the affidavit, the trial court stated:
“Well, Mr. Pitts, I can tell you this that when this affidavit — these officers came to me, I put them under oath and examined them extensively with respect to the basis of their information and the reasons that they said that they knew these things, and for one thing I asked them, ‘Why do you say that these phone numbers are incriminating? Anybody can have a telephone.’ And they then told me about — they then gave me the information that he is testifying to now. I agree with you, it is not set out in the Affidavit, but in my capacity as a magistrate examining the credibility, so to speak, of the affiant, I did require him to go into this background information to connect these numbers with this activity.”
The general rule is that, in the absence of a statute, a subsequent showing of the falsity of an affidavit for search warrant cannot retrospectively invalidate a warrant valid when it was issued. See United States v. Brunett, 53 F. 2d 219 (W. D. Mo. 1931); United States v. Bowling, 351 F. 2d 236 (6th Cir. 1965); and Annotation in 5 A. L. R. 2d 394. In Rugendorf v. United States, 376 U. S. 528, 11 L. Ed. 2d 887, 84 S. Ct. 825 (1964), the United States Supreme Court points out that it has never ruled on the question. As noted in the Bolling case, supra, courts generally look with disfavor upon collateral attacks which are based on claims of falsity in the statements of an affidavit upon which a search warrant is issued.
Like the U. S. Supreme Court in Rugendorf v. United States, supra, the record before us supports a showing of probable cause whether we limit it to the affidavit or to the testimony that the trial judge said he had before him at the time he issued the search warrant. For either or both of the reasons stated, we find appellants’ contention to be without merit.
POINTS II, V, IV, VI and VIII: We give no consideration to appellants’ points II and V because no objections or exceptions were taken in the trial court. Neither do we give any consideration to appellants’ point IV, because no exceptions were saved. Appellants’ points VI and VIII., having to do with sufficiency of the evidence, we find without merit, because the above outlined testimony is ample to show that appellants maintained an establishment to receive and make bets on horse racing within the meaning of Ark. Stat. Ann. § 41-2001.
POINT III. Appellants here object to Captain Young’s testimony that while he was in the apartment he answered three telephone calls, one from a lady who wanted Joe to bring some racing forms, another from a lady who wanted to place a bet and the third, a man who asked if the scratch sheet was out. These telephone calls were received in the presence of the two appellants. We pointed out in Motors Insurance Corporation v. Lopez, 217 Ark. 203, 229 S. W. 2d 228 (1950), that a statement made out of court is not hearsay if it is given in evidence for the purpose of proving that the statement was made, providing that the purpose is otherwise relevant in the case at trial. The statements here given were obviously relevant to show the use of the telephone numbers involved. See Annot., 13 A. L. R. 2d 1409. Therefore we find this contention without merit.
POINT VIL The trial court, in its instruction No. 7, instructed the jury as follows:
“Every person who shall keep, conduct or operate, or who shall be interested, directly or indirectly, in keeping, conducting or operating any gambling house, or place where gambling is carried on, or who shall be interested directly, or indirectly in running any gambling house shall be deemed guilty of a felony. An establishment maintained for the purpose of receiving and making bets on horse races is a gambling house within the meaning of law. If you find beyond a reasonable doubt either or both of these defendants within the Fort Smith District of Sebastian County, Arkansas, did commit the offense charged in the indictment and as just defined to you, you will find such defendant or defendants guilty thereof and fix his punishment at not less than one nor more than 3 years in the penitentiary. If you do not so find you should acquit such defendant or defendants.”
Appellants’ requested instruction No. 1, which the court refused, would require the jury to find beyond a reasonable doubt “that the defendants operated and maintained Apartment No. 7. . .as a place where those who do desire to engage in gambling may resort to and find shelter while engaging in their gambling practices.” As can be seen from the statute, above, the keeping of a gambling house is not limited to a place where those engaged in gambling find shelter. For this reason the trial court properly refused appellants’ requested instruction No. 1.
Appellants’ requested instruction No. 2 would require the jury to find beyond a reasonable doubt that there was an actual wager between appellants and their customers before either defendant could be found guilty. Since the statute makes criminal the conduct of those who are interested directly or indirectly, the trial court properly overruled the instruction as it would require the jury to find that appellants were directly involved.
The trial court properly refused appellants’ requested instruction No. 3. Instruction No. 3 would require the jury to find that an offer to bet on a horse race was made to appellants and that appellants themselves accepted said offer to bet. The instruction as offered was erroneous because it would require the jury to find defendants guilty of wagering before it could find them guilty of operating a gambling house.
Affirmed. | [
48,
-2,
-11,
62,
24,
-64,
8,
-104,
66,
-71,
-26,
115,
97,
82,
0,
123,
-85,
107,
84,
101,
-62,
-105,
7,
32,
98,
-5,
-101,
-41,
-67,
75,
-20,
-100,
8,
32,
78,
81,
-90,
-58,
-121,
88,
-82,
-127,
10,
112,
3,
19,
44,
47,
4,
14,
49,
-97,
-61,
46,
28,
74,
105,
44,
73,
40,
89,
-39,
82,
5,
105,
21,
-128,
23,
-98,
5,
-40,
46,
-100,
49,
32,
-88,
115,
52,
-110,
68,
109,
-39,
-115,
100,
98,
33,
-59,
-25,
40,
1,
14,
63,
-99,
-89,
-102,
113,
67,
47,
-97,
-107,
102,
20,
14,
-20,
105,
84,
113,
40,
-109,
-114,
-112,
-89,
-83,
116,
-106,
114,
-21,
-25,
52,
113,
-51,
-30,
108,
86,
113,
31,
-122,
-44
] |
Conley Byrd, Justice.
Appellants W. T. and Ruby Baber and appellee Myrna Hicks, Guardian of the Estate of Annie L. Christian, an incompetent, were previously before this court in Baber v. Hicks, 238 Ark. 674, 384 S. W. 2d (1964), relative to the validity of a deed from Mrs. Christian to the Babers for support and maintenance. Involved here is the Babers’ responsibility to Mrs. Christian while she refuses to accept performance of the contract at the place designated or contemplated by the parties.
This phase of the litigation was instituted by the Babers for a declaratory judgment as to their responsi bility under the contract. Mrs. Hicks answered alleging that it was essential to Mrs. Christian’s well-being that she reside and be cared for in Wilcox Hall, a nursing home operated in conjunction with a hospital in Kings-port, Tennessee, and that Myrna Hicks as guardian was entitled to recover $10,891.20 for the reasonable cost of supporting Mrs. Christian in the nursing home from December 31, 1965, to the time of answering and also the cost of medical expenses incurred since December 31, 1965.
The trial court after a hearing held that the Babers were liable for the medical expenses according to the standards at Hope, Arkansas, in the amount of $2,127.47 and that Mrs. Christian’s estate was entitled to a reimbursement of $3,914.00 (being $10,265.00 less certain credits) for the nursing home expenses incurred. For reversal, the Babers raise a number of points, but because of our disposition, we will only discuss the obligation of the Babers with respect to the nursing home and the medical expenses.
The record shows that Mrs. Christian had lived with the Babers off and on from 1937 until late in 1962. When the Babers moved from Ozan to Hope in 1946, Mrs. Christian moved with them. Mrs. Christian owned some land worth approximately $22,000.00. In August 1962, subject to a life estate reserved in herself, she conveyed the land to the Babers under the following agreement:
“That I, Annie L. Christian, for and in consideration of the sum of Ten Dollars ($10.00) cash to me in hand paid by W. T. Baber and Ruby Baber, his wife, hereinafter called Grantees, the receipt of which is hereby acknowledged, and the further consideration that they, and each of them, and/or the survivor of them, do hereby agree to take me into their home and the home of the survivor, and care for me and furnish to me a separate room in such home and also furnish and provide for me all my necessary food, meals and board, and generally to support and look after and care for me as a member of their family as long as I live, except that I am to furnish and pay for my own clothing and wearing apparel...."
In December 1962, Mrs. Christian went to visit relatives in Tennessee and Virginia. Thereafter, Mrs. Myrna Hicks as guardian sued to set aside the deed because of alleged undue influence or mental incapacity. That litigation ended with Baber v. Hicks, 238 Ark. 674, 384 S. W. 2d 267 (1964), wherein we reversed the trial court’s action in setting aside the deed, and said:
“Upon the record as a whole we are persuaded that Mrs. Christian’s dissatisfaction with her contract is the result not of its invalidity in the first instance but of a change of mind on her part after she left the Babers’ home. In setting aside the chancellor’s decree we recognize, of course, that Mrs. Christian is still entitled to make her home with the appellants in accordance with the terms of the agreement.”
On July 10, 1964, Mrs. Christian was admitted to a Tennessee Hospital for a fractured hip. On September 23, 1964, she was again admitted for urinary incontinence, urinary tract infection and bronchitis. Upon her discharge each time she was returned to the home of her niece, Mrs. Hicks, in Gate City, Virginia. On February 20, 1966, Mrs. Christian was again hospitalized with pneumonia, chronic cystitis, osteoarthritis, parkinsonism, and cerebral arteriosclerosis. When Mrs. Christian was discharged on March 15, 1966, she again returned to Mrs. Hicks’ home. In April of 1966, Mrs. Christian was admitted to a nursing home operated in conjunction with the hospital. She was again hospitalized on April 11, 1967, and discharged on April 19, 1967, to the nursing home.
The guardian’s pleadings assert that it is not congenial for Mrs. Christian to reside in a room in the Baber home as a member of their family.
Mrs. Ruby Baber, age 64, testified she had lived at Ozan from 1937 to 1946 when they moved to Hope; that Mrs. Christian had lived in their home at Ozan and moved to Hope with them. Mrs. Baber’s youngest son was five weeks old when Mrs. Christian came to live with them. Mrs. Baber is now working as a school teacher because she has nothing else to do. If she had Mrs. Christian she would quit and care for her and that she has offered to do that for four years and would now if Mrs. Christian was returned to her care. Mrs. Baber’s mother is cared for by Mrs. Baber and her sisters in their respective homes from time to time. Mrs. Baber points out that she would employ all necessary help and assistance that would be needed to care for Mrs. Christian if she would return to her home. In fact, a Mrs. Bell McElmore, a registered nurse who lives just across the street, could be called on for help if needed. Mrs. Baber points out that her retirement income, if she now retired, would be $28 or $30 more a year than she is now drawing for teaching. On cross-examination she stated that if Mrs. Christian came back to Hope to live with her and the doctor said it was necessary for Mrs. Christian to live in a nursing home she would put her there until she could recuperate and come home.
Mr. W. T. Baber says that when they moved to Hope Mrs. Christian moved with them, that she’s lived with them off and on some 18 or 19 years prior to the time she went to Virginia. He would be glad to help with Mrs. Christian if she would come to live with them as they had agreed; that Mrs. Christian lived with them as one of the family, in fact she helped rear their sons. On examination by the court Mr. Baber stated that if it was necessary to sell an interest in their lands to provide for Mrs. Christian’s care, comfort and maintenance they would do so. He says the agreement between the Babers and Mrs. Christian was not entered into for money reasons, that it was out of personal love between Mrs. Christian and them.
Dr. Hobert M. Hampton of Gate City, Virginia, after testifying that he had recommended that Mrs. Christian be placed into a hospital initially and later transferred to a nursing home, stated:
“You have asked me if, at that time, after my examination, and with the knowledge I had of her condition, whether or not, in my opinion, Mrs. Christian could be properly cared for in a private home or residence, or whether it was best for her comfort, peace of mind and general and physical and mental condition that she be placed in a hospital or nursing home under professional care, and where hospital or nursing home facilities were constantly and readily available. This is a difficult question to answer, and in order to make some sense, I will go into some detail. She was initially admitted to Holston Valley Hospital on 7/10/64 with a diagnosis of fracture of the right hip. She was subsequently cared for by the orthopedic surgeons and myself during this hospital stay. Mrs. Christian’s next admission to the hospital was 9/23/64. Reason for this admission was urinary incontinence with urinary tract infection, and bronchitis. She was subsequently treated by myself and Dr. R. C. Jones, a urologist, and discharged again to Mrs. Hick’s care. The date of Mrs. Christian’s next admission to the hospital was 2/20/66, diagnosis on admission was pneumonia, chronic cystitis, osteoarthritis, parkinsonism, and cerebral arteriosclerosis. She was again discharged home to the care of Myrna Hicks. Mrs. Christian continued to do poorly at home of Mrs. Hicks because of her urinary tract disease as well as crippling arthritis and it was decided to admit her to Wilcox Nursing Home. She was admitted in April 1967, mainly because she had developed some decubitus ulcers as the result of her bedfast condition, and due to her urinary tract infection required Foley catheter drainage as well and frequent care, such as irrigation, as well as antibiotics for the infection. Also she required very intensive care for decubitus ulcers which were very slow to heal and required treatment at least 3 or 4 times a day by professional nursing care in form of medication, heat treatment, and turning every 2 to 4 hours in bed. It was felt by me that admission to nursing home was essential because of above conditions. Yes, my recommendations were borne out by subsequent condition of patient. Basically patient was unable to care for herself, could not turn herself in bed, or feed herself. Since she has been in nursing home, my visits have varied, sometimes every week or so, but of late I usually see Mrs. Christian every 2 or 3 months. I saw her last 2/9/69. The reason for my last visit was routine follow-up of nursing home care and physical evaluation, also to evaluate treatment instigated by an orthopedic surgeon several months ago in form of weights tied to her lower extremities to reduce flexure contractures of hips, knees, and ankles. You have asked me if in my opinion should Mrs. Christian continue to remain in the nursing home, and to give my reasons for my answer. This question is certainly debatable, at least by myself. She does require frequent and continuous 24. hour care, medication for parkinsonism and tremors, frequently turning in bed for delilitated condition, various cathartics, and sitting up in chair. Presently she is on leg straightening therapeutics of weights tied to lower extremities. I feel Wilcox Hall Nursing Home has done an excellent job. Whether this could be done in a home I think would be very much up to the individual concerned with the care. Since I first knew Mrs. Christian her physical condition had deteriorated in form of more serious, advanced, contractures of her joints. Nervous wise she is depressed at times but not to an incapacitating degree] Her mentation remains good. Medications I prescribed for her between December 1965 and December 1968 included antibiotics, Foley catheter drainage as well as irrigation of catheter, local medications for decubitus ulcers, tranquilizers for parkinsonism and nervousness at times, heat treatment to ulcers, bed rest, turning in bed 3 to 4 hours, getting up in chair 3 times a day. The purpose of antibiotics was to clear urinary infection and occasional bronchitis and ulcer care was to clear up open ulcer, and the effect was good. It was imperative that above treatment and medication be administered and followed up by a doctor between December 1965 and December 1968. Mrs. Christian did not have any problems with medicines I prescribed for her. Having treated her for 5 years, I am acquainted with her phsyical, mental and nervous condition. As to whether her continual treatment, her further treatment in the future is required to be in a nursing home, again is debatable as I mentioned before, for the reasons mentioned before. The foreseeable care for patient for 1969, if she remains in nursing home, is same as it was in 1968. Unless she develops further infectious complications, antibiotics will not be needed. At present time she is not on any antibiotics. She does not have any urinary tract infection or any bronchial infection. As to whether it will be necessary for her to have constant professional nursing attendance by an LPN or other similar type care, this again leads to a philosophy of patient care which is different in different families. I would leave it to the personnel involved to decide this on their own after they know the facts of the case. . .” (Emphasis ours).
Dr. Jack L. Royal, a physician of Hope, Arkansas, stated that he had read Dr. Hampton’s deposition and that assuming the conditions that Dr. Hampton had outlined are correctly stated, his opinion is actually the same as stated by Dr. Hampton and that is, it depends on motivation. He felt that if the motivation is proper, then with the conditions outlined in Hampton’s deposition, Mrs. Christian could very well be taken care of in a private home. He said that he has seen patients with the same conditions managed beautifully in a home, and that knowing full-well that these con ditions were managed before nursing homes ever came into existence it is obvious that the only factor that would change things would be whether or not a person was motivated enough to keep Mrs. Christian in the home. Other testimony by Dr. Royal shows that it would be possible for a layman or laywoman to take care of a person in Mrs. Christian’s condition as described by Dr. Holbert Hampton.
Dr. James W. Branch, a witness for appellees, after stating that Mrs. Christian was certainly a candidate for a skilled nursing home, stated on cross-examination that he had two nursing homes in Hope. However, he would not say as a matter of fact that a patient could not be cared for in a private home — i. e., that it depended a lot upon the individual doing the caring and his training and motivation. He said that motivation is a big help to patients.
Mr. Charles W. Wilson of Hope, who has had 24 years experience in hospital and nursing home administration, testified that considering the information in Dr. Hampton’s deposition he thought Mrs. Christian could be taken care of in a private home. He was familiar with Mrs. Baber’s home and he thought it could be done. He knew patients with trouble similar to Mrs. Christian’s who are being satisfactorily cared for from the patient’s standpoint in private''homes.
In a memorandum opinion the trial court found: parties, now that that eventuality has occurred, even under such circumstances that have prevented the Babers to redeem their promise to Mrs. Christian to help her avoid a nursing home regime in her failing years. To hold that Mrs. Christian’s departure from Hope, never to return, excused the Babers from all responsibility and liability for the cost of nursing home care for Mrs. Christian, no matter what her condition, would not only in effect work a forfeiture as to Mrs. Christian, but would also, in the Court’s opinion, effect an unjust enrichment of the Babers in the premises.
. . Mrs. Christian, without justification, approximately four months after executing the deed, left the Baber home, never yet to return, and in all likelihood not to return for the rest of her life. The Court accepts at face value Plaintiffs’ testimony that their contract with Mrs. Christian for her care and support was entered into by both parties in part to avoid the necessity of Mrs. Christian’s ever becoming a nursing home patient. But this fact, in the Court’s opinion, is not determinative of the rights and obligations of the
In determining these parties’ mutual rights and liabilities, the Court feels that all the facts and circumstances of the original transaction must be born in mind, including the circumstances of the parties at that time, and as such circumstances have been changed by the passage of time. In taking these matters into consideration and giving proper weight to all factors, the Court must then attempt to determine what the words of the deed now require of Mr. and Mrs. Baber in view of Mrs. Christian’s needs as they have existed during the three year period in question.
The Court does not believe that the words ‘as a member of their family' used in the support contract should be given the meaning that Plaintiffs suggest to the Court, that is, a meaning which would exclude Mrs. Christian from all benefits of the contract, since she herself removed herself voluntarily and without justification from the Baber home and from the family circle that had been created by the deed. To the contrary, the Court believes that this phrase requires the Court to determine how members of a family should react toward another member of the family who falls on evil days so that it has become, in the judgment of her personal physician, essential for her physical well-being to live in a nursing home.”
As we view the record and the contract involved the Babers at. no time have breached their contract. Furthermore, their contract shows that it was to be performed by the Babers at their home. The agreement was that the Babers would “take me into their home and the home of the survivor, and care for me. . . as a member of their family as long as I live. . . .” Under these circumstances and the admission of the guardian that she does not consider the Baber home a congenial place for Mrs. Christian to live, it appears to us that the Babers are performing their agreement so long as they remain ready, willing, able and properly motivated.
A person has a right to contract to perform a contract in a particular place. IN THIS RECORD EACH DOCTOR WHO TESTIFIED STATED WITHOUT CONTRADICTION THAT WHETHER MRS. CHRISTIAN SHOULD STAY IN A NURSING HOME OR GO TO A PRIVATE HOME DEPENDED UPON THE MOTIVATION OF THE PERSONS IN CHARGE OF THE PRIVATE HOME. In this record there is no evidence to show that the Babers are not properly motivated. The overwhelming evidence is that they are willing to dispose of their total worldly possessions to uphold their contractual obligation to Mrs. Christian. Furthermore, the record shows that Mrs. Christian lived with the Babers for a substantial number of years, helped raise their sons, and that because of this enduring relationship the agreement between the Babers and Mrs. Christian was not solely a financial transaction but evolved in part from love and affection.
Thus so long as the record shows that the Babers are living up to their contract for furnishing the personal services for which they contracted and that it is possible for them to live up to their contract suitable to Mrs. Christian’s condition in life, then we are at a loss to understand why they should be obligated to perform their contract in Virginia or Tennessee or any other place away from their home in Hope, Arkansas. Any other construction of the contract would permit Mrs. Christian, or her guardian, to select the site of performance of the contract.
In 17A C. J. S. Contracts § 357, it is stated:
“If the contract is silent as to the place of performance, such place is to be determined in accordance with the supposed understanding of the parties at the time of the contract, and hence, will vary according to the nature and subject matter of the contract. Such mutual intention or understanding should be ascertained in accordance with the general rules of construction taking into consideration all the facts and circumstances of the case.”
In Currier v. Currier, 2 N. H. 75 (1.819), the son had contracted with the father to pay the father’s debts and to provide necessary support for him and his wife or in failure thereof to lease to them during their life fifty acres of the son’s lands. The father lived with the son until his death but the mother refused to live with the son. In holding that the place of performance was the son’s home, the court said:
“The pleadings put in issue only the fulfilment of the bond, after the death of the plaintiff’s husband.
That issue has been properly found for the defendant, if he was not obliged to fulfill the bond, either to the plaintiff in person, or at such place as she might appoint. For, otherwise, the house of the defendant appeared to have been a suitable place for her maintenance, and his readiness to support her at such place, would be sufficient without an actual tender of any articles. (1)
This readiness and notice of it to the plaintiff, in A. D. 1809, were distinctly proved at the trial; and after such an unqualified refusal to remove, as she then gave, it was unnecessary to repeat the invitation since her husband’s death.
We feel no disposition to doubt the correctness of the principle, that an obligation, which points out no place of performance, must be fulfilled to the obligee in person, wherever he may chance to be. (2).
But it is an established exception to this general principle, that when the obligation is not for money, but for articles which are cumbersome, ‘as an obligation for ten bushels of wheat,’ the wheat need not be delivered to the obligee in person, ‘for that the importableness thereof, shall excuse’ the obligor. (3)
Thus it must be apparent to every man acquainted with the business of real life, that a contract by a blacksmith to pay a certain sum in his work, when it was proved that he owned a shop in which he was accustomed to labor, ought and must have been intended to be performed at the shop of the promissor. While, on the contrary, if he owned no shop, and labored as a journeyman, and the promissee did own a shop, the inference would be, that the contract was to be performed in labor at the shop of the promissee.
The nature of the support to be furnished by the defendant in the present case, as it must consist of house-room, food, clothing, nursing, attendance,' and other things necessary for the comfort of his parents, would make it as ‘importable’ as ‘ten bushels of wheat.’ Hence he was not bound to carry them to the obligee, wherever she might happen to dwell.”
See also Patterson v. Jones, 13 Ark. 69 (1852), and Ziegler v. Illinois T. and S. Bank, 245 Ill. 180, 91 N. E. 1041 (1910).
The record shows that the Baber family have lived all of their lives in and around Ozan and Hope. We do not believe that either the Babers or the attorney representing Mrs. Christian in drawing the agreement ever thought that they would be called upon to perform any personal services under this contract in Tennessee or Virginia.
To affirm the action of the trial court appellee relies upon McKnight v. McKnight, 212 Mich. 318, 180 N. W. 437 (1920). In that case the proof showed no actual breach of the contract by the obligors, but many incidents which went to establish a strained relationship. Without setting forth the exact terms of the contract, the court there affirmed the action of the trial court in refusing to set aside the conveyance, but clothed the trial court with authority to require that congenial provision be made for the care and support of the stepmother at a place other than the stepson’s home. It also awarded a lien for security.
The holding in the McKnight case is not as favorable to appellee as she contends when it is construed in light of McLean v. Wortman, 353 Mich. 458, 91 N. W. 2d 811 (1958). In the latter case the agreement provided:
“Second parties in consideration of said agreement and transfers hereby agree to give and maintain a home for first party during the balance of her life, and to look after her, care for her, and see that her needs are taken care of so that she will have a home and be able to spend the balance of her remaining years in said home with good care to be furnished by second parties.
“Second parties further agree to take care of the necessary funeral expenses, if same have not already been taken care of, and to bury first party at the place of her request.”
The trial court after finding that the second parties did not agree to pay medical expenses and that they had not breached their contract at first dismissed the complaint, but subsequently granted a rehearing and awarded one half of the property to pay for the first party’s support while away from the second parties and for funeral expenses. In reversing the trial court, the Michigan Supreme Court said:
“In the first place it is unthinkable that it is the law of this state that a chancellor must in every case abandon all judicial discretion and out of hand grant such alternative relief to all plaintiffs who have otherwise failed to prove their main case. It is not only unthinkable but it happens not to be the law. Indeed in the usual case where no breach is proved no relief whatever is granted. Our reports teem with such cases. Alternative relief of any kind is granted only where there remain compelling and disturbing equities despite the lack of clear breach. The McKnight case (McKnight v. McKnight, 212 Mich. 318, 180 N. W. 437), and related cases cited by appellee for affirmance, in our opinion present residual and lingering plaintiff equities — 'which we do not here propose to calibrate — which are clearly not present in this case. Only recently we have held (Latowitz v. Tomaszewski, Mich., [353 Mich. 441] 91 N. W. 2d 809) that upon our finding that no breach was shown below the entire relief there granted plaintiff had to be set aside. In that case the equity of the plaintiff’s situation was arguably every bit as strong if not stronger than that presented here.”
From these authorities we conclude that the trial court erred in holding the Babers responsible for the nursing home care.
The medical expenses, to the extent that they do not exceed that chargeable in Hope, Arkansas, fall in a somewhat different category. The proof here shows that this was an item that the Babers expected to purchase or pay for as distinguished from an item that they expected to furnish themselves or through a unique arrangement other than that customarily used in the community. There are many arguments on either side of this issue, but in view of the fact that the Babers, notwithstanding Mrs. Christian’s consistent refusal to accept their personal services at the place where the Babers agreed to perform them, have a continuing obligation to offer to perform their end of the bargain, we believe that upon analysis the Babers are responsible for all necessary medical expenses so long as they do not exceed the comparable charge for medical expenses in Hope, Arkansas.
If Mrs. Christian while visiting a friend in Hope had broken a hip, we have no doubt but that the Babers would have been liable for the necessary medical expense. If Mrs. Christian had become miffed and removed herself to the same friend supposed in the first instance, there would appear no good reason why the Babers should not be liable for the medical expense. We can think of no reason why the same analysis should not apply with respect to medical expenses in Tennessee or Virginia so long as the cost of such necessary expenses does not exceed the cost in Hope, Arkansas, the expected place of performance. Since Mrs. Christian has by her conduct made only a part of the Babers’ contract impossible of performance, it seems to us that the rule stated in Restatement of Contracts § 463 is applicable to those services which the Babers expected, under their contract, to purchase on the open market. Section 463 provides:
“Where impossibility of performing part of the performance promised by a party to a bargain is of such character that if it related to the entire performance it would prevent the imposition of a duty or would discharge a duty that had arisen, and the remainder of the performance is not made materially more difficult or disadvantageous than it would have been if there had been no impossibility, the existence of duty is affected only as to that part; and if performance of the whole contract is possible with only an unsubstantial variation, the promisor is under a duty to render performance with that variation.”
The Babers argue that the Chancellor erroneously based his decree for money damages on what it cost in Virginia. The testimony of Dr. Branch was that the Virginia charges were comparable to those in Hope, Arkansas. Under these circumstances, we cannot say that the trial court erred in ‘ holding that the Babers are liable for the. necessary and reasonable medical expenses.
Affirmed as modified with the costs to be divided between the parties.
Harris, C. J. & Holt, J., dissent. | [
-109,
-88,
-43,
60,
8,
-31,
10,
26,
123,
-85,
54,
83,
-21,
87,
21,
111,
-29,
57,
81,
105,
-57,
-77,
19,
100,
-48,
-13,
-15,
-59,
-87,
-34,
-76,
-43,
76,
32,
-54,
-59,
-30,
-62,
77,
16,
-106,
1,
-98,
-28,
-39,
-62,
48,
111,
-108,
79,
113,
-98,
-1,
45,
61,
79,
77,
46,
123,
41,
72,
-96,
-118,
14,
-53,
7,
-128,
-90,
-104,
7,
88,
40,
-104,
49,
8,
-88,
115,
-90,
18,
116,
66,
-100,
12,
96,
98,
32,
-51,
-9,
-8,
-128,
14,
-73,
-115,
-91,
-78,
72,
-46,
75,
-65,
20,
88,
76,
67,
120,
-20,
-43,
93,
-88,
10,
-113,
-42,
-95,
-113,
72,
-114,
-109,
-49,
65,
53,
85,
-53,
-94,
93,
71,
113,
-101,
-118,
-14
] |
John A. Fogleman, Justice.
Appellants were convicted on May 1, 1968, of robbery of the Bank of Lockesburg on September 27, 1967. The conviction was affirmed on appeal. See Steel v. State, 246 Ark. 75, 436 S. W. 2d 800. Thereafter, we granted appellants permission to seek postconviction relief under Criminal Procedure Rule 3? with respect to the validity of searches made of a pickup truck and a Pontiac automobile. Ronald Steel and Carson Steel, Jr., were occupants of the pickup truck, and Doris Steel was the sole occupant of the automobile when they were arrested on the day of the robbery.
The circuit court denied relief after a hearing on August 12, 1969. It was conceded by the state that search warrants issued for a search of these vehicles after they had been brought from the places of arrest to the scene of the crime were invalid. The ruling of the circuit judge was that the searches were valid as reasonable searches incident to a lawful arrest. Appellants’ argument that the searches were unreasonable under constitutional standards seems to be based upon these contentions: first, there was no probable cause for their arrests; second, the extent of the search at the time and place the male petitioners were caken into custody went beyond constitutionally permissible bounds; and, lastly, that the search of the vehicles at the bank was too remote in time'arid place from the arrests to be reasonable without authorization by valid warrants.
Taking these points in the order stated, we find no merit in • the first. On this point, little, if anything, was revealed in the postconviction hearing that was not in evidence during the trial. The trial judge held that the arrest of the two male appellants was lawful and cited the opinion of this court on direct appeal. As to these appellants, the question was fully considered on the prior appeal and no new argument is advanced on this appeal. We reaffirm our former holding as to the legality of these arrests.
While the legality of the arrest of Doris Steel was not specifically treated in the opinion on the first appeal, the disposition we make of this appeal makes a review of the circumstances of this arrest unnecessary.
Directing attention to the search of the pickup truck at the scene of the arrest, we again find that it was a search incident to a lawful arrest and not constitutionally unreasonable. The sheriff who made the search had apprehended three men after a hot pursuit which led to an apparently obscure, little-used, dead-end road. The officer was alone with three 'men who, as we found in the original opinion, he had reason to believe had participated in the armed robbery of a bank. He was confronted with' the problem of taking and holding them in custody and returning them to the scene of the crime and ultimately to the county jail. It was reasonable to believe that the participants in the bank robbery would have weapons and evidentiary material under their control. Even though he was armed with a rifle, a daring attempt to escape of at least one of the three persons he had apprehended was certainly a possibility a 'prudent officer would consider. Any diversionary áction by one might well permit another to obtain weapons or even to try to escape in the truck. According to Bradshaw, one of the Steel's was not very submissive to arrest. He said that after the sheriff had told the three men to lie on the ground, he had to tell this one two or three times to “lay down” or he (the sheriff) would “put him down.” The pickup truck with its contents presented a hazard to the officer and to his ability to maintain his detention of the arrested persons and to seize any evidence connecting them with the crime before it could be removed. If he succeeded in taking all his prisoners away from the scene, there remained the possibility that one would escape, return and remove the pickup truck and’ its contents. There also remained the possibility that a confederate of the persons arrested would manage to remove this truck or its contents after he left the scene and before he or a person delegated by him could return for the vehicle with or without a search warrant. The only assistance available to him was that of Bradshaw, which he promptly enlisted. It does not appear that Bradshaw had ever, been a police officer. He simply happened to reside near the “dead-end” of the flight of the Steels and their companion. While he proved to be entirely trustworthy, Bradshaw’s ability to control the arrestees for any period of time was not to be taken for granted. Bradshaw testified that the sheriff warned him to be careful.
Hilton had also found it necessary to leave Doris Steel, who he had a right to believe was a -confederate, in the custody or under the surveillance of an impressed citizen. He could not he sure of her whereabouts or activities. An immediate search of the pickup truck for weapons and evidentiary material was clearly indicated. It and its contents were certainly under the immediate control of those persons when arrested. A failure to search the vehicle at this time and place under the prevailing circumstances would have been foolhardy and a dereliction of duty on the part of the officer. The only articles taken from the vehicle at this time were two loaded pistols. Even though Ronald Steel testified that Sheriff Hilton went upon the bed of the truck and took clothing and “guns” from a box and proceeded to search in the glove compartment and under the “dash” and the “back” seat in the cab, and Carson Steel, Jr., stated that the loaded pistols removed by the sheriff were not in plain view but concealed under articles of clothing in a box, we find that this search was not beyond the permissible scope of a search incident to ,a lawful arrest. The opinion in Chimel v. California, 395 U. S. 752, 89 S. Ct. 2034, 23 L. Ed. 2d 685 (1969), rehearing denied 396 U. S. 869, 90 S. Ct. 36, 24 L. Ed. 2d 124 (1969), appears to be the latest guideline provided by the United States Supreme Court in this field. According to the holding there, the search incident to a lawful arrest could not have gone beyond the area from which the arrested persons might have obtained weapons or other things which may have been used to effect an escape or which could have been used as 'evidence against them. Even when we give appellants’ testimony its strongest probative force, this search was not unreasonable as incidental to a lawful arrest.
Neither was that search unreasonable as the search of an automobile under the special considerations giving rise to more lenient standards on account of vehicular mobility. Even though the United States Supreme Court in Chimel has restricted automobile searches to some extent, as will be presently pointed out, it has clearly recognized the validity of searches of automobiles without warrants when probable cause exists and it is not practicable, because of mobility of the vehicle, to secure a search warrant. In Chimel, the court clearly states that its holding is consistent with those principles stated in Carroll v. United States, 267 U. S. 132, 45 S. Ct. 280, 69 L. Ed. 543 (1925) and Brinegar v. United States, 338 U. S. 160, 69 S. Ct. 1302, 93 L. Ed. 1879 (1949).
Yet, we are unable to agree with the circuit court that the search of the vehicles at the bank was within constitutionally permissible bounds as incident to the arrest or otherwise. The state conceded at the hearing on appellants’ petition that the warrants for these searches were invalid. Here again, we must turn to the Chimel case for guidance. While a dwelling house search was involved there, the court quoted from and relied upon principles stated in Preston v. United States, 376 U. S. 364, 84 S. Ct. 881, 11 L. Ed. 2d 777 (1964), where an automobile search was involved. There it had been said that justification for vehicular searches contemporaneous witb arrests was absent where the search is remote in time and place from the arrest. We take this to be the standard to be applied to the searches of these vehicles at the scene of the crime.
When Doris Steel was taken to the bank at Lockesburg by Graves, a private citizen in whose custody the sheriff had left her, the vehicle in which she was found was left on the road where Sheriff Hilton first saw her. It was locked before they left it, and the keys retained by Mrs. Steel. This point was about three miles from Lockesburg. The record showed that Graves delivered Mrs. Steel to Sergeant Page of the Arkansas State Police. The point at which Ronald Steel and Carson Steel, Jr., were arrested was four and one-half to five miles from Lockesburg. Sheriff Hilton, Bradshaw and the three persons arrested left this place about 15 minutes after the arrest. It took about 15 minutes for Sheriff Hilton to take the occupants of the pickup truck to the bank, where he found Sergeant Page of the Arkansas State Police and Agent Rawlings of the Federal Bureau of Investigation. Other officers were also present. Graves went to the bank after he turned Mrs. Steel over to Sergeant Page and remained there some 15 to 20 minutes. He was there when Sheriff Hilton arrived, but was not aware of the search of any vehicles there. Bradshaw testified that Sheriff Hilton left the bank with one. Billy Coulter to get the pickup truck approximately one hour after Hilton and Bradshaw left the place of arrest with the Steels and their companion. Sergeant Page testified that, immediately after arrival at the bank, the sheriff sent someone after the Pontiac. These searches of these vehicles were not made Until the search warrants now conceded to be invalid had been obtained. They must have been conducted at least an hour after the arrests were made.
Perhaps there is no area in which the# task of trial judges has been more onerous than this which requires them to accurately follow the decisions of the United States Supreme Court setting out standards to be applied in determining the reasonableness of searches under Fourth Amendment prohibitions. The pendulum-like swings of the decisions on these standards were traced in Chimel. The trial judge’s holding in this case is based upon the five-four decision in Cooper v. California, 386 U. S. 58, 87 S. Ct. 788, 17 L. Ed. 2d 730 (1967). There a warrantless search of a motor vehicle was upheld. It took place one week after the arrest. It was conceded that the search was not incident to the arrest. The arrest was for violation of the California narcotics law. California statutes required any officer making an arrest for a narcotics law violation to impound any vehicle used to store, conceal, transport, sell or facilitate the possession of narcotics, and to hold it as evidence until a forfeiture was declared or release ordered. The majority said that the search was reasonable because of its close relationship to the reasons for the arrest and impoundment and retention of the autoiilobile. Great reliance was placed upon the holding in United States v. Rabinowitz, 339 U. S. 56, 70 S. Ct. 430, 94 L. Ed. 653 (1950), that the test of a warrantless search was whether the search was reasonable, rather than whether it was reasonable to procure a search warrant. Rabinowitz was criticized and substantially overruled in Chimel. The court more nearly followed Mr. Justice Frankfurter’s dissent in Rabinowitz, where he said that the majority had left no criterion for determining reasonableness. Rabinowitz had overruled the rule stated in Trupiano v. United States, 334 U. S. 699, 68 S. Ct. 1229, 92 L. Ed. 1663 (1948), that law enforcement officers must secure and use search warrants whenever reasonably practical. The court clearly seems to have returned to its Trupiano position, at least insofar as a search incident to an arrest is concerned.
In a footnote to the majority opinion in Chimel it is plainly suggested that Cooper was decided in reliance upon Rabinowitz. Certainly it is made clear in Chimel that the United States Supreme Court will henceforth not permit the scope of a warrantless search to go beyond the reasons for which such a search is permitted. Full recognition is given to the principle that a warrantless search of an automobile is permissible when probable cause exists and the mobility of -the vehicle makes the securing of a search warrant impracticable. The decision in Chimel leaves this as the only test which can be applied in this case. While there is no doubt as to the existence of probable cause, the searches of the vehicles at the bank were too remote in time and place to be reasonable as incident to the arrests, and it was not shown that it was not practicable to obtain search warrants or that there was any likelihood that the vehicles would be removed out of the locality or jurisdiction in which the warrant must be sought after they had been brought to the bank. The state’s burden in this regard was virtually insurmountable in view of the fact that no search was attempted until after the invalid warrants were secured. We are not confronted with the situation that would have existed had the vehicles been taken to the bank along with the arrested persons and immediately searched upon arrival there.
We are not aware of any statutory or common-law duty of officers to impound vehicles in which persons suspected of bank robbery are found when apprehended. On oral argument, the assistant attorney general admitted that he had been unsuccessful in a search for authority supporting this view. It might well be. that the officers would have such duty if the vehicle had been found abandoned at the scene of the crime, if the vehicle were one described as having been occupied by the persons who robbed the bank either when they came to or left the bank, or if the vehicle had been stolen. Such is not the case here. Nor is. it shown that the searches were made for the purpose of making inventories for the protection of parties responsible for the vehicles. They were obviously made for fruits of the crime, instrumentalities used in perpetration thereof or evidentiary material. Under all of the circumstances existing here, we think current Fourth Amendment criteria for searches and seizures required search warrants for these vehicles.
The circuit judge also made a finding that it is clear beyond a reasonable doubt that the result would have not been changed had the fruits of these searches been excluded. The United States Supreme Court has, on occasion, recognized a harmless-constitutional-error rule in cases wherein the court could declare a belief that the error was harmless beyond a reasonable doubt. Chapman v. California, 386 U. S. 18, 87 S. Ct. 824, 17 L. Ed. 2d 705 (1967).
We are unable to agree with the trial judge that there is no reasonable doubt of the conviction of appellants without the evidentiary material discovered and seized as a result of the vehicular search at the bank. It seems clear to us that the lady’s stocking found in the Pontiac was a ctitical bit of evidence against appellants, particularly Doris Steel, as will be seen by examination of our opinion on direct appeal. The importance of the handkerchief and pillow case found in the pickup truck was also emphasized in that opinion when we determined the sufficiency of the evidence to support the jury verdict. We are unable to say without reasonable doubt that a conviction would have resulted without the fruits of the illegal search.
After oral argument and submission of this appeal, appellants have filed an amendment to their petition under Criminal Procedure Rule 1. We have given no consideration whatever to this amendment in arriving at our decision which was actually arrived at before the amendment was filed. The allegations of this amendment relate to what is purportedly newly discovered evidence. The scope of the hearing permissible was clearly defined in the order of this court granting appellants permission to proceed under this rule. Matter alleged in that amendment is clearly without the scope of the Rule 1 permission granted. It is not only outside the permissible scope of the issues in this proceeding, but is clearly outside the scope of post-conviction relief allowable under Criminal Procedure Rule 1. Furthermore, this is not a court of original jurisdiction in these matters. The filing of an amended petition on appeal is unknown to our procedure. There is no prejudice, however, to the right of appellants to produce any admissible evidence available to them upon a new trial, whether it was discovered before or after the former trial.
Reversed and remanded for a new trial.
For this reason, we will avoid repetition of all the facts stated in the opinion on direct appeal.
Sheriff Hilton managed to return appellants and their companion to Lockesburg in the rear of a pickup truck owned by Bradshaw, and driven by him, with the sheriff following in his automobile, leaving the searched pickup truck at the place of arrest.
There has been no suggestion that this decision is not applicable the searches involved in this case.
As to burden of proof see Peters v. State, 248 Ark. 134, 450 S. W. 2d 276. | [
116,
-24,
-4,
-68,
11,
-64,
43,
-98,
99,
-87,
117,
83,
-81,
-62,
68,
49,
127,
95,
117,
121,
-43,
-106,
67,
96,
18,
-77,
-39,
-59,
-77,
75,
-92,
116,
12,
112,
-54,
-35,
70,
72,
-59,
92,
-114,
4,
-72,
75,
-16,
80,
56,
62,
-16,
15,
-95,
30,
-61,
46,
18,
-18,
73,
46,
75,
-84,
-48,
-15,
-118,
13,
-49,
6,
-77,
0,
-72,
5,
-8,
26,
-100,
49,
8,
-8,
115,
-90,
-122,
-12,
105,
-119,
-83,
74,
98,
-125,
-3,
-52,
-20,
-88,
54,
-70,
-113,
-90,
-104,
73,
105,
37,
-106,
-67,
112,
16,
14,
-8,
-6,
69,
29,
108,
13,
-49,
-76,
-79,
-119,
112,
22,
19,
-5,
33,
52,
113,
-58,
-2,
92,
71,
113,
-77,
-122,
-107
] |
Frank Holt, Justice.
This is a boundary line dispute which involves three contiguous tracts of land. The appellants constructed a fence along the south line of their property which adjoins appellee Whiting’s land. The appellants constructed another fence along the west line of their property which is adjacent to the lands of the appellee Hudson estate. The appellees filed separate suits alleging that the appellants’ fences were encroaching upon their property. The appellants counterclaimed in each case and asserted that the fences were constructed upon the true boundary lines between the three parties. The cases were consolidated for trial. The chancellor found for the appellees “to the extent of adopting the lines as shown by the Quertermous Survey.” This survey was relied upon by both the appellants and appellees. However, the court agreed with the appellees’ theory or version of this survey and found that appellants’ fence encroached 140 feet on the lands of the appellee Hudson estate and, further, that the appellants’ fence encroached upon appellee Whiting’s lands a distance that varied in width from 81 feet at one corner to 107 feet at the other corner of their adjoining lands. The total encorachment upon both tracts involves about five acres of unenclosed timber and swamp land.
On appeal the appellants contend for reversal that the decree is not supported by the evidence and is, in fact, contrary to the evidence. We do not agree.
It was stipulated, and the court found that: Except for 20 acres, appellee Whiting is the owner of the lands described as all of Spanish Grant No. 2346 (82.08 acres, more or less); appellee Hudson estate is the owner of the lands described as Spanish Grant No. 2355 (no acreage given); and that the appellants are the owners of their property which is described as fractional quarters (approximately 78 acres).
Appellee. Whiting acquired his land from the State in 1946 and the appellee Hudson estate lands were acquired in 1901. The appellants acquired ownership of their lands in 1962. In 1967 appellants retained a surveyor, Mr. Keefe, to survey their property in order to accurately locate and fix their true boundary lines. Following his survey appellants, several months later, constructed the fences that caused this controversy. Mr. Keefe testified that he fully and completely surveyed the appellants’ property and established all four corners of their sectionized tract and pin-pointed the location of their boundary lines. It was his testimony, corroborated by another surveyor who reviewed his work, that his survey “closed” within acceptable limits. The starting point of Mr. Keefe’s survey was the so-called “Crafton-Conners” corner, a section corner, and was “tied” to this point and also “tied” to other well established corners. The plat of his survey was made an exhibit to his testimony. According to Keefe, his survey conforms to the official U. S. Government Land Office Survey, as well as to a 1934 survey made by Mr. Quertermous, then the County Surveyor of Arkansas County. It appears that Keefe did not make a survey of either of the Spanish Grants. His survey was based upon appellants’ sectionized lands. The only field notes he used consisted of the Government Land Office plat. According to him, this plat reflects the same information as field notes with the exception of bearing or witness trees. He testified that he didn’t expect to find any 150-year-old bearing trees arid that he found no monuments upon the lands in question.
It appears that the crucial starting _point of the conflicting surveys made in this boundary line dispute revolves around where the southwest corner of appellants’ lands adjoin both of appellees’ lands. It is the appellees’ theory and version that an accurate survey depends upon the correct starting point or location of the southeast corner of Spanish Grant No. 2353 and that this corner is common to the southwest corner of appellants’ sectionized tract. Appellees’ surveyor, Mr. Strode, the local county surveyor since 1945, testified that he was familiar with the property having made surveys in this vicinity in 1945, 1954, I960, 1966, 1967, and the present survey in 1968. He testified that he was personally familiar with and found a witness tree and an iron pipe as representing the established corner from which he made his measurements. The 1934 Quertermous survey was introduced as an exhibit and relied upon by both the appellants and the appellees. According to Mr. Strode, the southeast corner of Spanish Grant No. 2353 is shown by the Quertermous survey as being a monument corner. This corner was marked by an iron pin as indicated on this survey. There were witnesses who testified to the effect that this corner was once marked by witness trees and that at the time of the trial the trees had been cut. Appellant Claude Rice testified that he cut certain witness trees upon the advice of his surveyor, Keefe, that they were not representative of the true boundary line. Strode testified that the southeast comer of Spanish Grant No. 2353 and the southwest corner of appellants’ tract are one and the same corner. Using this corner as a starting point, Strode, as he interpreted the Quertermous survey, went from monument to monument using official field notes in establishing appellants’ encroachment upon both appellees’ lands to the extent as found by the court. Strode did not survey the appellants’ property and Keefe, appellants’ surveyor, appears to have given no information on his plat or to the court about the correctness of the appellees’ Spanish Grants, Nos. 2346 and 2353, which adjoin appellants’ lands.
Numerous lay witnesses testified that the blazed line running north (between appellee Hudson estate and appellants’ lands) from the common corner established by Strode had been painted and was clearly marked and monümented and regarded by the appel lees, timber cutters, and others since 1929 as being in conformity with the Strode survey. According to appellee Whiting and other lay witnesses, Whiting’s north line of Spanish Grant No. 2346 (appellants’ south line) had also been a well marked line for many years with, actual monuments along this line and it also conforms to the Strode survey. It was stipulated that the testimony of certain other witnesses would be cumulative with respect to the boundary lines as contended by the appellees. There was evidence that the appellant, Claude Rice, had stopped clearing his lands, digging ditches, and cutting timber at the blazed lines between his lands and both of appellees’ lands until he had his survey made in 1967 by Keefe.
The Court found, inter alia, in a memorandum opinion that:
“The defense contended that there was greater merit in the survey of a tract than there was of a survey of a line. The defendant made no attack upon the correctness of the Spanish Grant lines other than the conflict which resulted from the establishment of new lines of his own tract. The Spanish Grant lines were not surveyed by the defendants’ surveyor.
* * *
Monuments of the prior official surveys, either government or county surveys, were marked by witness trees and the location and direction of the witness trees from the exact corner was recorded in field notes by the surveyor and placed in the records of the county. The defendants’ surveyor did not resort to nor use the field notes but simply worked from a certain corner and surveyed a tract according to the deeds of acquisition of the defendant.
* * *
The court finds that Honorable T. J.' Strode, County Surveyor for Arkansas County, used the field notes and located the witness trees as well as blazed lines and monuments and tied his survey into those witness trees and monuments and the Quertermous Survey as shown by the plat introduced in evidence. [From the formal decree]
* * * The failure of Mr. Keefe to survey all the tracts involved tends to limit the effectiveness of his survey. Mr. Mehlburger says that because the survey closes it is much more apt to be accurate. That is true provided they start from the right corner and use the correct angles and go the right distances. But the mere closure of a survey without all of the other elements being completely accurate would not necessarily be proof that the survey was correct.
* * *
In the instant case T. A. Strode, County Surveyor, admitted to what he says is a small error. Likewise, Surveyor Keefe admitted to a mistake * * * .
* * *
In the instant case Rice did not present the surveyor from Monticello who had preceded Keefe.
Spanish Grants were established in the area in which these lands are situated before it was transferred to France and ultimately to the United States through the Louisiana Purchase. The establishment of sectionized method of measuring and identifying land was accomplished in the United States a considerable period of time after the acquisition of the Louisiana Purchase. The fact that our government did not change Spanish Grants but allowed them to remain as they had been laid out originally, is significant.
* * *
This court will therefore find for the plaintiffs to the extent of adopting the lines as shown by the Quertermous Survey. This will have the effect of depriving Plaintiff Whiting of about twenty feet along the north side of his Grant No. 2346 if one of his witnesses was correct in saying that Whiting had gone over the line. The ancient land markings are to be preserved no matter which party is affected. The southwest corner of the Rice land as marked by the witness tree should be reestablished and a permanent monument put in place, and the Quertermous Survey shall control.”
We cannot say that the chancellor’s findings are contrary to the preponderance of the evidence inasmuch as it appears that the location of the boundary lines was at most a fact question based upon two conflicting theories. Burkhart v. Watson, (247 Ark. 1970) 448 S. W. 2d 954. Certainly the chancellor had the right to consider the theory advanced by the appellees because in the location of land boundaries, where there are inconsistent theories, resort may be had first to natural objects or landmarks, next to artificial monuments, and then to adjacent boundaries and thereafter to courses and distances. 12 Am. Jur. 2d Boundaries §§ 65 and 67; also, § 55. See Clark on Surveying and Boundaries, 3d ed., § 293, where it is said:
“* * * An accurately established line-tree is a permanent monument of the first order and conclusively shows the true location of the line. Natural objects called for in a description may be located by parol testimony. After they have been so identified they become evidence of the exact location of the corner or line. That is what the surveyor desires. * * * Courses and distances yield to fixed monuments or natural and located objects. Courses and distances yield to a call for a natural object * * *. It is for that reason that the surveyor is required to search for natural objects, such as a bearing tree, a monument well planted in the soil for future reference.”
See, also, 3 A Ark. D-522, Boundaries, Key No. 3(3).
The appellants next assert that the trial court’s decree did not decide the case or settle the dispute between the parties. The decree orders that the boundary lines between the three parties “shall be fixed in accordance with the blazed line and monuments set forth in the Quertermous Survey, which survey and field notes were followed by the present County Surveyor, Honorable T. J. Strode, in making his survey, that the Southwest Corner of the Rice property in Frl. NWM of Section 35, Township 7 South, Range 3 West, Arkansas County, Arkansas, should be reset and replaced by the use of an iron axle or iron or concrete marker for a permanent marker and said Southwest Corner of said property shall be set and fixed in accordance with the Quertermous Survey.” We agree with the appellants that the court’s decree did not sufficiently “fix the boundary line with such certainty that it can be identified by reference to the decree.” McEntire v. Robinson, 243 Ark. 701, 421 S. W. 2d 877 (1967).
Therefore, the cause is remanded to the trial court with directions to fix and define the boundary lines, which establish appellants’ encroachment, with such certainty that the boundary lines can be identified by reference to the decree.
Affirmed and remanded.
Fogleman, J., concurs. | [
-15,
108,
-36,
108,
10,
32,
56,
-104,
107,
-101,
118,
83,
-17,
-54,
-40,
118,
-25,
45,
113,
40,
-57,
-78,
-37,
-58,
116,
-13,
-77,
-43,
-71,
78,
-9,
87,
72,
48,
-54,
-43,
98,
2,
-19,
92,
-114,
7,
-117,
79,
-47,
82,
56,
109,
80,
-49,
53,
-117,
-77,
44,
17,
-29,
64,
44,
107,
45,
4,
120,
-82,
28,
89,
30,
-127,
39,
-72,
3,
-54,
42,
-112,
117,
-128,
-24,
115,
-74,
-106,
118,
3,
-69,
8,
38,
102,
1,
-19,
-81,
-18,
-40,
46,
90,
45,
38,
-122,
0,
99,
0,
-100,
-99,
112,
64,
103,
126,
-20,
5,
30,
108,
4,
-125,
-108,
-95,
-113,
-76,
-116,
7,
-61,
33,
113,
113,
-49,
-22,
92,
101,
49,
27,
-113,
-125
] |
George Rose Smith, Justice.
This suit for a declaratory judgment was brought as a class action by the appellant, who seeks relief on behalf of all consumers who purchase electricity from the appellee, a public utility. The question presented is whether our constitu tional prohibition against usury is violated by the utility company’s authorized practice of imposing a “late charge” against customers who do not pay their monthly bills within ten business days (fourteen calendar days) after the due date. This appeal is from a summary judgment upholding the validity of the late charge and dismissing the complaint for want of equity.
The complaint asserts that the imposition of the late charge amounts to the exaction of usurious interest upon the net amount of the bill. By answer the utility company denied the assertion of usury. We take the controlling facts from the affidavit and exhibits accompanying the defendant’s motion for summary judgment.
In 1968 the utility company filed a petition asking the Public Service Commission to approve a tariff entitled “Gross-Net Billing Rider,” which was apparently the first attempt by this particular company to add a late charge to its bills. (We use the phrase “late charge” merely for convenience. The practice has also been said to involve a discount for prompt payment, a penalty for tardy payment, a gross-net rate differential, and, at least by this appellant, usurious interest. We are interested not in nomenclature but in the substantive nature of the charge.) Interventions were filed protesting approval of the proposed charge.
At a hearing upon the petition the company offered proof from which the Commission found that the company’s extra expense in the collection of overdue accounts had amounted, apparently in 1968, to $610,629. The Commission, to enable the company to recoup such expenses from the consumers who were responsible therefor, authorized the imposition of a late charge amounting to 8% of the first $15.00 of the net bill and 2% of any amount in excess of $15.00. The Commission’s announced purpose was to avoid discrimination as between the company’s consumers. The Commission’s reasoning was stated in its order, as follows:
The genesis of such a penalty [late charge] is the strong policy of rate regulation against discrimination. Rates and other charges must be designed as nearly as possible to assess costs on the class of customers which creates them. In this case the application of this policy to the question before the Commission means that costs created by late paying customers should be borne by those very customers rather than distributed in the rates charged all consumers. The other side of the proposition is that if the penalty is excessive as compared to the costs created, then the late payers are bearing costs of company operation not properly attributable to them. In the latter instance this class becomes the class discriminated against.
The Company has conclusively demonstrated that it is put to considerable expense in collecting past due accounts. ... It cannot be gainsaid that those consumers who are responsible for these expenses to the Company should pay them. It is noteworthy that those customers who in the past have not paid their bills within two weeks of billing date include persons in all income brackets and are in no way confined to those who are in the lower income groups.
In approving the proposed late charge the Commission pointed out that the company’s accounting methods had not been designed to completely isolate its collection costs, because no late charge had been imposed in the past. The Commission directed that the company maintain appropriate records in. the future to reflect such costs and to file a report of its experience every sixty days, to the end that the Commission may adjust the amount of the late charge to equal the actual cost of collecting overdue accounts.
With respect to the summary judgment, the foregoing facts are undisputed. We should add that the appellant is mistaken in suggesting in his brief that the facts supporting the motion for summary judgment must be treated as being disputed by the plaintiff’s verified complaint, That view was originally taken by some federal courts in construing the Federal Rules of Civil Procedure, but both the Rules and our summary judgment act have been amended to make it clear that proof must be met with proof. This is the pertinent language in Act 160 of 1967: “When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial.” Ark. Stat. Ann. § 29-211 (e) (Supp. 1.969). Inasmuch as the plaintiff in the case at bar filed no response whatever to the defendant’s motion for summary judgment, the facts established by that motion stand undisputed.
The trial court was right in rejecting the charge of usury. What we must determine is the substantive nature of the late charge authorized by the Public Service Commission. Usury involves an agreement by which the borrower is required to pay an excessive rate of interest for the loan or forbearance of money. Armstrong v. McCluskey, 188 Ark. 406, 65 S. W. 2d 558 (1955). There we went on to point out that the existence of usury is to be determined by “the real nature of the transaction.’
We think it plain that the Public Service Commission, in approving a late charge similar to those which the Commission found to be already assessed by some 52 other utility companies in Arkansas, was not authorizing this appellee to collect excessive interest for the loan or forbearance of money. We readily distinguish this case from the only authority cited by the appellant, Sloan v. Sears, Roebuck & Co., 228 Ark. 464, 508 S. W. 2d 802 (1957). There the seller was charging more than 10% per annum for an extension of credit, which we found to be the equivalent of a loan of money.
The late charge, as approved by the Public Service Commission, is simply a practical method of preventing discrimination among the utility company’s customers. The prohibition against discrimination in utility rates is basic in public utility law. Pond, Public Utilities, § 270 (4th ed., 1932). That prohibition is incorporated in our statute governing public utilities: “No public utility shall, as to rates or services, make or grant any unreasonable preference or advantage to any corporation or person or subject any corporation or person to any unreasonable prejudice or disadvantage.” Ark. Stat. Ann. § 73-207 (Repl. 1957). Even before the passage of that statute we had held that a public utility must serve its consumers without unjust discrimination, though the utility may make a reasonable classification of its consumers. Ark. Natural Gas Co. v. Norton Co., 165 Ark. 172, 263 S. W. 775 (1924).
The late charge, far from being an exaction of excessive interest for the loan or forbearance of money, is in fact a device by which consumers are automatically classified to avoid discrimination. Its effect is to require delinquent ratepayers to bear, as nearly as can be determined, the exact collection costs that result from their tardiness in paying their bills. The appellant’s argument actually means in substance not that the utility company be prevented from collecting excessive interest but that its customers who pay their bills promptly be penalized by sharing the burden of collection costs not of their making. We are confident that the framers of the Constitution of 1874 did not insert their prohibition against usury with any notion of outlawing an arrangement such as that approved by the Public Service Commission in this instance.
Affirmed. | [
-46,
124,
-38,
-50,
40,
96,
32,
-102,
93,
112,
-89,
83,
-19,
-58,
-108,
53,
-13,
121,
113,
106,
-43,
-93,
39,
66,
-42,
-77,
-7,
-43,
-80,
95,
-28,
-51,
76,
40,
-62,
-43,
38,
-62,
-3,
-106,
14,
3,
-87,
97,
-7,
64,
116,
120,
82,
73,
81,
-115,
-1,
46,
24,
107,
105,
46,
121,
-23,
-62,
-13,
-69,
-123,
125,
6,
-96,
103,
24,
1,
-22,
30,
-104,
57,
0,
-24,
115,
-66,
-126,
124,
37,
27,
4,
98,
98,
-127,
37,
-1,
-4,
-88,
-74,
-42,
31,
-122,
-110,
120,
3,
-115,
-74,
-98,
110,
-108,
39,
126,
-10,
-99,
91,
109,
19,
-114,
-42,
-77,
-100,
-26,
-34,
-126,
-25,
-74,
32,
112,
-49,
-96,
94,
71,
55,
27,
70,
-68
] |
J. Fred Jones, Justice.
A truck and trailer rig belonging to Elliott’s Feed, Seed & Fertilizer Co., Inc. was damaged in a collision with a vehicle belonging to Robert Mark Higgins. Elliott’s, Inc. sued Higgins in the St. Francis County Circuit Court for $2,686.43 in damages based upon the difference in the market value of the vehicle immediately prior to and immediately after the collision. Elliott’s, Inc. subsequently amended its complaint alleging and praying as follows:
“That as a direct and proximate result of the defendant’s negligence, the plaintiff sustained damages in the amount of Three Thousand Seven Hundred Twenty and No/100 Dollars ($3,720.00) as a result of the lack of business earnings due to the out of service time for the tractor and trailer being out for repairs. That the Three Thousand Seven Hundred Twenty Dollars ($3,720.00) is in addition to the Two Thousand Six Hundred Eighty-Six and 43/100 Dollars ($2,686.43), which represents actual property damage to the tractor and trailer.”
Higgins demurred to so much of the amended complaint as pertains to the loss of earnings as an element of damage and the demurrer was overruled by the trial court. Elliott’s, Inc. conceded in its brief that the trial court was correct in overruling the demurrer, so the question on demurrer is no longer involved in this case. At the close of the evidence offered by Elliott’s, Inc., Higgins filed a motion for directed verdict as to the elements of alleged damages because of loss of use of the truck, and this motion was also overruled by the trial court. The case was submitted to the jury on interrogatories and over the objection of Higgins the court gave to the jury instruction 18, as follows:
“If an interrogatory requires you to assess the damages of Elliott’s, Inc., you must then fix the amount of money which will reasonably and fairly compensate Elliott’s, Inc., for any of the following elements of damages sustained:
1. The difference in the fair market value of its 1964 International trac tor-trailer immediately before and after the occurrence. In determining this difference you may take into consideration the reasonable cost of repairs.
2. The value of any earnings or profits or working time lost. Whether any of these elements of damages have been proved by the evidence is for you to determine.”
On special interrogatories the jury found that Elliott’s, Inc. had suffered total damages in the amount of $4,936.43; that Higgins was guilty of 85% of the negligence causing the damage and that Elliott’s, Inc. contributed 15%. The trial court diminished the total amount of damages by 15% and entered judgment in favor of Elliott’s, Inc. against Higgins for $4,195.96 and costs. Higgins has appealed to this court and relies on the following point for reversal:
“The court erred in refusing to direct a verdict on that portion of the complaint pertaining to a loss of business earnings and in giving instruction numbered 18 (2) over appellant’s objection.”
Higgins argues in his brief that when the actual cost of repairs in the amount of $2,686.43 is subtracted from the total amount of damages found by the jury in the amount of $4,936.43, the resulting amount of $2,-250 was obviously awarded by the jury for lost business earnings; and, Higgins contends that this court on appeal, should reduce the judgment by that amount. In support of the error alleged in overruling his motion for a directed verdict, Higgins only argues that the testimony relating to loss of use is too speculative and conjectural to support a verdict including that element of damage. We agree with Higgins that the trial court erred in refusing to grant the motion for a directed verdict on the record of evidence presented here, and we are also of the opinion that the record requires a reduction in the amount of the judgment if it is to be affirmed.
Mr. Elliott testified that he owns and operates the corporation bearing his name and that the damage to the truck was repaired at a cost of $2,686.43. He testified that the corporation owned another truck besides the one that was damaged and that he had a verbal contract with Riviana Foods to use both trucks in hauling rice from Carlisle, Arkansas, to Memphis, Tennessee. He testified that because of the damage to the truck, half of his “fleet” was put out of business. He says that the damaged truck was grossing $100 per day; that it was out of operation for a period of 45 days while being repaired, and that his net loss in business profits during this period, including his loss in hauling his own rice, amounted to $3,720.
Mr. Brown, who was in charge of the repairs on the truck, testified that the repairs were delayed “possibly three weeks at least” because a part needed in repair of the truck was ordered from Michigan and the wrong part was sent. No one would seriously contend that Higgins should be liable for the negligence of whoever was responsible for the delay caused by the wrong part being sent from Detroit.
As we view the evidence, Mr. Elliott’s testimony as to loss of business, stated a conclusion not supported by competent substantial evidence. To permit such conclusion to stand as evidence substantial enough to support a judgment, would be giving the injured party an unfair advantage over a tort feasor amounting almost to blank check authority, which the law could not long tolerate nor industry long endure.
The insubstantial nature of Mr. Elliott’s testimony as to lost profits, is most evident from his answers on cross-examination, so we quote rather liberally therefrom. On cross-examination Mr. Elliott testified, in part, as follows:
“Q. Mr. Elliott, what was the terms of your contract with Riviana Foods?
A. I was to haul all their rough rice from Carlisle to Memphis that I could, and then if they needed any extra trucks, or I couldn’t get it there quick enough, or enough, they would hire a few extra trucks to help until we got caught up.
Q. Now, were you to do this every day of the year?
A. Well, anytime they wanted me to haul; usually that time of year we was real busy, because it was right after harvest, and they was needing to move rice into Memphis, into the mill.
Q. Do you have an accurate record of the number of days you hauled for Riviana in 1967?
A. Well, no; I do have it in my office, but I do know we are real busy hauling in December, January, and February.
Q. You are busy hauling, but have you consulted those records before coming in here today?
A. Yes, sir, I looked at them, but I can’t remember just what it was.
Q. Well, then, if you will, tell us how you arrived at this figure of $3,720?
A Well, my truck was grossing, one day we would haul one load, and next day we would get two, and my truck was averaging grossing $100.00 a day, and my truck was out 45 working days, besides the hauling that I missed for my own business.
Q. Now, over that period of 45 working days, how many loads did you turn down for Riviana, how many days did they request you to haul grain for them that you had to say you could not do it?
A. During this time?
Q. Yes.
A. Well, I just told them I couldn’t run this one rig, I run my other rig, and they hired more trucks and put on the haul.
Q. Where did they hire those trucks?
A. I don’t remember; I think Stuttgart, maybe over at Hickory Ridge; they hired some out of both areas.
Q. But, you have really no idea, with no degree of certainty, can you tell us how many actual loads you had to turn down as a result of this truck being out of commission?
A. Well, no, sir, but my truck, I have the record to prove that my other truck run most all of this time.
Q. Where are those records?
A. They are in my office.
Q. And those records have what you have used to come in here and testify with today?
A. Well, yes, sir.”
As to the truck operating expense, in arriving at net profit, Mr. Elliott testified on cross-examination as follows:
“Q. Now, if you will, I believe you testified that you arrived at this on the basis of grossing $100.00 a day fo$ 45 working days; now, that is a total of $4,500; you have testified that you lost $3,720; that is $780 difference; tell the jury how you arrived at that $780.
A. Well, that was my expenses, plus I figured in there what I lost because I was running the truck for myself on Saturdays, and sometimes Sundays, that I lost; I had to have it hired.
Q. Well, give us a breakdown on the $780.00.
A. Well, that’s the driver, gas, plus this other that I lost, that I couldn’t haul for my own firm.
Q. How much does it cost for fuel on this run from Memphis to Carlisle and back?
A. Well, off-hand I don’t know.
Q. How much do you have to pay for a driver from Carlisle to Memphis and back?
A. Well, that depends, too; you have to pay $1.60 an hour; it’s hard to tell, sometimes if they get unloaded they are not gone near so long.
Q. Well, what was your average driver expense per trip from Carlisle to Memphis and back?
A. I don’t remember.
Q. You don’t know?
A. No, sir, I don’t.
Q. Okay. Now, how much did your truck depreciate, that truck from Carlisle and back?
A. I don’t know, I really don’t.
Q. Well, then,, will you tell us how you have come in here and told us it cost you $780.00?
A. Well, I took a pencil and piece of paper and figured it out, but I don’t remember.
Q. Can’t you tell us how you figured it out?
A. Well, I figured my fuel, my driver, my expenses on it.
Q. But, you don’t remember what it takes for fuel, what it takes for driver?
A. No off-hand I don’t.
Q. When did you do this figuring?
A. Oh, I’ve done it several times off and on.
Q. Since the lawsuit was filed?
A. Well, I’ve done it before that.
Q. You have?
A. Yes, sir.
Q. And yet, this being your business, you can’t give us any idea as to what any of these items cost?
A. Not off-hand I can’t.”
Harmon v. Frye, 103 Ark. 584, 148 S. W. 269, was a suit on a breach of contract and the appellee was allowed to show lost profits as an element of damage. In that case, quoting from- 13 Cyc. 53-54, this court said:
“Such damages ‘must be certain both in their nature and in respect to the cause from' which they proceed. It is against the policy of the law to allow profits as damages, where such profits are remotely connected with the breach of contract alleged, or where they are speculative, resting only upon conjectural evidence, or the individual opinions of the parties or witnesses.’ 13 Cyc. 53, Spencer Medicine Co. v. Hall, 78 Ark. 336; Beekman Lbr. Co. v. Kittrell, 80 Ark. 232; Hurley v. Oliver, 91 Ark. 433.”
In Sumlin v. Woodson, 211 Ark. 214, 199 S. W. 2d 936, there was an attempt to recover lost profits as an element of damage in an unlawful detainer case, and in that case this court said:
“. . . When a party embarks on the enterprise of recovering anticipated profits, he must present a reasonably complete set of figures, and not leave the jury to speculate as to whether there would have been any profits.”
See also Missouri & Arkansas Railway Co. v. Treece, 210 Ark. 63, 194 S. W. 2d 203; Eagle Properties v. West & Co., 242 Ark. 184, 412 S. W. 2d 605. .
The only testimony offered in support of . a showing of lost profits in the case at bar was the testimony of Roy Elliott, owner and operator of Elliott’s, Inc. Mr. Elliott’s testimony is based on computation and busi ness records, which were not introduced into evidence, but which form the basis for his conclusion as to the amount of his lost earnings. By quoting at length from Mr. Elliott’s testimony, we justify our failure, and avoid the necessity, of attempting to analyze it. We are of the opinion that the evidence as to loss in profits from the loss of use of Elliott’s truck and trailer, rested on speculation and conjecture and a verdict of damages rendered thereon cannot stand.
Elliott’s, Inc. has shown damage in the actual cost of repairs to its diesel tractor-trailer rig in the amount of $2,686.43. It is, therefore, entitled to judgment for that amount diminished by 15%, attributable to its own negligence. Elliott’s, Inc. is entitled, therefore, to a net judgment in the amount of $2,283.47. The judgment rendered by the trial court was for $4,195.96, which amounts to $1,912.49 more than Elliot’s, Inc. is entitled to under the evidence of record in this case. If Elliott’s, Inc. wishes to remit the sum of $1,912.49 within 17 days, the judgment for the remaining $2,-283.47 will be affirmed, otherwise this case will be remanded to the St. Francis County Circuit Court for a new trial.
Affirmed on condition of remittitur. | [
-48,
124,
-120,
-115,
8,
-32,
43,
-38,
65,
-63,
102,
23,
-27,
-57,
81,
123,
-26,
89,
-43,
107,
-1,
-89,
65,
-30,
-45,
-9,
-23,
-57,
61,
-49,
109,
-44,
76,
52,
-62,
-43,
103,
72,
-59,
84,
78,
2,
-85,
-3,
-3,
40,
-76,
-8,
68,
13,
49,
-116,
26,
44,
28,
71,
41,
40,
105,
33,
-63,
-79,
-30,
13,
71,
19,
-111,
84,
-98,
78,
88,
10,
-112,
-67,
8,
-23,
122,
-94,
-94,
84,
35,
-71,
13,
102,
99,
16,
5,
-51,
-4,
-68,
46,
-6,
27,
-76,
-38,
72,
27,
10,
-73,
-107,
124,
18,
22,
126,
-6,
20,
29,
76,
7,
-49,
-108,
-109,
13,
34,
-98,
11,
-17,
-97,
48,
101,
-51,
-78,
92,
5,
90,
-101,
-121,
-110
] |
J. Fred Jones, Justice.
Edward D. Briscoe, Jr. sued National Union Fire Insurance Company of Pittsburgh, Pennsylvania in the Pulaski County Circuit to recover on a fire loss insurance policy issued to Briscoe by National. The court found that Briscoe had no insurable interest in the property at the time of the fire and had sustained no loss under the policy. Judgment was ren dered for National and on appeal to this court Briscoe relies on the following point:
“Mr. Briscoe had an insurable interest in the property at the time of the fire.”
The record reveals that on November 30, 1967, Mr. Briscoe was working for the Guardian Company, a local real estate and loan corporation, as loan officer and appraiser. A Mr. Stigall was also employed by the Guardian Company as a real estate agent or salesman. Mr. O’Ouinn had listed his apartment building with the Guardian Company for sale and most of his dealings with Guardian were through Stigall. On November 30, 1967, Mr. Briscoe made an offer, through the Guardian Company, to purchase the O’Quinn property for $25,000. The pertinent sections, 2, 3 and 9 of the written offer are as follows:
“2. The Buyer will pay $25,000.00 for the property, $12,000.00 in cash and the balance of $13,000.00 as follows: 2nd mortgage loan of a 15 years duration with interest rate of 6Wo per annum and with payments of $113.25 per month, with the Buyer having option to pay the said 2nd mortgage in advance of maturity date without a penalty; subject to the Buyer obtaining a 1st mortgage loan on the subject property.
3. Special conditions: Subject to the Buyer giving the Seller a 1st mortgage loan of $25,000.00 with interest rate of 6Vz% per annum, with payments of $400.00 per month to suffice security to the Seller until the Buyer has had a reasonable time to secure the aforesaid 1st morgage loan, with a maximum time limit for the Buyer to obtain the 1st mtg. loan not to exceed 45 days from the date of the said $25,000.00 1st mortgage loan; also subject to in the event the Buyer cannot obtain the $12,000.00 cash item mentioned in paragraph No. 2 of this offer and acceptance by or before the said 45 days limit aforesaid mentioned, the Buyer will deed the subject property back to the Seller without a foreclosure suit in court or cause the Seller any legal action whatsoever to reclaim the subject property.
9. Buyer certifies that he has inspected the property and he is not relying upon any warranties, representations or statements of the Agent or Seller as to age or physical condition of improvements. The risk of loss or damage to the property by fire or other casualty occurring up to the time of transfer of title on the closing date is assumed by Seller.” (Emphasis supplied).
This offer was accepted by O’Quinn on December 1, 1967, and on December 2, 1967, O’Quinn executed a warranty deed transferring title in the property to Briscoe. Both Briscoe and O’Quinn testified that Briscoe executed a mortgage to O’Quinn for the full agreed purchase price of $25,000, but that mortgage was misplaced and never recorded. The deed to Briscoe was filed for record on December 8, 1967. Briscoe and O’Quinn agree that Briscoe never did actually own any interest in the property except an option to purchase as set out in the offer and acceptance. They both agree that Briscoe took the naked legal title under the warranty deed as a mere convenience and for the sole purpose of attempting to obtain a loan of $12,000 with which to pay the agreed down payment on the purchase price of the property.
On December 27, 1967, Briscoe obtained a fire insurance policy in the amount of $20,000 on the apartment building involved in this case, and the policy contained memorandum information as follows:
“[The Company has insured Briscoe] ... to the extent of the actual cash value of the property at the time of loss, but not exceeding the amount which it would cost to repair or replace the property with material of like kind and quality within a reasonable time after such loss, without allowance for any increased cost of repair or reconstruction by reason of any ordinance or law regulating construction or repair, and without compensation for loss resulting from interruption of business or manufacture, nor in any event for more than the interest of the insured, against all DIRECT LOSS BY FIRE...”
The policy provided options available to National in the settlement of any loss, as follows:
“It shall be optional with this Company to take all, or any part, of the property at the agreed or appraised value, and also to repair, rebuild or replace the property destroyed or damaged with other of like kind and quality within a reasonable time, on giving notice of its intention so to do within thirty days after the receipt of the proof of loss herein required.”
Mr. O’Quinn carried his own fire insurance on the property under a policy issued to him by a different company. On February 7, 1968, the apartment building was damaged by fire in the stipulated amount of $4,-306.65. Mr. O’Quinn repaired the damage and was paid the full amount of the cost of repairs by his own insurance company. Mr. Briscoe filed claim against National for the amount of the fire damage. The claim was denied by National and Briscoe sued for $4,306.65 damage; for statutory penalty, attorney’s fees and court cost. In rendering judgment for National, the trial court found as follows:
“The Court concludes that Mr. Briscoe had no insurable interest in the property as of the date of the fire; that his option to purchase same had expired and that Mr. O’Quinn’s letter written subsequently can only be treated as a new offer which was not accepted by Mr. Briscoe. It is further found that Mr. Briscoe really suffered no financial loss in this transaction and that as of the time of the loss, he had no exposure.”
National contends that Mr. Briscoe only had a 45 day option to purchase the property from O’Quinn; that the option had expired at the time of the fire and that Briscoe’s insurable interest, if he ever had any, expired with the option.
Briscoe contends that he was unable to obtain a loan on the property within the limited period of 45 days because an old mortgage, which had been paid but never satisfied of record, constituted a cloud on title requiring additional time for clearing. Briscoe contended that this time was extended, or its limitation waived, by letter from O’Quinn dated January 22, as follows:
“While waiting to get a reply from you in regard to the wall furnace that went out beyond repair at 823, West 45th. St. and broken down stuidio couchses [sic] at 4504 and 4508, Marion St. all in North Little Rock, Ark. through Mr. O. R. Stigall, which seemed all too long, our very good renter at 823, West 45th. St. moved out on this account. Most likely the others would have moved. We placed orders for the above items and called Mr. Stigall and reported on them.
Mr. Stigall then told us that you had returned from your trip and had aproved [sic] of the furnace but hoped we could repair the couches. We found out that the couches were beyond repairs before we called Mr. Stigall the first time. All the above items mentioned above were reported to me after our offer and your acceptance and we will expect remittance to us in the amount of Two Hundred Twenty Six & No/100 Dollars $226.00, plus any future major repairs that may come up before the deal is completed.
When the final papers are drawn up I want to use Mr. Homer Tanner to draew-up [sic] my part. If you want to use Beach Abstract on yours that is O. K. I would still want Mr. Tanner to examine and aprove [sic] them. Or if you wish we can both use Mr. Tanner and split the cost. I’m hopeful it can be all completed soon. I regret this delay is caused by this clearance at the Courthouse is take ing [sic] so much time but I believe it is well on the way now since the conference at Mr. Tanner’s office late Friday P.M.
In regard to your loan, I am hopeful you will be able to borrow Fifteen or Sixteen Thousand Dollars instead of Twelve Thousand Dollars on the property for your down payment. If you borrow over Twelve Thousand Dollars I will expect to get it as the down payment thereby reducing your Mortgage by the amount over and above the Twelve Thousand Dollars.
I will report any news I get on the release at the Court House to you or Mr. Stigall in case you are out of town.”
National points out that the 45 days had expired when this letter was written and contends that at most, the letter amounted to no more than a new offer which was never accepted. In any event, on February 14, 1968, Mr. O’Quinn wrote to Briscoe as follows:
“Your maxemum [sic] time for buyer to obtane [sic] first mortgage loan, 45, days according offer and acceptance on Lots 11 8c 12, Block 6, Holeads Addition to the CITY of North Little Rock, Arkansas has expired, therefor I am requesting you to deed the property back to me according to the agreement as stated in the offer and acceptance.
Your compliance with this reuest [sic] at once will be appreciat [sic] and will close the deal between us.”
Although we are of the opinion that the trial court’s finding as to lack of insurable interest was sustained by substantial evidence, we shall not weigh and discúss in detail the evidence offered pro and con as to insurable interest at the time of fire, for we conclude that the judgment must be affirmed because Mr. Briscoe suffered no damage or loss because of the fire.
Under Briscoe’s agreement with O’Quinn the risk of loss or damage to the property by fire or other casualty occurring up to the time of transfer of title on the closing date, was assumed by O’Quinn. Briscoe’s policy was limited to the “amount which it would cost to repair the property with material of like kind and quality . . . nor in any event for more than the interest of the insured.” Mr. Briscoe testified that he made some effort, without success, to obtain a loan of $12,000 on the property from Commonwealth Federal Savings & Loan Association. He testified that he never did obtain a commitment for a loan, and never did request one, because he had discovered in his chain of title the old mortgage on the property which had been paid but never satisfied of record. We are not impressed with Briscoe’s contention that such unsatisfied mortgage record constituted such cloud on the title as to have prevented Briscoe from obtaining at least a commitment for the loan of $12,000 on this property if he really intended to borrow only $12,000 on the property within his option period of 45 days. Mr. Briscoe was bound to have known of the 45 day limitation on procuring a loan. He had a deed to the property and although the offer and acceptance recites $100 check as earnest money, and although the deed recites $10 cash and other good and valuable consideration, there is no evidence that Briscoe was ever out anything in connection with the matter. There is no evidence of an attempt to extend the option time before its expiration and Briscoe testified that he was out nothing except the premium he paid on the insurance policy.
There is no question that under the terms of the insurance contract, as between Briscoe and National, it was contemplated that Briscoe was the actual and sole owner of the property. Briscoe testified that he must have told Mr. Gazette (the insurance agent) that he was the sole owner of the property. Mr. Briscoe did not own the property at all when he applied for and procured the insurance, he only had 45 days in which to borrow money with which to make a down payment in the purchase of the property.
As between Briscoe and National, an insurable interest in Briscoe conflicts with the options as to settlement reserved in favor of National, by the terms of the policy under the facts of this case. National could not have taken the property at its appraised value, regardless of the extent of damage, because O’Quinn actually owned the property. National could not have repaired, rebuilt or replaced the destroyed or damaged property with other materials of like kind and quality within a reasonable time, because O’Quinn owned this property and had already repaired the damage as was his duty under his agreement with Briscoe.
We are of the opinion that there is substantial evidence to support the trial court’s finding that Briscoe had no insurable interest in this property at the time of loss, and certainly there is substantial evidence that Briscoe suffered no damage or loss because of the fire.
The judgment is affirmed. | [
-12,
120,
-39,
-84,
-120,
96,
56,
-39,
-50,
-16,
-89,
94,
-1,
-64,
21,
43,
-10,
105,
-27,
106,
-48,
-77,
19,
106,
-46,
-69,
83,
-59,
-71,
-1,
-12,
-41,
13,
36,
-56,
21,
-26,
-128,
-59,
28,
74,
-115,
9,
-27,
-99,
65,
48,
91,
-112,
73,
65,
-100,
-45,
60,
17,
72,
109,
40,
-5,
33,
80,
-71,
-117,
-59,
127,
17,
-127,
101,
-100,
35,
-22,
14,
-110,
53,
32,
-24,
115,
-90,
-42,
53,
35,
9,
9,
102,
35,
32,
-123,
111,
-32,
24,
38,
118,
7,
-122,
-106,
120,
3,
8,
-105,
-97,
124,
24,
-91,
124,
-25,
28,
29,
108,
21,
-118,
-42,
-13,
-17,
120,
-97,
-117,
-10,
7,
-80,
112,
-50,
-82,
69,
71,
126,
-101,
30,
-35
] |
John A. Fogleman, Justice.
Appellant mounts a three-pronged attack upon a jury award of $6,800 compensation to appellees for the fee simple taking of 19.37 acres from a 118-acre tract for the relocation of United States Highway No. 71 as a controlled-access facility. Appellant contends, first, that the court erroneously refused to strike the testimony of Arville Stallings and of appellees’ value expert Glenn West; second, that the trial court erred in failing to quash the jury panel; and, third, that there is no substantial evidentiary support for the verdict. We have resolved the second point adversely to appellant in Arkansas State Highway Commission v. Sadler, 248 Ark. 887, 454 S. W. 2d 325.
The third ground and the first are intertwined and interdependent, being hinged upon the question whether the testimony of the witnesses is substantial. We find the testimony of the landowner to be vulnerable to appellant’s assault. Appellant moved that his value testimony be stricken as being without substantial basis. There is no question about Arville Stallings having sufficient familiarity with the land to qualify him to express his opinion as to the value of the lands taken, as well as the value of the whole tract before the taking and the value of the tracts remaining after severance of the whole by the right-of-way. When examined as to the value of the 118-acre tract as it existed immediately before the taking, he responded that if he were to put a price on it, he’d want $20,000. He responded affirmatively to leading questions as to wheth er he thought this price was the fair market value and his belief that the land "would go” for that price. Yet when asked about the value of the lands taken, he again said that if he were to put a price on it, $250 per acre would be a bare minimum, or that he would average the value at this figure. He interjected a reminder that he did not have the land for sale. He arrived at his $7,500 valuation of the remaining lands by stating that there was enough damage to the land by reason of the taking to leave only this value. Even if it be said that Stallings’ measure of values was not a statement of the value of the lands to him, the price fixed by a reluctant, not a willing, seller hardly meets the test for evidence of market value.
Just compensation in partial taking cases is measured by the difference between the market value of the whole tract at the time of the taking and the market value of the remaining lands, or the market value of the lands taken plus the net damage to the remaining land. Young v. Arkansas State Highway Commission, 242 Ark. 812, 415 S. W. 2d 575; Arkansas State Highway Commission v. McAlister, 247 Ark., 757 447 S. W. 2d 649. Market value is the price which could be agreed upon at a voluntary sale by an owner willing to sell and a purchaser willing to buy. Desha v. Independence Bridge District No. 1, 176 Ark. 253, 3 S. W. 2d 969. Stallings’ testimony cannot be taken as evidence tending to prove the measure of compensation. We have heretofore held that value testimony of a landowner based upon an improper standard is not substantial evidence. Arkansas State Highway Commission v. Perryman, 246 Ark. 120, 444 S. W. 2d 564; Arkansas State Highway Commission v. Darr, 248 Ark. 730, 437 S. W. 2d 463.
We cannot say that failure to strike Stallings’ value testimony was error, however. Appellant did not move to strike it or make any other objection to it until appellees had presented the testimony of Glenn West, an expert value witness called by appellees, and had rested. We have not had this exact situation pre sented previously. We have held that granting a motion to strike all of a witness’ testimony, a part of which was competent, made after other witnesses have testified is error. Johnston v. Ashley, 7 Ark. 470; Phelan v. Bonham, 9 Ark. 389. We have also held that objections to evidence were waived when first raised in questioning the sufficiency of the evidence to support a jury verdict (Sandusky v. Warren, 177 Ark. 271, 6 S. W. 2d 15), and that an objection made after the trial court has commenced instructing the jury comes too late. Beene v. Youngblood, 247 Ark. 667, 447 S. W. 2d 62. We have also held that excluding inadmissible portions of testimony from a jury’s consideration, when objection thereto was first raised upon a motion for a directed verdict made after both parties had rested, was not error. American Workmen v. Ledden, 196 Ark. 902, 120 S. W. 2d 346. -
It is generally held that objections to evidence müst be seasonably made, in the absence of good cause for the objector not doing so and prejudice to the proponent. Solomon v. Dabrowski, 295 Mass. 358, 3 N. E. 2d 744, 106 A. L. R. 464 (1956); Schaffer v. Dorsey, 70 Ill. App. 2d 390, 217 N. E. 2d 19 (1966); Traders and General Insurance Co. v. Wright, 95 S. W. 2d 753, 766 (Tex. Civ. App. 1956); Ball, Objections to Evidence, 15 Ark. L. Rev. 69, 70 (1960-61). The same authorities demonstrate that inexcusable delay in making a motion to strike objectionable testimony may be grounds for denial of the motion and that a court may properly overrule such a motion made after a witness has been excused from the stand, or discharged from attendance at the trial or after other witnesses have testified or after the proponent’s case, has been concluded. It may well be that the proponent would be severely prejudiced by a delay in making a motion to strike or that the trial judge should not be expected to put the testimony to which belated objection is made in proper perspective to make a correct ruling after other witnesses have testified, particularly where a close question is involved and the exact words of a witness may be the determining factor. The trial judge is in a much better position than an appellate court to judge whether such a motion is time ly under the circumstances existing when it is made. He should only be held to the exercise of a sound judicial discretion under the circumstances existing here. We cannot say that denial of the motion of appellant was an abuse of discretion so we find no error on this point.
On the other hand, appellant did not demonstrate that there was no reasonable basis for the testimony of Glenn West, appellees’ only other witness. He was not only a real estate broker and salesman, operating within a radius of 50 to 75 miles of Greenwood, he had actually bought and sold lands in the area himself. Appellant argues that there is not a reasonable basis for West’s valuation of the 118 acres before the taking, because he “averaged out” the value at $150 per acre. This approach is not fatal, at least in this instance, where West stated that he valued the woodlands on the tract at $100 per acre and the open lands at $200 per acre and that each such type of land constituted about one-half of the entire tract.
Appellant says that West’s reference to the only sale he considered comparable furnished no basis for his valuation of the tract and assessment of the damage to it. The sales referred to by West were his purchase of a 180-acre tract at $55 per acre on February 4, 1966, pursuant to a contract dated in June, 1965, and his sale of 120 acres of that tract for $125 per acre on August 1, 1966, some two years before the taking. In comparing the land he had bought and sold himself, West located it as being about four miles southeast of the Stallings property which was two miles via a county road from downtown Greenwood. He described that land as being rugged terrain bisected by a valley, just as he had characterized appellees’ land. He said that he had sold the worst part and kept the best part, which was pastureland. He pointed out that his tract had some county road frontage, somewhat similar to that on the Stallings property. He also mentioned that the lands he purchased and sold were grown up and unimproved. We cannot say as a matter of law that these sales were not comparable.
The major part of the remainder of appellant’s argument is based upon the assertion that there is no reasonable basis for West’s assessment of a $75 per acre decrease in value of the 23.43-acre tract left west of the right-of-way and a $50 per acre diminution in value of the 75.2-acre residual east of the highway. There was no error in the denial of appellant’s motion to strike West’s testimony because the motion asked that all his value testimony be stricken and not just this part. Even if it is appropriate that the testimony of a witness as to “after” values be stricken, testimony as to “before” values is not thereby rendered inadmissible. Young v. Arkansas State Highway Commission, 242 Ark. 812, 415 S. W. 2d 575; Arkansas State Highway Commission v. Russell, 240 Ark. 21, 398 S. W. 2d 201. See also, Arkansas State Highway Commission v. Wilmans, 236 Ark. 945, 370 S. W. 2d 802.
We also find West’s testimony to be substantial on this point, however, along with his testimony relating to the value of the land taken. This witness classified the property as a “combination ranch” — for hogs, goats and cows — from the standpoint of highest and best use. He stated that at the time of the taking appellee could have run about 15 head of cattle on the land. Where there had been easy communication between most parts of the tract by means of a county road, the only connection between the two tracts after the taking was a culvert in a creek bed, far from the road. West granted that a cow might drift through this culvert, but doubted that cows could be driven through it. He said that if part of them did go through then the herd would be split. He thought that a rancher would have to haul his cattle back and forth between the tracts. Not only did he consider the severance of the two tracts, he pointed out the odd, irregular shape of part of the remainder. West also considered the extreme cuts and fills through the property necessitated for highway construction as having some bearing on the value of the remaining tracts.
West said that the 19.37 acres taken was the best land in the whole tract, insofar as grassland was concerned, with the major part of that land having been in a valley through which the right-of-way passes. He said that one acre of the lands taken lying on the south side of the county road through the tract was suitable for a homesite valued at $1,000. Even though the major part of the remaining 18.37 acres was the best land, he only considered it as having a value of $150 per acre in arriving at his total valuation of $3,755.50 for the lands taken. In valuing the lands taken, he probably took into consideration his estimate that there were six or seven acres of woodland in the tract taken.
We find West’s testimony to be substantial and to support the jury verdict.
The judgment is affirmed. | [
83,
-18,
-15,
60,
9,
64,
26,
-120,
65,
-94,
118,
83,
-81,
-58,
1,
49,
-90,
29,
117,
42,
70,
-77,
69,
115,
-45,
-77,
89,
-59,
49,
79,
-28,
-41,
76,
32,
-54,
85,
66,
-30,
-59,
80,
14,
6,
-117,
76,
-55,
-28,
52,
47,
80,
75,
53,
-113,
-29,
45,
25,
-21,
77,
46,
75,
57,
65,
-72,
56,
13,
95,
4,
17,
38,
-70,
1,
-56,
72,
-112,
48,
9,
-40,
115,
38,
-122,
116,
77,
-101,
12,
106,
103,
1,
93,
-49,
-16,
-120,
46,
-2,
13,
-90,
82,
72,
75,
73,
-105,
-108,
120,
0,
78,
-2,
-3,
12,
93,
-20,
39,
-114,
-106,
-77,
-83,
124,
-108,
3,
-61,
-125,
20,
113,
-49,
-30,
92,
69,
54,
-101,
15,
-111
] |
Frank Holt, Justice.
This is an action by appellant to collect on two notes. Appellees, Randall Garrison and his wife, are in the poultry business. Julian Hendren is the general manager of appellant corporation, Farmers Cooperative Association. Inc., a chicken feed retailer. In the early part of 1967, Hendren, along with Kenneth Handy, a representative of Farmland Industries, Inc. (a regional supplier in which appellant has an ownership interest), approached appellees to solicit their participation in a layer-feeder program. This program was a joint project of Farmers Cooperative and Farmland Industries. On April 5, 1967, a “Feeder Contract” was consummated between appellees and appellant.
The contract provided that appellant would sell to appellees, and appellees would purchase from appellant their entire requirements of mixed feed and con centrates at appellant’s “regular retail price or prices in effect on date of delivery* * *” Appellant also agreed to furnish appellees with 21,000 layer hens together with sufficient financing for the program. In this contract the appellees agreed to execute a promissory note to appellant for $34,650.00, covering the price of the hens and 29,800 pounds of feed, which sum plus interest was payable on demand. Without limiting the right of appellant to demand payment in full or in part at any time, the contract specified that all indebtedness evidenced by appellees’ note “shall be paid in full on or before May 1, 1968.” Appellant also retained by this contract the sole option to make advances to appellees, not to exceed at any one time the original sum of the note. The final provision of this contract provided that the appellees have read and presently understand the agreements and that by signing the contract they agreed to be bound by all of its terms. About a month later, or on May 9, 1967, both appellees executed to appellant a promissory note for $34,650.00. On August 2, 1967, appellee Randall Garrison executed a second note, payable on November 1, 1967, for the sum of $12,000.00.
Appellant brought suit against appellees on November 18, 1968, on the two promissory notes. The unpaid principal balances were then $34,603.93 on the initial note and $3,325.41 on the second note. Appellees answered and denied liability on the notes because of a partial failure of consideration. They asserted that it had been agreed upon between the parties that the notes would be repaid only from the proceeds of the egg, production; that appellant would continue to refinance appellees with successive layer hens until such time as the egg proceeds paid the appellees’ indebtedness in full; and that appellant breached the contract by refusing to so refinance. Appellees also counterclaimed for: (1) $35,155.02 loss of income because of the partial premature molt of their hens resulting from appellant’s failure to promptly deliver feed; and (2) $5,299.99 as an overcharge on feed, in that appellant breached its agreement to supply feed at competitive market prices.
Both Hendren and Handy testified, each denying that they ever made any representations or promises to refinance appellees with successive layer hens or to sell feed at competitive market prices. Over the objections of appellant, appellee Randall Garrison testified, and adduced testimony from other farmers who had been approached regarding the layer-feeder program, that Hendren and Handy persuasively represented such refinancing provisions and competitive prices as a part of the program. Garrison and his brother, who was present during part of the negotiations leading to the contractual agreement, testified that Hendren and Handy specifically promised to refinance appellees if necessary and to furnish feed at competitive prices. Garrison further testified that appellant, on occasions subsequent to the signing of the contract, reassured appellees that adjustments for feed prices would be made and that refinancing would, if necessary, be provided. There also was evidence presented that some price adjustments were in fact made between the parties.
At the conclusion of the testimony, appellant moved for a directed verdict on the two notes by reason of appellees’ admission that the notes were genuine and the balances correct. This motion being denied by the trial court, appellant then requested that the jury be instructed to return a verdict for appellant on appellees’ counterclaims. These instructions were refused. Other instructions were then tendered by appellant. By these instructions and others given by the court, the existence of any agreements regarding refinancing and competitive market prices for feed was presented as questions of fact. Thus the issues of appellees’ liability on the two notes and of appellant’s liability on the counterclaims were submitted to the jury. The jury found that appellant was entitled to recover nothing on the note [$84,650.00] dated May 9, 1967; denied appellees’ claim for damages for loss of income [$35,-155.02] alleged to have resulted from a delay in the delivery of feed; awarded appellant $3,797.54 on the note dated August 2, 1967; and found that appellees were entitled to recover $5,299.99 on their counterclaim alleging overcharge in feed prices. Appellant moved for a judgment notwithstanding the verdict on the note dated May 9, 1967. The motion was denied. From the judgment on the verdict comes this appeal.
One of appellant’s contentions for reversal is: “Any testimony regarding prior or contemporaneous oral modification of the written feeder contract should not have been admitted into evidence under the doctrine of merger.” We must agree.
It is a general proposition of the common law that in the absence of fraud, accident or mistake, a written contract merges, and thereby extinguishes, all prior and contemporaneous negotiations, understandings and verbal agreements on the same subject. See 17 Am. Jur. 2d, Contracts, § 483; 17A C. J. S. Contracts § 381. This is simply the affirmative expression of the parol evience rule. In analyzing the present case, it is helpful to refer initially to 3 Corbin on Contracts, § 573 (1960), which begins:
“When two parties have made a contract and have expressed it in a writing to which they have both assented as the complete and accurate integration of that contract, evidence, whether parol or otherwise, of antecedent understandings and negotiations will not be admitted for the purpose of varying or contradicting the writing. This is in substance what is called the ‘parol evidence rule,’ a rule that scarcely deserves to be called a rule of evidence of any kind, * * *. The use of such a name for this rule has had unfortunate consequences, principally by distracting the attention from the real issues that are involved. These issues may be any one or more of the following: (1) Flave the parties made a contract? (2) Is that contract void or voidable because of illegality, fraud, mistake, or any other reason? (3) Did the parties assent to a particular writing as the complete and accurate ‘integration’ of that contract?
In determining these issues, or any one of them, there is no ‘parol evidence rule’ to be applied. On these issues, no relevant evidence, whether parol or otherwise, is excluded.”
In the case at bar, it is not disputed that the parties made a contract; in fact, appellees not only admitted the existence of a contract and the alleged indebtedness, but based their defense and founded their counterclaims on an alleged breach thereof. Nor have appellees asserted that the contract is void or voidable on the basis of illegality, fraud, or mistake. However, appellees do in effect contend that the writing was not assented to as a complete “integration” of the contract and further point out that “[t]he record does not show that the court affirmatively found the feeder contract to have been integrated.” We cannot agree with appellees’ contenion. First of all, it is of no significance that the trial court did not affirmatively find the contract to be integrated; the burden here is on the appellees, who wish to avoid application of the parol evidence rule, to affirmatively prove that the feeder contract was not an integrated expression of the parties’ agreements. Graves v. Bodcaw Lbr. Co., 129 Ark. 354, 196 S. W. 800 (1917). Furthermore, as we view the record, the evidence adduced by appellees concerning the alleged agreements of refinancing and competitive market prices did not go to prove that the written contract was not intended as a complete integration of prior negotiations; but rather it tended to show what purportedly was the parties’ actual antecedent understanding which was in variance with the clearly expressed terms of the contract. Being of this latter nature, such evidence was introduced in violation of the parol evidence rule. Jackson County Gin Co. v. McCuistion, 177 Ark. 60, 5 S. W. 2d 729 (1928). Appellees here, in effect, sought to impeach the written contract, urging that it did not express the true intent of the parties, rather than simply attempting to prove that the writing was not a complete integration of the parties’ prior agreements. See Dunlop Tire & Rubber Corp. v. Thompson, 273 F. 2d 396 (8th Cir. 1959). In the case at bar, we do not construe the parol evidence to be of the effect that the parties did not assent to the writing as the complete integration of their contract.
The parol evidence rule is one of substantive law. In 4 Williston on Contracts, § 631 (1961), this proposition is explained as follows:
“The parol evidence rule * * * fixes the subject matter for interpretation, though not itself a rule of interpretation.
* * *
"It does not exclude evidence for any of the reasons ordinarily requiring exclusion, based on the probative value of such evidence or the policy of its admission. The rule as applied to contracts is simply that as a matter of substantive law, a certain act, the act of embodying the complete terms of an agreement in a writing (the “integration”), becomes the contract of the parties. The point then is, not how the agreement is to be proved, because as a matter of law the writing is the agreement. Extrinsic evidence is excluded because it cannot serve to prove what the agreement was this being determined as a matter of law to be the writing itself.’ ”
The question now becomes: When does a writing constitute a complete integration? In Jetter v. Windle, 229 Ark. 948, 319 S. W. 2d 825 (1959), this court subscribed to the language in its earlier decision of Wilson v. Nugent, 174 Ark. 1115, 299 S. W. 18 (1927), wherein it was held:
“[W]hen a written instrument contains such terms as import a complete obligation, which is definite and unambiguous,, it is conclusively presumed that the whole agreement of the parties, and the extent and manner of their undertaking, were reduced to writing.”
This “face-of-the-writing” test, however, has been somewhat discredited; and other cases in this jurisdiction hold that “* * * a writing may be amplified by parol evidence of an additional term or oral understanding, simply where the writing is ‘silent’ on the matter.” Comment, Scope and Operation of the Parol Evidence Rule in Arkansas, 4 Ark. L. Rev. 168, 175 (1949). Restatement of Contracts, § 240, authorizes the introduction of parol evidence:
“* * * if the agreement is not inconsistent with the integrated contract, and is made for separate consideration or is such an agreement as might naturally be made as a separate agreement by parties situated as were the parties to the written contract.”
With these principles in mind, we are of the view that the written contract constitutes a complete integration. Therefore, appellees’ proffered evidence of agreements, prior to and contemporaneous with the written contract, regarding the promised refinancing and assured competitive market prices for feed, should not have been admitted. The contract (dated April 5, 1967) clearly states that a note to be given later (the note was dated May 9, 1967) is to be payable on demand and must be paid in full on or before May 1, 1968. The contract is not silent on this point, and it is patently inconsistent with the clearly expressed terms therein to contend that credit was to be extended beyond the specified due date. See Young v. Westark Production Credit Ass’n., 222 Ark. 55, 257 S. W. 2d 274 (1953). Moreover, this court has had occasion to hold that parol evidence is inadmissible to sh,ow that a promissory note is to be paid from the proceeds of that undertaking for which the note was executed to finance. Atkins v. Garner, 222 Ark. 470, 261 S. W. 2d 266 (1953).
As to the prices for feed, the contract is unequivocal in stating that the feed was to be sold at appellant’s “regular retail price or prices in effect on date of delivery.” There is no ambiguity or uncertainty here, and parol evidence which tends to show that competitive market prices were contemplated asserts, in effect, that the parties meant something other than what they said in writing. Such evidence is not admissible. Johnson v. Missouri Pac. R. R. Co., 139 Ark. 507, 214 S. W. 17 (1919). In the case at bar, according to the written contract, the appellees attested to the fact that they read, understood, and would be bound by the terms thereof; they cannot now insist on a contract in conformity with what purportedly was their original oral understanding. Allen v. Thompson, 169 Ark. 169, 273 S. W. 396 (1925). The stability of our economic transactions and the contract law upon which they are founded demand strict application of the parol evidence rule. Hoffman v. Late, 222 Ark. 395, 260 S. W. 2d 446 (1953). See, also, Williston on Contracts, § 631.
Appellant asserts that “[t]o assume the parties agreed for appellant to lay out $34,000.00 per year for an indefinite number of years no matter what the result of the growing program was, cannot reasonably be said to be a consistent additional term.” Such an assumption might not sound reasonably consistent to a lawyer or a businessman; however, to an anxious farmer it might well appear fair and realistic, especially when presented in the persuasive terms of inducement to sign an adhesion contract. Although promissory inducements cannot be asserted to vary the terms of a subsequent written contract [see Ford v. Luria Steel & Trading Corp., 192 F. 2d 880 (8th Cir. 1951); Crawford v. General Contract Corp., 174 F. Supp. 283 (W. D. Ark. 1959)], such inducements and the reliance which they evoke may, nonetheless, amount to fraudulent misrepresentations sufficient to avoid the contract by way of defense. See Northwestern Rug Mfg. Co. v. Leftwich Hardware & Furniture Co., 176 Ark. 212, 2 S. W. 2d 1109 (1928).
It should be noted that we do not subscribe to appellant’s view that a failure of consideration on the contract is no defense to the suit on the initial note dated May 9, 1967. Suffice it to say that the note is representative ot appellees obligation on the contract and receives its vitality from this written instrument. Appellees’ damages, or a part thereof, might well have been the direct and foreseeable result of appellant’s failure to have made timely delivery of feed. In these circumstances, where daily feed supplies are essential to the intended objective of the contract, prompt delivery of the required quantity is necessarily an implied term in appellant’s contractual obligation. Partial failure of this consideration is a defense pro tanto. Ark. Stat. Ann. § 85-S-408 (Repl. 1961).
We must reject appellees’ contention that “the entire appeal is without basis because appellant waived any objection to the court’s failure to direct verdicts by requesting instructions.” Our case law which might appear to support this proposition [appellees direct us to Hankins v. Dooley, 229 Ark. 316, 314 S. W. 2d 691 (1958)] is distinguishable. Briefly stated, the rule is: Where a party requests, or acquiesces in, an instruction submitting a particular issue to the jury, he is not in an attitude to thereafter complain about the jury’s determination of that issue — i. e., he waives his contention that the issue should have been determined by the trial court as a matter of law, or simply not determined at all. But in none of the cases upholding a waiver which we have examined was there a motion for directed verdict prior to the tendering of instructions. Further, the parol evidence rule is a matter of substantive law of which, as opposed to procedural formalities, we are less inclined to find a waiver.
In the case at bar, the appellant expressly objected to the introduction of the inadmissible parol evidence and thereafter requested a directed verdict urging the proper exclusion .of such evidence. To extend this waiver doctrine to the present situation would impose upon appellant the dilemma of seeking favorable instructions at the cost of losing his right to appeal.
Reversed and remanded. | [
112,
124,
56,
-116,
10,
34,
56,
-102,
83,
-94,
119,
83,
-17,
-61,
4,
113,
-25,
45,
85,
105,
-107,
-77,
53,
64,
-45,
-13,
-15,
-43,
-79,
111,
-91,
93,
76,
52,
-54,
77,
-30,
-126,
-63,
26,
-126,
-121,
-83,
101,
-7,
-122,
56,
-21,
20,
79,
37,
-121,
-5,
44,
29,
75,
45,
46,
125,
45,
-64,
-11,
-70,
-116,
127,
87,
-112,
6,
-104,
71,
-38,
46,
-102,
56,
25,
-40,
90,
-74,
-122,
92,
11,
-71,
4,
38,
98,
0,
-60,
-19,
-40,
-100,
42,
-33,
13,
-122,
-111,
104,
19,
34,
-66,
30,
54,
21,
55,
118,
-51,
5,
29,
109,
1,
-58,
-108,
-125,
-50,
-12,
-98,
15,
-17,
-77,
49,
113,
-51,
-94,
92,
71,
59,
-97,
-122,
-110
] |
Frank Holt, Justice.
Appellant was sentenced in 1965 to life imprisonment for the crime of rape. Pursuant to our Criminal Procedure Rule No. 1 appellant, through court appointed counsel, has now petitioned the trial court to vacate his life sentence. In written findings of fact and conclusions of law the court denied the petition.
Appellant contends that his incriminating oral admissions were involuntary and, therefore, were inadmissible in evidence. Appellant testified that his admissions were coerced by physical abuse from some of the arresting officers who told him that he must confess, “whether I did it or not.” He claims that he was held four or five days before he confessed and was denied the use of a telephone to call counsel. Appellant maintains he did not commit the alleged offense. The state presented evidence that appellant was arrested at approximately 1 a.m. on October 25, 1962, and placed in the city jail. At approximately 3 p.m. that day the case was assigned to two officers when they reported for duty. According to them, they spent the afternoon investigating the case which included interrogating appellant who denied any complicity in the alleged offense. With consent of appellant and his accomplice, the officers spent several hours searching their respective homes and interviewing witriesses. About 8 p.m. that evening the officers received a radio message from the jail that the appellant and his accomplice had asked to talk with them. These officers testified that the appellant made' an oral confession which was introduced in evidence at appellant’s trial. The officers denied that appellant was subjected to any physical abuse by them or anyone else to their knowledge and that the appellant exhibited no evidence of abuse nor made any complaint to them. One of the officers testified that appellant was permitted to use the telephone before making any admissions. There was no testimony elicited as to the right of the appellant to remain silent, or that any statement he made could be used for or against him, or that he was informed of his rights as to counsel.
In its findings the court correctly stated that the required Miranda warning was not in effect at the time the appellant made his alleged confession. The procedural safeguards underlying the ' privilege against self-incrimination enunciated in Miranda v. Arizona, 384 U. S. 436 (1966) are not retroactive. Gross v. State, 246 Ark. 909, 440 S. W. 2d 543 (1969).
The court further found there was sufficient evidence to convict the appellant without the confession. Even so, the admission of an involuntary confession is considered prejudicial and reversible error although there is other evidence which is sufficient to sustain a verdict. Haynes v. Washington, 373 U. S. 503 (1963). Therefore, this finding is inapplicable to the voluntariness of appellant’s statements.
The trial court also found that the records of the officers in the present proceeding indicate that the confession was valid according to the rules of evidence obtaining at that time. We do not construe this finding as being sufficiently clear and definite. It is our duty as an appellate court to examine the entire record of the proceedings and make an independent determination of the issue of voluntariness of the confession since it is disputed on federal constitutional grounds. Harris v. State, 244 Ark. 314, 425 S. W. 2d 293 (1968). There we recognized that the findings of the trial court, while not controlling, are accorded considerable weight in resolving evidentiary conflicts. It appears from our review of the record that there is no evidence the appellant was at any time advised of his rights with respect to silence, counsel, and his privilege against self-incrimination. Although these factors are not necessarily controlling, they are, however, significant in the evaluation of voluntary statements. Haynes v. Washington, supra; Davis v. North Carolina, 384 U. S. 737 (1966). In Harris v. State, supra, we said:
“The prerequisites for the admission in evidence of any statements made by a defendant when he is in custody of officers are found in Boyd and Byrd v. State, 230 Ark. 991, 328 S. W. 2d 122 (1959). There is a presumption that it is involuntary; and the burden is on the State to show the statement to have been voluntary, that is, freely and understandably made without hope of reward or fear of punishment. In making those determinations the court looks ‘to the whole situation and surroundings of the accused.’”
Because of the indefiniteness of the finding as heretofore mentioned, we remand to the trial court for either a supplemental hearing or a re-examinatiori and re-evaluation of the present evidence and a more specific and definitive finding that the oral admissions Were or were not voluntary. This was the procedure we authorized in Mitchell v. Bishop, 245 Ark. 899, 435 S. W. 2d 91 (1968).
Upon a review of the entire record we find no merit in the other contentions argued by the appellant.
Remanded for proceedings consistent with this opinion. | [
16,
-22,
-20,
-65,
9,
96,
62,
48,
-13,
-29,
-27,
19,
-19,
67,
4,
63,
127,
103,
85,
120,
-35,
-73,
87,
97,
119,
-5,
88,
-43,
-73,
-49,
-20,
-68,
72,
32,
-46,
81,
34,
-56,
-25,
90,
-114,
5,
-103,
64,
18,
16,
32,
29,
72,
15,
49,
-36,
-29,
42,
29,
-54,
9,
100,
75,
-83,
88,
57,
-97,
31,
-33,
116,
-93,
-90,
-66,
5,
112,
23,
-104,
-79,
1,
-8,
51,
-74,
-125,
118,
79,
-117,
-92,
98,
-30,
-96,
109,
115,
-72,
1,
30,
-70,
-67,
-90,
-8,
65,
73,
101,
-74,
-39,
114,
20,
39,
-8,
77,
-52,
92,
36,
10,
-117,
-76,
-109,
79,
44,
-106,
75,
-13,
49,
64,
49,
-52,
114,
92,
71,
-7,
-109,
-114,
-48
] |
John A. Fog lemán, Justice.
This appeal comes from a judgment denying a homestead exemption of the proceeds of the sale of a homestead by appellant’s decedent in his lifetime.
Earl W. Johnson, a widower, whose children were all adults, sold his homestead in July 1967. He deposited the proceeds in his bank account. There is no doubt that the balance in the decedent’s bank account at the time of his death consisted of whatever remained of the proceeds of sale. Johnson had drawn certain checks against the bank account into which nothing except these proceeds had been deposited. Appellant, his oldest child, was appointed administratrix of his estate after his death on August 4, 1967. Although Johnson had not vacated the house on the property at the time of his death, he had been paid all of the consideration for the sale except for $52.09, representing the excess of the amount withheld for satisfaction of a mortgage on the property over the amount actually owed. Thére was testimony tending to show that he remained on the place under some agreement with the purchaser, who had fully performed his obligations on the date of the sale.
Appellant relies entirely upon our decision in Stanley v. Snyder, 43 Ark. 429. Although it is clearly held there that one’s homestead is not lost through death of his wife and maturity of his children, it was not contended there that the proceeds of a sale of the homestead made voluntarily by the occupant are exempt from the claims of creditors. It was held. that creditors had no standing to set aside a fraudulent conveyance of a homestead, because they had no rights in the homestead before its conveyance. This case is inapplicable because appellee, a judgment creditor, is not trying to reach or levy upon the homestead.
We have heretofore clearly held that the proceeds of sale of a homestead made voluntarily are not exempt from the claims of creditors. Drennen v. Wheatley, 210 Ark. 222, 195 S. W. 2d 43. What we said in the Drennen case governs here. Appellant does not specifically argue that the continued occupancy of the premises by the decedent after the sale was complete caused the property to retain its character as a homestead. It can readily be seen that this fact would not affect the result because no levy upon the lands is sought.
The judgment is affirmed. | [
-43,
108,
-35,
-68,
42,
32,
42,
-102,
83,
-106,
39,
-37,
-17,
90,
84,
109,
117,
47,
113,
104,
-59,
-77,
31,
-126,
82,
-69,
-103,
-43,
-76,
77,
-92,
95,
12,
0,
-54,
-11,
-30,
-126,
-23,
20,
-114,
64,
-101,
76,
-15,
64,
52,
47,
84,
75,
21,
-65,
115,
46,
53,
96,
96,
46,
123,
37,
-48,
-72,
-69,
5,
-17,
23,
-80,
21,
-104,
-27,
104,
58,
-112,
57,
0,
-24,
115,
38,
-42,
116,
10,
31,
40,
102,
-25,
2,
117,
-17,
-80,
-103,
46,
-42,
-99,
-90,
-44,
88,
74,
-83,
-76,
-97,
125,
100,
38,
-4,
-18,
-44,
28,
-20,
29,
-50,
-10,
-79,
-115,
120,
-100,
3,
-26,
-127,
48,
113,
-49,
-30,
92,
71,
56,
-101,
-114,
89
] |
John A. Fogleman, Justice.
Opal Irene Casebeer, wife of Dr. R. Lawrence Casebeer, both of whom are appellants here, is the owner of a lot in Pine Ridge Estates, a residential subdivision in Benton County, Arkansas. She purchased the lot from appellee in 1968. It appears from the pleadings and a stipulation in the record that appellee Beacon Realty, Inc., is the owner of all properties in the subdivision which will be traversed by a passageway proposed by Beacon through Block 8 connecting, inside the subdivision, with Pine Ridge Drive and Ridge Lane, two streets therein. Unless enjoined, Beacon will pave 18 feet of a 20-foot easement constituting this passageway for the use of vehicular traffic and other passage. All of the passageway will cross lands owned by appellee Beacon, arid none of it will cross or touch any property owned by appellants. This appeal comes from a decree of the chancery court dissolving a temporary restraining order previously granted on petition of appellants and denying their petition for a permanent injunction which would restrain appellee from proceeding with the proposed construction.
The property owned by appellants faces on Pine Ridge Drive. Block 3 is divided by White Oak Drive and all of the lots therein front either on White Oak Drive, which dead-ends in the subdivision, or bn Red-bud Terrace which connects at one end with a state highway and at the other with a county road. The rear line of appellants’ property is on the dividing line between Blocks 3 and 4. Nine lots in Block 3 and seven in Block 4 including Mrs. Casebeer’s property would abut upon this way. It was stipulated that appellee planned to designate this passageway as a private drive to be used only by individuals with lands abutting upon it.
At the time of the purchase of Lot 10 in Block 4 by Mrs. Casebeer, there was on record a plat of the subdivision, accepted by the county court, and protective covenants prepared by appellee. While appellants state four points to be relied upon for reversal, all of them relate to the construction or application of a single covenant. It read:
“LAND USE AND BUILDING TYPE: No lot shall be used except for residential purposes.”
Cases involving construction of, or enforcement of, restrictive covenants are sparse in Arkansas. By the great weight of authority,, restrictive covenants are to be strictly construed against limitations upon the free use of property, and all doubts resolved in favor of the unfettered use of the land. In other words, if there be any doubt, they are to be construed strictly against those seeking to enforce them and liberally in favor of freedom in use of the land. See 20 Am. Jur. 2d 755, Covenants, Conditions, etc., § 187 (1965); 26 C. J. S. 1094, 1098, Deeds, § 163a (1956); Annot., 175 A. L. R. 1191, 1193 (1948); Annot., 25 A. L. R. 2d 904, 905 (1952). This rule of construction is based upon the repugnance of restrictions on the use of land to trade, commerce, recognized business policy and common law rights to use lands for all lawful purposes. See 26 C. J. S. 1088, Deeds § 162(3) (1956). This doctrine was recognized by this court in Faust v. Little Rock School Dist., 224 Ark. 761, 276 S. W. 2d 59, wherein we said that where there is uncertainty in the language by which a grantor in a deed attempts to restrict the use of realty, freedom from restraint would be decreed. We have also held that when the language of the restrictive covenant is clear and unambiguous, the parties will be confined to the meaning of the language employed and that it is improper to inquire into the surrounding circumstances or the objects and purposes of the restriction for aid in its construction. Linder Corp. v. Pyeatt, 222 Ark. 949, 264 S. W. 2d 619.
Various results are reached in cases from other jurisdictions, most of which depend upon the particular language of the restrictive covenant and the particular use to which the right-of-way is to be put. We think that the most desirable result in a case of this sort was reached in the case of Callaham v. Arenson, 239 N. C. 619, 80 S. E. 2d 619 (1954). In that case it was held that the owner of four lots in a subdivision could locate a 50-foot street or roadway along the line between two of the lots without violating a restrictive covenant lim iting the use of the property to residential purposes. The North Carolina Court said that ordinarily the opening and maintenance of a street or right-of-way for the better enjoyment of residential property as such does not violate a covenant restricting the property to residential purposes. We take this to be an appropriate rule for application in this case, where it is the intention and plan of the owner of the property over which the right-of-way will pass to designate it as a private drive to be used only by individuals with land abutting on the passageway and where there is no connection of the proposed right-of-way with any street or property outside the subdivision itself.
The application of this rule in this case is in harmony with other decisions of this court. In Wortsmith v. Matthews Co., 247 Ark. 732 (December 1, 1969), 447 S. W. 2d 342, we said that the replatting of lots so as to lay out an alley or private way across the back thereof was not prohibited by covenants set out in a bill of assurance restricting land use to specific types of buildings so that the usage would be in keeping with the highest class residential occupancy.
Appellants argue that this case should be controlled by a later North Carolina case, i. e., Long v. Branham, 271 N. C. 264, 156 S. E. 2d 235 (1967). There, it was held that the construction of a roadway within a subdivision connecting a street therein with one in an adjoining unrestricted subdivision violated a restrictive covenant against use of any lot for other than residential purposes. Appellants argue that the Long case makes the Callaham case applicable only to the facts and unique restrictions of that case, so that it is authority in that situation only. The principal distinction pointed out between the two cases by the North Carolina Court was that the streets involved in Callaham were all within the original subdivision itself. It was also pointed out that in the earlier case there was no plan to connect the new streets with those of any adjoining develop ment. In any event, we feel that the rule stated in the Callaham case is appropriately applicable to the facts in this case. We also feel that the Long case is readily distinguishable from the case before us, because the construction of this passageway will not make it or any street in the subdivision a thoroughfare carrying traffic from another subdivision contrary to the objectives of the restrictive covenants, as would have, been the case in Long.
Under the facts in this case, we find that the construction of the proposed passageway entirely on property owned by appellee is not such a violation of the restrictive covenant in this case as would destroy the obvious intention that Pine Ridge Estates be purely a residential area.
The decree is affirmed.
Byrd, J., concurs.
The stipulation recites that the passageway would not touch any property of appellants. From plats in the record, it appears that the Casebeers would abut the proposed passageway. We treat the matter as if the plat correctly reflects the situation.
In the Long case, it was pointed out that it had even been held in other jurisdictions that lots, restricted to residential uses only, might be used to provide a street or passageway connecting with another subdivision or area or with a street outside the subdivision without violating such a covenant. | [
53,
110,
-40,
108,
-118,
96,
26,
-80,
112,
-91,
117,
83,
-81,
-40,
20,
41,
-81,
61,
101,
105,
-41,
-78,
71,
-62,
82,
-13,
19,
-59,
-88,
-49,
-12,
-42,
77,
97,
-54,
93,
66,
-54,
-51,
24,
94,
5,
-101,
96,
-47,
-62,
48,
59,
26,
15,
85,
-66,
-45,
44,
49,
-27,
72,
108,
-35,
37,
81,
56,
-104,
28,
-5,
39,
-111,
100,
-101,
5,
-24,
72,
-112,
49,
0,
-24,
119,
-94,
-106,
116,
79,
-101,
8,
32,
103,
1,
105,
-1,
-88,
8,
14,
112,
-115,
-90,
-78,
24,
-63,
42,
-65,
-107,
125,
64,
65,
-2,
-91,
-60,
92,
104,
-91,
-18,
-41,
-75,
-121,
-8,
-108,
5,
-17,
37,
48,
64,
-53,
-26,
119,
-57,
55,
-37,
-114,
-40
] |
Lyle Brown, Justice.
William E. Ruffin and wife, appellants, brought this suit for rental payments collected by O. M. Attaway, rental agent, covering a house and lot in El Dorado. The Ruffins title was based on a state tax deed. Attaway countered that he had for many years handled the rental property for the long-time record owners and remitted to them, including the period for which the Ruffins sought judgment. Intervention was filed by Barbara Joyce Charles, asserting a minor’s right to redeem from a tax forfeiture. The cause was transferred from law to equity and there tried. From a decree in favor of appellee Attaway and intervenor Charles, appellants, the Ruffins, argue two points: (1) that the Ruffins were entitled to the rentals from June 1964, the date of their deed from the State, to the present; and (2) the intervenor did not adequately deraign her record title.
The evidence to support the intervenor’s interest in the property is undisputed. Intervenor testified that she owned an interest in the lot as one of the two heirs of her mother. The lot was by warranty deed conveyed to intervenor’s mother, Mrs. Curtis Charles, and recorded in 1947. At the time of intervenor’s birth the family was living on the property. Mrs. Charles expired intestate in 1951 and was survived by two children, the intervenor and one who has long since reached her majority. The paternal grandmother, who upon the death of Mrs. Charles took the older child to raise, was in charge of the property for the following eight years. In 1959 the grandmother moved to Detroit and listed the property with Mr. Attaway as a rental agent. Continuously since that listing appellee Attaway has kept the property repaired and rented and applied the net funds to retirement of a mortgage, as directed by the grandmother. The latter owned seven units of rental property which she also assigned to Mr. Attaway’s custody. (She failed to caution Attaway that the involved lot was assessed in the name of Mrs. Curtis Charles, and Attaway overlooked payment of taxes thereon for 1959; hence the delinquency.) Intervenor tendered into court a sum sufficient to redeem and her qualification under our minority statute is not questioned.
The chancellor held that the testimony we have recited was sufficient to establish such an interest of title in intervenor as to permit her to redeem. Appellants contend that the redemptor is required to show a complete deraignment of title from the original patent to the date of sale to the State. Directly to the contrary are such cases as Davis v. Stonecipher, 218 Ark. 962, 239 S. W. 2d 756 (1951); McMillen v. East Arkansas Investment Co., 196 Ark. 367, 117 S. W. 2d 724 (1938); and Cecil v. Tisher and Friend, 206 Ark. 962, 178 S. W. 2d 655 (1944). In Cecil, appellees produced recorded deeds which conveyed the subject land to them; they testified they were the owners and in possession; and no evidence was offered to the contrary excepting the tax deeds on which appellant based his claim. The court held that evidence to be sufficient to meet the contention that appellees had to plead and prove their title from the patent through the mesne conveyances down to themselves. In McMillen it was pointed out that statutes allowing redemption from tax sales receive a liberal construction and it was further said:
In this character of suit we think all that is necessary to be alleged in the complaint is ownership and proof of ownership is all that is required to sustain the allegation. It was not necessary to set out in the complaint appellant’s muniments of title or to make profert of them in the evidence.
Secondly, appellants contend they are entitled to the rental income collected by Attaway from the date of their state deed in 1964 to the date the minor tendered them the full amount of taxes paid by appellants. Appellee denies the validity of the claim on the grounds that he had no notice of any claim to the property and appellants were never in possession. The undisputed evidence concerning notice and possession is very brief. Appellants recorded their tax deed but gave no notice of its existence to appellee or intervenor. Very shortly before appellants, the Ruffins, filed their suit, appellee received a letter from appellants’ attorney advising of the existence of the tax deed. That was in 1968. It is unquestioned that appellants never had possession of the property, nor did they make any effort to gain possession.
Must a record owner who was neither dispossessed nor notified of the existence of a tax deed account to the holder of that deed for rents collected during the subsistence of the deed? That is the specific question with which we are confronted. We are cited to no statute or case from our jurisdiction which is in point. We have several cases which deal with the rights of a tax title purchaser in possession. Examples are Hisey v. Sloan, 180 Ark. 797, 22 S. W. 2d 1005 (1930); and Schuman v. Westbrook, 207 Ark. 495, 181 S. W. 2d 470 (1944). They hold that the purchaser in possession is entitled to the rents. Cases from most other jurisdictions are not helpful because of their statutes on the subject.
The nearest case in point called to our attention is that of Van Horn v. Huegel, 139 A. 28 (N. J. 1947). There it was held that a purchaser at a tax sale who never gave notice of his purchase or took possession of the property was not entitled to a judgment for rents collected by the forfeiting, owner. The New Jersey statute provided that when the purchaser recorded his certificate of sale he would be entided to immediate possession and to the rents and profits from that date. Of the statute the court said:
The statute is not self-executory. He may be content with the fact that he is entitled to possession at any time, but this alone does not give the purchaser a right to the rents until he asserts that right in some form; a right to the possession of the premises is given by the statute.
We think the reasoning is sound. The rule protects, among others, tenants and real estate agents against a second payment. It gives the owner notice that rents coming into his hands after the notice might rightfully belong to another person.
We hold that until a tax purchaser gives notice or takes possession he is in no tenable position to lay claim to rents or profits from the property described in his purchase.
Affirmed.
George Rose Smith, J., not participating. | [
-16,
-26,
-31,
44,
10,
96,
10,
-88,
123,
65,
55,
31,
-17,
-22,
16,
109,
115,
125,
113,
105,
-105,
-93,
69,
34,
-10,
-77,
-23,
-43,
-75,
124,
-12,
87,
12,
48,
-62,
-107,
98,
50,
-83,
92,
78,
-123,
-101,
68,
-7,
64,
52,
107,
5,
13,
49,
-113,
-77,
63,
49,
74,
105,
42,
-117,
-93,
-44,
-72,
-114,
7,
-1,
3,
-79,
100,
-104,
-127,
-24,
8,
-108,
49,
0,
-88,
115,
-90,
-58,
116,
42,
-117,
8,
32,
98,
0,
-91,
111,
-8,
-104,
14,
-2,
-115,
-122,
-106,
89,
19,
64,
-76,
-98,
124,
81,
37,
-12,
-12,
-59,
31,
108,
21,
-113,
-106,
-77,
-83,
-14,
-122,
11,
-25,
5,
48,
112,
-49,
-126,
77,
71,
48,
-101,
-105,
-78
] |
Lyle Brown, Justice.
This litigation was initiated by six commercial tomato growers in Drew County and against Drew Farmers Supply, Inc. The growers ordered “Pink Shipper” tomato seed. The seed shipped was so designated, but when the crop began to mature it was discovered that the farmers had received seed of a variety substantially unmarketable in their area. (The variety could not be detected by visual inspection). Drew Farmers Supply filed a third party complaint against its supplier, Service Seed Company, a distributor headquartered in Mississippi. Service Seed inter-pleaded the seed grower in California, Dessert Seed Co., Inc. When the taking of evidence was completed all parties moved for directed verdicts. Thereupon the court held:
(1) That the tomato growers were entitled to recover against Drew Farmers Supply. (The amount of recovery was submitted to the jury which returned awards totalling $15,772);
(2) That Drew Farmers Supply was entitled to judgment over against Service Seed, the claimed limitation of liability being invalid; and
(3) That Service Seed was entitled to judgment over against Dessert Seed, finding that Dessert’s disclaimer of liability as a defense was invalid both as to Service Seed’s cause of action based on warranty and its action based on negligence asserted against Dessert.
Drew Farmers Supply did not appeal from the judgments against it by the growers. Service Seed, the distributor, appeals from the judgment over awarded against it in favor of Drew Farmers Supply; and Dessert Seed, the grower, challenges the judgment against it in favor of Service Seed. The two appeals of necessity must be treated separately.
I. Service Seed — Drew Farmers Supply Transaction. Drew Farmers Supply is a cooperative member of Southern Farmers Association, with headquarters in North Little Rock. Drew Farmers purchased most of its seed through Southern Farmers. It was stipulated that the two organizations were to be treated as one for the purposes of the lawsuit. In January 1967, Southern Farmers telephoned a rush order to Service Seed Company for tomato seed of the Pink Shipper variety. The seed was shipped forthwith and a six-pound bag was forwarded by Southern Farmers Association to Drew Farmers Supply. The tag attached by Service Seed recited that the bag contained Pink Shipper variety tomato seed. The face of the tag contained this fine print:
Subject to the limitation of liability herein set forth, we warrant that seeds or bulbs sold are as described on the container, within recognized tolerances. Our liability on this warranty is limited in amount to the purchase price of the seeds or bulbs. In no way shall we be liable for the crop.
For some eight years Drew Farmers Supply and/or Southern Farmers had been fairly regular seed customers of Service Seed. In the course of those transactions the buyer received Service Seed’s price lists and invoices. Those instruments contained substantially the same wording as that which we have reproduced from the tag, as did its letterheads. Service Seed therefore argues that the totality of the recited evidence indicated an awareness by Drew Farmers Supply of the existence and meaning of Service Seed’s disclaimer. Therefore, argues Service Seed, those facts place the case within the provisions of the Uniform Commercial Code, Ark. Stat. Ann. § 85-2-316 (4) (Repl. 1961), permitting limitations on remedies for breach of warranty. The cited section has to be applied in accordance with the provisions of §§ 85-2-718 and 85-2-719.
Service Seed’s argument overlooks some essential facts. Drew Farmers Supply placed its order for these Pink Shippers by telephone. There was nothing said about a limited warranty. There was testimony that at least one of Drew Farmers’ agents had before seen the limitation of warranty wording on tags on previous orders; but that fact is of little importance here. We are concerned with the particular order and acceptance of the particular seed. It was undisputed that these two companies negotiated oral “spot orders,” as distinguished from written contractual orders containing limitation of liability clauses. There was testimony that not all tags carried printed limitations. Mr. Osborne, division manager for Southern Farmers, testified that Southern did business with suppliers from throughout the United States and that dependence was placed, “not on fine print,” but upon the integrity of the supplier; and that the paramount concern of the buyer is such items as variety, purity, and germination. The fact finding tribunal — the trial court — evidently found that the limitation of warranty was not a basis of the bargain and there was substantial evidence to support that finding.
Additionally, the statute requires that a writing purporting to exclude or modify an implied warranty of merchantability “must mention merchantability” and “must be conspicuous.” Ark. Stat. Ann. § 85-2-316(2) (Add. 1961). Service Seed’s tag did not comply with either requirement. Moreover, in capital letters on the tag, Service Seed certified the seed to be Pink Shippers. That representation was a warranty as a matter of law. Walcott & Steele, Inc. v. Carpenter, 246 Ark. 95, 436 S. W. 2d 820 (Feb. 10, 1969). Thus it is apparent that Drew Farmers had the protection of both the law of express and implied warranties, and it is certainly not unreasonable to conclude that Service Seed failed to show that those rights were unmistakably negated.
II. Dessert Seed Co. — Service Seed Co. Transaction. Dessert Seed is a seed grower in the west coast area. Early in 1966, Service Seed placed a substantial order for various seeds needed by it for the crop year 1967. Before the final consummation of that order there were a number of documents which passed from Dessert Seed to Service Seed, such as a letter, a price list, and a confirmation of the order in detail. All of those documents contained a finely printed limitation of liability clause. Likewise, items of correspondence which Service Seed sent to Dessert Seed contained the same type of printing whereby Service Seed purported to limit its liability. Finally, there was a contract order and agreement detailing the quantity, kind and variety of various seeds; describing the alternative terms of payment; protecting the seller in case of partial or total crop failure; relieving Dessert for liability from negligence; and limiting Dessert’s liability in any event to a refund of the cost of the seed. The contract was prepared by Dessert and signed by officials of both companies.
With respect to the seed Pink Shipper, a mistake was made in Dessert’s shipping department and the wrong seed was packed. Dessert explained it in a letter to Service Seed:
You had your order placed with us for Tomato Pink Shipper and the stock girl who lists the numbers (stock numbers) for the items to be shipped saw the Pink Tomato Deal and due to the similarity of the name she used that stock number. When this went out to the shipping department again they just picked up the lot number and made the same error in regard to the name.
Unfortunately for all parties concerned the seed was sent out under a shipping tag showing the tomato seed to be Pink Shippers. Also on that tag was a warranty clause in such fine print as to be barely legible:
We warrant to the extent of the purchase price that seeds we sell are as described by us on our container within recognized tolerances. Our liability, whether contractual or otherwise, is limited in amount to the purchase price of the seeds under all circumstances and regardless of the nature, cause or extent of the loss. Seeds not accepted under these terms and conditions must be returned at once in original unopened containers and the purchase price will be refunded.
Dessert Seed argues that there are a number of reasons why Service Seed was bound to be aware of the limitadon of liability invoked by Dessert Seed. It was printed on various items of correspondence; it was in the contract order and agreement; it was called to Service Seed’s attention in 1966 when a question arose about a previous shipment of cantaloupe seed; Service Seed used a similar limited warranty clause (without mentioning negligence); and it had become a common usage of trade within the industry.
Dessert Seed contends on appeal that it validly limited its liability to Service Seed to the amount of the purchase price of the seed. Dessert concedes that it warranted the seed to be Pink Shipper but argues that, according to the contract, the exclusive remedy would be for a recovery of the purchase price. Service Seed was relegated to the same remedy, Dessert argues, even if the wrong seeds were negligently shipped. We first examine the defense of immunity from negligence. There are three essential factors which, when combined, compel us to the conclusion that public policy forbids that we sanction immunity from negligence in this type of transaction. They are (1) the legal requirements of certification, (2) the wording on the certification tag, and (3) the damaging results which the negligence is likely to cause to a community of growers.
(1) The Legal Requirement of Certification and its Effect on Immunity from Negligence. In certifying on the shipping tag the contents of the container, Dessert was performing a duty imposed by statute. T. 7, U. S. C. A. § 1571. In addition to the federal law, under which the shipment was made, many agricultural States, California and Mississippi included, have enacted the same requirement. Other States, such as ours, have delegated to appropriate State boards the authority to regulate labeling requirements. We are convinced that such labeling requirements are generally followed in the seed industry. We are not unmindful of the general rule that in many instances liability for negligence may be avoided by contract. 17 Am. Jur. 2d Contracts, § 188, at p. 556. On the other hand, the same authority enumerates many exceptions to the rule. For example it is there stated: “[T]he law will not sustain a covenant of immunity which . . . relieves one of a duty imposed by law for the public benefit.” The same exception is found in 17 C. J. S. Contracts, § 262, p. 1164. Research reveals no Arkansas case in point; however, this court upheld the avoidance of a negligence immunity clause in Arkansas Power & Light Co. v. Kerr, 204 Ark. 238, 161 S. W. 2d 403 (1942). It was there held that appellant could not by contract relieve itself of negligence in not keeping the proper temperature for eggs stored by appellee. It was there pointed out that such clauses of immunity are not productive of “caution and forethought by those in whose control rest the agencies that may cause damage.”
(2) The Wording on the Certification Tag. Dessert warranted that the seed conformed to the description on the container “within recognized tolerances.” Then in large type appears this wording: “Kind and Variety, TOMATO — PINK SHIPPER.” In our forum we recognize that utmost reliance can be placed on the certification; in Walcott & Steele, supra, we held that the certification, as a matter of law, warranted the contents of the bag. It would certainly dilute the strong reliance to which the warranty has been properly elevated if the packer could be shielded from negligence in packing the wrong seed, particularly when the word “negligence” does not appear on the tag.
(3) The Damaging Results which are Likely to Flow from Misbranding. Neither Service Seed, Drew Farmers Supply, nor the six growers who purchased seed from this shipment could detect the variation in variety by visually examining the seed. The revelation could reasonably come about only when the plants had matured to the extent that the variation was visible from the formation of the plant. Then it is too late in the season to correct the harm. When an entire community of growers is thus placed at the mercy of the seed grower-packer the law should encourage “caution and forethought” on the part of the latter. To uphold the negligence clause in the contract would be more likely to produce the opposite result.
Service Seed in its pleadings placed in issue the negligence of Dessert Seed. In support of that contention Service introduced a letter written by Mr. Dessert (a portion of which we have copied) and which explained the mistake. In addition to admitting the error of the stock clerk, Mr. Dessert left the definite impression that the particular employee was not experienced. He said “experienced clerks are hard to come by these days when everyone wants to make a lot of money and do very little work.” There was substantial evidence to support a finding of negligence.
To hold that Service Seed is limited to a recovery of the purchase price of the seed in the face of established negligence would be unreasonable, unconscionable, and against sound public policy. We declare the principle to be the law of our forum and it is applicable notwithstanding the contract was made in another State. White-Wilson-Drew Co. v. Egelhoff, 96 Ark. 105, 131 S. W. 208 (1910).
Affirmed. | [
-16,
124,
125,
12,
10,
-32,
48,
-98,
89,
-86,
100,
87,
-27,
-29,
21,
111,
-19,
61,
85,
-22,
-28,
-82,
19,
-30,
-78,
-5,
-86,
-57,
49,
75,
6,
-36,
-115,
52,
-126,
85,
-29,
-128,
111,
28,
-58,
9,
-71,
107,
25,
18,
52,
62,
114,
79,
49,
-114,
-94,
38,
21,
71,
45,
40,
-23,
57,
65,
-8,
42,
14,
109,
6,
50,
102,
-98,
-57,
-40,
46,
-112,
49,
32,
-24,
82,
-94,
-122,
-44,
11,
-103,
8,
36,
102,
1,
5,
-19,
88,
-120,
102,
-1,
15,
-58,
-112,
104,
67,
14,
-65,
-98,
98,
84,
-74,
-2,
89,
69,
15,
-84,
1,
-122,
-112,
-93,
-83,
-14,
-100,
-125,
-21,
-89,
-108,
117,
-51,
-90,
84,
71,
118,
31,
-50,
-42
] |
John A. Fogleman, Justice.
The judgment of the trial court, sitting upon waiver of jury trial, was rendered in a suit brought by appellee to recover the following:
$100, balance due from M. V. Pearrow for a used tractor and cultivator
$529.37, from M. V. Pearrow upon open account for materials, goods and services
$983.89, from H. C. Pearrow and M. V. Pearrow on open account for goods, materials and services
$4,561.87, as deficiency judgment on a Model D-19 Allis-Chalmers tractor sold to M. V. Pearrow and H. C.. Pearrow as partners on May 5, 1964
$5,233.99, as deficiency judgment on an Allis-Chalmers combine and equipment sold to both of the appellants as partners on September 30, 1964
$992.05, as the balance due upon a note for $1,200 payable in annual installments of $400 each plus interest
H. C. Pearrow filed a counterclaim for $5,000 as damages alleging a breach of warranty by appellee in the representation that-the tractor and combine were without defect and new. M. V. Pearrow made an identical defense. The answers of each of the parties contained a general denial. The judgment entered contained findings that appellants were indebted to appellee, after allowing all credits, in the amounts for which suit was brought. The counterclaim was dismissed.
Two points for reversal are relied upon. They are:
I.
THE COURT ERRED IN REFUSING TO FIND FOR THE APPELLANTS SIMPLY BECAUSE THE AMOUNT OF DAMAGES WAS DIFFICULT TO ASCERTAIN.
II.
THE COURT’S FINDING THAT THERE WAS NO BREACH OF WARRANTY WAS CLEARLY CONTRARY TO THE PREPONDERANCE OF THE EVIDENCE AND CANNOT BE SUSTAINED.
We shall discuss them in the order listed.
I.
This point is premised upon the assumption of the appellants that the court’s finding of fact dictated at the conclusion of the hearing was based solely upon uncertainty as to the amount of damages suffered by appellants by reason of the alleged breaches of warranty. We do not think that this assumption is warranted. After outlining the allegations of the complaint, the trial judge stated that testimony on the part of appellee showed that there were balances due him, after repossession and sale of the equipment in the amounts alleged in the complaint, that $992.05 was due on the promissory note, that testimony on behalf of the appellants also showed that the parties owed the amounts alleged to be due-upon open account. The trial judge then made the following statement:
Then, the testimony on the part of the defendant, M. V. Pearrow, said that they were out a lot of expense on their crops, quite a lot; maybe close to $4,000 or maybe more, and that’s the nearest he came to giving the court any definite figures; the other witnesses for the defense, one testified that he was paid three or $400 to help combine some beans, and another one testified that he was paid probably three or four or five or $600; there is testimony to the effect that on the parts of the Defendants that the equipment was defective; I have testimony on the part of the Plaintiff that it was not defective, and it was not properly cared for, and abused; there is also some testimony that most of the complaints were taken care of during the warranty period.
Now, if this court were to find that the Pearrows suffered damages to their crops because this equip ment was not in good order when they bought it, and didn’t stand up, just what figure would the court fix? There is no definite testimony here as to any amount; I can’t give you judgment for close to $4,000 or maybe more; I can’t give you judgment for three or four or five or $600; this court cannot, under the law, speculate as to the amount of damages, or whether they existed; so, it is the holding of this court that, according to the preponderance of the evidence in this case, that Plaintiffs should recover the balance due on the contracts, $4,567.87 on the tractor contract; $5,233.99 on the combine; $992.05 on the note, for a total of, if my addition is correct, $11,771.80.
When the findings of the trial judge and the judgment entered thereon are considered together, we do not think that the inference drawn by appellants is justified. The trial judge’s statement as to his uncertainty as to the amount of damages the court might fix under the testimony was stated in a question based upon a condition, i. e., if the court were to find that damages were suffered because the equipment was not in good order when bought. There was no specific finding whether any damages resulted from breach of warranties asserted in the counterclaim.
The real issue on the counterclaim involved questions as to whether the equipment used by appellee as demonstrators and sold to appellants was new or used equipment. The testimony on this point was in hopeless conflict, particularly upon the very material questions as to notice of breach of the warranty, rejection of the quipment by appellants within a reasonable time and resulting waiver of the breach and the effect of continued use of the equipment inconsistent with a rejection or revocation of acceptance of the equipment by appellants. All of the questions were at issue in the case and the judgment rendered by the trial court constitutes a finding on these issues adverse to appellants. Further discussion of this point is pretermitted, in view of the disposition we make of point II.
II.
Appellants’ second point would not constitute ground for reversal. It is not within our province to determine where the preponderance of the evidence lies. Zullo v. Alcoatings, Inc., 237 Ark. 511, 374 S. W. 2d 188. However, even if we considered their argument as questioning the existence of substantial evidence to support the judgment, we would still sustain it on this point. The findings of the circuit court, when the judge sits as the trier of the facts, will not be disturbed on appeal where there is substantial evidence to support them. Zullo v. Alcoatings, Inc., supra. In determining the sufficiency of the evidence to support a verdict (or a judgment where the trial is to the circuit court) all of the evidence must be viewed, with every reasonable inference derived therefrom, in the light most favorable to the appellee. Zullo v. Alcoatings, Inc., supra.
The only warranty which appellant asserts on this appeal is an express warranty provided for by Ark. Stat. Ann. § 85-2-313 (Add. 1961). In asking that the contract be rescinded and damages recovered, appellants rely entirely upon the alleged representation that the goods were new. However, upon the evidence presented the trial court could have reasonably found that this representation was not made. We will examine the evidence to determine whether, viewing it in the light most favorable to appellee, there is no substantial evidence that any such warranty was made.
Wayne Huntsman, who was associated in the farm implement business with appellee, testified at length about the transaction with appellants. He stated that appellants were told that both the combine and the tractor were demonstrators and had been used. M. V. Pearrow admitted that at the time of the purchase of the tractor, appellants were told that it had been used for demonstration purposes. Huntsman testified that, at the time of the sale of the combine, appellants were given a $900 discount because the machine had been used as a demonstrator. He also stated that an allowance of $1,693.62 was made on the price of the D-19 tractor for the same reason. M. V. Pearrow also testified that, at the time of the purchase of the combine, there were no indications that it had been used, other than to demonstrate it to a prospective buyer for an hour or two.
In passing, we might add that there was also testimony to indicate that the difficulties appellants experienced with the equipment were due to its misuse by them or their employees. We also note that there was testimony that numerous calls were made on appellants by Wayne Huntsman and by Jerry Vance, a representative of Allis-Chalmers Company, for collection purposes and that appellants made repeated promises to pay without registering any complaint about the equipment. Be that as it may, there was substantial evidence from which the trial court might well have found that appellants knew that both pieces of equipment were not new when purchased, if being new is considered in the sense that the equipment had never been used. The question whether appellee correctly represented the extent of this use was one of fact for the circuit judge. When we draw all inferences reasonable in favor of the court’s judgment, it cannot be said to be without substantial evidentiary support.
The judgment is affirmed. | [
-78,
-20,
-24,
-116,
10,
96,
42,
-38,
97,
-128,
39,
83,
-17,
-58,
64,
109,
-18,
93,
113,
122,
69,
-93,
7,
-29,
-62,
-101,
-39,
-43,
56,
107,
-28,
-4,
12,
56,
-54,
-43,
-58,
-64,
-59,
52,
-50,
4,
-72,
108,
-39,
64,
52,
41,
84,
73,
49,
-114,
-61,
46,
29,
75,
104,
40,
-23,
49,
64,
-7,
-78,
13,
79,
2,
17,
52,
-100,
103,
120,
62,
-112,
-80,
-119,
-24,
122,
-74,
-122,
-12,
41,
-103,
8,
102,
103,
1,
53,
-19,
-36,
-72,
6,
127,
-97,
-92,
18,
72,
11,
41,
-73,
-99,
114,
80,
6,
-2,
111,
-107,
93,
108,
3,
-49,
-106,
-77,
-113,
112,
-98,
-118,
-21,
-93,
54,
112,
-51,
-78,
93,
7,
23,
27,
-58,
-102
] |
Conley Byrd, Justice.
Appellant Franklin David Bosnick, Jr., was found guilty of first degree murder and sentenced to death. For reversal he relies upon the following points:
1. The lower court erred in its refusal to instruct the jury on second degree murder and the other degrees of homicide.
2. The information charging appellant with first degree murder was fatally defective and will not support a conviction of the crime of first degree murder with the evidence presented.
3: The lower court erred in instructing the jury on Ark. Stat. Ann. § 41-2246 (Repl. 1964), said statute being violative of the 14th Amendment to the U. S. Constitution.
4. The lower court erred in allowing testimony that indicated that appellant had committed another crime not related to the crime of murder.
5. The lower court erred in allowing the introduction of inflammatory photographs of the deceased when the cause of death was admitted.
The testimony in this case is essentially the same as in Bosnick v. State, 248 Ark. 846, 454 S. W. 2d 311, except that in this case Bosnick, Jr., a son of the appellant in the former case, took the witness stand in his own behalf. His mother, Mary Evelyn Tucker, also testified.
Appellant’s testimony shows that he was 17 years old at date of trial. When he was 15, he stole a truck and went to reform school. Before leaving his mother’s home in Louisiana, his father had called and asked him to steal a vehicle and bring it to Arkansas. Instead, appellant, Dewey Ray Murray and Danny McKay came to Arkansas in Dewey Ray Murray’s car. In Arkansas, after drinking beer and whisky furnished by the father, they burglarized a filling station where they obtained some tires, while appellant’s father drove up and down the road outside the station. The tires were put on Dewey Ray Murray’s car. On the date of the killing, appellant, Dewey Ray Murray and Danny McKay again had been drinking beer and whisky supplied by Bosnick, Sr. During the afternoon, appellant entered Gatteys’ store to look for guns and see how many people were in the store. Appellant testified that he told his father that he didn’t want anything to do with robbing Gatteys’ store and that they should call it off. However, appellant stated that his father told him that if he backed out, he, Bosnick, Sr., would whip appellant. He stated that when he went into the store the second time he fired a shot into the shelves and later fired a shot by Mrs. Gatteys’ foot, which scared her so that she could not walk. Appellant then heard a knock at the door and tried to open it, thinking it was his father. After the door was opened, he told whoever was outside to come in but the person fired first and when he felt the fire hit him in the face he started shooting. He said that he was scared of his father and thought his father was shooting at him. Appellant denied having shot over Mrs. Gatteys’ shoulder and denied having heard anyone or anything other than a knock on the door. On cross-examination he stated that after the person who fired at him turned and ran, appellant ran outside and fired. Other testimony by appellant shows that he did not know that it was not his father he was firing at until after he saw his father get in the car after the robbery was over.^
The testimony of Mrs. Tucker shows that appellant was not a bright boy, that while not low enough to go to a mentally retarded class he was always the lowest in his class. He repeated the first and third grades. Promotion from the third grade was on a physical promotion. It was during his third year in the eighth grade that he got into trouble and was put in the reform school. Mrs. Tucker says that Bosnick, Sr., kept calling appellant over her objection. Mrs. Tucker was cross-examined by the prosecuting attorney about assistance or aid she gave appellant during an escape following his original arrest and prior to trial. This was over appellant’s objections.
POINT 1. Under the information here filed against appellant which alleges that he “unlawfully, wilfully and feloniously after premeditation and deliberation and of their malice aforethought did assault, kill and murder Jessie J. Morgan by shooting him with a fire arm,” we hold that appellant’s version of the shooting, if believed, is sufficient to sustain a finding of second degree murder. Consequently the trial court erred in failing to instruct the jury on second degree murder. See King v. State, 117 Ark. 82, 173 S. W. 852 (1915); Montague v. State, 240 Ark. 162, 398 S. W. 2d 524 (1966).
It is suggested that the appellant may not urge the error of the trial court in failing to instruct on second degree murder because appellant offered no instruction on that issue. The record with respect thereto is as follows:
“MR. SHARPE: The defendant would request that you give the jury the contents of Section 43-2152: The jury shall, in all cases of murder, on conviction of the accused, find by their verdict whether he be guilty of murder in the first or second degree; but if the accused confess his guilt, the Court shall impanel a jury and examine testimony, and the degree of crime shall be found by such jury.’
THE COURT: In other words, as I understand it, Mr. Sharpe, you are asking the Court to instruct the jury that they may find the defendant guilty of murder in the first degree, or murder in the second degree, or manslaughter.
MR. SHARPE: Yes, Your Honor.
THE COURT: That request will be refused, because the Court is of the opinion that this is a case where murder was perpetrated, or the murder happened while perpetrating the crime of robbery in which this defendant participated, and therefore can only be murder in the first degree, or nothing, and that is the way the Court will instruct the jury.
MR. SHARPE: Then, as I understand, you will not read 43-2152, which the defendant has requested?
THE COURT: That’s right.
MR. SHARPE: Note our objection to the Court’s ruling.”
Ark. Stat. Ann; § 43-2723, (Repl. Í964), with reference to capital cases, provides:
“In all cases appealed from the circuit courts of this State to the Supreme Court, or prosecuted in the Supreme Court upon writs of error, where the appellant has been convicted in the lower court of a capital offense, all errors of the lower court preju dicial to the rights of the appellant shall be heard and considered by the Supreme Court whether exceptions were saved in the lower court or not; and if the Supreme Court finds that any prejudicial error was committed by the trial court in the trial of any case in which a conviction of a capital offense resulted, such cause shall be reversed and remanded for a new trial, or the judgment modified at the discretion of the court.”
In Maxwell v. State, 236 Ark. 694, 370 S. W. 2d 113 (1963), we pointed out that by virtue of this statute it was not necessary in capital cases for the appellant to formally save exceptions to adverse rulings of the court. To require a defendant to submit an instruction after the court had ruled as it did, above, would be virtually requiring a formal exception to an adverse ruling. For this error we reverse and remand to the trial court.
POINT 2. Appellant’s argument under point 2 really goes to the trial court’s action in submitting an instruction to the jury that murder committed in the perpetration of/or in an attempt to perpetrate arson, rape, robbery, burglary or larceny is murder in the first degree. Appellant made no objection in the trial court to the giving of the instruction. The evidence is certainly sufficient to sustain a conviction on premeditation.
POINT 3. Ark. Stat. Ann. Section 41-2246 (Repl. 1964), provides:
“The killing being proved, the burden of proving circumstances of mitigation that justify or excuse the homicide, shall devolve on the accused, . . .”
There was no error in the trial court’s instructing the jury with reference to this statute under the defense here interposed. See Bagley v. State, 247 Ark. 113, 444 S. W. 2d 567.
POINT 4. We find no merit in appellant’s contention that his mother could not be cross-examined about her conduct in aiding or assisting in his escape. Such evidence was admissible to attack Mrs. Tucker’s credibility and the fact that it implicated appellant in another crime did not make it inadmissible to inquire about on cross-examination.
POINT 5. We find no merit in appellant’s contention with reference to admission of photographs of the deceased. See Bosnick v. State, 248 Ark. 846, 454 S. W. ed 3 811.
Reversed.
Harris, C. J., and Fogleman and Jones, JJ., dissent. | [
48,
-22,
-43,
30,
27,
-32,
10,
26,
66,
-9,
96,
114,
-85,
-57,
85,
99,
-7,
61,
85,
41,
-59,
-74,
23,
65,
26,
-77,
26,
-60,
-73,
-23,
-4,
-67,
76,
96,
74,
125,
102,
-60,
111,
-46,
-118,
8,
-103,
114,
-38,
18,
48,
62,
68,
15,
33,
-100,
-93,
59,
22,
-54,
41,
42,
73,
-87,
88,
24,
-118,
5,
-19,
16,
-93,
-92,
-102,
6,
88,
29,
-40,
57,
32,
-7,
115,
-106,
-126,
84,
73,
9,
-116,
98,
-14,
4,
13,
77,
-88,
-119,
47,
47,
-115,
-121,
-102,
105,
65,
68,
-98,
-97,
122,
92,
6,
120,
96,
79,
57,
124,
37,
-122,
-74,
-111,
-52,
60,
-42,
-69,
-5,
7,
96,
96,
-33,
-118,
93,
85,
121,
-45,
-126,
-44
] |
George Rose Smith, Justice.
The only question presented by this appeal is whether the defendant appellee, Tom Hughes, has sufficiently transacted business in Arkansas to allow our courts to exercise personal jurisdiction over him under the Uniform Interstate and International Procedure Act, Ark. Stat. Ann., Title 27, Ch. 25 (Supp. 1969). The trial court answered that question in the negative and therefore granted the defendant’s motion to quash service.
The facts are agreed upon by stipulation. The plaintiff Wichman sells horses at his home north of Huntsville, in Madison county. In November, 1968, Hughes, a resident of Illinois, sent Robert DeVore, his manager-trainer, to Arkansas with authority to buy horses for Hughes. DeVore bought two horses from Wichman for $4,100, gave a $500 check as a down payment, and agreed to take delivery by sending a van for the horses. Three days later DeVore telephoned Wichman and bought a third horse for $600. In mid-December another Hughes employee came to Arkansas with a van, picked up the three horses, and took them to Illinois, giving a $4,200 check for the rest Of the purchase price. That check was not honored, apparently because the maker stopped payment. This suit upon the check followed.
A state’s permissible personal jurisdiction over nonresidents was expanded by the Supreme Court’s decisions in McGee v. International Life Ins. Co., 355 U. S. 220 (1957), and Hanson v. Denckla, 357 U. S. 235 (1958), which held in substance that a person who avails himself of the privilege of conducting activities in another state is subject to suit there if his contacts in that state have been such that the maintenance of the suit would not offend traditional notions of fair play and substantial justice.
Illinois has been a leader in exercising the extended jurisdiction made possible by the Supreme Court’s holdings. The Uniform Act was patterned after the Illinois long-arm statute and, according to the Commissioners who drafted it, “should be given the same expansive interpretation that was intended by the drafts men of the Illinois Act and has been given by the courts of that state.” Commissioners’ Note to § 1.03 of the Uniform Act, 9B U. L. A.
It cannot be doubted that the Illinois courts would uphold the assertion of personal jurisdiction over this appellee upon the facts of this case. Our statute confers personal jurisdiction over a nonresident as to a cause of action arising from that person’s “transacting any business in this State.” Ark. Stat. Ann. § 27-2502. Professor David P. Currie, in an exhaustive study of the Illinois cases, points out that the Illinois courts have applied their long-arm statute to situations involving, as here, a single transaction:
The Illinois statute is not explicit on this, and the “transaction of any business” could have been held by an unsympathetic court to be a synonym for the earlier restrictive term “doing business.” Again in the spirit of the statute’s purpose to expand jurisdiction to the modern constitutional limit, however, the courts have consistently upheld jurisdiction under section 17 over an isolated business transaction with the requisite connection to this State. [Citing and discussing Berlemann v. Superior Distrib. Co., 17 Ill. App. 2d 522, 151 N. E. 2d 116 (1958); Kropp Forge Co. v. Jawitz, 37 Ill. App. 2d 475, 186 N. E. 2d 76 (1962); and National Gas Appliance Corp. v. AB Electrolux, 270 F. 2d 472 (7th Cir., 1959).]
These decisions are plainly correct. A single transaction resulting in injury or loss to a person within the reach of a policy of an Illinois law is sufficient to give the State an interest in providing a forum for his compensation, whether the suit be called “tort” or “contract.” ... It does not seem unfair to the defendant, in the light of this interest to require him to defend in Illinois a suit arising out of such a contract, when he has sent his agents into the State to solicit or to conclude the agreement. That the defendant has also conducted other and unrelated activities in the State may or may not make it more convenient for him to defend here, but the basic requirement that he make voluntary contact with the State is satisfied without such additional contacts. [Currie, The Growth of the Long Arm: Eight Years of Extended Jurisdiction in Illinois, 1965 U. of Ill. Law Forum 535, 565.]
Other cases involving a statute like ours, considering a single contractual transaction, and sustaining the exércise of personal jurisdiction, include: Clinic Masters v. McCollar, 269 F. Supp. 395 (D. C. Colo., 1967); National Bank of America at Salina v. Calhoun, 253 F. Supp. 346 (D. C. Kan., 1966); Hamilton Nat. Bank of Chattanooga v. Russell, 261 F. Supp. 145 (D. C. E. D. Tenn., 1966); Cox v. District Court, 417 P. 2d 792 (Colo., 1966); Melfi v. Goodman, 69 N. M. 488, 368 P. 2d 582 (1962); Griffiths & Sprague Stevedoring Co. v. Bayly, Martin & Fay, 430 P. 2d 600 (Wash., 1967).
We regard the principle underlying those decisions as a sound basis for the assertion of jurisdiction over this appellee. Hughes voluntarily sent his agent into Arkansas to buy horses. He voluntarily sent another agent here to remove the animals from this jurisdiction, leaving the seller with only a check that proved to be worthless. The transaction was presumably governed by Arkansas law. Hughes presumably relied upon that law in deciding that he was not bound to pay the full purchase price. We can see nothing unfair, nothing that offends traditional notions of justice and fair play, in requiring Hughes to defend his position in' the courts of this state.
Reversed, with directions to overrule the motion to quash service. | [
119,
-4,
-16,
60,
8,
-32,
58,
-102,
66,
-93,
38,
-45,
105,
66,
21,
57,
-29,
45,
112,
105,
-64,
-14,
87,
98,
82,
-13,
-63,
77,
-67,
77,
-84,
-34,
76,
48,
106,
87,
71,
106,
-127,
24,
-70,
32,
8,
108,
120,
-64,
48,
-21,
22,
74,
97,
-113,
-5,
46,
29,
-63,
40,
44,
91,
-81,
-56,
-7,
-69,
15,
95,
14,
19,
36,
-86,
7,
-54,
46,
-112,
49,
33,
-55,
114,
-74,
-126,
84,
107,
-103,
8,
98,
98,
16,
73,
-113,
-28,
-88,
46,
-2,
-113,
-89,
2,
88,
3,
69,
-65,
-97,
122,
16,
4,
-12,
-5,
93,
16,
104,
15,
-114,
-42,
-89,
-82,
114,
-108,
7,
-61,
4,
20,
113,
-50,
-14,
93,
87,
52,
-101,
-114,
-33
] |
Lyle Brown, Justice.
The appellants are Jimmy C. Harris and Andrew Wright; the appellees are Dean Samson, George Gray, Jim Bass, Harold Archer, Julian Foster, and Old American Life Insurance Company. All of the named individuals executed two bank notes for a total of $25,000 and in turn delivered the proceeds to Old American. The trial court held that because of subsequent events, appellants had assumed full responsibility (as between the makers) for payment of the notes. Additionally it was held that Old American had relieved itself of its original agreement to furnish funds to liquidate the loans. Harris and Wright appeal.
Old American was in destitute financial straits at the beginning of 1967. A backlog of claims had accumulated because funds were simply not available to pay them. The individual appellants and appellees constituted the executive committee and collectively owned by far the major portion of the company stock. In an effort to save the company it was agreed that the committee, under the leadership of appellants Harris and Wright, would endeavour to borrow $25,000 on a personal note or notes to be signed by all committee members.
Harris’s home bank was the Citizens Bank of Carlisle and Wright’s bank was the Bank of McCrory. In May 1967 each of those banks was persuaded to make a loan of $12,500 upon personal notes signed by all members of the executive committee in their individual capacities. Both notes were joint and several obligations and payable in monthly installments of $1,000 beginning July 1. The full proceeds of the two loans were delivered to Old American. The company entered the two notes on its records as company liabilities and it was understood that Old American would make the monthly payments. The July and August payments were made according to plan but the company was unable to make further payment. Since appellants Harris and Wright were the leaders in negotiating the loans the lending agencies, on default, called on those two men to see that the notes were liquidated. Old American asserted it was no longer liable and the co-signers, save one, failed to respond to Wright’s and Harris’s requests for contributions. All the appellees were made parties and the court had before it the question of the respective liabilities of all parties toward the bank notes.
It was not disputed that initially the transaction created these obligations: (1) As between the banks and the signers of the notes the latter were jointly and severally liable; and (2) as between the signers of the notes and Old American, the latter assumed the obligations as its own. But subsequent events led the trial court to conclude that the obligations had shifted. As to what we shall call the Jim Harris note the court found appellant Harris (a) released Old American; and (b), as to his co-signers, assumed payment of the balance of the note. Harris did in fact pay the balance of the note before filing suit. The same conclusions were reached as to Andrew Wright with respect to the note at Mc-Crory. Wright had not paid the McCrory note at the time he filed his suit.
Our study of the abstract convinces us that the court based the recited conclusions principally on the minutes of a board of directors meeting held on August 24, 1967:
Andrew Wright agreed to accept 25,000 shares of Class ‘A’ Old American non-voting stock as settlement in full and to assume personally the amount of the note that he and six others signed as individuals at the Bank of McCrory. This obligation was not made in the name of Old American Life Insurance Company. After further discussion, the same identical action was taken by J. C. Harris on a similar note signed at the Bank of Carlisle by the same individuals and asked for and received his 25,000 share certificate of Class ‘A’ Old American non-voting stock.
We find substantial evidence to support the trial court’s conclusion that Old American was released from its obligation. It was explained at the August 24 meeting that I. L. Vaughn had been persuaded to buy substantial stock in Old American and assume the presidency; that a condition precedent to his entry into the company was that three notes (including these two) had to be removed from the financial statement; and Mr. Vaughn testified that the signers of the notes, except Andrew Wright, were present and agreed that Old American’s obligation would be terminated in consideration of the transfer of the stock in the names of Harris and Wright. Appellant Wright, although absent from the meeting, had executed a written memorandum which could be interpreted as showing his agreement to relieve Old American.
We do not agree with the trial court’s conclusion that the appellants, by taking the shares of stock mentioned in the minutes, assumed payment of the notes as between them and their co-makers. Since it is undisputed that appellees Samson, Gray, Bass, Archer, and Foster executed the joint and several obligations, they had the burden of proving that they were thereafter discharged from any liability. See Vandeventer v. Davis, 92 Ark. 604, 123 S. W. 766 (1909). The evidence showed convincingly that the minutes we have recited were incorrect insofar as they reflected that appellants personally assumed payment of the notes to the exclusion of their co-makers.
James E. Bass acted as reporter for the August 24 meeting. He said that the contents of the minutes we have recited were dictated to him by Dean Samson; that appellant Wright did not attend the meeting; and that it was “altogether possible” that appellant Harris was not in the room when the dictation was given. Appellee George Gray testified that he considered himself liable on the notes. Appellee Dr. Julian Foster, according to the undisputed evidence, paid appellant Harris a proportionate share of the note at Carlisle and agreed to pay appellant Wright on the other note if the Bank of McCrory would execute a release. Appellee Bass also testified that he regarded himself as liable for a proportionate payment. There was testimony that appellee Samson had promised, but failed, to make contribution. Appellees Samson and Archer did not testify.
The only disinterested witness as to the August 24 meeting was I. L. Vaughn; he had no interest in the contest between the makers of the two notes. He was invited to the meeting because he was planning to purchase a substantial interest in Old American and had agreed to advance $15,000 which would be available for the payment of pressing claims. He corroborated appellants in their testimony that they accepted the Class A stock merely as trustees for the individuals who signed the notes. Vaughn’s testimony on this point is abstracted as follows:
The stock transaction as to the issuance to Mr. Harris and Mr. Wright was discussed at that meeting including the possibility of issuing seven different certificates [there being seven signees on the notes], and it was agreed that it would be better to hold it in one certificate and since these men were the primary men on the notes, they were responsible to their banks and they knew their banker, that the stock was issued in their names and that they in turn would be the trustees for the stock and as it was sold down the road, would help liquidate the amount of the note.
That portion of the judgment which recites that Harris and Wright assumed full responsibility, as between the makers, for retiring the notes is reversed. As to the Class A stock issued in the names of appellants, each holds the same in trust for the benefit of all signers of the notes. The trial court, after modifying its judgment accordingly, will enter such additional findings and judgment as will finalize the litigation.
Reversed and remanded.
Byrd, J., not participating. | [
52,
108,
-7,
-68,
24,
96,
42,
-102,
94,
32,
-91,
83,
-23,
-27,
5,
101,
-27,
61,
85,
74,
-75,
-77,
51,
122,
-45,
-77,
-7,
-59,
-79,
95,
-92,
86,
12,
52,
0,
85,
-26,
-126,
-63,
20,
-50,
4,
122,
101,
-7,
65,
48,
-17,
-112,
13,
117,
-100,
-30,
61,
25,
74,
105,
44,
109,
40,
-48,
-80,
-118,
12,
109,
83,
48,
101,
-112,
37,
-24,
14,
-108,
-79,
25,
-8,
114,
-90,
-122,
-12,
107,
-119,
12,
98,
98,
1,
-127,
-17,
-100,
-104,
38,
-42,
-99,
-122,
-110,
113,
2,
9,
-65,
-97,
124,
25,
-105,
-4,
-20,
-107,
29,
36,
85,
-86,
-106,
-45,
-17,
126,
-97,
-113,
-26,
-109,
34,
117,
-54,
-70,
77,
71,
122,
19,
14,
-80
] |
John A. Fogleman, Justice.
The only point for reversal of his felony conviction of possession of stolen goods asserted by appellant is the failure of the state to prove the value of a 1966 Dodge Charger automobile which was the subject matter of the charge against him. He is correct in his assertion that the state offered no evidence that the automobile was of a value of more than $35, as charged in the information. The vehicle was neither offered in evidence nor viewed by the jury.
The state first argues that appellant is barred from raising this point on appeal, by failing to mention the value of the property in his requests for a directed verdict at the close of the state’s case and for an in structed verdict of not guilty at the conclusion of all the testimony and by failing to preserve the point in his motion for new trial. We find no merit in this argument. A motion for a directed verdict is certainly sufficient to raise the point that the state has failed to prove an element essential to a conviction of the crime with which a defendant is charged. It is academic that, in order to sustain a conviction of the felony charged, the property involved must be shown to have had a value in excess of $35. Ark. Stat. Ann. §§ 41-3934, -3907 (Repl. 1964). It was asserted in the motion for new trial that the jury verdict was contrary to the evidence and contrary to the law and the evidence. Additional grounds for that motion were that the court erred in overruling appellant’s motion for an instructed verdict at the conclusion of the state’s case and that the court erred in refusing defendant’s request for an instruction to the jury to return a verdict of not guilty made at the conclusion of the whole case. Certainly these allegations were sufficient to preserve any point raised by the motions for a directed or instructed verdict.
Our statute covering the crime of receiving or possessing stolen property provides that one found guilty be punished as in cases of larceny. Ark. Stat. Ann. § 41-3934 (Repl. 1964). This matter seems to have been settled as to larceny, m a similar background, by the case of Ware v. State, 33 Ark. 567. At that time Ware could not have been guilty of grand larceny, of which he was convicted, unless the hog found in his possession was of a value in excess of $2. The hog was described as fat, but no witness swore that it was of any value. Because of this failure of proof, that conviction was reversed and the cause remanded for a new trial. Albeit dictum, the necessity that there be proof to show that the market value of a stolen chain saw was in excess of $35 to support a grand larceny conviction was stated in Hammond v. State, 232 Ark. 692, 340 S. W. 2d 280.
The Attorney General makes a very plausible argument that the jury might infer that the value of the car at the time of its theft was over the amount of $35, saying that the value of the automobile was of such common knowledge as to be within the experience of any person. In support of this argument, he points out that the owner testified that he purchased the automobile in February 1966 by trading in another motor vehicle and paying a cash balance, and that, on the day before the car was stolen, it had been completely refurbished and painted. In this process, the owner said, a new vinyl top and four new tires were put on it four days prior to the day it was stolen. No authority for this position is cited in the state’s brief, nor do we know of any.
On the other hand, the authorities are generally contrary to the idea that a jury, without having viewed the property, can arrive at a value of property by presumption or inference, in the absence of any evidence on the subject. As a general rule there is no presumption as to the value of property and proof of value is generally required whenever value is in issue. 29 Am. Jur. 2d 285, Evidence § 239. We have long held that direct proof of value was not necessary where the crime did not depend upon the value of the property stolen so long as there is proof of facts from which it might be inferred that it had some value. Houston v. State, 13 Ark. 66.
The general rule, however, when value determines the grade of the offense or the punishment therefor, is that applied in Ware v. State, supra, and is aptly stated at 52A C. J. S. 568, Larceny § 97, as follows:
In jurisdictions where the distinction between grand and petit larceny still exists, or where the grade of the offense, or the punishment therefor, is determined by the value of the thing stolen, in order to justify a conviction of grand larceny, or the higher grade of the offense, the state must prove a value equal or exceeding the diacritical amount.
We have always held that it is necessary to prove the value of stolen property in order to sustain a conviction of grand larceny, except where the statute provides that the unlawful taking of certain types of property constitutes grand larceny, regardless of value. Pillow v. State, 186 Ark. 1198, 52 S. W. 2d 964; Woodall v. State, 200 Ark. 665, 140 S. W. 2d 424. Like every other element of the crime, when the value of the stolen property is an issue, it must be proved beyond a reasonable doubt. State v. Boswell, 107 W. Va. 213, 148 S. E. 1 (1929); State v. Wood, 46 Iowa 116 (1877); Annot. Ann. Cas. 1912A 895, 896. The law does not take judicial notice of the value of personal property, so proof of value is essential where the punishment depends upon the value in issue. I Wharton’s Criminal Evidence 484, § 258 (10th ed. 1912). Consequently, in the absence of evidence upon the value of the property involved, where it is necessary to determination of the grade of the offense and the penalty, the jury may not indulge in presumptions to supply the omission. Burrows v. State, 137 Ind. 474, 37 N. E. 271 (1894).
In following and applying the general rule, the United States Court of Appeals for the Fourth Circuit said that a jury should not be allowed to speculate that the value of 72 rifles stolen from an armory was more than $100, merely from their appearance. That court said that it was as incumbent upon the prosecution to establish this fact as it was to prove the identity of the thief and the ownership of the property. United States v. Wilson, 284 F. 2d 407 (1960). See also, Jalbert v. State, 95 So. 2d 589 (Fla. 1957); and Cooper v. State, 43 Ala. App. 385, 191 So. 2d 224 (1966), cert. denied, 280 Ala. 711, 191 So. 2d 229 (1966).
It has been said that, in distinguishing between grand and petit larceny, the rules for establishing values in civil cases are often held applicable. State v. Doepke, 68 Mo. 208, 30 Am. R. 785 (1878); 2 Wharton’s Criminal Law and Procedure 71, § 449 (1957). In Utley v. Heckinger, 235 Ark. 780, 362 S. W. 2d 13, it was held that the value of a particular 1954 Pontiac automobile was not established by testimony by one witness that an ordinary automobile of that model and make was worth from $1,000 to $1,200 in 1959, and by another that the particular vehicle was in good condition at that time. At least as strict a rule on value as that applied in civil cases should be utilized where one’s liberty can only be taken after all the elements of his crime have been proved beyond a reasonable doubt.
It may well be argued that such a strict rule should not be applied when it might easily be said that it is common knowledge a 1966 Dodge Charger was worth at least $35. The defect in this approach is that the precedent would, in many cases, pose a riddle as to the sufficiency of common knowledge of values, first at the trial bench and again at the appellate level. Appellee has aptly called our attention to the following quotation used by Judge Frank Smith in answering a suggestion of inconsequentiality in Byler v. State, 210 Ark. 790, 197 S. W. 2d 748:
“ ‘Twill be recorded for a precedent and many an error by the same exaniple will rush into the state. It cannot be.”
The judgment is reversed and the case remanded for a new trial. ____
There is dictum similar to the state’s argument in State v. Phillips, 106 Kan. 192, 186 P. 743 (1920). See also, State v. Lawrence, 120 Utah 323, 234 P. 2d 600 (1961), where the court reversed a grand larceny conviction because the trial judge took judicial notice that an automobile was worth more than $50 and so instructed the jury. In the latter case, the court never decided whether, it was even proper for the trial judge to have taken judicial notice of the value of the car.
For authorities indicating that production of the goods involved before the jury may be evidence of value, see State v. Peach, 70 Vt. 283, 40 A. 732 (1898); 2 Wharton’s Criminal Evidence 609, § 673 (12th ed. 1955).
In this case the stolen property was a two-door Ford car, which was overtaken by a state trooper after it passed him at a high rate of speed. During the chase, speeds sometimes reached 100 miles per hour.
There was some evidence from which it might have been inferred that this automobile was not in operating condition when it was in appellant’s possession. | [
16,
-20,
-35,
62,
42,
64,
42,
-104,
99,
-123,
54,
-109,
37,
66,
5,
57,
-10,
125,
85,
120,
-34,
-73,
7,
-15,
-62,
-69,
-103,
-43,
55,
75,
-83,
-43,
78,
-16,
-62,
-43,
70,
74,
-123,
80,
-54,
4,
-70,
72,
-23,
90,
48,
45,
22,
11,
49,
-114,
-29,
43,
27,
-61,
105,
44,
75,
61,
72,
120,
-80,
13,
-81,
6,
-79,
20,
-99,
5,
-40,
40,
-108,
49,
17,
-8,
123,
-74,
-122,
-44,
77,
-103,
-116,
98,
99,
3,
29,
-53,
-72,
-119,
46,
123,
-115,
-89,
88,
72,
75,
41,
-106,
-99,
115,
50,
4,
-14,
-1,
-99,
85,
108,
3,
-114,
-76,
-79,
-87,
108,
6,
-47,
-13,
-91,
20,
113,
-51,
-30,
92,
69,
82,
-101,
-122,
-105
] |
J. Fred Jones, Justice.
This is an appeal by the Housing Authority of the City of Little Rock from an adverse decision of the Pulaski County Circuit Court in favor of the appellee contractor, Forcum-Lannom, Inc. The appellee contractor sued the Housing Authority for delay damages in the amount of $279,708.81, allegedly caused by the Housing Authority’s breach of contractual duties in the preparation of work area ahead of work to be performed by the appellee. The Housing Authority counterclaimed for $53,500 in liquidated damages for delay under the terms of the contract. Judgment was rendered for the appellee contractor and included damage in the amount of $75,000. On appeal to this court the Housing Authority relies on the following points for reversal:
“As a matter of law appellant was under no contractual obligation to guarantee timely adjustment of utilities.
There is no substantial evidence that appellant failed to fulfill its contractual obligations.
The court erred in admitting evidence of damages allegedly caused by delays.
The court erred in allowing appellee to recover and in denying liquidated damages.”
The facts of record appear as follows: The appellee contractor was the successful low bidder on a Flousing Authority construction project for slum clearance and urban renewal development in Little Rock. The contractor of a storm sewer system. It also called for street surfacing, as well as for the construction of curbs and gutters. The contract price finally agreed upon was $665,777.26. The work was to be_ completed within 360 calendar days from July 26, 1964, and the contract provided for liquidated damages of $100 per day for delay in completion.
The provisions of the contract were many and detailed. It charged the contractor with the responsibility of laying but its own work, and with the responsibility for all work executed by it under the contract. The contract also provides that the contractor shall verify all figures and elevations before proceeding with the work and will be held responsible for any error resulting from its failure to do so. This litigation, however, arose primarily under § 409 of the contract, which reads as follows:
“WORK BY OTHERS
The removal of existing utilities required to permit an orderly prosecution of the work will be done by local agencies, unless otherwise shown on the plans. Whenever power, telephone or telegraph poles, conduit, pipe line, sewer or other utility encountered must be removed or relocated to complete the project, the Contractor shall notify the Engineer who will notify the local Owner and attempt to get prompt action. The Contractor will cooperate with the local utility owners in maintaining service to excluded areas within the Project limits and contiguous to the Project.”
The appellee alleged, in its complaint, that the appellant breached its contract in that it failed to warn appellee of any delaying condition at bidding time or before commencing work; failed to provide the appellee with contiguous segments of right-of-way free of all obstructing utilities so as to permit orderly prosecution of the work; failed to provide engineering information such as street elevations; failed to grant proper time extension which resulted in 530 separate delays; that as a consequence of appellant’s breach, the contractor was required to spend large sums of money for barricades, lights and so forth to protect the area. The appellee contractor also claimed interest on delinquent payments.
The Housing Authority denied the allegations of the contractor and affirmatively alleged that the contract provided that when utilities were encountered, appellee was to immediately notify the engineers who would contact the local agencies for removal and to facilitate same; that the contractor was to furnish day work schedules which it totally failed to do, and that such failure was a breach of the contractor’s obligation under the contract. The Housing Authority also alleged that the contractor further breached the contract by failing to set specific points and establish grades and alinements for construction; failed to verify all figures and elevations, and failed to give the Housing Authority 10 days’ notice in writing of any cause in delay, as it was required to do under the contract.
If the contractor is entitled to a judgment , for damages it sustained by reason of delay in the performance of the contract brought about by the Housing Authority and its engineers, it only follows that the Housing Authority would not be entitled to a judgment against the contractor for liquidated damages for such delay. We have examined the voluminous record in this case and have concluded that there is substantial evidence to support the judgment of the trial court. The trial court has favored us with a comprehensive written memorandum opinion, and it so nearly coincides with our own view as it relates to the substantial nature of the evidence, we feel justified in quoting it in full, as follows:
“This case was well prepared and tried. Testimony of the witnesses and the introduction of numerous meaningful exhibits required a full three-day non-jury trial. The verbal testimony offered was of such equal and convincing character to cause a decision, in the main, to be based on a careful study and analysis of the many exhibits made a part of the record.
To some extent even the exhibits sustained the conflicting position of the respective parties, but this Court concludes that they swing the scales of justice toward plaintiff with regard to some of its claims and in favor of the defendant on some of the claims urged by plaintiff.
At the outset let it be understood that this Court recognizes the premise that in any construction contract of this magnitude it should be anticipated that usual and customary delays will be encountered and that a contractor bidding on such a job must contemplate such usual and customary delays. Plaintiff broke down their claims into six classifications and overall presented approximately two hundred twenty-six separate and distinct claims for damage. With regard to initial Claim No. 1 pertaining to a re-design of multiplate covers, same is disallowed because it is felt plaintiff failed to meet its burden of proof. Furthermore, all of plaintiff’s claim relating to curb inlet and junction box construction, flares and barricades and interest on delinquent payments of partial pay estimates under the contract are disallowed even though plaintiff presented a rather strong and convincing case on these items. However, in analyzing the proof, this Court is convinced that plaintiff had no justifiable reason to believe that the work could proceed in an orderly manner which would permit the placing of ‘tops’ on such junction boxes almost simultan eously with the construction of such boxes. It is recognized that plaintiff suffered delay and the. expense of moving back and forth to complete such tops, but again in this connection, the proof seems to indicate that such procedure is normal and to be expected.
Omitting the aforementioned claims, there still remains for determination many alleged breaches of contract. It would be absolutely impossible for this Court to discuss the evidence pertaining to each individual claim and very candidly no effort will be made in this memorandum to enter into such discussion or analysis. Generally speaking it can be said that from the very, inception of the work the plaintiff experienced difficulties which appear under the proof to be unusual, abnormal and unreasonable. There can be no doubt but what the initial work was commenced at a point where all parties agreed the work should begin; that delays were immediately experienced by reason of obstacles, obstructions and hinderances beyond the control of plaintiff. The exhibits indicate that complaints were being made by the contractor early after commencement of work ánd much credence is given to these complaints because it is felt that same certainly were not registered with the view of preparing for litigation. It appears to this Court that there was a lack of communication, a lack of cooperation and coordination and that all of the blame for these deficiencies cannot be placed on the contractor.
Grievances were presented as to availability of right of way; of proper grade; of the unusual and numerous underground utilities that had not been removed. The Housing Authority, through its engineers, found much fault with plaintiff’s cleaning process; its delays in patching up streets or cuts in streets so that traffic could move more rapidly. Finally, the Housing Authority issued a stop order dated February 10, 1965 on all work other than that outlined in such order. Same remained in effect until March 11, 1965. Too, at the insistence of the defendant the plaintiff was forced to accelerate its work and this added to plaintiff’s financial burden. In general, the Court finds that there were numerous and disrupting delays and suspensions, and that the contractor was never in a position to plan and follow any normal sequence in which the work was to be done on the project; that such delays and suspensions of work in excess of those which a contractor could or should reasonably anticipate as being normal, usual and customary in the performance of a contract of this nature. Also the Court specifically finds that the defendant was under a duty of cooperation to do whatever was necessary in the project area to enable plaintiff to perform its contract in an orderly manner and that defendant breached this duty in that it failed to use its best efforts to secure the removal of the utilities, underground and overhead, and that such failure unreasonably hindered and delayed the contractor in the performance of the contract. This breach to some extent can be explained or justified on the premise that this was a highly populated area and the interest of the citizens in the vicinity must be protected. Even so, it is not felt that this plaintiff should be required to bear all of the loss. Near the end of the contract or at the conclusion thereof, plaintiff presented its claims to officials of the Housing Authority. It is evident from the record that such claims as presented by plaintiff raised issues which gave the defendant some concern. These claims ran parallel to the ones presented in this Court and included requests for allowances relating to extensions of time by reason of obstructions and weather conditions. After an exhaustive study such claims as made by plaintiff were rejected.
At the trial of this case plaintiff presented claims totaling approximately $285,000. After disallowing the claims mentioned earlier in this memorandum and after reducing all of plaintiff’s other claims for alleged damage, substantially it is the judgment of this Court that plaintiff should recover, as damages, a sum of $75,000 from the defendant.
In addition to the $75,000 awarded plaintiff, the Court finds that the Cross-Complaint of defendant is without merit. It is not believed the defendant took very seriously its position relative to liquidated damages; that on account of many problems presented to plaintiff in the performance of its contract, including unfavorable weather, it was not the intention of the Housing Authority to enforce the provision of the contract as to liquidated damages; that such claim was only injected into this action as a defense to plaintiff’s claims. Therefore, plaintiff is also entitled to receive from the defendant the amount withheld by it which the Court understands to be $53,094.67.”
The contract was entered into by the parties on July 3, 1964, and notice to proceed on the contract was issued on July 29, 1964. This entire litigation apparently stemmed from delay on the part of the contractor in completing various phases of the contract, and the delay on the part of the Housing Authority in obtaining the removal of public utilities from the area to be worked on. The contractor blamed the Housing Authority for the delay, and the Housing Authority blamed the contractor. The difficulty arose immediately following notice to proceed and both parties continued to chafe under the delays which each blamed on the other, until the contract was finally completed.
The first delay of record was apparently occasioned by a redesign of pipe which was originally scheduled for delivery during the week of July 20, 1964, but was actually received on August 25, 1964. On August 3, 1964, the contractor wrote a letter to the Housing Authority engineers stating, in part, as follows:
“This letter is to advise you that the start of installation of the 7' 11" X 5' 7" Multiplate Culvert from Station 6+69.60 to Station 11+64 will be delayed until approximately August 17th, 1964.
This delay is caused due to information, received from Armco that a re-design in the length of pipe sections has caused a complete change in their fabrication and delivery schedule of this item. . .”
The chaotic condition in regard to the lack of communication between the Housing Authority and the contractor became worse, rather than better, and resulted in numerous transmissions between the two. As an example, on November 6, 1964, the contractor requested an extension of time in a letter stating, in part, as follows:
“We further request that a ten day extension of time be granted to cover the delays in re-laying and re-locating lines mentioned herein, as well as delays caused due to the necessity of waiting for the City Water Department and the Arkansas-Louisiana Gas Company to remove their utility lines to allow proper installation of the Storm Sewer System.”
And again on December 10, 1964, the contractor wrote to the engineers as follows:
“As you are aware there are some 224 manholes, drop inlets, and catch basins in connection with the storm drainage system on this project. We are being placed in a very awkward position and being criticized for the incompletion of these units from several different agencies. We are also incurring considerable expense beyond the scope of the contract, for night watchmen, placing and maintaining flares, barricades and lights, which we intend to file for reimbursement for. We would like very much to eliminate this cost and the confusion which is being caused by not being able to complete these units as they are reached. Therefore, we urge you to establish immediately some system for establishing grades so that these units can be completed. If this is done considerable clean up can be completed and hazardous driving conditions eliminated. I do not feel that it was the original intent of the contract for the contractor to build these units in three parts as is now the case. We understand that the Housing Authority has been criticizing our company for the lack of clean up. We request that you advise them that a considerable amount of this clean up could be accomplished and would have been accomplished had we been given the grades for these structures as construction was progressing.”
On February 10, 1965, the Housing Authority temporarily suspended the work and advised the contractor that the order was made necessary due to improper construction sequence and lack of protection to the work already installed; failure to make periodical clean up during the progress of the work; and failure to provide adequate workmen, tools, and equipment for the amount of work under progress.
The suspension order was released on March 11, 1965, but after receipt of the suspension order, the contractor, on February 12, responded by letter stating, in part, as follows:
“We also wish to advise that the stated reasons for the action on the part of your Engineers are wholly unfounded in fact. On the contrary, we have been and are now being delayed on account of the failure of your Engineers to perform the necessary engineering services in a timely manner to . permit orderly and efficient progress in our performance of the work. Further, we have sustained additional delays which are continuing on account of your failure to furnish us rights of way in a timely manner. For all of these delays, we give you notice that we have sustained and continue to sustain damages for which we will make claim when the amount thereof has been ascertained.
On the basis of all of the above delaying circumstances, we request appropriate time extensions which shall be in addition to our claim for damages.
You have in the past and are presently withholding payment of certain periodical estimates which have been due for some time. You have furnished us no valid reason under the terms of the Contract for withholding these payments, and we further notify you that we are sustaining damages on this account. We insist that all periodical estimates presently due and unpaid under the Contract be paid immediately; and in the futute, that these estimates be paid promptly as required under the terms of the Contract. * * *”
On March 19, 1965, the contractor notified the engineers that grades for streets and elevations for top inlets previously requested had not been furnished, and noted that the right-of-way was lacking for all traffic diverters. This letter also complained as follows:
“We also would like to mention that, although your letter of March 18, 1965, states that certain utilities have been removed or are being removed, that in several instances the new utilities have been installed but the old ones have not been removed which does not clear the intersection for construction.”
On May 18, 1965, the Housing Authority wrote the contractor as follows:
“It has become increasingly apparent that the progress of the work is lagging in this project and we feel that it is necessary to emphasize the need to accelerate the construction in order to meet the contract deadline.”
The contractor replied to the May 18, 1965, letter as follows:
“* * * In this entire area of IB blocks, only three are free of interference. We have no control or power to expedite, and this work must be done if we are to complete. The same is true of other sections of the Project. We again state if the stops and interferences are removed from our path ahead of time, we can accelerate construction.
In reference to the by-pass, had not instructions been given to our grader operator to cut the curb ledges out, we would be 100% further along. This one mistaken order has caused a minimum delay of three weeks to the construction of the by-pass. . .”
The appellant Housing Authority continued to complain about the delay and continued to suggest that the contractor increase his work force, and the appellee contractor continued to complain about the delay in having to move his work force from place to place throughout the entire project while waiting for the appellant to obtain right-of-ways clear of utility obstructions.
Mr. George Millar, Jr., Executive Director of the Housing Authority, testified as to the financial participation in the project by the city and federal government. Mr. James L. Phillips, Supervisor of Design Engineering for the resident engineers representing the Housing Authority, testified that he received the first work program schedule sometime after the 17 th of September, 1964. Most of Mr. Phillips’ testimony was directed toward the failure of the contractor to furnish work schedules so that right-of-ways could be furnished free of obstructions ahead of the construction, and none of his testimony was directed to what efforts, if any, the Housing Authority made in furnishing right-of-ways clear of utility obstructions after it did receive, or knew of, the contractor’s work schedule, and after it received the complaints made by the contractor. In other words, the Housing Authority directed most of its proof to its counterclaim for liquidated damages for delay, and did not assume its obligation of going forward with the proof in an effort to show what it did, if anything, in obtaining the removal of utilities in response to the numerous complaints made by the contractor.
The project was finally completed on February 9, 1966, and was accepted by the Housing Authority. The appellee offered considerable evidence tending to prove that it was forced to skip around over the entire project, thereby losing time and incurring expense in moving from one area to another, because the Housing Authority had not carried out its agreement in obtaining the removal of public utility lines, poles and equipment ahead of the construction in an orderly manner. The Housing Authority offered no proof at all as to what efforts it made, if any, in attempting to remedy the complaints made by the contractor as to the conditions causing the expense, lost time and delay complained of by the contractor, in performing its work under the contract. The Housing Authority simply contends that it was unable to arrange for the removal of utilities ahead of the contractor because the contractor failed to furnish a proper schedule of its intended operation. The conflicting evidence on these adverse contentions was submitted to the trial court sitting as a jury, and we do not disturb a trial court’s decision under such circumstances if there is any substantial evidence to support it. Ark. La. Gas Co. v. Wood, 240 Ark. 948, 403 S. W. 2d 54.
It appears from the record that by mutual agreement, the work was started at the lowest point and was to proceed upgrade from the starting point in an orderly manner. It also appears from the record that when the contractor would specifically complain about obstructions causing delay in completion and resulting damage in additional cost, the Housing Authority, or its engineers, would respond only with a denial that the situation complained of existed, or with a sugges tion as to how the contractor might remedy the situation, or avoid its consequences.
The judgment of the trial court is affirmed.
Fogleman, J., dissents in part. | [
-48,
104,
-12,
76,
8,
65,
24,
-104,
83,
-83,
101,
87,
-89,
-58,
28,
101,
-29,
125,
-12,
107,
65,
51,
37,
106,
-42,
-73,
115,
69,
-72,
125,
-44,
-98,
92,
81,
-62,
-99,
-62,
-64,
-51,
16,
10,
-121,
27,
108,
-47,
65,
48,
63,
50,
79,
37,
-84,
-6,
45,
16,
-54,
-20,
44,
109,
61,
81,
-15,
-54,
13,
127,
5,
1,
-92,
-102,
7,
112,
28,
-112,
49,
0,
-20,
115,
-90,
-124,
36,
67,
-101,
8,
32,
98,
2,
-123,
-25,
-8,
-120,
22,
-68,
-117,
-90,
-93,
57,
27,
107,
-74,
-100,
124,
20,
4,
-2,
-26,
-123,
91,
108,
-125,
-113,
-16,
-31,
13,
-96,
-109,
9,
-17,
3,
48,
116,
-49,
-30,
93,
71,
51,
27,
-106,
-13
] |
John A. Fogleman, Justice.
Appellant seeks reversal of a judgment in favor of appellee for a $4,000 real estate commission. He urges five points for reversal. They are:
I. Appellee was without capacity to sue.
II Appellee did not produce purchaser ready, willing and able.
III. Appellee had knowledge of defects of title.
IV. Contracts subject to conditions not performed.
V. Appellee abandoned contract.
We shall discuss them in the order listed.
I.
Even though Mrs. Fairweather’s alleged services were rendered while she was employed as a salesman for Winrock Realty Company, she brought suit in her own name. After appellant demurred to her complaint, she amended it, adding the allegation that she was en-tided to recover the commission as the assignee of the realtor. During the course of the trial she introduced two “offer and acceptance” contracts signed by appellant, upon which she based her claim, in part at least. Each contained a statement of an agreement to pay Winrock Realty a fee of 10% for professional services.
Appellee introduced an offer by Rose Ruffin to purchase Gabriel Heights Cemetery addressed to Win-rock Realty Company and accepted by Sarna on February 16. She then introduced as her Exhibit 2 an offer from the same buyer to purchase the balance of a 60-acre tract, from which the cemetery property had been taken, accepted by Sarna on the same date. She next offered as her Exhibit 3 and assignment dated September 9, 1969, of all rights of Winrock Realty Company, under an offer by Mrs. Ruffin to purchase the cemetery property. That offer was described as having been dated February 9 and accepted by E. H. Herrod, Trustee, or Clement Sarna. That contract was actually abandoned, and no claim for commission was based thereon. Appellant’s counsel called attention to the fact that the purported February 16 agreements under which Mrs. Fairweather actually claimed compensation were not covered by the assignment. Appellee’s attorney then stated that the omission was by mistake, which he stated would be corrected quickly. Then appellant’s attorney moved that appellee’s Exhibit 2 be stricken, because appellee had no right to sue thereon, admitting that his objection was technical because appellee could merely file a new suit thereon promptly if the court dismissed the suit on this objection. Although appellee contends that appellant waived his objection, we take the waiver to go only to his right to a dismissal of the suit at that time. His counsel definitely stated that there was no waiver of the objection to Exhibit 2. Thereupon, appellee moved for a recess. After the recess, an assignment of the rights of Winrock Realty under the later contract, bearing the current date, was admitted over appellant’s objections.
Appellant argues that appellee had no capacity to sue because the chose in action which was the subject of the litigation was not her property at the time the suit was filed. We find this contention to be without merit. We have put substance above form in procedural matters, at least since the adoption of our Civil Code. Appellant does not demonstrate how he was prejudiced by the admission of this document into evidence. If he had plead surprise and asked for time to prepare to defend against this unforeseen development, or even to investigate the circumstances of the execution of the late assignment, he might well have been entitled to a continuance for that purpose. See St. Louis I. M. & S. Ry. v. Power, 67 Ark. 142, 53 S. W. 572; Williams v. Uzzell, 108 Ark. 241, 156 S. W. 843. We have been rather liberal in permitting actions to be prosecuted by the real party in interest. See Ark. Stat. Ann. § 27-801 (Repl. 1962). We permitted the holder of a note by delivery without written assignment to sue in his own name under the statute. Webster v. Carter, 99 Ark. 458, 138 S. W. 1006. In House v. Long, 244 Ark. 718, 426 S. W. 2d 814, recognizing that the primary purpose of our statute was to prevent harassment of defendants by different suits upon the same cause, we said that the real party in interest is generally conceded to be that person who can discharge the claim on which suit is brought. At the time Margueritte Fairweather offered the later assignment in evidence, she was the person who could discharge the claim, if the assignment was valid. In the absence of any showing of prejudice, or attack upon the assignment, we. would submerge substance with form if we sustained the objection made by appellant.
II.
Appellant contends that there was no proof that the prospective purchaser Rose Ruffin was ready, willing and able to purchase for want of proof of her solvency. He relies upon our holding in Cherry v. Montgomery, 242 Ark. 233, 412 S. W. 2d 845, that a mere affirmative answer by a witness as to his readiness, willingness and ability to purchase, as a statement of a conclusion, was insufficient to make a prima facie case on that point in a broker’s action for a commission and of no probative force in the light of undisputed contrary facts. The record is somewhat different here. The principal question involved in that case was the willingness of the purchaser to buy upon the seller’s terms. Even so, we agree that some evidence other than Rose Ruffin’s affirmative answer to a question as to her financial ability was necessary to constitute substantial evidence to support the judgment. Appellant’s acceptance of Mrs. Ruffin’s offer, without questioning her ability to purchase, was some indication of his satisfaction on that point. Mrs. Ruffin testified that she owned quite a bit of real estate. She stated that she had the $35,000 in cash available to make the required cash payment in that amount, even though she did not have with her any statement of her bank account or financial condition. She said that she could have obtained any amount she needed from Paul Leird, who was identified by appellant as president of Dillard Department Stores and who, in partnership with International Development Corporation, eventually purchased the stock of a corporation which owned the cemetery. Mr. Leird also participated in the sale of this stock to Mrs. Ruffin at some later date. Mr. Leird testified that he had known Mrs. Ruffin for many years and had participated in the making of various loans to her by a savings and loan association. When he wanted to sell his holdings in the cemetery company, he knew that she was a logical purchaser. We are unable to say that this testimony was not substantial basis for inferences from which the circuit court could properly find, as it did, that appellee produced a purchaser who was ready, willing and able to purchase on appellee’s terms.
III.
Appellant here advances the argument that appellee knew that he did not own the record legal title to the property involved and that his agreement with her and acceptance of offers was conditioned upon her obtaining approval of six or seven other persons. This contention is consistent with appellant’s testimony. He was corroborated in this respect by an employee. Yet, Mrs. Fairweather testified to the following:
When she inquired on or about February 6, 1966, as to the possibility of his selling other property adjoining another cemetery to Rose Ruffin, Sarna told her that he owned a cemetery and directed her to try to get an offer on it. He also told her he owned land adjoining this cemetery. He did not then tell that any other person was associated with him in this ownership.
Although Sarna had told her after first showing the property to her that he had sold the property, he said that the sale had been “defaulted” so that he had it back and assured her that it was his or that he had controlling interest, so that she need not worry, as he would “take care of it.”
When she presented an offer from Mrs. Ruffin on February 9, she took it to Sarna, who said that he had controlling interest and whatever he said was the “say so” but told her she would have to get E. H. Herrod, Trustee, an “officer” who had very little interest, to accept it. She talked with Herrod on the phone, after which he readily signed the acceptance. When she took the subsequent offer to Sarna, he said that there was no reason for him not to sign the acceptance because of his controlling interest and that it would be unnecessary for Herrod to sign.
On the date of Sarna’s acceptance of the offer of February 16, there was no discussion or indication that he did not own the property.
When the closing date approached, in response to her inquiry of Sarna as to his readiness, he told her that he had thought that he owned the property, but had learned that he did not.
The trial judge chose to believe appellee’s version, emphasizing her failure to attempt to contact any other purported owners, and stating his belief that she would have immediately done so had she been warned that this was necessary.
IV.
The offer covering the cemetery property accepted by Sarna contained the following clause:
Seller to pay for abstract being brought up to date. This offer is conditioned on Buyer obtaining the present license at the cemetery and that it be free and clear of any debt. This offer conditioned on Buyer using this license on adjoining property North of cemetery. Seller has 77 days to get clear title. This offer is conditioned that a previous offer dated February 9, 1966 to E. W. Herrod (Trustee) on Gabriel Memorial Cemetery is not consummated. In the event that the previous offer on Gabriel Memorial Cemetery is consummated, this offer shall be null and void.
Appellant contends that the statement with reference to allowance to him of time to get clear title to this part of the property shows clearly that the condition was not interposed as a condition of his acceptance but that the offer allowed him a grace period within which to obtain title if he could. He finds substantiation in the failure of Mrs. Ruffin or Mrs. Fair-weather to ask for an abstract, to inquire about a survey required by the contract or to advise him that Rose Ruffin had obtained the required approval of a cemetery license. Still, appellant signed the acceptance of the offer, thus clearly indicating that whatever terms and conditions were stated were satisfactory to him. Appellee earned her commission by producing a buyer ready, willing and able to take the property on the seller’s terms, even if the contract were unenforceable, unless the agreement between the seller and the agent required that the sale be actually consummated. Dillinger v. Lee, 158 Ark. 374, 250 S. W. 332; Fike v. Newlin, 225 Ark. 369, 282 S. W. 2d 604; El Dorado Real Estate Co., Inc. v. Garrett, 240 Ark. 483, 400 S. W. 2d 497. We find no evidence justifying a finding that the agreement to pay a commission was based upon such a condition. The written statements of the agent’s entitlement to a fee were unconditional. We have held that a seller who employs a real estate agent to produce a purchaser for lands upon terms satisfactory to him is bound by his agreement regardless of the employer’s interest in the property or his inability to convey the entire title. Reynolds v. Ashabranner, 212 Ark. 718, 207 S. W. 2d 304.
V.
Appellant contends that the failure of appellee or Winrock to demand abstracts of title, to inquire about the required survey, to notify him that the necessary cemetery license approval had been obtained, to communicate with him in any way until shortly before the expiration of the 77 days allowed him to get clear title, and to pursue the matter after he advised appellee that he did not own the property, coupled with their refund of the earnest money to Rose Ruffin, constituted an abandonment of the contract. Even though it is not at all clear that this issue was raised in the trial court, we find it to be without merit, assuming that it was raised. Appellant relies upon the following statement quoted in Thompson v. Harper, 225 Ark. 47, 279 S. W. 2d 277:
If a broker does not procure a purchaser on the terms authorized and he abandons further efforts to sell to a prospective purchaser, or if negotiations between the broker and the purchaser are completely broken off and terminated, the broker will not be entitled to a commission if the owner subsequently enters into negotiations with the same party and effects a sale.
That authority is not controlling here unless the testimony of appellant, rather than that of appellee, is found to be more credible and substantial. The circuit judge found to the contrary. Thus, we cannot say that appellee either failed to find a ready, willing and able purchaser upon appellant’s terms, or that negotiations were broken off without terms and conditions of a contract for sale having been agreed upon.
Since we find no merit in any of the points relied upon by appellant, the judgment is affirmed.
Byrd, J., not participating. | [
-111,
-4,
-48,
-84,
-118,
96,
58,
-88,
111,
-63,
55,
91,
-81,
-54,
28,
109,
-18,
109,
81,
106,
80,
-78,
70,
-93,
-46,
-109,
81,
-51,
-80,
111,
116,
-41,
76,
40,
-54,
29,
-30,
-126,
-51,
82,
14,
-123,
-104,
-32,
-103,
-62,
48,
57,
80,
73,
1,
-82,
-29,
45,
25,
74,
105,
42,
127,
41,
-20,
-72,
-102,
-115,
-1,
7,
-109,
117,
-100,
7,
-52,
88,
-112,
60,
0,
-32,
115,
54,
-122,
116,
11,
59,
8,
34,
103,
32,
-63,
-19,
-8,
-72,
7,
-4,
-115,
-90,
-45,
56,
75,
105,
-73,
-100,
-79,
4,
47,
-4,
-34,
-35,
29,
-84,
1,
-54,
-42,
-77,
-35,
-8,
-104,
11,
-17,
3,
55,
112,
-49,
-24,
93,
102,
54,
-101,
12,
-102
] |
J. Fred Jones, Justice.
Mr. and Mrs. I. B. Langley died intestate and without issue as a result of injuries sustained in an .automobile accident on December 12, 1968. Mrs. Langley was killed instantly and Mr. Langley died a few days later. A. O. Langley, a brother of the decedent, filed a petition in probate court for the appointment of a personal- representative and letters of administration were issued to him. James E. Wilks also filed a petition in the probate court alleging that I. ‘ B. Langley agreed to adopt him and to all intents and purposes did adopt him. He alleged that he is the legally adopted son' and sole surviving heir, of the Langleys, and) prayed that he be declared the legally adopted child of I. B. Langley and Hattie Langley and entitled to inherit the entire estate of both decedents.
Wilks alleged in his'petition, and contended in his argument, that if there was' no formal adoption, that there had been “virtual adoption” and that a “virtual adoption” has the same legal effect as statutory adoption. Wilks contended that if there was no “virtual adoption” then the cause should be transferred to chancery court for the specific performance of the alleged agreement; to adopt him. The matter was transferred to chancery court where Wilks’ petition was dismissed for want of equity. On appeal to this court he relies on the following points for reversal:
“The court should have found there was an agreement for adoption and failure to so find is against the preponderance of the testimony; contrary to the law and the proof herein.
The court erred in failing to find there was a virtual adoption and this court should establish the doctrine of virtual adoption and hold that the testimony in this case is sufficient to establish that James Eddie Wilks was virtually adopted by Mr. and Mrs. I. B. Langley.”
We find no merit in the appellant’s first point. There is simply no proof in the record that the Langleys ever entered into an <enforceable agreement to adopt the appellant. The appellant was the second of twelve children born to Mr. and Mrs. Sterling Wilks. He went to live with the Langleys when he was about two years of age. The evidence indicates that the Langleys reared him as if he were their own son, but the record falls far short of evidence supporting an enforceable agreement by the Langleys to adopt the appellant.
Sterling Wilks, the father of the appellant, testified that when Mr. Langley first took the appellant, Langley stated that he would just like to keep. Eddie all the time, and that he, Wilks, agreed.
“Q. . . . after Mr. Langley came the second time and got Eddie did you and him ever have any other discussions about what disposition would finally, be made about the custody of Eddie?
A. No, other than any time anything was ever said he would continue on, he wanted to take him and feed him and clothe him and educate him.
Q. Did he say anything about adopting him?
A. We continued on talking quite awhile and he made the remark to take the boy and keep him, clothe him and educate him and I said: ‘After all you have all got a child, a boy, now you have one you can do a better part by him, go ahead and keep him.’
Q. Did he say anything about adopting him?
A. He mentioned about adopting him, yes.
Q. What did he say about it?
A. He just wanted to know about adopting the child. I don’t know anything about papers being fixed up, so far as I know, so far as he was concerned he could go ahead and keep him.”
Mrs. Alice Wilks, the mother of the appellant, testified that Mr. Langley came to their house when the appellant was quite young and picked him up and said: “I love this boy, why don’t you give him to me.”
“Q. . . . was there ever any conversation between you and Mr. Langley about how long they have Eddie or whether they would adopt him or anything of that kind?
A. Mr. Langley said that at one time ‘I would like to take this boy and raise him.’ Said, ‘I love him and I can give him things.’ I said: ‘I know you can give him things I would never be able to.’
Q. Did he say anything else?
A. That’s all I can remember he said right then.
Q. Did you have any other conversation about them keeping him?
A. Well, they have asked me several times to adopt him, you know, take him and raise him.
Q. Mrs. Wilks . . . tell the court about the last conversation that was had with Mr. Langley about the adoption?
A. Him and Mrs. Langley came out to our house one time, we lived on the Lempkin place, and Mr. Langley came out in the yard and him and Lemp [Mr. Wilks] went out figuring around and they came back in and he says, ‘this is my boy, I love him, he is my boy.’
Q. What else did he say?
A. He says we are going to take him home with us.
Q. Did he say anything else?
A. I don’t remember anything else. We was all in ther laughing and talking.
Q. Tell the court whether or not he said anything about he was going to take him and adopt him?
A. Well, he would have, yes.
Q. Did he?
A. He wanted to adopt him.
Q. Did he agree to?
A. Yes.”
Mrs. Lena James, who had lived near Mr. and Mrs. Wilks, and who was 87 years of age, testified that she remembers very distinctly hearing Mr. Langley state: “I don’t want to adopt Eddie until he is more mature so it would be pleasing to all.” She says this occurred when Eddie was about 12 years of age.
The appellant testified that he was born on No vember 24, 1939, and that he was first taken to the Langley home When he was about one year old. He says he remembers being taken to the Langley home but that he was about five years of age before he knew that the Langleys were not his natural parents.
Under date of May 11, 1969, Mr. and Mrs. Sterling Wilks signed a written statement that Mr. Langley mentioned a few times that they might adopt appellant but that it never got beyond* discussion; that the Langleys never did ask them to sign any papers, and that they never did ask or demand that the Langleys adopt the appellant; that the Langleys never did promise to adopt the appellant even though the subject was mentioned a few times. We are of the opinion that the chancellor’s finding that there was no agreement for adoption is not against the preponderance of the evidence.
As to appellant’s second point, inheritance under the theory of “virtual adoption” is unknown to the law of Arkansas. Ark. Stat. Ann. §§ 56-101 through 56-120 (Repl. 1957 and Supp. 1969) set out the only method of adoption in Arkansas. It is by force of § 56-109 that an adopted child inherits at all from adoptive parents in Arkansas, and that section reads as follows:
“(a) Upon the entry of the final decree of adoption the natural parents of a child shall be divested of all legal rights and obligations due from them to the child or from the child to them; except that if the petitioner be married to the natural father or mother of the child, then said natural parent shall not be divested of any rights or obligations, but both the natural parent and the adopting parent shall have all the rights and be subject to all the obligations with reference to such child that natural parents have or are subject to under the laws of this State.
(b) The adopting parents shall have every legal right in respect to obedience on the part of the child, and such adopting parents, their heirs and next of kin shall have the right of inheritance and distribution of the real and personal estate of the child or its decedants [descendants] and the right of recovery for the death of the child by wrongful act, as if the child had been born to the parents in legal wedlock; except that the right of inheritance and distribution shall not extend to any ancestral estate, real or personal, which shall have come to the child or its descendants through the natural parents of such child.
(c) The person adopted shall have every legal right, privilege and obligation and relation in respect to education, maintenance and the rights of inheritance to real estate or the distribution of personal estate on the death of the adopting parents as if born to them in legal wedlock.
(d) Nothing in this act [§§ 56-101 — 56-113, 56-115 —56-120] shall be construed as debarring a legally adopted person from inheriting property from its natural parents or other kin.”
There is ample proof in the record that the Langleys treated and reared the appellant as they would have their own son, and that the appellant treated them as a son should treat his parents. But, whatever commendable virtues may have prompted the mutual respect, admiration and appreciation the appellant and the Langleys had and demonstrated for each other, such attitudes and treatment did not arise from a legal duty owed under the statutes of Arkansas or under an enforceable promise to adopt.
It may well be conceded in this case that the Langleys gave to the appellant far more than they were legally obligated to give, or he was legally entitled to demand. It may also be conceded that the appellant reciprocated with the love, respect and devotion a dutiful son should show and feel toward his parents, but such affection and treatment does not create property rights not endorsed by statute in this state. The appellant was made beneficiary of a savings and loan account in the amount of $22,752.73, and there is no reason appearing in the record why the Langleys could not have, or would not have, carried out the rather simple statutory adoption procedures if they had desired and intended that the appellant should inherit from them as their only child and sole surviving heir at law. Such relationship is not created in Arkansas by mere amiable association or even by desire and intention. Had the Langleys desired and intended that the appellant should share in their property to a greater extent than the savings and loan account they provided for him, they could have accomplished this by will, as well as by adoption.
This case is similar to Stanley v. Wacaster, 206 Ark. 872, 178 S. W. 2d 50, where suit was brought to enforce a contract of adoption, and there too, the petition was dismissed because the testimony failed to show an enforceable agreement to adopt.
The case of Thomas, Adm’x v. Costello, 226 Ark. 669, 292 S. W. 2d 267, involved a so-called equitable adoption, and in that case we said:
“The evidence reveals that appellee was never adopted by Mrs. C. C. (Barry) Costello, in the manner as provided by statute, Sections 56-101 to 56-120, inclusive, Ark. Stats. 1947. Mrs. Costello reared and held the appellee out as her natural son. However, no evidence was introduced to prove that Mrs. Costello ever agreed to adopt appellee. Our court has many times held that in an attempt to prove a contract to adopt a person, the burden of proof rests with the person claiming the benefit of an alleged contract for adoption, to establish it by clear, cogent and convincing evidence. Stanley v. Wacaster, Administrator, 206 Ark. 872, 178 S. W. 2d 50; O’Connor v. Patton, 171 Ark. 626, 286 S. W. 822.
The Chancery Court is without authority to declare appellee an heir of Mrs. C. C. (Barry) Costello, by equitable adoption. This court held in Cooper v. Bradford, 196 Ark. 327, 117 S. W. 2d 719 that: ‘The mere contract to adopt is not sufficient of itself to make a child a legal heir of the promisor, because the right to take as heir exists only by operation of the law.’ ”
As pointed out in O’Connor v. Patton, 171 Ark. 626, 286 S. W. 822:
“The mere contract to adopt is not sufficient of itself to make the child a legal heir of the promisor, because the right to take as heir exists only by operation of law. The child takes in these cases by virtue of the contract and by way of damages or specific performance. An agreement to adopt does not prevent the person making the agreement from disposing by will of all his property to other persons than the child to be adopted; but an agreement, either express or implied, to give the adopted child a certain portion of the adoptive parent’s property will be enforced. 1 C. J., p. 1377, § 21 (b).”
In Minetree v. Minetree, 181 Ark. 111, 26 S. W. 2d 101, the petitioner attempted to claim a share in an estate as-an adopted pretermitted child. The chancellor held that the adoption was bad because the petition therefor failed to set out the particular district in Mississippi County in which it was filed. In affirming the decree of the chancellor, we said:
“The right of inheritance as such is conferred in our State upon a stranger in blood only by pursuing the special statutory proceeding for adoption.”
In the case of Cooper v. Bradford, 196 Ark. 327, 117 S. W. 2d 719, Bradford reared Cooper from babyhood and died intestate. Cooper first claimed the Bradford estate in probate court as an adopted child, but later moved in chancery court to enforce an alleged agreement to adopt. Witnesses testified that Bradford had said that he had adopted Cooper and that his estate would go to Cooper. About as many testified that Bradford told them he had never adopted Cooper and that he had done for him all he intended to. The chancellor found against Cooper and in affirming the chancellor, this court said:
“One who seeks to recover under an alleged contract to adopt has the burden of establishing the contract by' clear and convincing evidence. The rule is stated in 1 C. J., p. 1379, § 28, as follows:
‘The burden is on the person claiming the benefit of an alleged contract for adoption to establish it by clear, cogent and convincing evidence.’ ”
The evidence in the case at bar did not measure up to the test laid down in the above cases and the decree of the chancellor must be affirmed.
Affirmed. | [
-79,
108,
-52,
124,
58,
35,
42,
58,
-46,
-29,
39,
81,
-81,
-53,
69,
105,
-7,
45,
-47,
105,
67,
-77,
86,
-128,
-46,
-13,
-55,
-33,
-15,
-59,
-25,
93,
76,
40,
10,
-11,
98,
75,
-59,
-44,
-122,
6,
43,
-91,
19,
83,
54,
119,
88,
15,
85,
-98,
-73,
10,
28,
71,
104,
46,
123,
-86,
-112,
-71,
-114,
7,
-33,
6,
-78,
53,
-69,
-91,
88,
47,
12,
-79,
-64,
-24,
-111,
-90,
-106,
-12,
67,
9,
8,
98,
103,
36,
-55,
-7,
-8,
-104,
-18,
44,
-99,
39,
-106,
112,
65,
45,
-67,
-1,
120,
-48,
46,
120,
-18,
-52,
30,
-28,
98,
-113,
-42,
-125,
-35,
-70,
-116,
11,
-5,
5,
-112,
113,
-37,
122,
93,
36,
56,
-109,
-105,
-6
] |
Dale L. Bumpers, Special Justice.
This cause was submitted to the lower court without a jury on a number of agreed Stipulations and Exhibits. The essential facts were that the Appellee, William A. Beall, had been a member of the Teamsters Union since 1941, and was covered under a Pension Plan operated by Appellants. On February 1, 1964, the Pension Plan was amended to provide for disability payments of $100.00 per month to any employee member who thereafter became totally and permanently disabled.
Both parties agree that if Appellee became totally and permanently disabled after February 1, 1964, he is entitled to the disability benefits under the Plan, but that if he became totally and permanently disabled prior to February 1, 1964, he is not so entitled.
On September 9, 1963, Appellee became dizzy, blacked out and was carried to the doctor’s office. On September 12, 1963, Dr. John Adametz, a Little Rock Neurosurgeon, performed a Pallidotomy on the right side of his brain. He was discharged on September 19, 1963. He re-entered the hospital on January 15, 1964, and on January 16, 1964, a Pallidotomy was performed on the left side of his brain. He was discharged from the hospital on January 24, 1964.
On September 9, 1964, Dr. Adametz filled out an attending physician’s report for Appellants and answered a question as follows:
“When in your opinion may claimant be expected to do any kind of work?
Total and permanent disability since 6-64.”
Exhibit No. 6 to the Stipulations is a statement from Dr. Adametz as follows:
“December 8, 1965
TO WHOM IT MAY CONCERN:
Re: William A. Beall
This is to verify that the above named patient was declared totally and permanently disabled by me for the first time on September 9, 1964. This was in a report to the Central States Pension Fund Insurance Company on that date.
At no time have I ever declared Mr. Beall totally and permanently disabled to the Social Security Board. My only report to them concerning this patient was dated March 31, 1964, at which time I indicated that I expected a slow improvement in his condition following his surgery, a Pallidotomy for his Parkinson’s disease.
Very truly yours,
John H. Adametz, M.D.”
On June 2, 1964, Appellee was awarded Social Security, .effective as of April, 1964.
Stipulation No. 8 was as follows:
“8. Parties hereto agree and stipulate that if the plaintiff is entitled to recover upon his amended complaint and based on Ark. Stats. 50-705 that he hás a life expectancy of 29 years and that as so stated in the booklet he is entitled to $100.00 per month for life that he would be entitled to a '..judgment of $34,200.00, plus 12% penalty and attorney fees according to Ark. Stats. 66-3238.”
Stipulation No. 9 between the parties stated:
“It is further stipulated and agreed that if plaintiff, William A. Beall, was brought to the stand to testify that his testimony would reveal that on the 9th day of September, 1963, he became dizzy, blacked-out and was carried to the doctor’s office and after that date he has not been gainfully employed by Jones Truck Lines or any other employer.
The lower court found that Appellee became totally and permanently disabled after February 1, 1964, was therefore covered under the Pension Plan, and rendered judgment in favor of Appellee for (1) $4,900.00, representing the number of payments at $100.00 per month Appellee was entitled to as of the date of judgment, “plus 5% additional sums” of $245.00, (2) 12% penalty of $617.40, (3) $16,912.80, which is $29,300.00 reduced to its present .value based on a 25 year life expectancy and a 5% investment, (4) 12% penalty on $16,912.80, amounting to $2,029.54, and (5) an attorney fee of $3,000.00. Appellants appeal from the adverse judgment and Appellee cross-appeals from that part of the judgment reducing the $29,300.00 to its present value. The record does not resolve the discrepancy in Appellee’s life expectancy, set at 29 years in the Stipulation, and 25 years in the judgment.
For reversal, Appellant argues that since Appellee was confined to his home from September 10, 1963, and never returned to work, that he was totally and permanently disabled as of that date, and since that date is prior to February 1, 1964, Appellee is not covered under the Plan.
The argument is persuasive, but the record does not corroborate the argument. On the contrary, the record indicates that Appellee became totally and permanently disabled September, 1964. The fact that Appellee was confined to his home from September, 1963, and did not return to work after this date is not conclusive evidence of Appellee’s total and permanent disability as of that date. The record does not reflect that Appellee was both totally and permanently disabled prior to June, 1964. Dr. Adametz apparently told the Social Security Board on March 31, 1964, that he expected Appellee’s condition to slowly improve.
The Pension Plan defined total and permanent disability as follows:
“Disability shall be deemed to be total and permanent whenever the employee is totally disabled by bodily injury or disease and will be permanently, continuously and wholly prevented thereby for life from engaging in any occupation and performing any work for wage or profit. . . .” ■
The attending physician 'is certainly in the most knowledgeable position to determine when the Appellee was both totally and permanently disabled. If we concede that Appellee was totally disabled from September, 1963, when he was first confined to his home, the evidence still justifies the lower court’s finding that he was not permanently disabled until June or September, 1964. By the terms of the policy, both conditions must be met.
Appellant cites cases where we have held that the existence of disability fixes liability and not the proof thereof. Missouri State Life Insurance Company v. Case, 189 Ark. 223, 71 S. W. 2d 199, Aetna Life Insurance Company v. Davis, 187 Ark. 398, 60 S. W. 2d 912. Nevertheless, there is substantial evidence to uphold the lower court’s finding that total and permanent disability occurred after February 1, 1964, and the holding should therefore not be disturbed. Wallis v. Stubblefield, 216 Ark. 119, 225 S. W. 2d 322, Hurst v. Flippin School District No. 26, 228 Ark. 1151, 312 S. W. 2d 915.
We are unable to find any law or reason for the lower Court’s award of $255.00, representing “5% additional sums” on the award of $4,900.00. The judgment must therefore be modified to eliminate this item.
The Appellant’s contention that Appellee is not entitled to a penalty and reasonable attorney fee because the judgment, as reduced, was not the precise amount sued for, is without merit. The judgment was for the exact amount stiuplated between the parties, and was reduced to present value as a matter of law. This reduction would not preclude an award of a reasonable fee. The stipulation was an agreement between the parties agreeing on the amount plaintiff was entitled to receive, if the Court found plaintiff’s disability to be covered under the plan. We can see no distinction between a stipulation between parties agreeing to the amount the plaintiff is entitled to receive, if anything, and an amendment to conform to the proof after all the proof has been adduced. In the latter instance, we have held that a penalty and attorney fee should be allowed. Old American Life Insurance Company v. McKenzie, 240 Ark. 984, 403 S. W. (2d) 94.
Had appellant confessed judgment to a lesser amount than sued for, then the penalty and attorney fee would not be allowed. Armco Steel Corp. v. Ford Const. Co., 237 Ark. 272, 372 S. W. (2d) 630. However, appellant agreed to the amount appellee should receive if covered but denied the coverage.
Ark. Stats. Ann. 66-3238 & .66-3239 are penal and must be strictly construed. State Farm Mut. Automobile Ins. Co. v. Pennington, 215 Fed. Supp. 784. But we are not willing to say that the reduction of future loss to present value constitutes a failure to obtain judgment for the full amount, where the full amount is agreed to between the parties. ,
The Appellee strongly argues that the lower court erred in reducing judgment for future payments to their present value. Stipulation No. 8 was a stipulation as to the total amount Appellee was entitled to receive if the lower court found that he was covered under the plan. This amount included future payments. The court’s judgment is based on the stipulation. However, a stipulation of fact cannot change the law, and as a matter of law, recovery of future payments must be reduced to their present value, based on life expectancy. Metropolitan Life Insurance Co. v. Harper, 189 Ark. 170, 70 S. W. (2d) 1042.
The Appellee has requested an additional attorney fee for services rendered in this appeal and we believe he should be, and is hereby, awarded an additional fee of $2,000.00.
Affirmed as modified on direct appeal and affirmed as to the cross-appeal.
Byrd, J., disqualified.
Fogleman, J., concurs in part and dissents in part. | [
16,
-23,
-35,
95,
8,
-31,
-86,
-126,
83,
-84,
55,
87,
-17,
52,
93,
45,
-31,
49,
81,
122,
-9,
50,
87,
106,
82,
-73,
-5,
-51,
-80,
107,
-28,
-108,
77,
40,
2,
-112,
-26,
-58,
-51,
28,
-40,
-121,
-118,
-20,
57,
-110,
56,
47,
-104,
79,
49,
-98,
2,
46,
56,
-49,
41,
40,
91,
42,
-32,
-16,
-113,
-116,
-21,
1,
-127,
68,
-98,
-57,
-16,
26,
-100,
-80,
0,
-24,
16,
-74,
-126,
55,
99,
-71,
-116,
98,
98,
-108,
-95,
-19,
-16,
-88,
-122,
-113,
-99,
-123,
-73,
17,
-112,
9,
-98,
-97,
126,
28,
14,
124,
-3,
-123,
31,
44,
-119,
-114,
-106,
-79,
-33,
120,
-100,
-117,
-21,
-121,
-110,
99,
-50,
-14,
92,
71,
123,
27,
98,
-110
] |
Lyle Brown, Justice.
Clarence Leonard Pierce, Jr. was convicted of grand larceny, the separate charges involving the theft of seven blank money orders which he was accused of completing by filling in names and various amounts, and cashing. Pierce here challenges three instructions, the court’s refusal to instruct on petit larceny, the admissibility of in-custody statements, and the sufficiency of the evidence.
Railroad Salvage Company is a partnership conducting a substantial retail business in West Memphis, Arkansas. It operates in two buildings which are connected by an archway. Appellant was hired to work in. the building from which furniture was sold. The other building was a grocery store. On the grocery side of the business, Railroad Salvage engaged in the sale of Travelers Express Checks. These were kept in a separate cash register which was devoted exclusively to the sale of checks. Each check had a separate serial number and they were to be sold in numerical order. In December 1968 Travelers discovered that checks from Railroad Salvage were being cashed out of order. Subsequent investigation revealed that those checks came from the bottom of the stack, that they were filled in for sums ranging from $100 to $120, and on the line for the purchaser’s name to be affixed was the purported signature of Clarence L. Pierce, appellant. The State offered expert testimony that the handwriting was ..that of Pierce. Three persons testified that only they were authorized to sell checks and that they had sold none to appellant. An employee of Red Barn Auction testified that she cashed one of the checks for appellant. Elmer Dye, one of the partners in Railroad Salvage, stated that he received no money for the seven checks, and that Railroad Salvage was compelled by contract to reimburse Travelers for the seven checks which were paid through Travelers’ account. The testimony we have summarized, together with other evidence in the case — if admissible — clearly warranted a conviction.
Point I. It was error to give the court’s instructions four, five, and six.
4.
Whenever the value of the property stolen exceeds, the sum of $35.00 the punishment provided by law is by imprisonment in the penitentiary for not less than twenty-one years.
5.
If the property stolen consists of any bill of exchange, draft, order or receipt or of any instrument whereby any demand, right or obligation shall be assigned, transferred, created or released the money which in any event or contingency might be collected thereon shall be adjudged the value of the article stolen.
Therefore, if you find from the evidence, beyond a reasonable doubt, that the defendant, Clarence Leonard Pierce, Jr., did on or about the 11th day of November, 1968, take, steal and carry away the seven money orders introduced in evidence or any of them, or at any other time within three years prior to the filing of the Information herein, which was on the 22nd day of July, 1969, and did, without authority, complete the execution of the money orders by incorporating therein a face value of more than $35.00 and did by signing same, without authority, collect the face amount thereof from third persons, which money he appropriated to his own use, then and in which event it will be your duty to find him guilty of grand larceny and to fix the punishment at from one to twenty-one years in the State Penitentiary. Unless you do so find, your verdict will be one of not guilty.
The three instructions, read together, are a fair statement of the law applicable to this case insofar as the charges of grand larceny are concerned. Instructions five and six are based on Ark. Stat. Ann. §§ 41-3903 and 41-3906 (Repl. 1964). The first section makes it larceny to steal, among other items, any instrument of writing of value to the owner. The second section is as follows:
Value of written instrument. — If the property stolen consists of any bank note, bond, bill, covenant, bill of exchange, draft, order or receipt, or any evidence of debt whatever, of any public security issued by the United States, or any script or other public security issued by this State or any other State or Territory, or of any instrument whereby any demand, right or obligation shall be assigned, transferred, created, increased, released, extinguished or diminished, the money due thereon or secured thereby and remaining unsatisfied, or which in any event or contingency, might be collected thereon, or the value of the property transferred or affected, as the case may be, shall be adjudged the value of the article stolen.
In essence appellant was accused of taking printed form money orders and by inserting dates, payees, and fixed sums of money, created a cashable instrument, contingent of course upon its acceptance by the one to whom it was presented. According to the testimony the cashing of the instruments created a contractual obligation on the part of Railroad Salvage to reimburse Travelers. In the completed form each of the checks exceeded $35.00. In drafting Instruction Five the court lifted the applicable excerpts from § 41-3906.
Point II. The court erred in refusing to instruct the jury on petit larceny. The general rule is stated in Wharton’s Criminal Law and Procedure, § 2099 (1957):
When on the evidence the accused might be con victed in a lesser degree of the offense charged or ot an included offense it is the duty of the court in its instructions to .embrace all the degrees of the particular offense and all included offenses to which the evidence is applicable.
In Hall v. State, 242 Ark. 201, 412 S. W. 2d 603 (1967), we reasserted from a prior holding this statement:
In each case, then, the question of whether it is proper to submit to the jury the question of defendant’s guilt of any particular grade of offense included in the indictment must be answered by considering whether there is evidence which would justify a conviction of that offense.
In each of the seven charges the appellant was accused of the larceny of a Travelers Express Money Order. The State advanced the theory that each check was valued at the amount allegedly inserted by appellant. On the other hand it was appellant’s theory that if a larceny was committed it concerned only the blank forms of the money orders, the value of which was testified to be three cents each. All the elements constituting the offense of petit larceny were in evidence and the court erred in refusing to give an appropriate instruction.
Point III. The court erred in allowing statements made by appellant while in custody to be introduced into evidence. Appellant asserts that his rights as declared in Miranda v. Arizona, 384 U. S. 436 (1966), were not followed by the officers who interrogated him on the day of his arrest. In a Denno hearing the arresting officers gave this account of the arrest and subsequent procedures: Two officers went to appellant’s home around noon with a warrant; the warrant was read to him and his rights were explained; they got in the police car and one of the officers read a standard form waiver, then handed it to appellant for his reading; appellant replied that he understood and signed the waiver; on the way to the station the officers advised that the charge involved some express money orders allegedly stolen from Railroad Salvage; and appellant asserted his innocence and stated that Mr. Dye was determined to give appellant trouble. Continuing, the officer drove to the lobby of the county jail and there the appellant asked to call a lawyer. Officer Bolls testified:
A.....He wanted to call a lawyer. I let him get hold of a lawyer. 1 believe, he eventually did get hold of Vince Skillman. Talked to him. Made several calls, not sure he got hold of him, but got hold of his office, I think.
* * *
Q. After he signed. . . .[the waiver] then you took him to the police station?
A. Yes.
Q. Then you let him use a phone?
A. Yes.
Q. He called a lawyer?
A. Yes.
Q. Mr. Skillman?
A. He tried to, I don’t know whether he did or not, he made several phone calls.
* * *
Q. After [he made] the telephone calls, what did you do?
A. I had called Mr. William Ward.
Q. With Travelers Express Company?
A. With Travelers Express Company. I wasn’t too familiar with money orders. Requested Mr. Ward to be with me when I continued talking to Mr. Pierce about the money orders,
Mr. Ward apparently arrived about the time the telephone calls were completed and Ward and the officer launched into detailed questioning of the accused. It was in that questioning period that much evidence favorable to the State was elicited.
If appellant’s rights were violated, it would be under the following language found in Miranda:
Prior to any questioning, the person must be warned that he has a right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presence of an attorney, either retained or appointed. The defendant may waive effectuation of these rights, provided the waiver is made voluntarily, knowingly and intelligently. If, however, he indicates in any manner and at any stage of the process that he wishes to consult with an attorney before speaking there can be no questioning. Likewise, if the individual is alone and indicates in any manner that he does not wish to be interrogated, the police may not question him. The mere fact that he may have answered some questions or volunteered some statements on his own does not deprive him of the right to refrain from answering any further inquiries until he has consulted with an attorney and thereafter consents to be questioned. * * * *
We interpret the quoted language to mean that the, accused has an unqualified right to stop the questioning at any stage and request that he be permitted to consult with an attorney. Once that request is made there should be no further questioning until an attorney has in fact been consulted. There is no proof that appellant was able to contact an attorney. We have copied all the testimony concerning the incident; all it reveals is (1) that appellant said he wanted to contact a lawyer, and (2) that the officer thought appellant got in touch with Mr. Skillman or someone in his office, “I think .... I don’t know whether he did or not, he made several phone calls.”
Officer Bolls had the minimum responsibility of ascertaining whether appellant’s desire to consult an attorney had been fulfilled before the questioning was resumed. When it is admitted by the State’s witness that the accused requested consultation with counsel the duty devolved on the State to establish that the consultation was effected prior to the resumption of questioning.
On retrial, the testimony relating to appellant’s questioning after the attempt to contact counsel will be excluded unless it be shown by proof not now in the record that it was proper to proceed with the questioning.
Reversed.
Harris, C. J., and Smith, J., dissent in part.
Fogleman, J., not participating. | [
112,
-8,
-23,
-99,
26,
-32,
42,
58,
81,
-123,
52,
19,
-19,
71,
1,
43,
-13,
-1,
117,
49,
-12,
-77,
3,
-13,
-38,
-13,
-5,
-27,
61,
75,
-84,
-44,
76,
48,
34,
17,
102,
-54,
67,
24,
-114,
33,
-70,
66,
121,
96,
48,
-86,
4,
15,
-15,
-114,
-29,
34,
16,
74,
73,
44,
107,
57,
64,
-71,
-69,
-115,
101,
21,
-127,
36,
-102,
7,
-24,
15,
-100,
53,
1,
104,
115,
-74,
-126,
116,
103,
-101,
12,
98,
-30,
0,
21,
79,
-84,
-124,
55,
-14,
-115,
-89,
-110,
120,
99,
47,
-98,
-35,
126,
16,
4,
-36,
-2,
4,
27,
108,
11,
-113,
-108,
-126,
13,
124,
-100,
59,
-21,
-75,
18,
116,
-50,
-94,
93,
22,
121,
-101,
-113,
-13
] |
Lyle Brown, Justice.
Earl Bedwell is serving a federal sentence, presently incarcerated in the federal correctional institution in Texarkana, Texas. State charges are pending against him in Lawrence County, Arkansas. He has filed in this court a petition for mandamus, asking us to direct the Lawrence County Circuit Court to dismiss the Arkansas charges for refusal to afford him a speedy trial.
The facts present a problem of first impression to us. Bedwell filed on January 20, 1969, a petition in the circuit court asking for a speedy trial. At that time petitioner was serving his federal sentence in Leavenworth, Kansas. Lawrence County Prosecutor, David Hodges, was successful in persuading federal authorities to transfer petitioner to the Texarkana institution where he would be more readily available. Mr. Hodges then arranged with the circuit judge and the sheriff for the latter official to pick up the petitioner at Texarkana and take him to Walnut Ridge; there he would be tried and then returned to the federal authorities at Texarkana. The planned procedure came to a halt when it was discovered that the plan of having the petitioner brought to Walnut Ridge by the sheriff did not conform to regulations promulgated by the United States Department of Justice. The regulations provide that a prisoner so transported shall be accompanied by a deputy federal marshal or marshals; that the prisoner shall at all times be in custody of the marshal, including the time of trial; and that all expenses, including the expenses of deputy marshals, shall be paid by the county. In this particular case the federal authorities requested an advance deposit of $325 to secure the payment of expenses. The prosecuting attorney certified that it was the decision of the circuit judge, the county judge, and the prosecuting attorney that Lawrence County could not afford to post the cash required by federal direction. Thereupon Lawrence County abandoned its efforts.
Our statute gives one in prison the right to be brought to trial before the end of the second term of court after the charge is filed. Ark. Stat. Ann. § 43-1708 (Repl. 1964). As to one incarcerated in another jurisdiction, the statute does not begin to run until he requests trial. Lee v. State, 185 Ark. 253, 47 S. W. 2d 11 (1932), which was reaffirmed in Pellegrini, infra. Since petitioner filed his application for a trial in January 1969 more than two terms of court have intervened.
Respondent resists the petition on the ground that Lawrence County has been reasonably diligent and has acted in good faith in its efforts to afford petitioner a trial, in conformity with Smith v. Hooey, 393 U. S. 374 (1969), and Pellegrini v. Wolfe, 225 Ark. 459, 283 S. W. 2d 162 (1955).
We have briefly recounted the efforts exerted by Lawrence County through its prosecuting attorney, up to the time he discovered that the sheriff would not be permitted to pick up petitioner and keep him in custody until completion of the trial, then return petitioner to Texarkana. Up to that point it cannot be questioned that diligence had been exercised and in good faith. The question is, was it arbitrary for the county to decline to expend the county’s money to meet the federal bureau of prisons’ requirement that the bureau carry out transportation needs and trial custody? The regulations require that the county shall pay “not only the expenses of the prisoner but also the necessary expenses of deputy marshals or other officers responsible for his transportation” and that “the sum paid shall be sufficient to pay for subsistence and shelter of the prisoner and the deputy marshals or officers during the entire time of their absence from headquarters.” The prosecutor was advised that if the deposit of $325 did not prove sufficient to cover the costs the county would be billed for the balance.
We do not think the action of the county was arbitrary. It is common knowledge that the county governments in this State, for the most part, operate on limited and budgeted funds. The prosecuting attorney, after consultation with the circuit and county judges, certified to' this court that Lawrence County could not afford the financial commitment required. The county was ready and willing to furnish the sheriff and the county facilities to afford transportation and lodging for petitioner. Incidentally, that is the procedure used to return from outside the State any accused other than a federal prisoner. The method desired to be used would not only be cheaper but would retain for the county the control of the expenditures. On the other hand, the commitment requested by the bureau of prisons would give to a third party a blank check to expend indefinite sums of county tax money. It is not uncommon, from necessity, for several days to elapse between the arraignment and trial of an accused. Under the financial assurance requested by the bureau the delay could result in considerable overhead expenses for the subsistence and shelter of one or more deputy marshals and the petitioner. The authority to secure temporary custody of federal inmates for state trial is found in 18 U. S. C. A. § 4085. The method of transfer of custody for state trial appears to be a discretionary matter with the United States Attorney General.
The petition for dismissal of the charges is denied. | [
112,
-17,
-15,
126,
10,
-63,
26,
-104,
83,
-85,
100,
83,
-27,
-49,
5,
121,
35,
63,
85,
121,
-59,
-73,
85,
97,
98,
-77,
-55,
87,
123,
89,
-18,
-41,
78,
112,
-118,
81,
-121,
64,
-57,
28,
-82,
1,
-119,
96,
81,
-117,
32,
97,
78,
11,
17,
-114,
-30,
42,
24,
98,
-23,
36,
-37,
47,
80,
-79,
-102,
79,
-1,
20,
-96,
-60,
-112,
5,
112,
62,
-108,
57,
0,
-8,
114,
-122,
-122,
116,
109,
-99,
12,
96,
-30,
33,
-100,
-17,
-88,
-88,
14,
-69,
-115,
-121,
-112,
73,
107,
73,
-106,
29,
126,
20,
6,
-6,
109,
101,
81,
44,
-121,
-49,
-108,
-105,
-51,
53,
68,
18,
-29,
37,
112,
117,
-52,
-10,
92,
71,
56,
-101,
-114,
-16
] |
Carleton Harris, Chief Justice.
Jean Marie Mason, appellee herein, instituted suit in the Pulaski County Chancery Court, seeking an absolute divorce from Bobby Ray Mason, appellant herein, alleging various indignities to her person, pursued to the extent that her condition, in life became intolerable. A division of the personal property owned by the parties was sought, including a request that appellant be directed, to make the remaining payments due on household goods. Appellant answered, praying that the complaint be dismissed'; it was further asserted that his total debts were such a burden that he would not be able to pay same; that it would be necessary for him to file a voluntary petition in bankruptcy to obtain relief; that such petition would be filed on November 10, 1969. On November 13, appellant amended his answer, stating that he had filed the petition for bankruptcy in the United States District Court for the Eastern District of Arkansas, Western Division, and that the case had been referred for further proceedings to the Referee in Bankruptcy. The answer also stated that on the previous day, the referee had entered an order prohibiting any person from taking further action for collections against the bankrupt, pending further orders of the bankruptcy court. On November 14, the chancery court entered a temporary order, finding that the court was without jurisdiction to make an award of any of the property, but an order was entered directing appellant to pay, commencing on November 14, 1969, to appellee the sum of $40.00 per week for her support and maintenance. Mason was also directed to pay a fee of $100.00 to appellee’s attorney, and court costs. Thereafter, on December 18, 1969, appellant was directed to appear in court on January 5, 1970, to show cause why he should not be held in contempt for failure to comply with the order of November 18. The record does not however reflect any hearing, and on January 21, 1970, Mason was again directed to appear in court to show cause why he should not be held in contempt, this order directing that he appear on January 29, 1970, which was the same date already set for the trial of the case on its merits. On that date, both parties appeared, and the court announced that it would hear proof on both the question of divorce, and the alleged contempt of appellant. No objection was raised to this procedure by either party or attorney. Thereafter, Mrs. Mason testified both to her grounds for divorce, and the failure of her husband to comply with the court’s order, and her mother testified on her behalf in the divorce case. Appellant also testified; however, all of his testimony dealt with the contempt citation, Mason stating that he was not able to pay $40.00 a week, and he admitted that he was delinquent in his payments. The court denied an absolute divorce because of a lack of corroboration, but, in effect, granted a divorce from bed and board, ordering “that the divorce sought in this action is hereby denied, but that the complaint not be dismissed, the court retaining jurisdiction over this cause”. It was further ordered that the support order should remain in full force and effect until further orders, and that appellee was given judgment in the sum of $241.00 for the arrearage due as of January 29, 1970. An additional attorney’s fee was awarded appellee’s attorney.
A separate order was entered finding that Mason was in contempt of court for his failure to make payments totaling $241.00, but Mason was allowed until February 6, 1970, to become current; upon a failure to become current, appellee’s counsel was directed to present to the court an order of arrest providing that the sheriff should confine Mason to the county jail for a period of 30 days, unless appellant should present a cash bond in the amount of $350.00 payable to the sheriff, and to be held by him until further orders of the court. From the decree so entered, appellant brings this appeal.
For reversal, it is first asserted that no service was had upon appellant or his attorney advising of the contempt hearing, and the court was without jurisdiction of the person of the appellant. He relies upon Ark. Stat. Ann § 27-364 (Supp. 1969), and the case of Henry v. Henry, 247 Ark. 771, 447 S. W. 2d 657. This case and statute can afford no relief to appellant. In Henry v. Henry, Supra, there was an effort, after the divorce had been granted, to enforce a property settlement which apparently had been entered into between the parties, but had not been incorporated in the divorce decree; nor was any notice given that Mrs. Henry was actually endeavoring to modify the decree. Henry was only ordered to show cause why he should not be held in contempt. It is at once obvious that the facts there were entirely different from those in the present litigation. Here, Mr. Mason appeared in court, and admitted that he was aware of the fact that he had been ordered to pay $40.00 per week, and further admitted that he had not made all of the required payments because “I didn’t have the money. At times I didn’t have the money to pay”.
Prior to hearing any witnesses on either the main case or the contempt citation, counsel for appellee stated, “If the Court please, this is a complaint filed by Mrs. Mason October 13, 1969 for a divorce, possession of one of the automobiles of the parties and the household goods. It is also a contempt hearing for the failure to comply with this Court’s order of November 13, 1969, with regard to the payment of support and maintenance to the plaintiff by the defendant”. Counsel for appellant then stated, “I think we are up on the payments the court required us to pay. I believe the proof will show that. However, I think he did pick up the amount, in fact it was double, I think. No, it was triple. One thing I question here, whether or not he [she] is going to ask for divorce this morning”. The court then announced that it would hear proof on both matters, and proceeded to do so. Not one single objection was raised to hearing the contempt matter, and, even if there were merit in the contention that the statute had not been complied with, it would be too late to raise that question now.
It is next asserted that since Mrs. Mason was not granted the divorce, her complaint should have been dismissed. We do not agree. Apparently, the court refused an absolute divorce because of the fact there was not sufficient corroboration of appellee’s grounds for divorce (most of the mother’s testimony was hearsay) — not because she failed to make out a case by her own testimony. Of course, if the complaint had been dismissed for lack of equity, appellant might have considered himself free of the obligation to support his wife. The court commented upon this phase of the case as follows:
“He is obviously in willful, open contempt of this Court’s order. This Court is hardheaded about its orders which it feels it should be. To not be hardheaded permits a husband who wants more time to require a wife who was not working at the time the order was entered to grovel in the street or manage some way to get herself fed and housed and clothed. * * * And where the divorce is denied the wife, this does not mean the Court is bound to dismiss her complaint and relegate her back to the streets or the law of the jungle, the club, to seek to gain any support from her spouse. He married her. * * * In this Court and this state under the law prevailing a husband taking a wife is required to support her. It is this simple.”
Ark. Stat. Ann. § 34-1202 (Repl. 1962) provides that the chancery court shall have power to dissolve and set aside a marriage contract from the bonds of matrimony, and also from bed and board. We have held that the court has sound discretion to grant a divorce from bed and board, even though both parties seek an absolute divorce. See Crews v. Crews 68 Ark. 158, 56 S. W. 778. In the opinion, written by Chief Justice Bunn, it was pointed out that the chancellor had found that both parties were, to some extent, at fault, but that the fault of the husband was greater than that of the wife. Nonetheless, we approved the court’s action in granting a divorce from bed and board to the wife, which included an award of alimony. In the case before us, there was no finding of fault on the part of the wife and the court was certainly justified in entering the order here in question.
It follows, from what has been said, that we do not agree that a writ to quash the court’s order of February 2, 1970, (relating to contempt) should be issued.
Affirmed.
The answer was filed on November 3, 1969.
On January 5, 1970, the referee in bankruptcy entered an order finding "that there were no assets available for benefit of common creditors and that all property should be disclaimed and abandoned”. | [
48,
-28,
-72,
92,
11,
-95,
10,
-72,
114,
1,
-27,
-45,
-83,
70,
4,
105,
121,
91,
117,
121,
-115,
-77,
23,
64,
-14,
-13,
89,
-59,
-80,
79,
-11,
-42,
93,
41,
58,
-43,
98,
-126,
-57,
28,
-34,
-126,
27,
100,
89,
-110,
48,
107,
80,
15,
85,
30,
-29,
42,
59,
-50,
108,
44,
-37,
108,
-48,
-80,
-120,
13,
111,
20,
-79,
38,
-42,
37,
88,
110,
-104,
48,
0,
-22,
51,
-74,
-122,
116,
105,
-99,
9,
100,
98,
2,
-59,
-49,
-104,
-120,
14,
-70,
-99,
-90,
-80,
113,
9,
105,
-74,
-99,
109,
-43,
-117,
-4,
109,
-123,
60,
108,
-117,
-50,
-106,
-79,
-116,
63,
-100,
19,
-30,
-123,
48,
113,
-49,
-30,
88,
-57,
59,
-101,
-126,
-73
] |
Carleton Harris Chief Justice.
This litigation is occasioned by a spider bite. Gladys Flippo, appellant herein, went into a ladies clothing store in Batesville, operated by Rosie Goforth, and known as Mode O’Day Frock Shops of Hollywood. Mrs. Flippo tried on two pairs of pants, or slacks, which were shown to her by Mrs. Goforth. The first pair proved to be too small, and according to appellant’s evidence, when Mrs. Flippo put on the second pair, she suddenly felt a burning sensation on her thigh; she immediately removed the pants, shook them, and a spider fell to the floor which was then stepped upon. An examination of her thigh revealed a reddened area, which progressively grew worse. Mrs. Flippo was subsequently hospitalized for approximately 30 days. According to her physician, the injury was caused by the bite of a brown recluse spider. Suit for damages was instituted against Mode O’Day Frock Shops and Rosie Goforth, the complaint asserting three grounds for recovery, first that a pair of slacks in a defective condition (by reason of the presence of a poisonous spider), and unreasonably dangerous was sold to appellant; second, that both appellees were guilty of several acts of negligence, and third, that there was an implied warranty that the slacks were fit for the purpose for which they were purchased, though actually not fit, because of the poisonous spider concealed therein. On trial, the court refused requested instructions offered by appellant on theories of implied warranty, and strict tort liability, and instructed the jury only, on the issue of appellees’ alleged negligence as the proximate cause of the injury. The jury returned a verdict for both appellees, and judgment was entered accordingly. From the judgment so entered, appellant brings this appeal, not however, appealing from the finding of no negligence; instead, the appeal is based entirely upon the court’s refusal to submit the case upon implied warranty and strict tort liability theories. Accordingly, for reversal, it is first urged that “there was sufficient evidence to justify a finding that Mrs. Flippo was injured by goods unfit for their intended use, supplied by a merchant with respect to goods'of that kind, and therefore the trial court erred in refusing to instruct upon the law of implied warranty of merchantability.”
It might be said at the outset that appellant has filed a very thorough and comprehensive brief in support of the positions taken; however, we are unable to agree with the views presented under the circumstances of this case. As pointed out by appellant, there was ample evidence to support a finding that Mrs. Flippo suffered a bite by a brown recluse spider concealed on the slacks furnished her by Mrs. Goforth (it is not conceded by appellees that the bite occurred in this manner). Appellant says:
“* * * if that be true, then appellant submits that such an article of clothing is not reasonably fit for use as an article of clothing and is thus not merchantable.”
It is contended that appellees were bound by the implied warranty of merchantability imposed by Ark. Stat. Ann. §. 85-2-514 (Add. 1961), this statute providing that, in order to be merchantable, the goods must, inter alia, be fit for the ordinary purposes for which such goods are used. Appellant argues that an article of clothing which conceals a venomous creature is certainly unfit for use, and therefore at the time the slacks were handed to Mrs. Flippo, the garment was unfit for the use for which it was intended, and there was accordingly a breach of the implied warranty of merchantability under either the statute or common law.
We cannot agree that the law of implied warranty of merchantability is applicable to a case of this nature. The pair of pants itself was fit for the ordinary purposes for which stretch pants are used; there was nothing wrong from a manufacturing standpoint. In fact, the evidence reflects that Mrs. Flippo bought this particular pair after being bitten, and she has worn and laundered them since the accident. There is absolutely no evidence that the goods were defective in any manner. It is, of course, readily apparent that the spider was not a part of the product, and there is no evidence that either the manufacturer or retailer had any control of the spider, or caused it to be in the pants. Mrs. Goforth said she receives the shipments once a week in pasteboard cartons sealed with tape, and that upon receiving the cartons, she immediately opens them, places the garments on plastic hangers, and hangs them out. The cartons are delivered by truck line, and the witness stated that the slacks in question had been in the store for some time in excess of 20 days.
Irrespective of whether the spider attached itself to the garment in Kansas City, or in Batesville, it was not a part of the garment. The three cases cited by appellant as authority for the common law implied warranty of merchantability, all deal with a defective product, which is not the situation in the present litigation. Perhaps our position can best be made clear by simply stating that the spider was not a part of the manufactured article, and the injury to Mrs. Flippo was caused by the spider — and not the product. We find no cause of action under either the statute or the common law.
Nor can we agree that the trial court erred in refusing to instruct the jury upon the principles of strict tort liability. In Restatement (Second), Torts § (402A) which deals with products that are defective, and thus made unreasonably dangerous to the user or consumer, we find:
“(1) One who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm thereby caused to the ultimate user or consumer, or to his property, if
(a) the seller is engaged in the business of selling such a product, and
(b) it is expected to and does reach the user or consumer without substantial change in the condition in which it is sold. * * *”
It is at once obvious that the product sold in the instant case was a pair of slacks, and the slacks were not in a defective condition; nor were they unreasonably dangerous; in fact, they were not dangerous at all; still further, the slacks did not cause any physical harm to Mrs. Flippo. Without elaboration, it is at once apparent that sub-headings (a) and (b) are not applicable to this litigation, for no one can really contend that the spider was a part of the product, nor can anyone do more than guess at when the spider attached itself to the slacks.
Appellant points out that the lack of privity between a plaintiff and defendant is no longer a defense in any action brought against a manufacturer or seller of goods to recover damages for breach of warranty, or for negligence "if the plaintiff was a person whom the manufacturer or seller might reasonably have expected to use, consume, or be affected by the goods.” See Ark. Stat. Ann. § 85-2-318.1.
She asserts that it is now entirely logical for this court to adopt the rule of strict tort liability.
In cases involving the sale and use of alleged defective products, we have pointed out that there must be substantial evidence- of negligence, such negligence being a proximate cause of the injuries sustained before recovery will be permitted. See, inter alia, Kapp v. Sullivan Chevrolet Company, 234 Ark. 395, 353 S. W. 2d 5; Ford Motor Company v. Fish, 232 Ark. 270, 335 S. W. 2d 713. In one case, Chapman Chemical Company v. Taylor, et al, 215 Ark. 630, 222 S. W. 2d 820, we applied the rule of strict liability to the use of the substance, 2-4-D, stating:
“If one casts into the air a substance which he knows may do damage to others, and in some circumstances will certainly do so, principles of elementary justice, as well as the best public policy require that he know how far the substance will carry or be conveyed through and what damage it will do in the path 4>f its journey, and if he releases such a substance whether from ignorance of, or in indifference to the damage that may be done, the rule of strict liability should be applied.”
Were we inclined to a more liberal view of the theory of strict tort liability, it would not be applied in this case, for we have no hesitancy in stating that the facts in the instant litigation do not support the submission of the case on that theory. This case was properly submitted upon the issue of negligence, and it would have been improper for the court to have given the instructions sought by appellant.
Affirmed.
In "Changing Times, the Kiplinger Magazine,” issue of April, 1969,-Page 45, there is an interesting article with reference to this spider, entitled "Beware the Brown Recluse.” The views of several Arkansas physicians are set out, this state being one with a large infestation of this particular species of spider.
Mrs. Goforth testified that the Mode O’Day company had six or eight factories, and that she received the clothing on consignment, the goods belonging to the company until sold. She said that the company products have an identifying tag sewn in; that occasionally, the parent company purchases items from other companies. The witness stated that the pants tried on by Mrs. Flippo did not have a Mode O’Day tag, and were manufactured by some other company.
The evidence reflected that Mrs. Flippo. had, at some previous time, been in the business of raising chickens, and owned a chicken house. She said that she had seen spiders in this chicken house, though not at the time chickens wete being raised. It is suggested by appellees, that’she could have brought the spider into the store with her.
Onc of the cases, Neel v. West-Winfree Tobacco Company, 142 Ark. 505, 219 S. W. 326, deals with tobacco that was practically worthless and entirely unsatisfactory for use or sale because it was full of bugs; of course, like weevils in flour, this ruined the product.
This court had already held that the doctrine of privity should not be a shield against a breach of warranty action when the suit was instituted by an employee of the original pm chaser. See Delta Oxygen Company v. Scott, 238 Ark. 534, 383 S. W. 2d 885 (1964). | [
-80,
-4,
-8,
-51,
24,
99,
48,
-70,
67,
-127,
117,
-9,
-81,
101,
-44,
107,
-37,
-19,
117,
107,
-11,
-77,
19,
-62,
-110,
-37,
-29,
-41,
-71,
118,
116,
-76,
77,
113,
2,
21,
-62,
-126,
-55,
-108,
-114,
19,
-119,
-32,
81,
-64,
56,
122,
-112,
71,
49,
-90,
-93,
44,
20,
-53,
40,
40,
-21,
45,
-32,
57,
-69,
4,
125,
-106,
-77,
38,
-97,
-89,
-38,
12,
-48,
55,
0,
-24,
114,
-76,
-126,
92,
8,
-103,
4,
98,
100,
38,
9,
-75,
-104,
-120,
47,
95,
-81,
-89,
-84,
40,
41,
33,
-65,
-99,
116,
22,
-121,
88,
-4,
93,
29,
-28,
15,
-117,
22,
-125,
-113,
36,
-100,
-125,
-17,
15,
-78,
81,
-33,
40,
92,
4,
56,
-109,
-114,
-70
] |
Carleton Harris, Chief Justice.
This is a highway condemnation case. The State Highway Commission condemned 4.89 acres from approximately 149 acres of land belonging to appellees Frank Fougerousse and Mary Anne Fougerousse. This acreage was taken from the northeast corner of the farm, leaving a remainder of .47 acres in the northeast corner, leaving 61.53 acres of croplands south of the tract acquired by condemnation, and an additional 82.11 acres also lying south of the area and south of Point Remove Creek. On trial, Forrest Griswood, a witness on behalf of appellees, testified that damages were $4,089.00. Mr. Fougerousse testified to total damages of $6,730.00. The jury returned a verdict of $6,000.00 in favor of appellees, and from the judgment so entered, appellant brings this ap peal. For reversal, only one point is asserted, viz., that the trial court erred in permitting Mr. Fougerousse to testify to the amount of an estimate by a contractor as to the cost of building necessary ramps, after the taking, for access to a portion of the remaining land.
Mr. Fougerousse testified as to the necessity for the two ramps, and stated that he had had an estimate made by Mr. J. C. Norwood, a contractor, to ascertain what it would cost to construct the ramps. He said that he had been given a figure, and when he started to testify to this amount, the attorney for the Highway Department objected, saying:
“If the Court please, we object to his answer. I have no idea what it will be, but we admit that it costs money to construct ramps, but Mr. Norwood, if he gave the estimate, would be the person. I would like to have the opportunity to cross-examine him, if we are going to hear his testimony.”
Fougerousse reiterated that he “just asked him what he would charge to build the ramps,” and the court permitted the witness to answer, overruling appellant’s objection. Fougerousse then stated that the figure given was $1,460.00. This was, of course, hearsay evidence, and an almost identical situation arose in Arkansas State Highway Commission v. Carruthers, (April 7, 1969), 439 S. W. 2d 40. There, we said:
“We agree that there is merit in appellant’s first contention. During examination of Mr. Carruthers, he was asked if he would have any problem getting to a certain portion of his land, and he replied that he would not, if he could construct a bridge across a canal. The witness was then asked if he knew what that would cost, and he replied, 'I am not familiar with the building of roads. I have an estimate from a contractor.’ He then said that he asked the contractor what it would cost to build the bridge, and received a reply. Counsel for the department objected to the use of the estimate, or to any testimony to be given on the basis of same, stating, ‘That is hearsay testimony. He has no personal knowledge, it is what someone else told him.’ Over these objections, the court permitted Carruthers to testify, and the witness stated, ‘I believe it was $24,-300.00 or $24,400.00.’
We held that the ruling of the court constituted error, and reversed the judgment.
Appellees argue that there can be no prejudice even if the answer was inadmissible, because Mr. Gris-wood had already, without objection, testified that the construction of the ramps, according to Mr. Norwood, would be $970.00; that the purpose of the testimony from Fougerousse was to show the difference in the cost of constructing the ramps where the dirt would be taken from Fougerousse’s land, and where the dirt would be obtained elsewhere. The mere fact that no objection was made to Norwood’s incompetent testimony does not make Mr. Fougerousse’s incompetent testimony admissible. Even had the same identical figure been given, the evidence was inadmissible, for we cannot know just what evidence the jury considered. It is possible that they might not have accepted Griswood’s testimony but did accept Fougerousse’s. Of course, it is possible that they did not pay any attention to this evidence by either witness, but we have held that where error is committed, it is assumed to be prejudicial unless we can say with assurance that it is harmless. Arkansas State Highway Commission v. Parks, 240 Ark. 719, 401 S. W. 2d 732. We can make no such finding in this case.
We hold that the court erred in permitting Mr. Fougerousse to answer the question. However, the figure of $1,460.00 is a separable item of damages, and as pointed out in Swenson and Monroe v. Hampton, 244 Ark. 104, 424 S. W. 2d 165, when the only error relates to a separable item of damages, a new trial can sometimes be avoided by the entry of a remittitur. Here, the most that this testimony could have contributed to the $6,-000.00 judgment was the sum of $1,460.00. Therefore, if appellees wish to remit that amount within 17 days, the rest of the judgment will be affirmed. Otherwise, the case must be remanded for a new trial. | [
113,
109,
-79,
108,
-117,
-62,
90,
-104,
64,
-94,
-12,
83,
-17,
76,
20,
99,
-25,
-67,
-44,
107,
-59,
-77,
83,
-14,
-110,
-13,
-5,
-51,
57,
-51,
-28,
-43,
78,
113,
-62,
21,
98,
-30,
77,
88,
-50,
-126,
-119,
65,
-55,
102,
52,
43,
22,
15,
53,
-114,
-21,
44,
20,
-53,
77,
44,
75,
45,
73,
-6,
-86,
13,
31,
7,
32,
38,
-98,
1,
74,
44,
-104,
53,
8,
-40,
115,
-90,
-122,
84,
11,
-101,
12,
32,
-25,
17,
77,
-57,
-4,
-120,
6,
-6,
41,
-90,
64,
9,
67,
1,
-97,
-107,
-8,
22,
22,
122,
-27,
77,
89,
104,
-121,
-114,
-110,
-95,
-99,
56,
-100,
18,
-21,
-115,
18,
113,
-49,
-30,
93,
7,
114,
-101,
6,
-77
] |
George Rose Smith, Justice.
This appeal is from a circuit court -order refusing to set aside a jury verdict and grant a new trial. The appellants concede-that such an order will be reversed only upon a showing that the trial court manifestly abused its- discretion in the matter. Thomas v. Arnold, 192 Ark. 1127, 96 S. W. 2d 1108 (1936).
Over a period of years the appellants, father and son, raised turkeys, produced hen eggs, and hauled feed under contracts with the appellee Ralston Purina Company. For reasons about which the evidence is in conflict the appellants eventually became heavily indebted to Ralston Purina. The parties’ working arrangements finally came to an end in 1968, when Ralston Purina brought an action in replevin to recover possession of some 65,000 laying hens.
Thereafter the Davises brought this action against Ralston Purina and one of its employees for damages for breach of contract. Ralston Purina filed a counterclaim to recover the amounts owed to it by contract, about which there is really no dispute. The issues were submitted to a„ jury, which returned a verdict for the plaintiffs in the amount of $45,349.96 upon their complaint and a verdict for Ralston Purina in the amount of $163,142.41 upon its counterclaim.
The plaintiffs’ motion for a new trial was based essentially upon these facts: At the trial the Davises offered evidence (which Ralston Purina did not directly contradict) to show that they had suffered five items of damage for the breach of their Laying Hen Contract and one item of damage for the breach of their Feed Dealership Contract, as follows:
Laying Hen Contract
Loss on eggs sold to breaker $ 27,954.60
Loss on hens sold 6,455.36
Loss of anticipated profits 141,455.35
Loss of discount on hen feed 9,041.17
Interest charged by Ralston Purina 11,908.36
Feed Dealership Contract
Loss on overage 5,487.00
It is mathematically demonstrable that the jury’s verdict for $45,349.96 is the exact sum of the first, fifth, and sixth items listed above and that the amount of the verdict cannot be arrived at by any other combination of pertinent figures in the record. Upon that premise the appellants insist that the jury necessarily found that both contracts had been breached and therefore acted arbitrarily in not awarding the plaintiffs the full amount of damages listed in the foregoing tabulation. The appellants conclude that the trial court abused its discretion in denying their motion for a new trial.
Such an argument is fully answered by our holding in Fulbright v. Phipps, 176 Ark. 356, 3 S. W. 2d 49 (1928), and similar cases. In the Fulbright case the suit was brought to enforce a salary claim for $10,000. Under the evidence the verdict should have been for the full $10,000 or for nothing. -The jury, however, awarded the plaintiff only $5,000, which we recognized as a manifest compromise. Both parties filed motions for a new trial. We held that the trial court might properly have granted either motion if convinced that the verdict was contrary to the preponderance of the evidence, “or have overruled both motions -for a new trial if not so convinced.” In a later case we pointed out that in such a situation the arguments in favor of a larger verdict are equally balanced by those in favor of a smaller one. Alexander v. Mutual Benefit Health & Acc. Assn., 232 Ark. 348, 336 S. W. 2d 64 (1960).
In the case at bar the appellants earnestly insist that the jury, having found a breach of- the Laying Hen Contract, were somehow bound to award every cent of damages supported by the plaintiffs’ proof. That contention, however, cannot be sustained, because the testimony was by no means undisputed. For example, the loss of $141,455.35 in anticipated profits represents about 90% of the requested damages that the jury disallowed. That estimated loss was arrived at by the witness Garrett, an accountant who had been employed by the Davises to keep their books. Garrett simply started with an assumed flock of 66,000 laying hens, estimated the numer of eggs that they would have laid during the remaining life of the contract, and by a series of intricate-mathematical computations concluded that the Davises would have realized a profit of exactly $141,455.35 — to the penny — in less than a year if the contract had not been breached. On the other hand, the jury had before it the hard fact that the Davises had never been able to reach anything even approaching that scale of profits in their past operations. Quite the contrary, they owed Ralston Purina the sum of $163,-142.41 as one result of those past operations. We -certainly cannot say from the record that the jury were not warranted in rejecting Garrett’s optimism about the future.
The -trial court, in denying the appellants’ motion for a new trial, made a specific- finding that “the verdict of the jury in this matter was not contrary to the preponderance of the evidence.” There is, of course, a possibility that the trial judge actually believed that the jury awarded the plaintiffs more than they were entitled to by the weight of the evidence. In any event, we cannot say that the court’s denial of the motion for a new trial was a manifest abuse of his wide discretion in the matter.
Affirmed. | [
-13,
-4,
60,
-116,
30,
98,
32,
-102,
75,
-62,
103,
83,
-17,
-57,
20,
45,
-57,
-3,
85,
105,
-43,
-77,
5,
-96,
-13,
-9,
-5,
-59,
-75,
75,
101,
85,
76,
52,
-54,
77,
-25,
-126,
65,
24,
-20,
18,
-71,
-19,
121,
-106,
56,
105,
-44,
15,
5,
-100,
-5,
46,
-104,
71,
9,
42,
121,
41,
-64,
-15,
-86,
5,
126,
7,
-80,
36,
-102,
7,
88,
110,
-112,
61,
9,
-56,
115,
-76,
-126,
92,
67,
-103,
12,
34,
102,
2,
-119,
-59,
-40,
-100,
38,
79,
-119,
-122,
-112,
72,
3,
66,
-66,
-99,
58,
18,
22,
118,
-1,
85,
-103,
108,
3,
-121,
-108,
-125,
-113,
-28,
-98,
10,
-9,
-77,
48,
117,
-51,
-94,
92,
71,
126,
-101,
15,
-110
] |
Lyle Brown, Justice.
Herbert Lee Brown appeals from a conviction on a charge of illegal possession of narcotics. He alleges six errors for reversal, related to the issues of entrapment, the form of the verdict, the admissibility of evidence, the submission of the issue of accessory, and the alleged systematic exclusion of Negroes from the jury panel.
Ft. Smith law enforcement officers had reason to believe that one Angus Triplett, a Negro, was engaged in the illegal narcotics traffic. In an effort to get evidence on Triplett the officials utilized the help of a white girl, sixteen years of age, who undoubtedly had some knowledge of Triplett’s activities. The young girl and her older sister, along with a detective sergeant, stationed themselves in a motel room in Ft. Smith. The young girl called Triplett and asked for a substantial quantity of marijuana. Triplett agreed to deliver it to the motel. After an hour or more elapsed the girl again called and was advised that Triplett’s car would not start; and that he had called a friend, Herbert Lee Brown, who had agreed to pick him up. About an hour later the two men arrived in appellant’s car and entered the motel room at the same time. The detective sergeant had concealed himself in the bathroom but in a position where he could see the girls and the men.
According to the State’s testimony, appellant took from his pocket a matchbox containing marijuana; he threw it on the bed with the remark that they had brought a sample, and that they needed to get the money so they could obtain the balance and deliver it that night. Thereupon the detective entered the room, arrested the two men, and retrieved the matchbox. Appellant testified that Triplett called and asked appel lant to drive him to the motel where two white girls were waiting to have a date with them. Appellant insisted that it was Triplett who had the matchbox and threw it on the bed. Triplett did not testify. Our summary of the testimony will suffice for an understanding of most of the points for reversal. Other facts related to particular points will be hereafter recited.
Point I. The trial court erred in holding at the outset of the trial that entrapment was not an issue. In the course of his opening statement the prosecuting attorney alluded to the reasons for the set-up made at the tourist court. The trial judge interrupted and called the attorneys to the bench where he advised them: “I understand the facts of this case and I’m ruling that there is no entrapment.” Attorney Wilder, appellant’s counsel, advised the court of his position that entrapment “is an issue in a case like this.” The court disagreed and exceptions were saved.
We presume the factual contentions of the State and defendants were revealed to the court at conferences preliminary to the trial. The record discloses that the trial judge discussed the cases against both Triplett and Brown with their respective attorneys well in advance of the trial. Information revealed in such pretrial conferences is helpful to the court in enabling the judge to anticipate any unusual legal problems which might arise at trial. At any rate the logical conclusion is that the trial judge concluded from the facts so deduced that the defense of entrapment did not as a matter of law have any place in the case. Therefore, it was thought best to make the ruling at the outset of the trial.
Sound appellate review dictates that such an advance ruling in a criminal trial should ordinarily be accompanied by a record of the proceedings (or stipulation) upon which the trial judge bases his holding. The reasons are so apparent as to obviate discussion. Fortunately it so happens in this particular case that the trial judge’s advance ruling was supported by the evidence. It must be remembered that entrapment is an affirmative defense. No substantial evidence was offered to establish that Triplett was deceitfully persuaded to do anything more than he was already willing to do. See Peters v. State, 248 Ark. 134, 450 S. W. 2d 276. 'Secondly, it is undisputed that appellant was never contacted by an officer or anyone in the State’s behalf. Appellant’s sole contact was with Triplett. Finally, appellant’s defense, to which he testified, is inconsistent with the defense of entrapment. Appellant denied having any connection with, or knowledge of, the marijuana. In that situation he was not entitled to the defense of entrapment. The question was raised in Rodriguez v. United States, 227 F. 2d 912 (1955), and the court said:
Moreover, in refusing to charge the jury on entrapment, the court stated that, the defense was not available where, as in this case, the defendant denies the very acts upon which the prosecution and the defense are necessarily predicated. It is true that this defense may be raised even though the defendant pleads not guilty, but it ‘assumes that the act charged was committed,’ and where the defendant insists, as she did here, that she did not commit the acts charged, one of the bases of the defense is absent. On this ground and for the other reasons mentioned, the district court was not in error in refusing the appellant’s motion or requested charge on entrapment.
The rule stated in Rodriguez is decidedly the majority rule. 61 A. L. R. 2d, p. 677; 21 Am. Jur. 2d § 144, p. 214.
Point II. The verdict is against the law. The first argument under this point is that the court erred in requiring the jury to assess a fine in addition to a penitentiary sentence. Initially the jury returned a verdict of guilty and fixed punishment at two years. The jury was instructed to return to deliberations and amend the verdict by also imposing a fine. There upon the jury added a fine of One Dollar. Appellant contends that the statute does not require a fine, that its assessment taints the verdict and requires that it be set asicle. That part of the penalty statute (Ark. Stat. Ann. § 82-1020 [Supp. 1969]) applicable to this case provides that the violator shall be “fined not more than $2,000, and be imprisoned in the State Penitentiary not less than two nor more than five years.” Appellant is asking us to substitute for the word and in the penalty clause the word or, which we refuse to do. When the Legislature used the conjunction and it expressed the intention that the two punishments were to be added one to the other. That is the general sense in which and is used when connecting two phrases of the type before us. The word has been defined, in its conjunctive sense, as expressing the relation of addition. Oliver v. Oliver, 149 S. W. 2d 540 (Ky. 1941).
The second argument under Point II is that the evidence was insufficient to justify an instruction under which the jury could find appellant guilty as an accessory. Appellant did not make that objection known at the time of trial and is not now in any position to complain.
Point III. The verdict is against the evidence. Under this point appellant first attacks the testimony of Mrs. Letha Harrison, a chemist for the State Health Department. We are asked to say that her test of the material was so perfunctory as not to establish a reliable conclusion. We cannot agree. Mrs. Harrison’s credentials showed her to be a graduate in chemistry from Henderson State College. She testified that after graduation she worked in an ordnance plant at Camden and at the same time ran chemical tests for the Arkansas State Police; and that for four months she had been working in the same capacity for the Health Department. She explained that she used a well-recognized professional procedure (Duquanious Test) for testing a portion of the contents of the matchbox. She concluded that the box contained cannabis sativa (mari juana). Our brief summary of her evidence is sufficient to show that it made a question for the jury and we think substantially so.
The second attack on the evidence under this point concerns the proffered testimony of Dr. H. P. McDonald. According to appellant’s counsel, this witness — had he been permitted to take the witness stand —would have testified that marijuana is not a narcotic. Marijuana has long been classified by our General Assembly as a prohibited drug. Ark. Stat. Ann. § 82-1001 (Supp. 1969). The fact that Dr. McDonald might disagree with the legislative pronouncement is of no relevancy in the case.
Point IV. The jury was incorrectly selected. Here appellant relates that there were only two Negroes on the panel of thirty jurors called for service in the case and that the State exercised peremptory challenges on both Negroes. Consequently, avers appellant, he was unconstitutionally denied, as a Negro, equal protection guaranteed by the Fourteenth Amendment to the United States Constitution. Here is the complete record on the point:
MR. WILDER: At this time the defendant would like to make his objection to the fact that there were just a small number of colored people on this panel and that the State has systematically excluded the only colored people available to try this defendant. There was one in each group of twelve that was taken and that was the only challenge exercised by the State that I know of.
No evidence being in the record to support appellant’s assertion on appeal of systematic or intentional exclusion of Negroes from jury service, that phase of his objection must fail. Brown v. State, 239 Ark. 909, 395 S. W. 2d 344 (1965). With respect to the attack on the State’s peremptory challenges, the prosecuting at torney had the right to six such challenges without inhibition.
Affirmed. | [
48,
-18,
-23,
-97,
58,
100,
44,
-72,
80,
-31,
118,
83,
-23,
95,
5,
123,
-119,
95,
85,
105,
-28,
-73,
7,
97,
-62,
-13,
123,
-44,
-75,
-49,
46,
-3,
8,
112,
-126,
25,
102,
-120,
-25,
88,
-50,
1,
-96,
98,
-101,
2,
36,
47,
7,
78,
113,
-114,
-13,
42,
24,
-53,
73,
44,
-53,
60,
72,
-15,
-102,
87,
-19,
20,
-93,
-28,
-101,
5,
-8,
36,
-44,
49,
-127,
120,
115,
-124,
-126,
116,
47,
-103,
-116,
32,
98,
0,
125,
-19,
-84,
-128,
63,
46,
-75,
-90,
24,
72,
67,
109,
-74,
-99,
38,
20,
14,
-8,
-7,
-59,
17,
100,
37,
-49,
-112,
-109,
-115,
40,
-126,
-69,
-13,
37,
16,
113,
-49,
-90,
92,
116,
121,
-101,
-113,
-74
] |
Conley Byrd, Justice.
Appellant, the City of DeWitt, on December 2, 1965, passed an ordinance requiring all utility companies doing business within the city to maintain a business office in the city. On December 18, appellee General Telephone Company of the Southwest filed its complaint with the Public Service Commission pursuant to Ark. Stat. Ann. § 73-208(d) (Repl. 1957), alleging that the ordinance was unreasonable, unjust and unlawful and, in the alternative, that the additional expense caused by the ordinance be passed on to the defendant city rather than to all telephone company subscribers. The matter was heard by the Public Service Commission on July 8 and July 19, 1968, and the final brief was submitted on Sept. 26, 1968. On Dec. 18, 1968, the Public Service Commission, with one commissioner dissenting, found that the ordinance was unreasonable, unjust and unlawful and relieved the company of any obligation to comply with the ordinance. On appeal the circuit court denied relief to the city. Here the city contends that the Public Service Commission was without jurisdiction and that the Commission order was not based upon evidence presented at the hearing.
The findings of the Public Service Commission from which the city appeals are as follows:
“5. The DeWitt business office is a two (2) employee office in which the employees handle such office operations as receipt of customer payments, answering of customer questions interpreting and applying tariffs, and reporting all such information back to the Company. The evidence revealed that seventy-five per cent (75%) of the accounts which are handled in the DeWitt business office are paid by mail. The trend is away from personal contacts by customers at that office. Small business offices with one or two employees, such as DeWitt, cause a problem for the Company’s customers and for the Company because such offices cannot be well supervised; employee replacements for sickness, vacations and other absences must be brought in from other towns; proper training is difficult to keep the employees advised of current changes; and work flow cannot be properly spread over the entire month.
“6. A consolidated business qffice operation is more efficient because the work load can be spread out over the month and an employee can become more specialized in the handling of a certain operation. A consolidated business office operation also permits greater flexibility in the handling of sudden changes or emergency situations since more employees are available. There is better coverage from the standpoint of more employees where you have sicknesses, vacations, and resignations. Better supervision and training of employees is also possible with consolidation, and this results in better servicing of the customers’ needs.
“7. The testimony showed that after consolidation the DeWitt customers may pay their bills either at the DeWitt payment contractor (Schallhorn Hardware in DeWitt) or mail them to the Stuttgart, Arkansas, business office.. A self-addressed return envelope is included with the customers’ bills. The DeWitt payment contractor is conveniently located and its hours are longer than the business office hours, permitting more time for the customers to pay their bills. A payment contractor is a reasonable method for receiving customer payments. After consolidation, questions regarding a bill can be answered by the customers calling the consolidated office in Stuttgart toll-free. Applications for service can be made by calling the same Stuttgart telephone number toll-free. Reports by customers of service outage or service difficulties will continue to be made in the same manner as before consolidation.
“8. The testimony showed that consolidation of other business offices by the Company has not resulted in a deterioration of service and it does not appear that telephone service to the DeWitt customers will deteriorate after consolidation of the DeWitt office into the Stuttgart business office. The testimony showed that the trend in the telephone industry is toward consolidation. Such consolidation is a modern method necessary to meet changing times. It appears that the decision to consolidate the DeWitt business office operation into the Stuttgart business office operation is the result of prudent business judgment and to require the business office to be maintained in DeWitt is both unreasonable and unjust and unnecessary.”
The statute applicable here is Ark. Stat. Ann. § 73-208 (Repl. 1957):
“73-208. Every city and town shall have jurisdiction, acting by ordinance or resolution of its council or commission.
(a) To determine the quality and character of, and the rates for, each kind of product or service to be furnished or rendered by any public utility within said city or town, and all other terms and conditions upon which such public utility may be permitted to occupy the streets, highways or other public place within the municipality, and such ordinance or resolution shall be deemed prima facie reasonable.
(d) Any public utility affected by any such ordinance or resolution, or any other party authorized to complain to the Department [Commission] under Section 17 [§ 73-216] hereof, may appeal from the action of said council or commission by filing, within twenty [20] days of such final action, a written complaint with the Department [Com mission] setting out wherein the ordinance or resolution is unjust, unreasonable, or unlawful, whereupon the Department [Commission] shall proceed with an investigation, hearing, or determination of the matters complained of with the same procedure that it would dispose of any other complaint made to it and with like effect. . .
(e) In all matters of which by this Act the Department [Commission] and cities and towns are each given original jurisdiction, such jurisdiction shall be concurrent and the cities and towns shall take no action with respect to any matter under investigation by the Department [Commission] until the same has finally been disposed of by the Department [Commission] and the Department shall take no action with respect to any matter which is the subject of an ordinance or resolution pending before the council or commission of any city or town until the same has finally been disposed of.
(f) That nothing in this Act shall deprive or be construed as depriving any municipality of the benefits of rights accrued or accruing to it under any franchise or contract to which it may be a party, and neither the Department [Commission] nor any court exercising jurisdiction under this Act shall deprive such municipality of any such benefit or right.”
POINT 1. (a): The city here makes two arguments to show that the Public Service Commission was without jurisdiction. The first is that the ordinance passed by the city, containing an emergency clause, was not final because of the possibility of filing a referendum petition pursuant to Amendment 7 of the Arkansas Constitution. The other argument is that under the terms of the franchise between the city and the telephone company, the city had a right to prevent the telephone company from moving its business office. We find no merit in the latter argument since the franchise agreement specifically provides that, “[T]he Telephone Com pany shall continue to exercise its right to place, remove, construct and reconstruct ... its plant and appurtenances as the business and purpose for which it is or may be incorporated may from time to time require. . . .” Under its first argument the city contends that even though its ordinance contained an emergency clause the ordinance did not become final, for purposes of appeal under Ark. Stat. Ann. § 73-208(e), until the 30 days for filing a referendum provided in Amendment 7 with reference to franchise agreements had expired. The city has cited no authority to support its proposition and under the record here we hold that it is estopped to deny that the matter had been finally disposed of before the city council for purposes of taking an appeal under the statute.
POINT 1 (b): The city here points out that under Ark. Stat. Ann. § 73-229 (Repl. 1957), the Public Service Commission is required within 60 days after the conclusion of any hearing to file its findings and order, if any. Because of this statute it argues that the Commission was without jurisdiction to enter an order more than 60 days after the final brief was filed. We do not agree. As we interpret the statute it is directory only and noncompliance therewith does not invalidate an order of the Commission. See Mt. Konocti Light & Power Co. v. Thelen, 170 Cal. 468, 150 P. 359 (1915); Fuller-Toponce Truck Co. v. Public Service Comm., 96 P. 2d 725 (Utah 1939).
POINT 2 (a) & (b): Under point 2 (a) the city argues that every reasonable presumption must be indulged in the validity of the ordinance and that such validity can only be overcome by clear and satisfactory evidence. Based upon this argument the city contends that General Telephone Co. did not meet its burden of proof. We disagree with appellant. Ark. Stat. Ann. § 73-208(d) provides that on appeal the department shall proceed with an investigation, hearing, or determination of the matters complained of with the same procedure that it would dispose of any other complaint made to it and with like effect. In this connection we have repeatedly held that if the commission’s order is supported by substantial evidence, free from fraud, and not arbitrary, it is the duty of the courts to permit it to stand even though the courts might disagree with the wisdom of the order. See Allied Telephone Co. v. Arkansas Public Service Commission, 239 Ark. 492, 393 S. W. 2d 206 (1965).
The record here shows that the General Telephone Company breaks down its operations into categories and that in this proceeding it is concerned only with the business office and not with its physical services such as installation and maintenance of lines and telephones.
Mr. John Skinner of Texarkana, Texas, area operation manager of General Telephone Co., testified that there has been a change in the operation of telephone companies in general which would influence whether or not management wanted to maintain the office in DeWitt, that is, that there is a trend toward consolidation. He stated that the principal reason for consolidating the business office is to effect more efficient service through better trained employees. That the employees must become familiar with all general and exchange tariffs and that the company has a problem in trying to train its people. That in consolidating the business office it would be able to accumulate accounts so as to have a concentration of people, making possible training that it cannot give in smaller offices. In the larger offices it has designated daily periods to train employees.
He says there are some eight broad work categories in its business offices and that one person can learn one or two of these and become familiar with the volume and become more efficient. In addition it can provide coverage from the standpoint of more employees with reference to sickness, vacation and resignations. He stated that by consolidating the offices it can more readily furnish service to the customer and with less loss of time — for instance, in a small office the em ployee who took an order had to type a number of papers to distribute to different divisions of the company before actual installation of a telephone could start and that if that employee became sick, resigned, etc., there was often as much as two weeks delay in transmitting the desired information to the proper offices before the actual physical service of installation would commence. He said that in a concentrated business office more coverage could be given to such service to the customer and less delay would result in the actual physical services needed to be performed.
In the event the company was permitted to move the office ffrom DeWitt to Stuttgart applications for new service or changing service could be made by telephone by special reverse toll or no charge to the customer. The customer could report trouble just as before by picking up the telephone. Since there was to be no change in the physical service part of the telephone operation, the customers in De Witt and nearby areas would receive just as prompt attention as before.
He pointed out that the trend was away from oeople coming in the business office at DeWitt to pay their bills. Their records showed that 75% of accounts are handled by mail. However, for the benefit of those persons who still wish to pay in person a payment office was being maintained in the City of DeWitt which would actually provide longer hours for the payment of bills than the business office provided.
Mr. Skinner said he had canvassed other cities where business offices had been closed and consolidated and that in no case did he receive any complaints about the treatment customers had received from the business office. In fact in one town the people he contacted were complimentary.
Other testimony by Mr. Skinner showed that there would be a savings to the General Telephone Co. of $5,941.61 per year if the consolidation could be affected. It was his testimony that it would be unfair for the company’s general subscribers to absorb this cost.
The city, on the other hand, produced the testimony of Mr. John Schallhorn, Mayor of the City of DeWitt; Mr. Dupslaff, Mayor of St. Charles; Mr. Herbert Hoizhauer, Mayor of Gillett; Mr. W. W. Turner, President and Chairman of the Board of the Bank of Gillett and a member of the Farm Bureau of Arkansas County; Mr. Harold Stephenson, an Alderman from Ward 2 in the City of DeWitt; and Mr. John L. Peterson, the County Judge of Arkansas County, all of whom pointed out that the City of DeWitt was the center of commerce of the areas served by the business office and that it would be a convenience to the people there involved to do their telephone company business in DeWitt rather than Stuttgart. They pointed out that the average businessman would be in DeWitt once or twice a week whereas,' they would not average going to Stuttgart, a distance of some 50 miles, more than once or twice a month. However, each of the witnesses stated, in answer to questions from Commissioner Downie, that if the removal of this business office to Stuttgart would cause an upgrading of their present service they would favor the move. Needless to say, each witness had many complaints with reference to the telephone company’s service. However, their complaints may have been considered by the Commission as going to that part of the telephone company’s operation designated “physical services” rather than having to do with the business office.
Based upon the record before us we are not in a position to say that the Public Service Commission order was arbitrary. We certainly cannot say that Mr. Skinner’s testimony is not substantial enough to support the decision of the Commissioners.
Under its Point 2 the City also argues that the concurring members of the Public Service Commission were arbitrary throughout the proceeding. The City’s argument here is apparently based upon some rather stern inquiries made by the Commissioners relative to physical services furnished by the General Telephone Co. in and around Cabot, Jacksonville, and Stuttgart where other business offices have been closed or consolidated. These inquiries or exchanges occurred between the Commission members and the General Telephone Company’s witness, Mr. Skinner. We find nothing in these inquiries with reference to physical services to show that the concurring members were arbitrary with reference to the removal of the business office from DeWitt.
Affirmed.
Harris, C. J. and Fogleman, dissent. | [
48,
124,
-12,
-4,
42,
-32,
18,
-74,
91,
-79,
-89,
115,
-85,
-48,
-99,
113,
-13,
121,
84,
99,
-27,
-14,
67,
98,
74,
-45,
-13,
-59,
-14,
75,
-12,
-51,
72,
33,
-54,
-99,
-58,
68,
-49,
-36,
86,
35,
11,
108,
120,
-62,
48,
121,
50,
75,
85,
13,
-77,
12,
24,
-61,
73,
44,
93,
-96,
-29,
-14,
-38,
-107,
127,
6,
19,
101,
24,
-121,
-32,
30,
-104,
49,
-80,
-88,
115,
-90,
-90,
116,
5,
-7,
4,
96,
98,
2,
-123,
-19,
-32,
-88,
6,
-66,
-99,
-92,
-79,
56,
11,
15,
-66,
-108,
96,
-58,
3,
-4,
-5,
5,
95,
108,
-117,
-114,
-42,
-77,
-123,
-24,
-106,
3,
-17,
102,
4,
117,
-54,
-13,
-33,
79,
19,
27,
70,
-43
] |
Frank Holt, Justice.
In this workmen’s compensation case the only issue is whether the deceased was an employee of Ward’s Pulpwood Yard or an independent contractor at the time of his death. The referee conducted a hearing and dismissed appellant’s claim on the basis that the decedent was an independent contractor and not Ward’s employee. The dismissal of the claim was affirmed by the Workmen’s Compensation Commission and by the circuit court from which comes this appeal.
Appellant first contends for reversal that the circuit court erred in affirming the commission’s dismissal of this claim on the ground that the deceased was not Ward’s employee. We review the evidence to determine if there is substantial evidence to support the findings of the commission, inasmuch as we are committed to the rule that the findings of the commission, like that of a jury, will be upheld if there is any substantial evidence to support its action. Herman Wilson Lbr. Co. et al v. Lester Hughes, 245 Ark. 168, 431 S. W. 2d 487 (1968).
Appellee Ward had a written contract with International Paper Company to cut and haul timber to its mill from a tract of land owned by the paper company. By this contract Ward was to cut and haul all of the merchantable pine timber that measured four inches or larger in diameter. Appellee Ward entered into an oral contract with Wallace Voss to perform Ward’s contract obligations to the paper company. It was agreed that Ward would pay Voss a certain sum of money for each cord of wood he cut and hauled from the paper company’s land to the mill. Mr. Voss suffered a fatal heart attack when he and his helper attempted to free Voss’s loaded truck which had become “stuck” or mired in the woods as they were hauling a load to the mill. Voss, the decedent, owned all the equipment, including saws and truck, necessary to perform his contract with Ward. He had two employees which he hired, controlled, and paid per load by the week. Voss had worked primarily for Ward for about three years. During this time he also hauled timber for others. Sometimes Voss himself would buy timber and sell it to Ward, as would other haulers. There was no requirement that Voss work any particular time. The cutting, loading, and hauling of the pine timber were entirely within the discretion of Voss, except that Ward would occasionally examine the cutting operation to determine if the size of the logs being cut met the terms of the agreement. Ward made no deductions of any kind whenever he paid Voss.
We must agree with the appellees that there is substantial evidence to support the commission’s finding that Mr. Voss, the deceased, was not an employee of appellee Ward. Lockeby v. Ozan Lbr. Co., 219 Ark. 154, 242 S. W. 2d 115 (1951); Marceline Pearson et al v. Lake Lawrence Pulpwood Co. et al, (Dec. 8, 1969) 447 S. W. 2d 661. Nor can we agree with the appellant that Hale v. Mansfield Lbr. Co., 237 Ark. 854, 376 S. W. 2d 670 (1964), is applicable. In that case the company agreed to pay workmen’s compensation insurance premiums upon the claimant as a part of his remuneration. No such agreement exists in the case at bar. Neither can we agree with the appellant that Ark. Stat. Ann. § 81-1306 (Repl. 1960) is applicable.. That statute provides that the prime contractor shall be liable for compensation to the employees of a sub-contractor when the sub-contractor fails to secure the required workmen’s compensation insurance.
The appellant next contends that the appellees are estopped from defending this claim upon the basis that Mr. Voss was an independent contractor. This is predicated upon the fact that Ward had turned in a claim for Voss about a year previous and it had been paid. Ward testified that he thought Voss was an independent contractor. However, the insurance carrier was never made aware that Voss was considered an independent contractor. The appellant relies upon Stillman v. Jim Walter Corp., 236 Ark. 808, 368 S. W. 2d 270 (1963), and Hale v. Mansfield Lbr. Co., supra, where the doctrine of estoppel was applied. We do not consider these cases controlling in the case at bar. In each of those cases there was a contractual agreement that the payment of workmen’s compensation insurance premiums by the company was a part of each claimant’s pay and these premiums were deducted from the payments made to the claimant. No such agreement or deduction appears to exist in the case at bar. Nor is there sufficient evidence adduced as to the exact relationship between the parties and the present appellee carrier when this previous claim was paid. See Marceline Pearson et al v. Lake Lawrence Pulpwood Co. et al, supra.
The appellant next asserts that regardless of the decedent’s employment status and the availability of the doctrine of estoppel, the appellees are contractually obligated to pay workmen’s compensation benefits in the circumstances of the case at bar. We find no merit in this contention. Appellant relies upon Ward’s compensation insurance policy which provides that the policy premium is to be computed on the basis of the annual remuneration paid to persons engaged in: “Logging or lumbering — pulpwood exclusively — including transportation of logs to mill . . . drivers.” And paid to: “# # # (a) all executive officers and other employees of the insured engaged in operations covered by this policy, and (b) any other person performing work which may render the company liable under this policy for injury to or death of such person in accordance with the workmen’s compensation law . . .”
It is appellant’s argument that what Ward paid to Voss must have been considered in the computation of the annual premiums which Ward paid on his policy of workmen’s compensation insurance and, furthermore, that it is clearly inferable that Ward procured insurance coverage for Mr. Voss and his helpers. There is no evidence that insurance premiums were being paid by appellee Ward based upon remuneration to claimant’s decedent or that there was an obligation to do so. As indicated, there is an absence of proof of any contractual agreement between the parties as to the payment of premiums such as existed in Stillman v. Walter, supra, and Hale v. Mansfield, supra. The burden of proof rests upon a claimant to establish his claim for compensation. Brooks v. Wage et al, 242 Ark. 486, 414 S. W. 2d 100 (1967).
The finding of the commission was based upon substantial evidence, therefore, the judgment of the circuit court is affirmed.
Affirmed. | [
112,
126,
-40,
-100,
8,
-22,
58,
-102,
91,
-17,
33,
115,
-49,
-125,
77,
33,
-29,
29,
81,
43,
-9,
-109,
23,
99,
-46,
-105,
-15,
-59,
-71,
75,
116,
-98,
76,
52,
10,
-43,
-29,
8,
-59,
24,
-52,
4,
-88,
107,
89,
80,
56,
-18,
-44,
79,
49,
-98,
-69,
40,
21,
-53,
45,
46,
111,
41,
80,
-15,
-118,
5,
95,
31,
-128,
6,
-100,
13,
88,
15,
-111,
49,
8,
-24,
123,
-74,
-123,
84,
35,
-100,
12,
102,
99,
32,
21,
-25,
-24,
-104,
46,
-66,
29,
-89,
-104,
56,
35,
91,
-108,
-99,
82,
20,
22,
-2,
-2,
85,
29,
100,
3,
-121,
-12,
-126,
-97,
-92,
-98,
-117,
-49,
-125,
51,
117,
-34,
-94,
92,
103,
82,
27,
-121,
-109
] |
Conley Byrd, Justice.
This is a boundary dispute between appellant M. E. Witkowski and appellee Mrs. George C. White. Appellee owns the SE NW of Sec. 12, T. 2N., R. 13 W., and appellee owns the ENE NW. In addition to the parties, three surveyors, Max A. Mehlburger, Forrest Marlar, and Orson Jewell, testified about location of the boundary, each reaching a different result. The trial court accepted the Mehlburger survey and entered a decree in accordance therewith. For' reversal appellant contends that the decree is not supported by sufficient evidence; that the Chancellor should have accepted an alleged original corner as shown by a stone and a fence line; and that, in any event, the Chancellor erred in not equally dividing the short quarter between the parties.
Mr. Max Mehlburger testified that his survey party found three pins on the White tract, one each at the northeast corner, the northwest corner and the southwest corner. They also found a stone 661 feet west of the southwest corner. The southeast corner of the White tract was set by drawing a straight line from the latter stone through the iron pin at the southwest corner, a distance of 660 feet east of the southwest corner. This placed the southeast corner 1,331 feet from the northeast corner. In getting ready for trial Mr. Mehlburger’s survey crew rechecked their survey and in doing so found a pin at the northeast corner of the SE NE, on the boundary between sections 12 and 7. They then found that the southern boundary when extended from the stone, to the west, through the pin at the southwest corner of the White tract and through the pin found at the northeast corner of the SE NE was in a straight line.
In checking his survey against Mr. Forrest Marlar’s survey, who used the same iron pin at the southwest corner of Mrs. White’s tract, Mr. Mehlburger pointed out that the southern boundary of Mrs. White’s property commencing at the southwest terminus would angle northward to Mrs. White’s eastern boundary and that if the same point were used for the southern boundary of the NÍ4 NE, the line would angle southward to the point where it reached the northeast corner of the SE NE.
Mr. Forrest Marlar, a civil engineer, testified that in making his survey he began at a stone on the fence line at the southeast corner of the NWM of section 12 and ran north to an iron pin which he found on the north line of the section. The distance was 2,595.74 feet. As a result he set an iron pin half way or a distance of 1,297.87 feet from the north line. In making his survey a stone was uncovered approximately 29 feet north and 10.7 feet east of the pin that he set. He found an old fence line going west from the stone. The corner established by him is 34J£ feet north of the corner established by Mr. Mehlburger’s survey. On cross-examination Mr. Marlar admitted that on the southwest corner he found the same stone that Mr. Mehlburger found and that the line from the other side would have to angle to come to his pin.
The Pulaski County Surveyor, Mr. Orson Jewell, made a survey of the area by commencing on the north line and surveying south to the center of the section. He then went back and, commencing on the north line, surveyed north for a quarter of a mile where he located a stone. To further check his figures he surveyed a half-mile south of what he considered the center of section 12. According to the monuments he found, he concluded that there was a definite shortage in the north half of section 12. In making his survey he established the southern boundary of the White tract as 1,303.5 feet from the north line of section 12.
Mr. Mehlburger on the other hand testified that section 12 was a regular section and that according to the U. S. Government surveys, a copy of which he introduced into the record, there was no shortage in the north half of section 12.
Mr. Marion Witkowski testified that there was a distinct timberline separating a field from an old wooded area; that the corn rows are still there as evidence. According to his testimony the line existing along and between the field and the timberline would line up with the old fence row that Mr. Marlar described, and along the location of the fence that he had erected.
As we view the testimony, there is a difference of opinion between the surveyor Mehlburger and the sur veyor Jewell as to whether there is a shortage in the north half of section 12. Further, the proof shows that three surveyors surveyed in the field and that none accepted the stone monument and fence lines as an established corner.
Under the evidence as we view it, the Chancellor had before him three surveys, one of which fixed the southeast corner of the White tract as 1,297.87 feet from the northern boundary; one which fixed the southeastern corner as 1,303.5 feet from the northern boundary and the third of which fixed the southeastern corner at 1,331 feet from the northern boundary. As far as the record shows all of the surveyors are competent and experienced in their field of work. Consequently, we cannot say that the trial court in accepting the Mehlburger survey acted contrary to a preponderence of the evidence. Furthermore, since none of the surveyors accepted the stone upon which appellant relies as a monument or an established corner we are at a loss to understand why the trial court erred in not doing so under the facts here.
Affirmed. | [
117,
-6,
-4,
92,
-102,
0,
-72,
-102,
107,
-87,
23,
115,
-19,
-38,
28,
80,
-29,
-103,
81,
43,
-26,
-77,
23,
101,
80,
-13,
-13,
-35,
-68,
92,
84,
-33,
76,
40,
-56,
85,
98,
-62,
-51,
-36,
-114,
12,
-85,
110,
-48,
-16,
56,
125,
114,
79,
113,
-113,
-93,
44,
20,
-29,
-55,
44,
-85,
41,
0,
-8,
-90,
-108,
91,
6,
17,
55,
-104,
-125,
92,
58,
-104,
53,
-84,
-23,
115,
-74,
-42,
116,
7,
-71,
12,
96,
102,
9,
-23,
-81,
-72,
-100,
14,
-6,
-115,
-89,
114,
16,
65,
0,
-65,
-99,
117,
80,
71,
126,
-20,
5,
22,
124,
-93,
-53,
-106,
-95,
-113,
58,
-124,
-105,
-53,
-93,
23,
112,
-59,
-22,
93,
118,
49,
11,
-98,
-104
] |
Conley Byrd, Justice.
At issue between appellants Pleasant Porter, Bernard J. Birnbach and Beloit Taylor and appellees Aileen Cammack Tobin, Jeanne White Crenshaw, Ann Tucker Williams, Frank Broadus White and Kathryn White Boulware, residuary beneficiaries of a trust established by Kate G. Cammack, deceased, is the amount of fees due Pleasant Porter and Bernard J. Birnbach as trustees and Beloit Taylor as their counsel.
Appellees in the trial court pointed out that the trustees and their counsel had already received $27,000 each for their services to the trust, that their counsel, Mr. Taylor, had received $17,200 for probating Mrs. Cammack’s estate and that Mr. Porter and Mr. Birnbach as executors had received $8,600 each. They then prayed that the court deny any additional fees to either the trustees or their counsel.
The trial court characterized appellants’ request for allowance of fees as one for “additional compensation" or “extra compensation” and denied the trustees’ request. It did allow appellant Taylor $2,500 as an additional legal fee for closing the trust estate. From this order appellants Porter, Birnbach and Taylor appeal.
The record shows that from time to time a partial allowance of fees was made to the trustees and their counsel. Typical of the orders so entered is that of 12-19-68 which provides:
“The Court doth consider, order, adjudge and decree that the accounting of the Trustees of said estate and the distribution of assets therein reflected be and the same is hereby approved and confirmed in all respects, and that each of the Trustees, Pleasant Porter and Bernard J. Birnbach, and the Attorney for the Estate, Beloit Taylor, each be and they are hereby allowed, as partial compensation for their services, the sum of Three Thousand and No/100 Dollars ($3,000.00) to be charged against the ultimate fee to be allowed to each of them, and the Trustees are hereby authorized and directed to make disbursements accordingly, taking credit therefor in their accounting and crediting such amounts against total allowances for services as such allowances may be finally fixed by the Court.”
The record also shows that the trust corpus at the beginning consisted of personalty valued at $121,055.65 and real estate valued at $288,325.00 for a total inventory value of $409,380.65. The real estate was comprised of 242 wholly owned individual parcels and 52 jointly owned parcels. The income of the trust from January 1, 1962, to November 4, 1969, was $1,236,081.14. Of this, $1,008,564.83 came from the sale of real estate— the balance came from profits on personalty, rental income, interest, etc.
A recapitulation of the accounting show the following:
Trust Corpus $ 409,380.65
Income 1,236,081.14
Total to account for $1,645,461.79
Credits:
Paid to Beneficiaries 64,426.57
Income taxes 257,743.97
Gen. Property Taxes 25,993.45
Bookkeeping & Auditing 5.600.00
Abstracts & Title Ins. 1.048.00
Documentary Stamps 1,260.60
Surveys & Engineering 3,712.25
Insurance & Repairs 1,315.50
Miscellaneous 814.16
Fees of Trustees & Attorney 81,000.00
Total Credits 442,914.50
Balance to account for $1,202,547.29
According to the accountings filed, the balance of $1,202,547.29 in the hands of the trustees consisted of realty inventoried at $119,370.00 and the remaining $1,083,177.29 was cash or its equivalent.
At the trial court hearing, appellants called as witnesses Edward L. Wright, Sr., Leon B. Catlett, James H. Rice, Jr., and W. R. Meeks. Appellees called appellants Pleasant Porter and Bernard J. Birnbach as hostile witnesses and rested.
Mr.. Wright testified that he represented the Warren E. Lenon estate, a joint owner of some of the jointly owned Cammack properties. As such representative Mr. Wright had much praise for the skill and ability of the Cammack trustees. Based upon his personal observations, the records and his experience in estate and trust matters, he was of the opinion that an overall fee for the trustees and lawyer for services rendered should be $150,000.00, Against this would be credited the $81,000.00 already paid.
Mr. Leon Catlett, after reviewing the annual accountings filed and the results obtained, concluded that a minimum fee of $165,000.00 for the trustees and the lawyer for the handling of the estate would be most reasonable.
Mr. James H. Rice Jr., Senior Vice President, Trust and Estate Division of the First National Bank in Little Rock, testified that he had been handling trust matters for eighteen years. Based upon an examination of the records and the results obtained it was his opinion that a reasonable fee for the two trustees and the attorney would be in the neighborhood of $160,000.00 to $180,000.00.
On cross-examination Mr. Rice stated that the bank for which he worked had a schedule of basic charges for trusts. The current schedule, adopted August 1, 1969, was necessary because the old schedule proved inadequate. At this point Mr. Rice was asked to calculate what the trustees’ fees would be according to his bank’s schedule. The record thereafter is as follows:
“A. Rent collected, $20,600.00, at five percent, $1,031.00. Notes and accounts collected, $362,-000.00. Basic annual personalty, $4,187,000.00. The calculations on the personalty at one half of one percent for the first $40,000.00 per annum and three eighths of one percent on the excess amounts to a total of $22,50(3.00. On the sale of real estate at $1,177,000.00 at ten percent, $117,000.00. Termination fee on $1,-500,000 at two percent, $30,000.00. The fee on the real estate held in the trust and inventory values over the eight year period, the value is $1,673,000.00. The fee calculated at one half of one percent on the first fifty thousand per annum would be $2,000.00, and three eighths of one percent on the excess, $4,800.00, for a total of $6,800.00. A total of all those figures is approximately $178,000.00.
Q. Now then, if you eliminated the termination fee and eliminated the ten percent real estate commission, what would the total be?
A. $147,000.00 less.
Q. What would the total be? My arithmetic is not very good.
A. $31,000.00.
Q. $31,000.00 total. Now if you used your six percent which you say is now the basic real estate charge but not in effect at the time the trust came into existence what would that be?
A. Approximately $70,600.00.
Q. So adding that to $31,000.00, what do we get?
A. $101,600.00.
Q,. Which is substantially below your first estimate on what would be a reasonable fee, correct?
A. Yes, sir.
Q. Now as you stated you handle many estates. Is not the routine accounting and bookkeeping paid by your trust department out of your ordinary fees for handling the trust?
A. Yes.
Q. Auditing for income tax purposes and other things is an extra charge?
A. Yes.
Q. But the annual accounting routine, unless there is some specific problem, is paid out of your fee?
A. That is correct.”
Mr. W. R. Meeks testified that the general real estate fee charged by realtors in and around Little Rock was ten percent on unimproved property and six percent on improved city property.
Mr. Pleasant Porter, called by the responding residuary beneficiaries as a hostile witness, testified that he had been a long time personal friend of Dan Cammack and that after his death, he and Mr. Birnbach assisted Mrs. Cammack in her affairs. That Mrs. Cammack made one sale of property on her own and that he considered it too cheap. Thereafter he and Mr. Birnbach assisted her in the sales of other property for more than Mrs. Cammack had been offered. Both he and Birnbach refused compensation for their efforts. However Mrs. Cammack gave each of them a city lot to compensate them. As trustees he and Birnbach, together with Mr. Taylor, sold some of the trust real estate to Pratt Remmel; to Dr. and Mrs. Bailey; to Pfeifer Development Company; and to the Airport Commission. On the Gunn property by Rivercliff, the first offer was $40,000 and the eventual sale price was $150,000. Mr. Porter’s testimony as to other duties performed is as follows:
“Q. Now, Mr. Porter, in addition to making these sales, what actual duties as trustee did you perform?
A. All right. We inspected all easements that we made to. Arkansas Power and Light, to U. S. Engineers and I guess I walked a hundred miles up and down that river at Dam Number 7, climbing those hills, arguing with the engineers and arguing with their attorneys and with the handling of that. And all the easements down in the East end. Birnie and I walked the first one down there where the big sewer went through. They started out offering us a thousand dollars for it. We ended up getting better than twenty thousand for it.
Appellant Bernard J. Birnbach, a retired abstractor, called as a hostile witness by appellees, related his personal contacts with both Mrs. Cammack and her husband. As trustee he looked after the taxes and the checks sent to the primary beneficiaries. According to him the first offer on the property sold to the Airport Commission was $300,000 whereas the final sales price was $450,000.
The rule for ordinary compensation to trustees is set forth in Bogert on Trust, 2nd Ed. § 977 as follows:
“The following factors may be influential in enabling the court to reach a conclusion as to the appropriate amount of pay which should be granted the trustee in a given case; the amount of capital and income received and disbursed by the trustee; the wages or salary customarily granted to agents or servants for performing like work in the community; the success or failure of the administration of the trustee; any unusual skill or experience which the particular trustee may have brought to his work; . . . the time consumed in carrying out the trust; the custom in the community as to allowances to trustees by settlors or courts and as to charges exacted by trust companies and banks; the character of the work done in the course of administration, whether routine or involving skill and judgment;.. ..”
With respect to allowances for extra compensation Bogert, continuing in § 977, says:
“Allowances of extra compensation, over and above the statutory rate or the amount usually granted by the court in the exercise of its discretion, are discouraged, and should never be given for the performance of the ordinary duties of a trustee. A showing of the performance of unusually skillful, arduous, or prolonged work should be required, and detailed proof should be demanded.” (Emphasis ours).
We categorize the fees here requested as a request for ordinary compensation rather than one for extra or additional allowances. Furthermore as we review the record a preponderance of the evidence shows that a reasonable fee to the appellants would exceed the partial allowances already awarded by the trial court. While some members of the court differ on the amount, the one figure upon which we agree is that the trustees should not receive less than that charged by banks and trust companies. Consequently we reverse the trial court and direct that it award a fee of $101,600.00, against which the residuary beneficiaries are entitled to a credit of $81,000.00 for the partial allowances already paid.
In making this award, we are aware that Mr. Rice testified that under the bank’s schedule the trustees should bear the burden of bookkeeping expenses, but here the trustees by agreement are voluntarily charging themselves with the payment of all counsel fees — a matter that is ordinarily in addition to the fees charged by trustees. Consequently the bookkeeping charges will be more than offset by the counsel fees assumed.
Our disposition hereof disallows the $2,500 Counsel fees allowed by the trial court.
Reversed and remanded.
George Rose Smith, Jones and Holt, JJ., would deny the rehearing. | [
-12,
-24,
-39,
125,
26,
32,
59,
-114,
96,
-29,
38,
83,
-85,
83,
16,
41,
-13,
45,
65,
107,
-57,
-77,
23,
96,
-46,
-13,
-71,
-51,
-111,
94,
-27,
-41,
76,
56,
98,
-35,
70,
-118,
-49,
80,
-114,
10,
-118,
-27,
-37,
100,
48,
127,
23,
77,
49,
-114,
-77,
32,
25,
111,
76,
46,
125,
-87,
92,
-80,
-118,
7,
95,
23,
16,
53,
-104,
-61,
72,
40,
-104,
53,
42,
-32,
115,
-90,
2,
-44,
99,
-87,
13,
104,
98,
0,
-31,
117,
-112,
-124,
14,
-74,
-99,
-89,
82,
88,
65,
77,
-76,
-100,
112,
80,
7,
-4,
-74,
20,
92,
36,
9,
-49,
-42,
-95,
-113,
62,
-100,
2,
-17,
5,
112,
113,
-52,
-30,
92,
-57,
56,
-109,
-42,
-96
] |
George Rose Smith, Justice.
This is a child custody proceeding. The parties were married on November 23, 1967. Their child, a son, was born the following July 7. The couple lived together only a few months in all, with Mrs. Davis making her home at intervals with her parents.
Davis obtained a divorce on March 6, 1969, and, with Mrs. Davis’s consent, was awarded custody of the infant. Davis is a resident of Little Rock, but he has found it necessary to place the child in the care of his parents, who live at Vandervoort, in Polk county. Davis visits his son there on weekends. No one questions the suitability of the home in which the child is being brought up.
On May 13, 1969, Mrs. Davis filed a petition asking that she be awarded the custody of her son, who was then about ten months old. After a protracted hearing the chancellor refused the mother’s request foi a complete change of custody but did direct that she have rather extensive visitation privileges for • two six-week periods each year. The order permits the appellant, during those semiannual periods, to keep the child in her home, where she lives with her second husband. For reversal the appellant insists that she should have been given complete custody of the child and that in any event she is entitled to support money during the visitation periods.
After having carefully studied the testimony we are convinced that its narration would be more harmful than beneficial to everyone in the case. It is enough to say that the undisputed proof — much of which is admitted — discloses such behavior on the part of the appellant, and to some extent on the part of her present husband, as to justify the chancellor in concluding that the child’s best interest would not be served by an award of permanent custody to the mother. Charges and countercharges were freely made by the witnesses for each side. In such a situation the chancellor, having seen the parties and the witnesses as they testified, is in an immeasurably better position to decide the issues than are the members of this court. We cannot say with assurance that the chancellor’s disposition of this case was against the weight of the evidence.
Nor does it appear that the trial judge was demonstrably wrong in not requiring the father to contribute to the child’s support during the mother’s semiannual periods of visitation. It makes no real difference whether we regard those interludes as periods of visitation or as instances of divided custody, for both the fixing of visitation rights and the determination of the amount of child support are matters lying within the sound discretion of the chancellor. Robbins v. Robbins, 231 Ark. 184, 328 S. W. 2d 498 (1959). It must be remembered that such brief absences on the part of the child from his permanent home do not relieve the father from the duty of maintaining that home in readiness for the child’s return. Upon this point we defer to the chancellor’s sound judgment, for we find no manifest abuse of his discretion in the matter.
Affirmed, the parties to bear their own costs. | [
-15,
-22,
-60,
126,
26,
33,
42,
56,
90,
-93,
-25,
-45,
-21,
78,
20,
125,
-118,
47,
113,
104,
-63,
-77,
87,
97,
-14,
-13,
-71,
-47,
-79,
-35,
-67,
84,
76,
48,
-54,
-43,
70,
-54,
-49,
-112,
14,
-127,
105,
109,
80,
-126,
32,
99,
18,
15,
53,
-97,
-73,
-84,
57,
83,
12,
14,
-39,
-75,
-48,
-8,
-114,
6,
-33,
6,
-79,
-92,
-78,
-122,
72,
44,
-40,
57,
8,
-23,
51,
-74,
-110,
116,
71,
-103,
-119,
112,
98,
-126,
-19,
-12,
-8,
-120,
111,
54,
-99,
-26,
-102,
120,
11,
79,
-66,
-76,
124,
84,
42,
-8,
-25,
69,
50,
108,
10,
-114,
-106,
-79,
-115,
105,
-122,
3,
-29,
-127,
32,
49,
-49,
-94,
92,
86,
123,
-103,
-114,
-70
] |
Lyle Brown, Justice.
This is a workmen’s compensation case. The circuit court affirmed a finding of the Workmen’s Compensation Commission that appellee, Nallie C. Wagoner, suffered a fifty per cent permanent partial disability to the body as a whole. The single question on appeal is whether there is substantial evidence to support that finding.
Appellants, being the employer and the insurance carrier, insist that because of unusual circumstances we should “search the record, weigh the evidence, determine where the preponderance lies and decide whether there is substantial evidence . . . .” The claim was initially heard by a compensation referee, Mr. Norwood Phillips. All witnesses who personally testified appeared before him. Mr. Phillips kept the case open to allow both sides to introduce reports of subsequent medical examinations. Referee Phillips resigned to enter private practice before the additional evidence was filed and therefore did not render an opinion. When all subsequent exhibits were placed of record the claim was referred to Referee Newbern Chambers; he reviewed the complete transcript and rendered his opinion. The respondents appealed to the full commission. “Having considered the evidence, the referee’s opinion and oral arguments,” the commission concluded that the award of the referee should be adopted as its findings.
It is of course apparent that the referee (Mr. Chambers) who rendered the opinion, did not see and hear the witnesses. Therefore, appellants argue, the referee did not have the grasp of the case as if he had conducted the hearing. Appellants deduce from those facts that “the verity which such opinions are normally given” should not be here accorded. The defect, reason appellants, can be cured by this court searching the record, weighing the evidence, and coming to its own conclusions.
We do not agree with appellants. First, the findings of the referee are of no significance either to the circuit court or to this court; resort is had on appeal only to the findings of the commission in testing the sufficiency of the evidence. Parker Stave Co. v. Hines, 209 Ark. 438, 190 S. W. 2d 620 (1945). Secondly, if appellants felt aggrieved by the transfer of the claim from one referee to another they should, have addressed their grievance to the trier of the facts, namely, the compensation commission; that is the body which weighs the evidence. Chapman v. C. Finkbiener, Inc., 230 Ark. 655, 324 S. W. 2d 348 (1959). The latter function was delegated to the commission by the ¡Legislature. Farmer v. Knight Co., 220 Ark. 333, 248 S. W. 2d 111 (1952). We do not try compensation cases de novo on appeal; we ascertain whether there is substantial testimony to support the commission. McKamie v. Kern-Trimble Drilling Co., 229 Ark. 86, 313 S. W. 2d 378 (1958).
Appellee was employed by Lane Poultry Farms and sustained an injury on June 6, 1967. He was 54 years of age, and had worked many years at various laboring jobs without experiencing, according to his testimony, any disabling injuries or serious physical problems. His ailments at the time of the accident were some degenerative joint disease and vascular irregularity. Appellee insisted that those conditions created no physical problem. There was an abundance of testimony that prior to the accident appellee was very active, working regularly, making a . large, garden, driving a truck, hunting, and fishing. On the occasion of the accident appellee was “pulling” ice with an electric hoist. One of the two containers fell from the hoist. In moving backward suddenly to avoid being struck, he fell over one of the container lids, his left leg doubled, and the full weight of his body fell on that leg. Appellee went to Dr. Bill Dickinson at DeQueen the next morning because he thought he had wrenched his back in the fall. Appellee was hospitalized for some three weeks, then for another month he was an outpatient of Drs. Dickinson and Shukers. He did not respond to treatment and the doctors concluded their patient was suffering from severe muscular strain in the. lower back, continuation of muscle spasm, and a possible ruptured intervertebral disc: They referred appellee to Dr. Knight, an orthopedic surgeon in Texarkana. There appellee was again hospitalized for about three weeks. That was in October 1967, and thereafter he was an out-patient under Dr. Knight until July 1968. In Dr. Knight’s final report on July 8 he stated these conclusions:
It would seem that he is not going to return to work and I would recommend that the insurance company settle with him on these lines. I think his final diagnosis has to stand at degenerative joint disease, mild, lumbar spine, this being an antedating condition. Perhaps it was aggravated by his trauma; that is to say, aggravation of a preexisting disease, but I would not specifically connect the degenerative joint disease to his occupation. At this point I would rate him as having a permanent disability to the vertebral column of 5% from the degenerative joint disease.
Appellee reported back to Dr. Shukers with the complaint that he was wholly unable to do any type of work requiring lifting, bending, reaching, or walking to any extent. Dr. Shukers was not in full agreement with Dr. Knight’s findings and it was decided to send appellee to a neurosurgeon. Dr. Padberg of Little Rock was selected. A thorough examination was conducted on September 8, 1968, by Dr. Padberg. It was his tentative finding that appellee “may have some general joint disease associated with probably a postural protrusion of the intervertebral disc at L4-5 and with considerable vascular changes in both lower extremitities.” He stated that he would like to see appellee again in approximately two months. The follow-up examination in December revealed to Dr. Padberg that appellee was growing progressively worse. Among other things there was a diagnosis of a probable “protrusion of the intervertebral disc at the true level of L5-S1 and true L4-5 level with a bulging bilateral lesion.” Dr. Padberg concluded that appellee “probably would have a permanent partial disability to the extent of at least 35% to the body as a whole.” The doctor conceded that he was not satisfied with his percentage of evaluation “but it is about the best thing I can come up with for this patient at this time.” He suggested the possibility that surgery could reduce the disability but was not certain of good results.
We find substantial -evidence in the record to warrant a finding that the claimed injury not only did primary damage to the lower back region but was of such severity as to aggravate pre-existing conditions which had not before caused claimant any physical inhibition.
The commission increased the functional disability finding of 35% by 15% to include compensation for the inability of appellee to earn wages. Glass v. Edens, 233 Ark. 786, 346 S. W. 2d 685 (1961). Even if an operation reduced the percentage of appellee’s disability he would still be dependent on hard labor for a livelihood. He has a fourth grade education, no vocational training of any type, and is now 56 years of age. Therefore if wage earning became a realization it would certainly be limited; there was found to be a good probability of some productive years if an operation were performed.
Affirmed. | [
48,
-22,
-43,
-115,
8,
97,
50,
-86,
97,
-115,
103,
91,
-83,
-41,
24,
127,
-30,
61,
85,
42,
-41,
-77,
19,
-61,
-30,
-9,
-5,
-41,
-79,
79,
116,
-12,
77,
56,
2,
-43,
-26,
72,
-59,
16,
-50,
-114,
-71,
-19,
25,
-92,
56,
46,
80,
95,
16,
-42,
99,
42,
24,
-57,
105,
46,
91,
59,
80,
112,
-118,
13,
125,
0,
-77,
4,
-98,
70,
-40,
11,
-104,
48,
1,
104,
115,
-74,
-126,
117,
43,
-71,
12,
98,
103,
33,
20,
-83,
44,
-8,
63,
126,
-99,
-90,
-110,
8,
-53,
15,
-108,
-99,
116,
20,
14,
124,
-11,
85,
92,
44,
3,
-113,
-122,
-78,
31,
100,
-98,
11,
-21,
-109,
-106,
113,
-50,
-30,
92,
71,
59,
-37,
-97,
-110
] |
J. Fred Jones, Justice.
Under the power of eminent domain, the Arkansas State Highway Commission condemned a 35 foot strip of land across the end of two lots belonging to Mr. and Mrs. Hartsfield on which they have their home near Hope in Hempstead County, Arkansas. A jury trial resulted in a judgment on a verdict in favor of Mr. and Mrs. Hartsfield for damages in the amount of $8,000. The highway department has appealed and relies on the following point for reversal:
“The verdict is excessive and there is not substantial evidence to support it.”
The property involved was taken for the purpose of building an access road from the appellees’ property, and property south of it, to Highway No. 29, upon which access was being controlled in connection with an interchange between new Interstate Highway No. 30 and old Highway 29. Two expert witnesses testified for the appellees and two testified for the appellant.
Mr. Charles Wilburn, an expert witness for the appellee landowners, testified that in his opinion the market value of the property was $12,300 before the taking and $1,500 after the taking, leaving a damage to the property in the amount of $10,800. He testified that he compared the Hartsfield property with comparable sales of other property in arriving at his before and after value. He described the appellees’ house as a 19 year old single story modern five room house having two bedrooms, one bath, and five clothes closets. He described the house as having a brick curtain wall foundation, as having well-kept hardwood floors, and as having a fairly new roof. He described the front yard, prior to the taking, as containing flower beds, shade and pecan trees, with access from the road onto Highway 29 over a gravel driveway practically level with the highway. He described the taking as coming within seven feet of the front wall of the house and two and one-half feet from the front steps. He described a frontage road being constructed on the strip taken, and also described a chain link fence erected between the frontage road and Highway 29, as a part of the controlled access feature. Mr. Wilburn testified that it will be necessary to drive over the service road a distance of approximately 540 feet around one end of the fence in order to gain access to Highway 29. He says that the service road had been built within a few feet of the appellees’ house, and that the utility gas line, water line and electric lines have been moved to an area between the service road and the house. He says prior to the taking there was adequate drainage and that since the taking there is no room for culverts without interfering with the utility lines.
On cross-examination Mr. Wilburn testified that the value of the property would not be enhanced for industrial use because of the controlled access. He was not asked on cross-examination concerning any of the comparable sales he said he considered in arriving at his conclusion as to value. He was questioned concerning the sale of the “Messer property” but testified that he did not consider the sale of the Messer property as a comparable sale because it occurred six years prior to his appraisal, and that he did not consider the sale of the Messer property among the comparable sales he did consider in arriving at his opinion as to the market value.
Mr. P. M. Brown, the other witness who testified as an expert for the appellees, described the property and the location on the highway before and after the taking about the same as did Mr. Wilburn. He testified to a before value of $12,000 and an after value of $2,050, leaving a difference of $9,950. Mr. Brown also testified that he found and considered other comparable sales in arriving at his conclusion as to the before and after market value of the appellees’ property. On cross-examination this witness was asked no question concerning comparable sales.
Mr. Kenneth McMurrough, an appraiser, and one of the expert witnesses for the appellant, testified that it was his opinion that immediately prior to the taking the market value of the property was $9,000, with $2,100 of that amount attributable to the value of the plot and $7,400 attributable to the building and improvements on the property. He testified that the remaining value of the property after the taking would be $6,700, which would leave $2,800 as damages because of the taking. Mr. Charles Scott, the appellant’s other expert witness, testified that in his opinion the market value of the property prior to the taking was $10,300, and that after the taking its value was $7,250, leaving a difference of $3,050, which he considered to be the damage because of the taking.
Most of appellant’s argument in support of the point it relies on, is directed to the inadequacy of testimony pertaining to comparable sales. The appellant complains that the expert witnesses for the appellees “were satisfied with saying that they did find comparable sales . . . but did not go so far as to even identify the parties.” The appellant seems to overlook the fact that these witnesses were testifying as expert land appraisers, and that having so qualified, their opinion evidence, within the bounds of their expertise, would be acceptable in evidence even without giving the basis for the opinion. The testimony of an expert, like the testimony of any other witness, is open to attack on cross-examination and is subject to contradiction by direct testimony. The appellant’s argument in this connection is thoroughly answered in our very recent decision of Ark. State Highway Comm’n v. Dean, delivered on December 1, 1969, 447 S. W. 2d 334. The pertinent parts of that opinion are well stated in the last four headnotes, as follows:
“. . . The testing of the probative weight of an expert’s estimate of value necessarily requires a liberal latitude of inquiry into the factors and considerations upon which it is based.
. . . Where the burden imposed upon appellant to demonstrate the lack of basis for witness’s opinion, or the weakness thereof, was heavy in view of the witness’s qualifications and studies, the latitude of permissible cross-examination should have been great.
. . . The object of cross-examination is to weaken or disprove the case of one’s adversary, break down his testimony in chief, test the recollection, veracity, accuracy, honesty, and bias or prejudice of the witness, his source of information, his motives, interest, and memory, and exhibit the improbabilities of his testimony.
. . . Limitation imposed by the trial judge upon Highway Commission’s cross-examination of landowners’ expert witness on real estate values held error.”
The appellant had considerable latitude available to it on cross-examination in determining what comparable sales the witnesses were referring to when they testified that they considered such sales. The appellant could have ascertained by cross-examination the identity of the parties and the prices obtained in the sales the witnesses considered as comparable had the appellant considered such testimony important and desirable in the cross-examination of the witnesses who had testified as to comparable sales. It would appear that the appellant was the one who was satisfied with the testimony offered by the appellees’ witnesses that they did arrive at their conclusions as to market value through comparable sales.
We conclude that the judgment of the trial court is supported by substantial evidence and we are unable to say that the jury verdict for $8,000 and the judgment entered thereon is excessive.
The judgment is affirmed. | [
-15,
-18,
-12,
124,
107,
-62,
90,
-120,
66,
-85,
-26,
83,
39,
-54,
17,
35,
-93,
-99,
-12,
41,
-59,
-30,
67,
-93,
82,
-77,
123,
-59,
121,
-51,
-12,
-41,
76,
65,
-54,
85,
102,
-32,
-19,
88,
-50,
3,
-103,
101,
-55,
64,
52,
43,
86,
11,
53,
-114,
-41,
-81,
57,
-29,
109,
46,
75,
45,
25,
-8,
24,
31,
91,
5,
1,
100,
-104,
3,
-40,
42,
-104,
113,
0,
-72,
119,
-90,
-122,
100,
75,
27,
8,
36,
99,
16,
85,
-41,
-24,
-115,
14,
-8,
-115,
-90,
-126,
24,
-53,
97,
-97,
-108,
88,
20,
78,
126,
-25,
-51,
89,
108,
-117,
-50,
-106,
-79,
5,
-88,
-112,
11,
-61,
-115,
48,
101,
-49,
-30,
93,
71,
55,
-101,
-113,
-79
] |
J. Fred Jones, Justice.
This is an appeal by the Fidelity & Casualty Co. of New York from a judgment of the Pulaski County Circuit Court in favor of Marion L. Crist & Associates on an airplane insurance policy. The question for determination is whether coverage under the policy was excluded by a provision in the policy reading as follows:
“The coverage afforded by this policy shall not apply while the aircraft is used for any purpose for which the named insured directly or indirectly makes a charge to others, except: No Exceptions.”
The motions of both parties for directed verdicts were denied by the trial court and the verdict of the jury, in effect, found that the policy coverage was unaffected by the exclusion under the facts revealed by the evidence submitted. Judgment on the verdict was entered for $9,750, which was the face amount of the policy in the amount of $10,000 less $250 deductible. The judgment also awarded $1,170 penalty and $2,520 attorney’s fees. Upon appeal to this court Fidelity & Casualty relies on the following points for reversal:
“Trial court erred in refusing to direct a verdict for the appellant.
It was error for the Trial Court to give appellee’s requested Instruction No. 1, modified.
The Trial Court erred in refusing to give appellant’s requested Instruction No. 1.”
The factual background, as gathered from the testimony of Lawrence S. Woolsey, secretary-treasurer of the appellee corporation, is as follows: Marion L. Crist & Associates, Inc. is a consulting engineering firm consisting of six associates and was established by Marion L. Crist in 1943. In 1954 Mr. Crist purchased and piloted a new Beechcraft Bonanza E35 model airplane which was also used in connection with company business. Mr. Crist and two other members of the firm were pilots, so when Mr. Crist ceased flying in 1966, he sold the aircraft to the appellee corporate firm. The appellee kept the plane insured, with itself as named insured, and around the first of the year, 1968, it decided to sell the plane and listed it for sale with the Central Flying Service of Little Rock from whom Mr. Crist originally purchased it. Central found several prospects who appeared interested in the plane. Mr. Guy Freeling, Jr. was a neighbor and friend of Mr. Woolsey and he also indicated an interest in purchasing the plane. Mr. Freeling was a member of a flying club and holder of a pilot’s license, so he went with Mr. Woolsey to look at the plane and he flew the plane in trying it out. On this one trip Mr. Freeling offered to pay Mr. Bowlin (with flying service where the plane was kept and serviced) directly for the flight fuel used in trying out the plane. This offer was refused by Mr. Woolsey as he preferred to handle the expenses on his credit account with Bowlin, by merely having the plane fully serviced, then signing a ticket and paying later. Mr. Freeling inquired and was told the sale price of the plane, and Woolsey testified that it was understood that Freeling would fly the plane some more in trying it out with the idea of purchasing it. Woolsey testified that Freeling again offered to pay the actual operational expenses of the plane while he was flying it, and Mr. Woolsey says he accepted this offer. He says that the plane was checked over and the oil changed every 25 hours; and that since Mr. Freeling would make flights of very short duration in trying out, and learning to like the plane, it was understood that Mr. Freeling would pay for the expenses of his short trips at the rate of $15 per hour actual flying time as determined by the recording tachometer.
On September 2, 1968, Mr. Freeling had flown the plane, with two of his friends, from Little Rock to Lake Village for the purpose of hunting doves. As the plane took off from the landing strip at Lake Village for the return trip to Little Rock, it crashed. Mr. Freeling as well as his two companions was killed and the plane was a total loss. The appellant was promptly notified of the loss and on the following day sent its insurance adjuster to Little Rock and he obtained a statement of facts from Mr. Woolsey. The adjuster wrote the statement out in longhand and Mr. Woolsey read and signed it. This written statement was placed in the record and apparently appellant based its motion for a directed verdict more on the statement as written, than on Woolsey’s sworn testimony. The written statement recites as follows:
“Mr. Guy Freeling, Executive Vice President of the First American National Bank, North Little Rock, Arkansas became rather remotely interested in buying this aircraft and I worked out a rental agreement with him so that he could rent the aircraft and fly it. On August 21, 1968, he called and wanted to use our aircraft and in accordance with good practice we mutually agreed that he should be checked out in the aircraft before flying it alone. Frankie A. Bowlin, a certified flight instructor employed by Central Flying Service, where the aircraft was based, checked Mr. Freeling out. I went along on the check flight as an observer. I was satisfied in my own mind that Mr. Freeling was very competent in our aircraft. Bowlin commented to me that he was satisfied that Mr. Freeling was very competent to fly the Bonanza. The rental arrangement was that he pay $15.00 per hour for each flying hour per the recording tachometer. We furnished everything — gas, oil, maintenance, storage, etc. This was a sort of promotional price to Mr. Freeling for the purpose of getting him more interested in buying the aircraft from us. We also wanted to use the aircraft more than we had been using it, we had been flying it only about once a month. By renting it to Mr. Freeling we got more use out if it. Mr. Freeling had flown approximately four and one-half hours in our aircraft prior to September 2, 1968. On September 2, 1968, he rented the Bonanza to take two other men to Lake Village, Arkansas. On taking off from an airport at Lake Village he struck a radio tower with the wing of the Bonanza and crashed. All three occupants of the aircraft were killed. I am not personally acquainted with either of the other two men who were killed. I did not know prior to the crash what the purpose of the trip was. I have since heard that they had gone to Lake Village to dove hunt.”
Mr. Woolsey testified that he told the insurance adjuster the facts as he related them to the jury under oath, and that the adjuster wrote down the statement in longhand and he read and signed it. He says that the adjuster employed his own words and phraseology in writing out the statement and that he, Woolsey, did not check the statement for exact words and phraseology. He emphatically denies using the word “remotely” in connection with Mr. Freeling becoming interested in purchasing the aircraft. As to the rental agreement, as set out in his written statement, he testified as follows:
“Q. The statement also is to the effect that, and I am quoting, 1 worked out a rental agreement with him so that he could rent the aircraft and fly it.’ Was that the statement you made to this particular adjuster?
A. They were his words, I didn’t realize that the word ‘rent’ had any particular significance, I mean, we had an agreement that he would pay something for the expenses on the airplane, I wasn’t smart enough to realize that was the wrong thing to sign.
Q. Whether it was the wrong thing or right thing, did you relate to this particular adjuster the facts concerning Mr. Freeling’s use of the plane just like you related to us today?
A. Yes, sir.”
On cross-examination Mr. Woolsey again denied using the word “remotely” in the written statement in connection with Freeling’s interest in purchasing the airplane. As to the rental agreement, as set out in the written statement, Mr. Woolsey testified on cross-examination as follows:
“Q. Is it not true, Mr. Woolsey, that in that statement that you signed, the statement which you signed said, ‘The rental agreement was that he pay Fifteen Dollars per hour for each flying hour per the recording tachometer?’
A. The statement says that, yes.
Q. And that was the agreement which you made, was it not, Mr. Woolsey?
A. The tachometer time was the way we would get the length of time the aircraft had been flown, but it was not a charge I made, it was an offer I accepted for him to participate in the cost of the operation.
Q. That offer which you accepted, was that based upon the time recorded by the tachometer, Mr. Freeling was to pay to Marion L. Crist & Associates, Inc. Fifteen Dollars per hour?
A- Yes.
Q. That was the agreement, was it not?
A. Yes, sir.
Q. How many hours had Mr. Freeling flown this aircraft prior to the time he took off on the September 2 flight?
A. Approximately four hours, he had taken Dr. Crow to Cherokee Village on one occasion, he had taken Dr. Crow to Arkadelphia on one occasion, as I understand. He had made a local flight checking out the instruments, with his son as a safety pilot, somebody watched while he was flying under the hood, those times I know, approximately four hours or slightly more.
Q. I believe in your statement, prior to the September 2 flight, that Mr. Freeling had flown the plane approximately four and a half hours?
A. Approximately.
Q. And I take it from that, that you or someone on behalf of Marion L. Crist 8c Associates had kept a record of the hours that were reflected by the tachometer?
A. We had not checked the tachometer, Mr. Free-ling merely told us how long he had flown and we entered it on the log we keep at the office.
Q. Further in that statement, Mr. Woolsey, is it not true, the statement which you signed, that you made the statement that on September 2, 1968, that Mr. Freeling rented this Bonanza to take two men to Lake Village?
A. No, sir, I did not say that, the statement says that, but I signed it, the statement.
Q. That was in the statement which you signed?
A. Right.”
In his testimony Mr. Woolsey explains the charge of $15 per hour in the following language:
“Q. How did the figure Fifteen Dollars an hour get into this?
A. Mr. Freeling asked me should he pay for the gas and oil and then turn in the tickets to me, and I said, ‘No, you are taking short flights, local flights, well within the range of the aircraft’s fuel capacity, so do what we do, we don’t fill the airplane up on local flights except at the Central ramp and we bring it back to where we keep the airplane and then fill it up,’ and I suggested he do this and sign a ticket charged to us and then we would just charge him based on the tachometer time as a method of simplifying all that record keeping, so he wouldn’t have to keep a bunch of invoices to what he had spent.”
Mr. Claud Holbert testified that he is connected with Central Flying Service whose business is aircraft rental and sales and flying instruction and repair. He says that he is a dealer for Beechcraft and is familiar with the aircraft involved, having sold it originally to Marion Crist. Mr. Holbert testified that the appellee had recently listed the plane with him for sale and that he is familiar with the out of pocket cost in the actual operation of airplanes. He testified that on the particular plane involved, the usual out of pocket flight operation cost would be $14.11 per hour. He testified that this would not be the rental value of the plane, and that the operating cost of $14.11 would not include depreciation and that sort of thing. He testified that the fair rental value of the particular plane being flown by Guy Freeling at the time of his death would be $25 to $27.50 per hour.
Mr. Kenneth Hiegel, a witness called by the appellant, testified that he operates Hiegel Aviation, Inc. and is engaged in buying, selling, renting, repairing and servicing new and used airplanes. As to the rental value of the airplane involved in the case at bar, Mr. Hiegel testified as follows:
“Q. Mr. Hiegel, in your experience in this busi ness and in your opinion, based on this experience, what would be the reasonable fair rental value of a 1954 Beechcraft Bonanza?
A. Depending on the equipment that is installed in the airplane, I would say an average 1954 model Bonanza that we are speaking of would, I would personally rent for around Twenty Dollars an hour.
Q. Would Fifteen Dollars an hour be unreasonable in your opinion, as a dealer?
A. Probably that would be a rock bottom minimum and as a dealer, I probably would not rent that airplane for that money, no.”
We find no error in the trial court’s refusal to direct a verdict for the appellant and we, therefore, find no merit in appellant’s first point. In the case of Houston Fire & Casualty Ins. Co. v. Ivens, 338 F. 2d 452, an aviation insurance policy covered an aircraft only while it was used for personal or family business “excluding any operation for which a charge is made.” The insurance company brought suit for a declaratory judgment requesting a determination of its liability under the policy issued to Ivens. Ivens was an independent contractor who owned the insured aircraft and he did independent work for a company of which N. M. Ulsch was president. One Fletcher had purchased from the company an item being manufactured in Tennessee and Ivens agreed to fly Fletcher from Florida to Tennessee to pick up the item. A day or so before the flight Ivens called Ulsch by telephone and asked for a contribution towards the cost of gasoline in making the trip. Ulsch was advised that gasoline for one hour in flight would cost $10, and that the flight would take approximately six hours. Ulsch agreed to contribute $60 toward the trip. In the Ivens case, as in the case at bar, evidence was presented that the charter, or rental rate on an airplane of the type involved, would amount to considerably more than the amounts agreed to be paid and accepted. In Ivens the court said:
“It is the opinion of the Court that when a charge is made for something, there is a distinct connotation that there is a quid pro quo. A charge may thus be considered as the price demanded for a thing or service. The agreement of Ulsch was merely the offer of a contribution made to help Ivens defray the cost of the gasoline.
* * *
Based upon the record before it, the Court is of the opinion that the offer of Ulsch to contribute $60.00 toward payment of the cost of the gasoline was not a charge within the meaning of the policy, and that the fatal trip was not an ‘operation for which a charge is made.’ ”
Appellant is correct in its statement that in Ivens a “charge” is defined as the price demanded for a thing or service, but the only difference we are able to distinguish between the “charge” made in the Ivens case and the one at bar, is that in Ivens the amount was $10 per hour and in the case at bar it was $15. As above set out the Ivens case reached exactly the opposite conclusion from that urged by the appellant in the case at bar. The appellant says that the court in the Ivens case would have considered the $15 per hour charge in the case at bar as within the exclusion provision of the insurance contract. We can draw no such conclusion. The appellant recognizes the $10 per hour in the Ivens case was a contribution toward the cost of gasoline as per verbal telephone agreement as testified by Ulsch. The appellant, in effect, asks us to usurp the duty and authority of a jury and hold that the $15 per hour in the case at bar constituted a charge within the meaning of the exclusionary clause rather than reimbursement for expense as testified by Mr. Woolsey. We are unable to do this.
As to the appellant’s second point, the appellee’s requested instruction No. 1 was a lengthy one and only that paragraph bearing on the specifically alleged error will be copied here. That part of the instruction as requested by the appellee is as follows:
“You are further instructed that the exclusion of coverage under this insurance policy is applicable only if the plaintiff actually made a charge for the use of the aircraft or contracted to make a charge under a binding, legally enforceable agreement.”
The appellee’s instruction No. 1, as modified and given by the court, and with our emphasis on the modification, is as follows:
“You are instructed that within the meaning of the terms of the policy, a ‘charge’ would be made for the use of the aircraft if it constituted the price demanded and agreed \o be paid for the use of the aircraft, without contingency or qualification.”
We recognize appellee’s instruction No. 1 both as requested, and as modified and given, as being far from an ideal instruction, but we confine our attention to the specific objections stated by the appellant as follows:
“The defendant, Fidelity 8c Casualty Company, objects generally and specifically to the giving of Plaintiff’s Requested Instruction No. 1, being the instruction requested by the plaintiff, as amended, objecting only to that part of the amendment wherein the Court had inserted the words, ‘without contingency or qualification.’ The defendant objects specifically for the reason that there is no evidence that there was any contingency or that the agreement between Woolsey and Freeling was in any way qualified. That the parties agreed on Fifteen Dollars an hour and that there was nothing in that agreement with reference to the liability for this charge regardless of whether Freeling did or Freeling did not purchase the aircraft.” (Emphasis supplied).
The crux of appellant’s argument as to error in this instruction, is that there was no evidence of contingency or qualification that would justify the inclusion of this phrase in the instruction. We do not agree with the appellant on this point. There was evidence that the $15 per hour agreed upon was reinbursement of expenses rather than charges for the use of the aircraft. Even if the $15 per hour could properly be considered “a charge” within the meaning of the policy, there was evidence that the purpose of the use for which the charge was made was to try the aircraft out with a view of purchasing it. There is no substantial evidence that a charge was being made for that purpose. On this point Mr. Woolsey testified as follows:
“Q. Did you reach any agreement with Mr. Freeling to rent or charter the plane for him?
A. No, I merely accepted his offer.
Q. Did you make any demand for a particular rental price for the plane?
A. No, he could have had it for nothing as far as we were concerned.
Q. Was there any agreement or understanding of what, if anything, would be paid if Mr. Freeling purchased the airplane?
A. We would not have charged him, we would have forgiven the charges and just applied them against the purchase price, just washed them out if he purchased the airplane, which I thought he was going to do in a few days.
Q. No charge made for that?
A. No charge.”
The appellant is correct in its contention that there was no evidence of “contingency or qualification” that $15 per flight hour was the amount Freeling agreed to pay and the appellee agreed to accept. The amount of money which Freeling agreed to pay and the appellee agreed to accept is not in issue ánd is not the im portant question in this case. The important question is what was the $15 per hour paid for. Was it for use of the aircraft and did the appellee charge that amount for the use of the aircraft, or did the appellee receive, either by charge or acceptance, that amount for reimbursement of the actual out of pocket expenses in the cost of operating the aircraft during the period of time Freeling did operate it? Woolsey answers this last question in the affirmative, and the additional testimony of Holbert and Heigel as to the cost of operating the plane, and the average cost of rental, lends weight and corroboration to Woolsey’s testimony that the $15 per hour to be paid by Freeling was not a charge made for the use of the aircraft at all, but was for reimbursement of expenses in its operation. So we hold that appellant’s second point is without merit.
As to appellant’s third and last point, we conclude that the trial court did not err in refusing to give appellant’s instruction No. 1 as requested. Appellant’s requested instruction No. 1 is as follows:
“Contracts of insurance, like other contracts, are to be construed according to sense and meaning of terms which parties have used, and if they are clear, their terms are to be taken and understood in their plain, ordinary and popular sense.”
This instruction correctly tells the jury how contracts of insurance are to be construed when the sense and meaning of the terms which the parties have used are clear; but it does not tell the jury how a contract of insurance is to be construed when the meaning of the terms employed is not clear. We are of the opinion that the contract here falls in the second classification, and we find no error in refusing to give the appellant’s requested instruction No. 1 as requested.
The appellant cites State Farm Mutual Auto Ins. Co. v. Pennington, 324 F. 2d 340, for the proposition that “contracts of insurance, like other contracts are to be construed according to sense and meaning of terms which parties have used, and if they are clear, their terms are to be taken and understood in their plain, ordinary and popular sense.” The Pennington case is so applicable to both sides of the question in the case at bar, we feel justified in quoting all of paragraphs [3-5] from the Pennington decision as follows:
“Provisions of a policy of insurance are construed most strongly against the insurance company that prepared it, Travelers Indemnity Company v. Hyde, 232 Ark. 1020, 342 S. W. 2d 295 [1961]. While it is true that the Court resorts to such rule of construction when there is ambiguity, the rule is equally well established that, where no ambiguity exists, the Court is not required to use a forced construction which is plainly outside the language of the policy. McKinnon v. Southern Farm Bureau Casualty Ins. Co., 232 Ark. 282, 335 S. W. 2d 709 [1960], Contracts of insurance, like other contracts, are to be construed according to the sense and meaning of the terms which the parties have used, and if they are clear and unambiguous, their terms are to be taken and understood in their plain, ordinary, and popular sense. State Farm Mut. Automobile Ins. Co. v. Belshe, 195 Ark. 460, 112 S. W. 2d [1938],
This Court has stated, in Jefferson Insurance Co. of Pine Bluff, Ark. v. Hirchert, 281 F. 2d 396 [1960]:
‘The law of Arkansas relative to the construction of insurance contracts apparently differs in no respect from that almost universally applied. Mr. Justice Sutherland, in Bergholm v. Peoria Life Ins. Co., 284 U. S. 489, 492, 52 S. Ct. 230, 231, 76 L. Ed. 416, stated the rule as follows:
* * * It is true that where the terms of a policy aré of doubtful meaning, that construction most favorable to the insured will be adopted. # * * This canon of construction is both reasonable and just, since the words of the policy are chosen by the insurance company; but it furnishes no warrant for avoiding hard consequences by importing into a contract an ambiguity which otherwise would not exist, or, under the guise of construction, by forcing from plain words unusual and unnatural meanings.
Contracts of insurance, like other contracts, must be construed according to the terms which the parties have used, to be taken and understood, in the absence of ambiguity, in their plain, ordinary and popular sense. * * *’ ”
The appellant cites several other cases for the proposition that where there is no ambiguity in an insurance policy contract, it is the duty of the courts to interpret the provisions of the contract according to the plain import of its language as is done in other types of contracts. Each of the cases cited also holds that' insurance policies are to be liberally construed in favor of the insured, and that where the language of the policy is ambiguous, the contract is construed most strongly against the insurance company that prepared it.
The judgment of the trial court is affirmed.
Fogleman, J., dissents. | [
-80,
124,
-16,
-68,
24,
-30,
58,
16,
82,
-19,
103,
81,
-3,
-29,
5,
111,
-28,
27,
101,
98,
-41,
-73,
55,
50,
-41,
-109,
-85,
-60,
-79,
67,
-18,
-66,
12,
34,
-54,
85,
-90,
64,
5,
24,
-34,
4,
24,
-28,
89,
82,
-80,
107,
20,
77,
17,
-113,
-86,
46,
31,
75,
-23,
44,
106,
-87,
-63,
-111,
-117,
-121,
-17,
27,
16,
36,
-104,
65,
120,
46,
-48,
17,
8,
-24,
115,
-90,
-58,
-44,
35,
-103,
-128,
34,
103,
16,
16,
-19,
-8,
24,
6,
127,
47,
-25,
-106,
89,
25,
70,
-105,
-97,
99,
27,
21,
124,
-24,
84,
93,
96,
1,
-113,
-46,
-77,
-17,
100,
-99,
-122,
-18,
-37,
50,
65,
-55,
-22,
95,
86,
113,
-97,
-10,
-98
] |
Carelton Harris, Chief Justice.
This is a zoning case. Collier Wenderoth and Nancy Wenderoth, appellants herein, own a home in Fort Smith which abuts a tract that the City of Fort Smith, on the application of Grand Investments, Inc., one of the appellees herein, rezoned from Open 1 (0-1) to Residential 3 (R-3). The tract of land rezoned is approximately 8.3 acres, and lies west and abutting to Interstate 540, between the streets Grand Avenue and Kinkaid Avenue. The purpose of Grand Investments in seeking the rezoning was to sell the tract of land owned by them to Henderson Corporation, Henderson proposing to build an apartment complex consisting of approximately 225 units. The petition for rezoning was filed with the Planning Commission of the City of Fort Smith, heard by the commission, and approved on April 8, 1969. Appellants were not present at that time, and this fact will be hereafter discussed. On April 21, 1969, the Board of Directors of the City of Fort Smith considered the petition for the requested rezoning, and Collier Wenderoth appeared before the board with his attorney in opposition thereto. However, the board approved the rezoning, and passed an ordinance to that effect. Thereafter, appellants instituted suit in the Sebastian County Chancery Court, seeking an injunction to prohibit the proposed zoning change. After the taking of evidence, the court found that the only abutting property owners complaining as to the rezoning were the petitioners; that they had notice of the hearings and were afforded an opportunity to be heard; that it had not been shown by appellants that the rezoning was unreasonable and arbitrary. The complaint was dismissed for want of equity, and from the decree so entered, appellants bring this appeal. For reversal, two points are asserted, first, "The lower court erred in holding that the action of the Planning Commission and Board of Directors was not arbitrary.” It is also contended that “The lower court erred in finding that the notice of public hearing was given in accordance with the ordinances of the City of Fort Smith, Arkansas.
We have held that the Chancellor should sustain the city’s ruling unless he should find that it acted arbitrarily. Olsen v. City of Little Rock, 241 Ark. 155, 406 S. W. 2d 706. However, we agree with appellants that the action of the City Planning Commission, under the circumstances hereafter enumerated, was arbitrary, and resulted in a denial of appellants’ rights.
The record reflects that the Wenderoths received notice by post card, dated March 18, that a hearing on the rezoning petition filed by Grand Investments, Inc., would be held by the Planning Commission on Monday, April 15, 1969. No objection to this date was raised by the Wenderoths, and as far as the record reflects, they apparently planned to be present to voice their opposition to the petition at that time. Another notice, postmarked March 28, was received by appellants, advising that the hearing would be held on April 8, 1969. According to the testimony, Mr. Wenderoth had previously arranged for dental surgery for his wife at Tulsa, Oklahoma, on that date, a gingivectomy operation having been arranged with a Doctor Hall of that city. Mr. Wenderoth’s attorney was Thomas Harper of Fort Smith, and Mr. Harper was also committed for another meeting at that time. A partner of Harper, who, according to the evidence, was not familiar at that time with any of the facts upon which the Wenderoths based their protest to the rezoning, went to the Planning Commission meeting on April 8 to request a continuance of the hearing, the associate giving the reasons why the Wenderoths could not be present. Counsel for appellees objected to a continuance, and the chairman stated, “I think we will go ahead and hear the case and after Mr. Ledbetter finishes, I’ll ask if there is any opposition. At that time you can get on the record what you want.” The request for rezoning was then presented and at the conclusion of the presentation, the chairman inquired if anybody desired to speak in opposition. Harper’s associate counsel then stated:
“* * * I once again renew my request for continuance to permit Mr. Harper, Mr. Wenderoth and Mrs. Wenderoth if he should desire to present your objection to the granting of this zone change. I am not familiar, I have not talked to Mr. Wenderoth about this, and we let the opposition know, the opponents of this last weekend, what the complications were. I think in order to have the full and complete hearing these people should be heard and those matters taken up only after both sides have been presented.”
After hearing some other cases, the chairman then asked if the commission desired to postpone or defer action for a month in order to give Mr. Wenderoth and Mr. Harper, his attorney, an opportunity to be heard. An unidentified member of the commission moved that this be done, and another member, identified as Dr. Shermer, stated:
“Well, I just want to say they knew this meeting was to be held today and they had ample time to prepare for it. I’m not one way or the other, but I don’t think going to the doctor or going to a dentist is enough reason to excuse a man from being present in a meeting when he’s known about it for a month.”
When another unidentified member mentioned that Harper was in another meeting being held simultaneously, Shermer replied:
“Well, I knew, but I think he could have sent his representative because this meeting is just as important as that.”
A vote was taken on whether to take action on the petition immediately, and six voted, “Aye;” three, against. The petition for the rezoning was approved, and the recommendation made to the Board of Directors of the City of Fort Smith that same be granted. On April 21, the Board of Directors held its regular meeting, and the matter was presented for its approval. At that time, Mr. Wenderoth made a statement opposing the rezoning. A Mr. Mooney stated he had not been contacted, and that he would like to ascertain how rezoning would affect his property. He said that he bought his property under the assumption that “all of that would remain residential. Now, I am just making my point. I’m involved, all my savings are there and I don’t believe that it is being done in a democratic way.” After a motion was made to approve the rezoning ordinance, and the rules were suspended for a second and third reading, the ordinance was approved by a vote of five to one.
Appellees point out that appellants’ counsel was given an opportunity to present objections to the proposed zoning at the meeting of the Planning Commission; that they were given a hearing at the meeting of the Board of Directors, and that again, in Chancery Court, appellants had an opportunity to present all of their evidence at a de novo trial. It is apparently the view of appellees that, since they (appellants) had the opportunity to present their case to the Board of Directors, and to tíre Chancery Court, the failure to have that opportunity before the City Planning Commission is really immaterial.
We cannot agree with this argument, and if it is sound, then there is no reason for a hearing to be held at all before the City Planning Commission. If a hearing is of no value, it can only be characterized as a waste of time for members of the commission, the petitioners, and the opponents. The general purpose of a Planning Commission is set out in Ark. Stat. Ann. § 19-2827 (Repl. 1968) as follows:
“The general purpose of the planning commission is to prepare or have prepared a plan or plans of the municipality, to receive and make recommendations on public and private proposals for development, to prepare and administer planning regulations, to prepare and transmit to the legislative body recommended ordinances implementing plans, and to advise and counsel the city government and other public bodies. The planning commission shall have the duty and function of promoting public interest in and understanding of the long-term coordinated municipal planning.”
The importance of a hearing before that body is shown by the fact that Fort Smith has an ordinance, No. 2639, requiring notice of any hearing of a change or authorization in zoning to be published in a newspaper of general circulation in the city at least one time 15 days prior to the hearing. Mr. Bob McCann, Secretary of the Planning Commission, testified that, in addition to the legal description of the property sought to be rezoned, the commission also requires that the street address be given, the commission realizing that many people would not be able to identify property simply by the legal description. Certainly, hearings affecting vital property rights are important, particularly so, when they involve an individual’s home, the place where he contemplates spending the rest of his life. The Chancellor commented on the request for continuance as follows:
“Further, it is indicated that there was a request for a continuance before the Planning Commission, but that this body which has authority to promulgate its own rules and regulations for conducting its affairs (Arkansas Statutes Annotated, Title 19-2830) did, within its discretion, deny the request for continuance. Had the matter stopped here, this may have been considered an indiscretion, but this body is only an advisory body and merely, after denying the request for a continuance and after having heard the evidence presented before it in connection with the rezoning application, did approve and recommend granting the change to the Board of Directors of the City of Fort Smith, which is its primary function.”
We have already pointed out that we attach much more importance to this primary hearing than is indicated by the appellees, and the trial court. It certainly appears that the Board of Directors attached importance' to the recommendation of the commission, as well they might, and any attorney is aware of the advantage of prevailing in the first engagement. It is no answer to say that appellants could not have been prejudiced because they received a de novo hearing before the Chancery Court. Actually, such a hearing is not de novo, for the court is only permitted to reverse the city’s legislative body if it finds that that body acted arbitrarily. We, in turn, only reverse if the findings of the Chancery Court are against the preponderance of the evidence. Olsen v. City of Little Rock, supra. Of course, it has been held that this court hears all Chancery cases de novo. Harris v. Harris, 236 Ark. 676, 370 S. W. 2d 121. But despite that fact, we have held many times that we will not reverse a Chancellor unless his findings are clearly against the preponderance of the evidence, and this is actually the rule that is followed. Hampton v. Hampton, 245 Ark. 579, 433 S. W. 2d 149.
We have endeavored, in the remarks of the last several paragraphs, to show that a hearing before the Planning Commission is much more than perfunctory, i. e., it is not a mere formality. The next question is: “Did the Planning Commission act arbitrarily in refusing to grant a continuance in order that the Wenderoths might be heard” We think the answer is a solid “yes,” and we disagree with Dr. Shermer when he said, “I don’t think going to the doctor or going to a dentist is enough reason to excuse a man from being present at a meeting when he’s known about it for a month.” In the first place, the Wenderoth’s had not known about this hearing for a month. Mr. Wenderoth testified that he received the second notice (advising of the new date) on March 31, or nine days before the hearing. The record reflects that the notice was not sent out until March 28, so he could not have known about it for more than eleven days. This is some three weeks less than a month. Mainly, however, Wenderoth had already been advised that the hearing was set a week later (April 15), and he cannot be blamed for having made arrangements for his wife to receive dental surgery on the 8th — nor do we think it reasonable to require Wenderoth’s regular attorney, who had another meeting, to cancel that meeting for the purpose of appearing before the commission. For that matter, an attorney can hardly capably or efficiently handle any matter in the absence of his client.
There is not one line of evidence that Wenderoth prevaricated in stating the reason for his inability to be present, and likewise, there is no reason given for the change of dates for the hearing, other than it appears a mistake was made when the card was sent out advising that the hearing would be held on the 15th. Still, Wenderoth should not be held responsible for someone’s mistake in sending the notice. We think the commission acted arbitrarily in refusing to continue the hearing.
As to the second point, we agree that proper notice in conformity with the city requirements was not given, Mr. McCann admitting that the description used in the notice could include several square miles, but under the circumstances herein, this is not grounds for reversal. It is true that several people (not abutting property owners) testified in Chancery Court against the rezoning, stating that they did not know about the hearing before the Planning Commission, and it is entirely probable that, with such knowledge, at least some would have been present for the purpose of being heard. However, these persons are not parties to this litigation, and accordingly are not asking for any re lief. Only the Wenderoths are appellants, and they were aware that a hearing would be held.
In accordance with what has been said, we find that the Chancellor’s holding that the city did not act arbitrarily is against the preponderance of the evidence, and the decree is accordingly reversed.
It is so ordered.
Fogleman and Byrd, JJ., dissent.
That the commission performs important functions is recognized by the fact that in certain instances, the commission’s disapproval of a submitted proposal can only be overruled by a recorded vote of 2/3 of the full membership of the municipal legislative body that created the commission. See Sub-section f of Section 19-2827.
Emphasis supplied. | [
116,
-22,
-16,
126,
26,
64,
24,
-71,
83,
-87,
-28,
83,
47,
8,
20,
125,
-125,
27,
116,
105,
-41,
-78,
7,
98,
-46,
-13,
-45,
-59,
-8,
-51,
100,
-122,
77,
97,
-53,
-43,
70,
-88,
-113,
24,
78,
-123,
10,
109,
-39,
0,
52,
43,
16,
15,
21,
13,
-10,
-83,
49,
-55,
12,
44,
-55,
-76,
81,
-6,
8,
29,
126,
5,
-95,
116,
-102,
7,
88,
42,
-48,
49,
8,
-88,
87,
38,
-122,
116,
111,
-101,
44,
40,
98,
1,
121,
-1,
-8,
-120,
7,
-2,
-83,
-89,
-122,
24,
-61,
33,
-66,
-108,
125,
18,
73,
-2,
-17,
-91,
89,
108,
-123,
-50,
84,
-95,
-123,
-8,
-109,
3,
-13,
-121,
48,
112,
-49,
-94,
95,
70,
19,
-37,
6,
-16
] |
Conley Byrd, Justice.
Appellant Jack Allen Barber was apprehended by officers on February 13, 1969, in the Town & Country Liquor Store in Fort Smith, while tying up two women employees. He was charged by informations with the crimes of grand larceny, robbery and assault with intent to kill. At trial the charge of robbery was reduced to assault with intent to rob and he was tried on that charge only. In accordance with the jury verdict, he was sentenced to five years in the penitentiary for assault with intent to rob. For reversal he relies upon the following points:
“I. That the trial court had no jurisdiction to dispose of defendant’s motion on July 3, 1969, while the matter was removed to the United States District Court.
II. The trial court erred in granting the State a continuance in case No. 1325 and in case No. 1327. That the continuance granted the State violates the speedy trial provision of the sixth amendment to the United States Constitution.
III. The trial court erred in refusing to grant the defendant a preliminary hearing as provided by the law of Arkansas and the Constitution of the United States of America. That the manner in which the Arkansas preliminary hearing statute is applied in the Arkansas trial courts and as applied in this case violates the due process clause of the Arkansas Constitution and the due process and equal protection clauses of the United States Constitution.
IV. That the trial court erred in refusing to grant a change of venue.
V. That the trial court erred in denying the appellant’s motion to make available funds to employ one medical expert of appellant’s own choosing to develop appellant’s defense of insanity.”
POINT I. The record shows that on February 14, 1969, appellant Barber, with his two co-defendants, was arraigned before the Honorable Paul Wolfe, Circuit Judge, and in the presence of his retained counsel, Mr. Jack Rose, entered a plea of not guilty to all three counts then pending against him. On March 24th Mr. Rose, upon the request of Barber, was permitted to withdraw as counsel for BarberriAL-the-same time Barber filed a number of motions, which. he had prepared himself, attacking the qualifications of Judge Wolfe to preside at his trial, requesting that the informations be quashed because no preliminary hearing had been held, for a change of venue, and for reduction of bail. Because of the suggestion of disqualification of the regularly elected trial judge, the Chief Justice appointed the Honorable Carl Creekmore to preside in the case. Thereafter Judge Creekmore held a number of hearings for the purpose of appointing counsel, releasing counsel upon appellant’s request and finally for determining whether Judge Wolfe was disqualified to act in the case. Following a hearing on June 16th, Judge Creek-more decided that Judge Wolfe was not disqualified. Appellant on June 19th filed a petition to remove his prosecution to the Federal District Court.
Some time between June 16th and July 3rd Judge Wolfe resumed his duties of hearing appellant’s case. On July 3rd, at the request of appellant, Judge Wolfe held a hearing on appellant’s motions for a preliminary hearing, to quash the information and for a change of venue. At the beginning of the hearing the court let the record show why he re-entered the case and after so doing, asked counsel for appellant which motions they wanted to take up and in what order. At that point the following occurred:
“Mr. Core: Your Honor, Mr. Ledbetter has an objection he wants to make, and, if I may, I’ll respond to what you just said about those witnesses.
The Court: All right.
Mr. Ledbetter: If the Court please, Mr. Barber requests that we state this into the record for him. The defendant has asked me to object to the Court’s jurisdiction in these proceedings on the groupd that the Court has not ruled on his motion to quash, and because of this and other civil, constitutional reasons this Court lacks jurisdiction to proceed in this matter.”
During an examination of Miss Louise Patten, the Chief Deputy Circuit Clerk, about what the trial court record contained, the following occurred:
“The Court: I want to ask one question. What is that last document you referred to, Mr. Ledbetter?
Mr. Ledbetter: My notice filed on June 19th.
The Court: May I see that? Mr. Ledbetter, I’m looking here at what I believe purports to be this motion. Would you mind coming up and identifying it for me. I’m speaking of the petition filed in the United States District Court.
Mr. Ledbetter: Yes, sir, that’s the document and there’s the notice that was filed.
The Court: You’re telling me that this is a true and correct copy of the petition filed in the United States District Court for the Western District of Arkansas on behalf of Mr. Barber pertaining to the cases now before the Court?
Mr. Ledbetter: Yes, sir.
The Court: The cases here.
Mr. Ledbetter: An exact copy.
The Court: And that this document, this pleading here, is also before the Court at this time, Mr. Ledbetter?
Mr. Ledbetter: No, sir, it’s not.
The Court: It’s part of the record, isn’t it, before the Court?
Mr. Ledbetter: It’s part of the record in that sense, yes, sir.
The Court: All right, sir, thank you. Anything else of Miss Patton?
(Witness is excused.)
Mr. Ledbetter: If the Court please, in support of our motion, we don’t intend to introduce any more testimonial evidence, but we would like to make an argument on it.
The Court: Mr. Barber, I’m asking you personally, do you have anything else that you wish to offer on behalf of this motion for a preliminary hearing?
Mr. Barber: Your Honor, I would like only to reiterate my objection that Mr. Ledbetter read in the record a few moments ago about jurisdiction of the court.
The Court: At the start of the proceeding?
Mr. Barber: Yes, sir.
The Court: That this Court has no jurisdiction?
Mr. Barber: Yes, sir.
The Court: You want the motion to quash ruled on?
Mr. Barber: Yes, sir.”
On September 16th, before commencement of testimony in appellant’s trial, the following occurred:
“Mr. Ledbetter: I have one other motion — we’d like to renew all motions that we had that were denied while the case was on removal to the federal court for the reason that we feel that at the time the court passed on them the court didn’t have jurisdiction.
The Court: Those motions will also be denied. (Barside discussion concluded)”
We find no merit in appellant’s contention that the trial court had no jurisdiction to dispose of defendant’s motion on July 3rd, 1969, while the matter was removed to the federal district court. It appears to ús from the record that the hearing was held at petitioner’s request and for his benefit — i. e., he insisted that he wanted the motions heard even after the trial court became aware of the removal petition. Further, the record conclusively shows that the motions were again made at appellant’s trial on September 16th following the August 6th remand from the district court and the trial court certainly had jurisdiction at that time to deny the motions.
POINT II. Appellant here not only argues that the trial court erred granting the State a continuance in cases No. 1325 and No. 1327, the larceny and intent to kill informations, but also that he was denied a speedy trial and that the trial of the other two offenses would constitute double jeopardy. We find no merit in any of the contentions. The record shows that appellant was tried only on assault with intent to rob. The other two informations were passed until a new jury would be impanelled the following month to prevent appellant being tried on the separate charges by the same jurors.
POINT III. Appellant here contends that he was entitled to have a preliminary hearing before the information could be filed by the prosecuting attorney. We find this without merit, see Moore v. State, 229 Ark. 335, 315 S. W. 2d 907 (1958). Further, the record here shows that when appellant raised the issue he was offered a preliminary hearing, which he declined for fear the State was attempting to cure the point he was raising.
POINT IV. We find no merit in appellant’s contention that the trial court erred in refusing to grant a change of venue. His petition for a change of venue was not supported by affidavits as required by law and appellant refused to obtain the affidavits when offered an opportunity to do so by any agent of his choosing. Further, notwithstanding the appellant’s failure to support his motion by the proper affidavits, the trial court held a hearing. A preponderance of the evidence presented at this hearing shows that there was no prejudice against appellant.
POINT V. Appellant here complains that the trial court should have made available funds to employ a medical expert of appellant’s own choosing to develop his defense of insanity. When appellant filed this motion, the court appointed two local physicians, pursuant to Ark. Stat. Ann. § 43-1304 (Repl. 1964), to determine whether appellant exhibited sufficient indicia of insanity to warrant his transfer to the state hospital for examination.
We find no merit to appellant’s contention that he was entitled at state expense to select a Houston, Texas, doctor to examine him on the issue of insanity. First, our statutes only provide for a mental examination at the state hospital. Next, the record shows that two competent local physicians could not find enough indicia of insanity to warrant their recommending that the trial court transfer appellant to the state hospital for examination.
Affirmed.
This is the same Jack Allen Barber referred to in Barber v. Page, 90 U. S. 719, 20 L. Ed. 2d 255, 88 S. Ct. 1318 (1968) — there the United States Supreme Court reversed a robbery conviction from the State of Oklahoma. | [
16,
-22,
-15,
62,
24,
-63,
8,
28,
66,
-29,
118,
83,
-95,
70,
5,
121,
-85,
91,
85,
121,
-52,
-73,
71,
97,
-86,
-13,
25,
85,
-74,
75,
-66,
-43,
12,
112,
-62,
17,
102,
74,
-57,
28,
-82,
0,
97,
96,
16,
5,
40,
42,
6,
7,
113,
29,
-93,
38,
22,
-54,
105,
44,
73,
44,
64,
-6,
2,
15,
-57,
52,
-93,
-91,
-102,
7,
112,
30,
-104,
49,
1,
-88,
115,
-74,
-126,
68,
77,
-103,
12,
96,
98,
36,
13,
-33,
32,
-120,
14,
-65,
-99,
-121,
-104,
96,
75,
5,
-98,
-99,
107,
20,
-114,
120,
97,
12,
117,
108,
-128,
-34,
-48,
-77,
13,
56,
-106,
-13,
-5,
39,
20,
116,
-51,
-17,
95,
87,
113,
-101,
-58,
-43
] |
Frank Holt, Justice.
On November 5, 1968, a spe cial election was conducted by the appellee, in conjunction with the general election, at which the issues of annexing a contiguous 720-acre tract of land to the appelleé city was submitted. The election resulted in a vote favorable to annexation. The county court, after a hearing, caused an order to be entered on December 31, 1968, granting the petition for annexation. From this order appellant appealed to the Pope Circuit Court where the cause was tried de novo on August 27, 1969, resulting in an affirmation of the order for annexation. From this latter ruling comes the present appeal.
Appellant asserts two points for reversal: (1) The circuit court erred in finding that the lands sought to be annexed are a natural extension to the City of Atkins necessary for the proper and orderly growth of said city; and (2) the circuit court erred in ordering the annexation because the city council’s method of submitting the question to the voters was void.
I
The rules controlling our appellate determination have been firmly and precisely delineated on many prior occasions. Since the vote of the city makes a prima facie case as to the propriety of annexation [Dodson v. Mayor and Town Council, Fort Smith, 33 Ark. 508 (1878)], the burden of proof in showing that the territory should not be annexed is upon the remonstrant at both the county court hearing and the circuit court trial de novo. Planque v. City of Eureka Springs, 243 Ark. 361, 419 S. W. 2d 788 (1967); Walker v. City of Pine Bluff, 214 Ark. 127, 214 S. W. 2d 510 (1948). By the very nature of this type of litigation, there is wide latitude for a divergence of opinion; consequently, a high degree of reliance must be placed upon the findings of the trial judge. See Louallen v. Miller, 229 Ark. 679, 317 S. W. 2d 710 (1958). Our task, as specified in our cases, is solely and simply to ascertain whether any substantial evidence justifies these findings which, on appeal, must be given the same weight and verity as a jury verdict. Louallen v. Miller., supra, and Mann v. City of Hot Springs, 234 Ark. 9, 350 S. W. 2d 317 (1961). Thus, we do not here decide the case by determining the preponderance of the evidence [Walker v. City of Pine Bluff, supra], but rather we must affirm if there was any substantial evidence presented which supports the judgment of the trial court, even though there might be convincing evidence from which the trial court could have found contra — in which case we would have likewise been bound to affirm. It is therefore unnecessary to compare the testimony of each witness; it is sufficient to simply state the finding of the trial court and note that evidence which substantially supports it.
In its “Findings of Fact and Conclusion of Law,” the trial court states:
“3. That the territory sought to be annexed is contiguous to the present city limits of the City of Atkins, and is a natural extension of the city limits of the City of Atkins; that there are presently certain parts of the area which are platted and developed as urban homesites; that the persons in the area are presently receiving all the benefits and utilities available to the residents of the City of Atkins with the exception of sewer service which is not presently available to the major portion of that part of the City of Atkins south of the Missouri Pacific Railroad tracks; that the annexation of the described area to the City of Atkins will benefit both the City of Atkins and the residents of the annexed lands; that the lands are a natural extension of the City of Atkins and are necessary for the proper and orderly growth of the city and represent the actual growth of the town beyond its present legal boundaries; and that the described areas should be annexed to the City of Atkins, Arkansas.”
There is ample and substantial evidence to support this finding and to comply with the often reiterated conditions for annexation enunciated in Vestal v. Little Rock, 54 Ark. 321, 16 S. W. 291 (1890):
City limits may reasonably and properly be extended so as to take in contiguous lands, (1) when they are platted and held for sale or use as town lots, (2) whether platted or not, if they are held to be bought on the market and sold as town property when they reach a value corresponding with the views of the owner, (3) when they furnish the abode for a densely-settled community, or represent the actual growth of the town beyond its legal boundary, (4) when they are needed for any proper town purpose, as for the extension of its streets, or sewer, gas or water system, or to supply places for the abode or business of its residents, or for the extension of needed police regulation, and (5) when they are valuable by reason of their adaptability for prospective town uses; but the mere fact that their value is enhanced by reason of their nearness to the corporation, would not give ground for their annexation, if it did not appear such value was enhanced on account of their adaptability to town use.
“* * * City limits should not be so extended as to take in contiguous lands, (1) when they are used only for purposes of agriculture or horticulture, and are valuable on account of such use, (2) when they are vacant and do not derive special value from their adaptability for city uses.”
These examples or conditions are in the disjunctive. Louallen v. Miller, supra. There we said annexation of land is proper when the proof sufficiently complies with any one of these conditions.
It is not disputed that the territory to be annexed is contiguous to the City of Atkins. Testimony was adduced that the city has furnished the area proposed to be annexed with services afforded to the city’s residents, such as fire protection and water, with the exception of a sewage system. Plans for an extension of this latter service have been tentatively designed. The city maintains a park and two streets in this contiguous territory. It appears there is presently a small part of the area platted and developed as urban home-sites. In fact, some new homes have been built in this territory during the past four or five years. From the testimony it appears that upon annexation fire insurance rates would significantly be decreased; power and telephone rates would also be lowered. There was evidence that the annexation of this contiguous area is susceptible and necessary to the orderly growth of the appellee city^
Appellant insists that City of Newport v. Owens, 213 Ark. 513, 211 S. W. 2d 438 (1948), constitutes a precedent for, and is decisive in, the present case. With this we agree; however, we disagree as to the interpretation and application of that precedent to this case. In Newport the trial court concluded that the facts presented warranted a denial of the petition for annexation. On appeal, we affirmed holding that there was substantial evidence to support this finding. However, we also noted that if the circuit court had found to the contrary, there would have been substantial evidence to support such holding. In that event, as in the case presently before us, we would have likewise affirmed.
Testimony was adduced by the appellant, the only remonstrant, to the effect that the lands sought to be annexed are presently used primarily for agricultural purposes. However, these lands were “not shown to be valuable for that purpose only” so as to bring them within the conditions precluding annexation as specified in Vestal v. Little Rock, supra. See Louallen v. Miller, supra, and Vogel v. Little Rock, 55 Ark. 609, 19 S. W. 13 (1892). In the case at bar most of appellant’s 140 acres of farmlands were excluded from the annexation; however, his home, barn, and headquarters were within the area to be annexed. As to benefits appellant receives from the city prior to annexation, he testified: “I said we had everything they had in the city but sewer. That’s what I said.”
Appellant argues that the territory to be annexed is mostly vacant since it has only approximately 55 houses and 200 inhabitants. In Walker v. City of Pine Bluff, supra, we noted that no particular weight is to be given to the consideration that the territory to be annexed is primarily vacant since “a growing city * * * could hardly be expected to expand into territory already covered by houses.” There was testimony by the mayor that Atkins is a growing city, although at a slow rate, while most small towns in Arkansas have experienced a decrease in population. Appellant contends there is considerable vacant property within the city limits of Atkins which has a population of 1,695. As to vacant property within city limits, in Louallen v. Miller, supra, we held that “[ajlthough the existence of these vacant lots is a circumstance which might have been weighed by the trial judge, it has never been considered controlling by this court.” In the case at bar there appears no reason why it is not feasible and practicable for the contiguous area and the present City of Atkins to become a unity.
II
In his second point for reversal, appellant urges that the city council’s method of submitting the question of annexation to the voters of the City of Atkins was improper and void. This contention is premised primarily upon two considerations: (1) There was neither a resolution nor an ordinance prepared for, read to, or voted upon by the council, nor even a motion properly adopted by the council to submit the question of annexation to the voters of Atkins; and (2) the minutes of the city council reflect that Ordinance No. 280 related to the reorganization of voting wards; whereas, when placed on the ballot, Ordinance No. 280 referred to the question of annexation.
Again we must reiterate that, since these issues substantially involve determinations of fact, reliance will be placed on the judgment of the trial court. In arguing the first enumerated aspect of this contention of error, appellant invites our attention to Batesville v. Ball, 100 Ark. 496, 140 S. W. 712 (1911). Conceding that Batesville holds that a formal ordinance is not necessary to submit the question to a vote by the people, appellant would distinguish it from the instant case by arguing that here the council minutes, coupled with the confused testimony of various councilmen, establish that nothing more than a motion to prepare an ordinance for annexation was ever passed by the council. We cannot agree. There was testimony that the ordinance was drafted and properly acted upon. Furthermore, the minutes reflect that the annexation ordinance was read three times and a unanimous vote of approval was recorded. We hold there was substantial evidence that an ordinance, constituting the city council’s consent to annexation, was properly enacted.
The second aspect of this contention of error is likewise without merit. The trial court found that:
“The error in the numbering of the ordinance of the City Council calling the election was not a material error and did not cause any confusion in the minds of the voters since the notice of the election and the ballot title both referred to the same ordinance number.”
The evidence supports this conclusion. There was no testimony adduced, either from the councilmen regarding the passing of the ordinance or from any residents of the City of Atkins with respect to casting their votes, that this misstatement of the ordinance number was confusing or gave rise to the impression that a reorganization of the wards within the city, instead of the proposed annexation, was being voted upon. In fact, Mr. Dallas Swain, City Recorder, testified that he was probably the only person conscious of this particular error. Each of the councilmen called as a witness testified that he was aware of the substance of the ordinance when voted upon despite whatever number may have been assigned to it. As to the voters, there could not have been any con fusion since the ballot presented to them fully specified the nature of the issue and was not identified simply by number.
Affirmed.
Brown and Byrd, JJ., dissent. | [
116,
-20,
-12,
62,
10,
-64,
18,
-113,
74,
-87,
103,
83,
-83,
-40,
28,
113,
-65,
63,
84,
104,
-57,
-73,
6,
97,
83,
-9,
-53,
-57,
-75,
-51,
102,
-35,
72,
97,
-54,
-43,
70,
106,
-57,
-36,
-50,
-128,
-119,
76,
-40,
-110,
56,
99,
48,
15,
113,
44,
-14,
40,
25,
-61,
-55,
44,
-37,
36,
88,
-8,
26,
-114,
93,
7,
49,
-26,
-104,
5,
104,
46,
-112,
49,
-120,
-4,
115,
-90,
-122,
68,
13,
-39,
-116,
104,
99,
3,
-3,
-17,
-72,
-120,
14,
30,
-99,
-26,
-74,
25,
107,
66,
-106,
-107,
71,
16,
15,
-2,
-27,
37,
95,
124,
-92,
-50,
-48,
-77,
7,
56,
-107,
83,
-29,
-57,
48,
113,
-51,
-14,
92,
70,
19,
-101,
15,
-48
] |
Conley Byrd, Justice.
Appellant, the Arkansas State Game and Fish Commission hereinafter referred to as Commission, filed this action (Cause No. 3440), to quiet its title to the NE % Sec. 28, T. 5 N., R. 21 W. against Parker Parker. It based its title upon a warranty deed from Betsy Altman dated March 3, 1953, recorded in Deed Book 73 at page 474 in the Dardanelle District of Yell County. Other allegations in the complaint are as follows:
“That notwithstanding the above allegations the sheriff and collector of Yell County, Arkansas, caused the said described property to be sold to the defendant herein, Parker Parker, at a tax sale on November 8, 1954, and that subsequent to the said sale, the Clerk of the County Court of Yell County, Arkansas, caused a clerk’s deed of tax sale to be delivered to the defendant herein, Parker Parker, dated January 15, 1957, and filed for record April 15, 1957, at 10:00 a.m.
That on or about the 17th day of September, 1959, the Chancery Court of Yell County, Arkansas, Dardanelle District, entered a decree confirming the title to the said lands described herein to the defendant herein, Parker Parker, said decree being found in Chancery Record H at Page 303 of the Chancery Records of Yell County, Arkansas, Dardanelle District.
That the said decree and tax title issued pursuant thereto were null and void and of no effect since the property purported to be delinquent and confirmed was legally and equitably owned by the State of Arkansas for the use and benefit of the Arkansas Game and Fish Commission.
That Ark. Stat. Ann. § 10-214 provides that no tax title shall be valid or binding against the equitable or legal interests of this State in or to any real estate whatever, but such tax titles are and shall be void, so far as the same shall conflict with the interests of the State, and shall be treated and considered as null and void in both law and equity in all courts of the State.”
On motion of Parker the case of Parker v. Certain Lands, No. 3101 in the Chancery Court of Yell County, Dardanelle District, was consolidated with the action filed by the Commission. In Cause No. 3101 Parker sought to quiet title to numerous tracts of land purchased at tax sales over a number of years. The service obtained there was by newspaper publication. After publication of the notice the Commission voluntarily appeared and claimed four parcels but made no claim to the tract here involved. As a result Parker’s complaint in Cause 3101 was dismissed as to those four parcels, but a decree was entered confirming Parker’s title to the NE¼ Sec. 28, T. 5 N., R. 21 W., here involved.
Cause 3440 was submitted to the Chancellor upon motions by both parties for summary judgment. From a decree holding that the commission was estopped by the judgment in Cause 3101 from proceeding against the lands here involved, the Commission appeals. We agree with the trial court.
Our Constitution (1874) Art. 5, § 20 provides: “The State of Arkansas shall never be made defendant in any of her courts.” In St. Louis Southwestern Ry Co. v. Yates, (CCA Ark. 1927), 23 F. 2d 283, the foregoing provision was construed to mean, “[Tjhat the state cannot be compelled to defend in any action in a court of that state, but that the state may voluntarily appear and ask to be made a party in any action either in the state or the federal courts.”
In Arkansas State Highway Commission v. Partain, 193 Ark. 803, 103 S. W. 2d 53 (1937), in construing the same provision, we said:
“. . . In contending, however, that in no case the courts render a judgment against the state, counsel misconceive the effect and purpose of the constitutional provision, supra. The prohibition is limited to a denial of any one to sue the state in her own courts. The state, however, by virtue of its sovereignty, may become a suitor in her own courts and, when she has done so, she has the same rights and is subject to like restrictions as a private suitor and must submit to, and abide by, the result. Wilson v. Parkinson, 157 Ark. 69, 247 S. W. 774;...”
In King v. Harris, 134 Ark. 337, 203 S. W. 847 (1910), King filed an action as the only heir of Smith to recover possession of land from Harris and Fullerton. The prosecuting attorney appeared and defended on the basis that the lands had escheated to the state and requested that the cause be dismissed as an action against the state. In reversing the trial court’s dismissal of the complaint, we said:
“. . . The State has in effect become a party plaintiff to this litigation and the court should not thereafter have dismissed the complaint for the reason assigned, i. e., that it was a suit against the state. ...”
The cases from other jurisdictions are to the same effect. See Stoner v. Rice, 121 Ind. 51, 22 N. E. 968 (1889), and Clark v. Barnard, 108 U. S. 436, 27 L Ed. 780, 2 S. Ct. 878 (1883).
Therefore, as we understand the law, the Commission as an agency of the State was under no obligation to appear and defend in Cause No. 3101, but when it voluntarily did so it became bound by the decree entered therein like any other private suitor. Consequent ly, we agree with the Chancellor that the decree in Cause No. 3101 is conclusive of the issues raised by the Commission’s complaint here in Cause No. 3440.
Affirmed.
Harris, C. J., and Brown and Fogleman, JJ., dissent. | [
20,
-18,
-12,
12,
41,
64,
56,
2,
67,
-77,
-28,
83,
-83,
66,
20,
57,
-21,
61,
117,
104,
-58,
-74,
113,
98,
82,
-77,
89,
-57,
49,
77,
-84,
-41,
76,
41,
-54,
85,
65,
38,
-51,
88,
-114,
3,
-101,
109,
-55,
64,
60,
46,
82,
11,
49,
-18,
-30,
-83,
28,
-61,
105,
46,
-55,
47,
80,
-86,
59,
-35,
127,
6,
35,
7,
-102,
3,
88,
-86,
-112,
56,
8,
-24,
123,
54,
66,
117,
13,
-115,
8,
44,
98,
2,
-19,
-83,
-88,
8,
47,
127,
-99,
-90,
-78,
72,
3,
1,
-106,
-100,
125,
80,
75,
118,
-28,
-123,
25,
108,
11,
-50,
-106,
-93,
6,
-81,
-116,
19,
-5,
-81,
52,
116,
-49,
-30,
93,
87,
48,
-101,
-122,
-12
] |
J. Fred Jones, Justice.
Jimmy Don Cook was tried before a jury and convicted of voluntary manslaughter in the Sebastian County Circuit Court. He was sentenced to serve not less than two years nor more than six years in the Arkansas Penitentiary. He has appealed to this court and has designated the points he relies on for reversal, as follows:
“The evidence is circumstantial in nature and wholly insufficient to support the jury verdict.
The court erred in refusing to instruct the jury on involuntary manslaughter.”
We do not agree with the appellant on either of the points he has designated.
The facts in this case are derived from circumstantial evidence surrounding a typical barroom brawl, where no one sees anyone do anything unlawful, but where a man lies dead in his own blood, from a stab wound in the heart, when the shouting has died down and the pushing has stopped. Such was the situation at the Brass Rail Bar in Fort Smith at midnight on April 25, 1969, when Donald Mizell died as a result of a stab wound in the heart. Donald’s father owned the Brass Rail.
On the night in question Nita Pard Lanier was the only bartender, or waitress, at the Brass Rail. She testified that there was a good crowd of customers in the place, and that for one person, it was about all she could handle. Mrs. Lanier testified that she was acquainted with the appellant and that on the night in question she saw him alight from a taxicab in front of the Brass Rail and start into the place. She says that she met the appellant at the door, and on this point she testified as follows:
“. . . I told him, ‘Jimmy, you can’t come in here, you know you’re barred,’ and he said, ‘Yes, Nita, I know it, but I was just looking for someone.’ ”
Mrs. Lanier testified that this conversation occurred approximately four seats inside the building. She says that she then went to the last booth in the back of the building and delivered two cokes and two beers and when she returned to the front of the building, the appellant was standing with his back to the wall and a blonde headed girl was standing in front of him with her arms outstretched in the attitude of preventing the appellant from leaving. She says that the girl called twice to Leon Greenhall, “Leon, go call daddy.” Mrs. Lanier then testified:
“I told her, I says, ‘There- isn’t any use in anyone calling anyone, Jimmy’s leaving.’ So at that time Leon turned and walked away and the girl stepped aside and Jimmy walked to the front door with me and then after he got outside well Jimmy turned around and called me a dirty name and told me to come outside and he would show me what he would do to me.”
This witness testified that as the appellant was proceeding from the front door to the sidewalk, and while she was still standing in the front door, several people shoved past her from inside the building, and more or less carried her along with them, in following the appellant outside to the sidewalk. She says that she saw a man, whom she did not know, knock the appellant to the sidewalk. She testified that she rushed back inside the building and as she entered the door, she looked back and saw the appellant propped up on one elbow in the process of arising from the sidewalk, and that he had a dark or black object, four or five inches long, in his right hand. Mrs. Lanier says that she then called the police by phone and that while she was calling the police, one of the customers “hollered and said, ‘Nita, call an ambulance, this man’s bleeding to death.’ She says that after using the phone she went around the bar to where Donald Mizell was. At this point she testified as follows:
“Q. And where was he after you first saw him after he had been stabbed?
A. After the stabbing, he was between two stools middle ways of the bar.
Q. Did you see him come back into the bar?
A. No, sir.
Q. Do you know what relationship there is, if any, to Mr. Mizell to the owners and operators of the bar?
A. Yes, sir.
Q. Will you please tell the jury what that relationship is?
A. Don Mizell is Harley Mizell’s son.
Q. The deceased is the son of the operator and owner of the bar?
A. Yes, sir.”
Mrs. Lanier testified that she was not well acquainted with the deceased and does not recall seeing him come into the bar.
“Q. How long had the Mizell boy been in the place on that evening? Do you have any judgment about it?
A. I’d say approximately maybe ten minutes, I hadn’t waited on him, I didn’t even see him come in and he came to the stool and I served him.
Q. Now that was up at the bar?
A. Yes, sir.
Q. You say you did not see him come in?
A. No, sir.”
Officer Joe Thomas testified that he is a patrolman for the city of Fort Smith and was so employed on the night in question. He says that around 12:00 a.m. on the night in question, while on normal patrol past the Brass Rail, he noticed several people in front of the tavern and about that time he saw someone get knocked, or shoved, down to the sidewalk. He says that this individual got up and seemed to lunge at the crowd of seven or eight people. He says that he called the police station and requested that additional officers be dispatched to the scene. He says that as he parked his own vehicle, and started toward the crowd on the sidewalk, the crowd quickly dissolved and everyone started back inside the Brass Rail. He says that while he was questioning a couple of boys who were passing in front of the Brass Rail, a lady who worked in the place, came out and told him that a boy inside had been stabbed and asked him to send an ambulance. This witness testified that when his captain arrived they called an ambulance. As to the location and condition of Mizell, this witness testified:
“Q. Where was he when you first saw him?
A. He was on the inside of the Brass Rail laying hunkered down between two stools, leaning up against the bar.
Q. Were you there at the time he was removed?
A. Yes, sir.
Q. What was his condition at the time he was removed?
A. He was unconscious at the time that we put him in the ambulance, I don’t believe that he was moving any whatsoever when we placed him on the stretcher and put him in the ambulance.
Q. Did you have occasion to examine the spot where he was after he had been removed?
A. Yes, sir.”
Officer Roy Piercy testified that he was on routine police patrol for the city of Fort Smith on the night in question and received a call from one of the other units that there had been a disturbance at the Brass Rail. He says that he went to the Brass Rail where he found a rather large group of people on the sidewalk and it appeared that there had been a fight or something. He says that he went inside the building and there was a man, identified as Mr. Mizell, lying on the floor. He says that he stood by Mr. Mizell until the ambulance arrived and then went back to his regular patrol. He says that he was called a few minutes later and requested to go to the Edward’s Funeral Home to witness an autopsy on Mizell. Officer Piercy testified that after he witnessed the autopsy and returned to his patrol, about 2:00 a.m. he was patrolling west on North B Street when he noticed an individual across the street in the 600 block near a vacant service station. He says that he stopped the individual and upon questioning him learned that he was the appellant, Jimmy Don Cook. He says that the appellant had been drinking some and was rather belligerent. He says that when he “frisked” the appellant, he found a knife in his belt; that he took the knife from him and placed him under arrest for investigation of murder. This witness identified the appellant as the individual he arrested and testified that the appellant was carrying the knife under his belt with the blade down on the appellant’s lefthand side. He is not sure whether the knife was outside the appellant’s shirt or under the shirt.
Dr. Annette Landrum, a practicing pathologist in Fort Smith, testified that she performed an autopsy on the body of Mizell at approximately 1:20 a.m. on April 26 at the Edward’s Funeral Home. She testified that the autopsy revealed a stab wound which had entered the chest and which had penetrated the right ventricle of the heart, and that it was this penetrating stab wound of the heart that had caused the death. She testified that the stab wound penetrated through the cartilages of the 7th and 8th ribs anteriorly, that is, crossing through the cartilages and severing them arid then passing through the pericardial cavity and through the heart but not penetrating the back of the pericardial cavity or the sacs surrounding the heart. This witness testified that the length of the wound was approximately one to one and one-half inches end to end and the depth of the wound was approximately three and one-half inches. Dr. Landrum testified that from the size, shape and depth of the wound, and from the size and shape of the appellant’s knife placed in evidence, one could logically conclude that the wound could have been made with the appellant’s knife.
Dr. Rodney F. Carlton, associate state medical examiner and a specialist in forensic pathology, testified that he received a vial of blood labeled “Donald Mizell” and a western black-handled knife. He says that he analyzed some stains found on the knife blade and found that it was human blood, probably of group “A.” He says that he examined the vial of blood and found it to be blood group “O.” This witness testified as to the procedure he used in typing the blood and testified that he concluded that the stain found on the knife was probably group “A,” knowing full well that he could not exclude group “O” being present or the possibility that a contamination of the stain on the knife blade had occurred. Dr. Carlton testified that he labeled the blood on the knife as probable group “A”; that he is real sure group “A” blood was present on the knife, but that under the test that he ran, he was unable to exclude group “O” blood from being present on the knife.
Our past decisions are of little value in determining the sufficiency of circumstantial evidence to sustain a conviction by jury verdict, for the reason that each case of conviction must stand on the substantiality of its own evidence, and circumstantial evidence is no stronger than the circumstances from which the facts are sifted and the ties that bind the facts together.
Circumstantial evidence has long been recognized by law as sufficient to sustain a conviction. Walker v. State, 229 Ark. 685, 317 S. W. 2d 823; Osburne v. State, 181 Ark. 661, 27 S. W. 2d 783; Jefferson v. State, 196 Ark. 897, 120 S. W. 2d 327; Smith v. State, 227 Ark. 332, 299 S. W. 2d 52.
The law is also well settled that in testing the sufficiency of evidence on appeal to sustain a jury verdict of guilty in a criminal case, the evidence must be viewed in the light most favorable to the state. Scott v. State, 180 Ark. 408, 21 S. W. 2d 186; Campbell v. State, 170 Ark. 936, 282 S. W. 4. In Scott, supra, this court said:
“The defendant was convicted on circumstantial evidence, but there is no difference in the effect between circumstantial evidence and direct evidence. In either case it is a question for the jury to determine, and, if the jury believes from the circumstances introduced in evidence, beyond a reasonable doubt, that the defendant is guilty, it is the duty of the jury to find him guilty just as it would be if the evidence was direct. There is no greater degree of certainty in proof required where the evidence is circumstantial than where it is direct, for in either case the jury must be convinced of the guilt of the defendant beyong a reasonable doubt. They are bound by their oaths to render a verdict upon all the evidence, and the law makes no distinction between direct evidence of a fact and evidence of circumstances from which the existance of the fact may be inferred. Nichols’ Applied Evidence, vol. 2, § 4, 1065; Underhill’s Criminal Evidence, pages 14 and 16.”
In Dowell v. State, 191 Ark. 311, 86 S. W. 2d 23, the appellant was convicted of first degree murder based on circumstantial evidence. In affirming that conviction this court said:
“The law is well settled in this State that a jury’s verdict which rests solely upon speculation and conjecture will not be permitted to stand. Jones v. State, 85 Ark. 360, 108 S. W. 223: Martin v. State, 151 Ark. 365, 236 S. W. 274; Adams v. State, 173 Ark. 713, 193 S. W. 19; Hogan v. State, 170 Ark. 1143. 282 S. W. 984. On the other hand, this court, in testing the sufficiency of the testimony to support a jury’s verdict, views such testimony in the light most favorable to the state. Morgan v. State, 189 Ark. 981; Rhea v. State, 104 Ark. 162, 147 S. W. 463. Moreover, circumstantial testimony is legal and proper, and, when properly connected, furnishes a substantial basis and support for a jury’s verdict. State v. Jennings, 10 Ark. 428; Scott v. State, 180 Ark. 408, 21 S. W. 2d 186; Taylor v. State, 178 Ark. 1200, 10 S. W. 2d 853.”
Manslaughter is a degree of homicide defined under Arkansas law (Ark. Stat. Ann. § 41-2207 [Repl. 1964]) as “the unlawful killing of a human being, without malice express or implied, and without deliberation.” Section 41-2208 defines voluntary manslaughter in the following language:
“Manslaughter must be voluntary, upon a sudden heat of passion caused by a provocation, apparently sufficient to make the passion irresistible.”
In § 41-2209, involuntary manslaughter is defined as follows:
“If the killing be in the commission of an unlawful act, without malice, and without the means calculated to produce death, or in the prosecution of a lawful act, done without due caution and circumspection, it shall be manslaughter. Provided further ...”
As to the sufficiency of the evidence to sustain the jury verdict in this case, the question actually amounts to little more than whether there was any substantial evidence from which the jury was justified in concluding that the appellant stabbed Mizell. We conclude that there was. The record is clear that the appellant was not a welcome customer at the Brass Rail. When he was reminded of this fact, he agreed that he had been “barred,” but he went to the Brass Rail anyway “looking for someone.” Young Mizell’s father owned and operated the Brass Rail from which the appellant had been barred. Young Mizell was larger than the appellant and he was found slumped to the floor, with a stab wound in the chest, only a few feet at most from where the appellant was detained by a “blonde headed girl” who had called out twice, “Leon, go call daddy.” The jury might well have interpreted this action on the part of the “blonde headed girl” as an effort to keep appellant separated from those he would harm, or from those who would harm him. In any event, the appellant walked with Mrs. Lanier some undisclosed distance from inside the building to the door, and as described by Mrs. Lanier, “just like he was in a daze.” Mrs. Lanier was the only witness who testified as to what went on inside the Brass Rail, and there is no evidence as to what happened while she delivered beer and cokes to the back booth during the interval between the time appellant said he was looking for someone and the blonde headed girl said, “go call daddy.” As the appellant was leaving the building, for some reason not shown in the record, several customers from the Brass Rail crowded through the door following the appellant to the sidewalk, and carrying Mrs. Lanier along with them “like a bulldozer.” Mrs. Lanier saw someone she did not know knock the appellant down and as the appellant started to arise from the sidewalk, he had a black object four or five inches long in his right hand.
A police officer saw the appellant fall to the sidewalk amidst a crowd in front of the Brass Rail and saw the appellant arise from the sidewalk and “lunge at the crowd.” Officer Thomas saw the members of the crowd go back into the building as he approached them. The appellant was apprehended about two hours after he left the Brass Rail and he had the hunting knife, offered in evidence, stuck under. his belt on his left side and the knife had dried human blood on it. The victim’s blood was type “O” and the bloodstain on the knife was found to be probably type “A” under the procedure used. Type “O” blood can give an “A” type reaction when contaminated with perspiration from a person with “A” type. The test used by the pathologist was very sensitive to “A” type reaction, and “O” type blood could not be ruled out by the tests made.
The evidence before the jury can be summarized as follows: When arrested, the appellant was carrying a knife with bloodstains on it. He had recently come from a tavern from which he had been barred, but to which he had gone “looking for someone.” While the appellant was at the tavern Mizell was stabbed with an instrument commensurate in size and length with the appellant’s knife blade. There is no evidence that anyone else carried such a knife as the appellant carried, and there was no evidence that the stab wound in Mizell’s chest was, or could have been, ^inflicted with an instrument other than one the size and shape of the knife blade the appellant was carrying. We conclude that the evidence is sufficient to sustain the conviction.
As to the appellant’s second point, we are of the opinion that the trial court was correct in- refusing the appellant’s requested instruction on involuntary manslaughter. The requested instruction is as follows:
“Involuntary Manslaughter is defined in law as follows: If the killing be in the commission of an unlawful act, without malice, and without the means calculated to produce death, or in the prosecution of a lawful act done without due caution and circumspection, it shall be involuntary manslaughter.
If you find from the evidence beyond a reasonable doubt that the defendant committed the offense of involuntary manslaughter you will find him guilty thereof. If you do not so find you should acquit him and return a verdict in this case of not guilty.”
The requested instruction contains two paragraphs. The first paragraph defines “involuntary manslaughter,” and the second paragraph, which actually constitutes the instruction, tells the jury to either find the appellant guilty of involuntary manslaughter or acquit him. The appellant was actually charged with, and tried for, second degree murder, but was convicted of voluntary manslaughter. Even if the appellant had been entitled to an instruction on involuntary manslaughter, he would not have been entitled to a directed verdict on all other degrees of homicide under the evidence of record in this case.
The judgment is affirmed.
At, another place Mrs. Lanier says she first talked to the appellant four or five feet inside the building. There are fourteen seats, or stools, evenly spaced along the length of the bar in the Brass Rail, and Mizell was found slumped to the floor between the fifth and sixth seat from the front of the building.
The knife taken from the appellant was not well described in the testimony, except as a "black western type knife” by Dr. Carlton. The knife is before us as an exhibit. It is a hunting type knife designed to be carried in a scabbard on a belt. The blade is formed by a single piece of steel extending through the black handle. The handlegrip and blade are separated by the usual handguard seen on this type hunting knife. | [
49,
-22,
-56,
-98,
25,
-32,
26,
-104,
102,
-109,
-15,
114,
-23,
-64,
13,
111,
51,
-1,
85,
57,
-73,
-109,
23,
37,
-5,
-13,
-39,
-44,
-80,
-53,
100,
-1,
72,
96,
-50,
93,
-26,
-54,
-61,
92,
-126,
48,
-55,
-6,
90,
-110,
40,
59,
-124,
23,
-91,
62,
-29,
42,
26,
-54,
73,
60,
91,
46,
80,
57,
80,
15,
108,
20,
-79,
-92,
-98,
5,
120,
24,
-35,
53,
32,
-8,
115,
-76,
-118,
116,
101,
-115,
45,
102,
99,
32,
-99,
-55,
-87,
-55,
31,
-17,
-107,
-89,
-104,
9,
67,
72,
-107,
-35,
107,
84,
14,
104,
-28,
85,
112,
4,
-119,
-50,
-108,
-79,
-49,
61,
-108,
58,
-23,
-105,
112,
117,
-51,
-30,
84,
70,
121,
-101,
-114,
-112
] |
Carleton Harris, Chief Justice.
This is a Workmen’s Compensation case. Leo Rhodes, appellee herein, was admittedly an employee of Allied Telephone Co., one of the appellants herein, on May 9, 1966. Rhodes filed a claim asserting that on May 9 of the aforementioned year, he suffered an injury to his fourth and fifth lumbar vertebrae while helping to move heavy equipment through a door at the Greenbrier office of appellant company. Though the evidence is somewhat confusing, it appears that he did not go to the office for several days, but was carried on. the payroll full-time. On May 23, Rhodes consulted Dr. D. W. Langford, a chiropractor of Conway. Langford took X-rays and his diagnosis was that Rhodes had suffered a subluxation of the fourth and fifth lumbar vertebrae. Five visits were made from May 23 through May 30. Langford said he advised that heat and hot baths would be helpful in relaxing the muscles of the spine. The doctor said that adjustments given were beneficial to Rhodes and his report reflected that he pronounced Rhodes able to resume work as of May 27. The doctor’s bill in the amount of $40.00 was paid by appellants, and Langford was advised that the carrier would not be responsible for further treatment. Rhodes returned to duty and the payroll records of the company reflect that he worked at regular duties, including some overtime hours, until July 26, 1966, when Rhodes was involved in a one car accident between 1 and 2 A.M., as he was returning from Conway to his home in Greenbrier. On July 29, appellee was discharged because of unauthorized use of a company vehicle. No claim was made for any alleged injury in the car accident, appellee’s claim being based entirely on the May 9 incident. Rhodes has not worked since that time, and the record reflects that thereafter he has been observed or treated by numerous doctors including Dr. Dunaway of Conway, Dr. Carruthers of Little Rock, who X-rayed him at St. Vincent’s Hospital, Dr. James R. Morrison, radiologist, a number of doctors at the Veterans Hospital, and Dr. Hundley of Little Rock, who filled out the application for social security benefits. Dr. Robert Watson, neuro surgeon of Little Rock, operated on Rhodes on two occasions. Though all of these doctors were mentioned by appellee, the record contains only the testimony and reports of Drs. Langford, Morrison, and Watson. The claim was first heard by a referee, who filed an opinion on May 16, 1968, finding that on May 9, 1966, claimant suffered a compensable back injury; that claimant lost no compensable time; further, that Rhodes was involved in an auto accident in a company vehicle but suffered no personal injury; that the claimant was in the course of his employment at the time of that accident. The referee found that claimant’s back condition was not caused by the injuries of May 9, 1966, or July 26, 1966, nor was his condition aggravated by either accident. The claim was accordingly denied and dismissed. On appeal, the full commission affirmed the referee except that they disagreed that the accidental injury of July 26 arose out of and in the course of claimant’s employment. Rhodes then appealed to the Circuit Court of Faulkner County, and on June 12, 1969, that court found that the opinion and finding of the commission was “not based upon substantial evidence nor a preponderance of the evidence”, and held that Rhodes was “permanently and totally disabled and there is no testimony to the contrary”. The order of the commission was reversed and that tribunal was directed to enter an award in accordance with the opinion of the Faulkner County Circuit Court. From the judgment so entered, appellants bring this appeal.
At the outset, let it be remembered that in making our determination, we are only concerned with whether there was substantial evidence to support the findings of the commission. Stout Construction Co. v. Wells, 214 Ark. 741, 217 S. W. 2d 841.
Before discussing the medical testimony, we might mention that Roy Montgomery, a repair man for Allied Telephone Co., testified that he was present when Rhodes stated that he had strained his back while lifting something. Montgomery said Rhodes was off work three or four days, but that he remembered that Rhodes did work during May, June, and July. The witness testified that during the months of June and July, he would see Rhodes nearly every day, the latter being a supervisor who would direct Montgomery and some of his fellow employees where to go and what to do. Montgomery did not note Rhodes complaining about his back after the first few days, and he also said that he had heard complaints by appellee relative to his back prior to the date of the accident.
We have already mentioned the testimony of the chiropractor, Dr. Iangford. The deposition of Dr. James R. Morrison, associated with St. Vincent’s Hospital in Little Rock, was offered by appellee. Morrison interpreted X-ray films which were made on January 20, 1967, and also read films from Conway Memorial Hospital dated August 3, which had been taken at the direction of Dr. Dunaway. Dr. Morrison said:
“The routine films here on January 20, 1967, showed what appeared to be a minimal loss in height of the 4th lumbar vertebral body, which would appear to be a very definite compression fracture of this area. This was the only area of injury on the initial films. There was a previous myelogram at that time. We did have special bending films of his back on January 20, ’67, with the patient’s back flexed and extended, and these showed some limitation of motion throughout his lumbar area. * * * *
“Ordinarily it takes an injury of some significance to produce this, but certainly in older people we do see compression simply from bending' over, and stepping off curbs, and this sort of thing.”
Morrison said that he had had occasion to read his colleague’s (Dr. Campbell) diagnosis of the film made at Conway and that the witness and Campbell reached the same conclusions.
On cross-examination, the witness said that he had never examined Rhodes, and that he was not attempting to say that there was any causal connection between appellee’s condition and anything that might have happened in the past. When asked what he meant by the term “compression fracture”, the doctor replied:
“I mean that the vertebral body in question, the 4th lumbar, has definitely lost its height. There’s a very definite loss in the height of this body, which means it has been compressed to lose this height. Now, we use the term compression fracture and compression injury rather loosely in this business, but I think we’re talking about the same thing.”
Upon further interrogation, Dr. Morrison said that it was entirely possible for a compression fracture to be caused by diseased bone.
Appellants offered the deposition of Dr. Robert Watson of Little Rock, who stated that Rhodes had been sent to him by Dr. Dunaway at Conway. He said that Rhodes gave him a history of lifting some heavy equipment about six weeks prior thereto; that Rhodes did not think he was hurt at the time, but after a few days was treated by Dr. Langford. Appellee had related that he had been back at work for about three weeks when he had the automobile accident, this last causing him to go to Dr. Dunaway, who subsequently sent him to the witness. In his report, Watson said that Dunaway had sent Rhodes to him because he thought claimant had a fractured lumbar vertebra, but Watson stated that he had found no evidence to sustain such a finding. The doctor said there was something wrong with the vertebra “but it isn’t a fracture”. Rather,-‘‘it’s an absorption or destruction or a shrinking up pj-.'the vertebra”. Dr. Watson stated that the lifting incident was not a precipitating factor, “it was a coincidental factor”. Further, “I do not think that the condition aggravated or added pathology. I do think that lifting condition brought to his attention, or brought into the picture, the fact that he had some existing abnormality in the back”. When asked if he found any evidence of a' compression fracture of L-4, Watson replied:
“A compression fracture would be a presumptive diagnosis when one first looked at an x-ray and saw that the body was mashed down in shape in contrast to the other vertebra. So a compression fracture is an acceptable presumptive opinion but I had the advantage of opening up this man’s back and seeing the bone and seeing the content of the bone and this is diseased bone rather than fractured bone and this disease was granular in that I could take a spoon, so to speak, and scoop the content of this bone, in contrast to its normal bony hardness.”
The doctor added that he found no evidence of a crack or a healing crack in appellee’s vertebra at L-4, and he said the content of the bone was not what one would observe in a fracture situation. “This was an over-all involvement of the whole vertebra, a destructive change.”
Further, from the testimony:
“A myelogram was done and this myelogram showed that there was something, and that ‘something’ just showed shape, and something was pushing on the nerve at that level, so I operated upon the man and did a laminectomy and that is a procedure in which one separates the muscle away from one side of the back and cuts down into the bony covering of the spine, enough so, as to permit one to get into what we might refer to as the marrow of the spine. With this man I found an unusual appearance, enough to prompt me to send this tissue to the laboratory because I suspected a malignancy. . This was not a run of the mill ruptured disk situation. Then, despite time and treatment, the man was continuing to be worsened. Nobody is infallible, I thought maybe we’d missed something. For that reason I repeated the man’s myelogram and found the condition to be even all the more progressed. And that prompted the second operation.”
When asked about Langford’s X-ray, Watson replied, “I did not find any subluxation. I found a diseased vertebra.” When interrogated about Morrison and his report, the doctor stated:
“Yes, sir, he’s fully qualified, but unfortunately he is using the word ‘compression’ which is fine, this is compressed, we all agree it’s compressed, but he is adding the word ‘fracture’ for which there is no substantiation. It’s a hasty assumption simply because it’s mashed down does not mean that it’s fractured.”
We have set out quite a bit of Watson’s testimony, since the circuit court, in reversing the commission, found that the order of the Workmen’s Compensation Commission was not based upon substantial evidence. It is, of course, immaterial whether this court agrees with the findings of the doctor, but the fact remains that we certainly can not say that Watson’s testimony did not constitute substantial evidence. The trial court mentioned the fact that Watson was unable to definitely define the cause of Rhodes’ condition but this does not mean the doctor’s testimony loses its substantiality. A similar contention was made in U. S. Fidelity & Guaranty Co. v. Dorman, 232 Ark. 749, 340 S. W. 2d 266, it being contended that the evidence was insufficient since the claimant’s medical witnesses were unable to pinpoint the specific mechanism precipitating Dorman’s heart attack. We held the contention to be without merit.
The circuit court stated that in reaching its conclusions, it also considered the fact that the claimant was found totally and permanently disabled by the Social Security Administration (March 31, 1967), and by the Veterans Administration (November 7, 1966). These awards are not perdnent to the finding by the Workmen’s Compensation Commission. There really is no dispute about the disability of Rhodes; the only question is “What caused the disability?” Actually, it appears from reading the opinion of the circuit court that the court was, at times, weighing the testimony rather than simply determining whether there was substantial evidence to support the findings of the commission.
The court mentioned, and appellee argues, that the referee found that the claimant suffered a compensable back injury on May 9, 1966, and it is true that this is the opening line in the referee’s “findings”, although the claim was denied and dismissed. This, argues appellee, is a conflict in the opinion, and though the commission did not mention this' “conflict”, appellee asserts that since the commission itself made no findings, it meant to adopt those of the referee.
We find no merit in the contention. In the first place, we have several times held that no weight is to be attached to the findings of the referee. Potlatch Forests, Inc. v. Smith, 237 Ark. 468, 374 S. W. 2d 166, and cases cited therein. The commission made no such finding, but, at any rate, it will be remembered that the $40.00 bill submitted by Dr. Langford was paid by appellants. It will also be remembered that Langford’s report reflected that Rhodes was able to resume work as of May 27. The referee found that the payroll records reflected that claimant was not absent a sufficient number of days to receive temporary total benefits. We have held that medical payments are a part of compensation, Reynolds Metal Co. v. Brumley, 226 Ark. 388, 290 S. W. 2d 211, and the referee likely had this in mind in making the finding heretofore mentioned.
As previously stated, we are only concerned with whether there was substantial evidence to support the commission’s findings, and we are of the opinion that' Dr. Watson’s testimony met that test.
It follows that the judgment of the circuit court is reversed, and the case is remanded with directions to reinstate the order of the commission denying compensation.
It is so ordered.
Jones, J. dissents.
Fogleman, J. not participating.
Rhodes, on March 31, 1967, was awarded $128.40 a month in social security benefits for total disability, and it also appears that on November 7, 1966, he had obtained an award of $84.00 a month from the Veterans Administration for a non-service connected disability.
It is not at all clear why this finding was made since no claim was filed for compensation. The commission mentioned that no claim was actually made for the incident on July 26, and pointed out that the record of the hearing before the referee reflected that claimant’s attorney objected to certain questions relating to the car accident and stated that the claim was for the accident that occurred on May 9, 1966.
Pathology reports revealed small single glands of an abnormal character, but evidences of cancer were not found. | [
48,
108,
-7,
-100,
26,
-31,
58,
10,
113,
3,
55,
123,
-19,
111,
93,
101,
-29,
63,
117,
121,
-11,
-77,
19,
110,
-30,
-109,
121,
-59,
-71,
107,
-76,
-108,
77,
24,
-118,
-123,
70,
76,
-51,
28,
-62,
4,
27,
-19,
89,
80,
48,
62,
-100,
79,
53,
-114,
-54,
42,
20,
79,
44,
44,
91,
32,
-48,
-16,
-118,
13,
-17,
16,
32,
4,
-102,
45,
88,
30,
-40,
-79,
97,
-84,
114,
-74,
-126,
-76,
97,
-103,
12,
98,
98,
50,
-107,
-17,
-8,
-72,
22,
-68,
-99,
-92,
-77,
57,
-117,
3,
-106,
-99,
90,
20,
30,
92,
-8,
77,
29,
44,
-117,
-113,
-106,
-95,
-49,
-20,
28,
3,
-21,
15,
20,
115,
-52,
-94,
93,
71,
123,
-101,
27,
-79
] |
George Rose Smith, Justice.
This is the second appeal in a condemnation case in which the highway department is taking, as a right of way for interstate 40, a 29.27-acre strip (plus a construction easement) across the appellees’ lands, which total 740 acres. The first judgment was reversed because of an error by which hearsay testimony about the cost of a bridge was admitted in evidence. Ark. State Highway Commn. v. Carruthers, decided April 7, 1969, 439 S. W. 2d 40. At the second trial the verdict was for $50,000. The department relies upon two points for reversal.
First, it is argued that the landowners should not have been allowed to show the cost of an “all-weather” road that is assertedly needed to provide access to part of. the property. The road in question, which includes a bridge, will be a means of access to an 85-acre parcel that was already isolated on the east by Point Remove Drainage Canal and that will hereafter be isolated on the south by Interstate 40.
It is recognized by the appellant that if the access road is really needed, then its cost is a proper matter for the jury to consider in fixing the landowners’ just compensation. Ark. State Highway Commn. v. Speck, 230 Ark. 712, 324 S. W. 2d 796 (1959). But the appellant insists that an all-weather road is not required to restore the property as a whole to its former usability, because the landowners did not have all-weather accessibility before the 85-acre tract was isolated by the new interstate highway.
On the record we cannot sustain the appellant’s contention. The landowners’ expert witness on the cost of building the road did not use the term “all-weather” (which was used only by the landowners’ attorney in an unanswered question to the witness). Instead, the witness said that in his opinion a crushed-stone or gravel road is going to be needed to provide access to the isolated tract. Whether such a road will truly be required to restore the tract’s former accessibility was a question of fact upon which the landowners offered substantial evidence to sustain their position. The highway department, despite its knowledge from the testimony at the first trial that the point would be a major issue in the case, did not submit proof to show either that the crushed-stone road will not be needed or that it will not cost as much as the landowners’ witness estimated. We conclude that the issue was properly a question of fact for the jury’s determination.
Secondly, the appellant, citing Ark. State Highway Commn. v. Toffelmire, 247 Ark., 444 S. W. 2d 241, argues that the landowners’ expert value witnesses were improperly allowed to exaggerate the damage to part of the property by valuing it . as an airport site before the taking and as agricultural land after the taking. In the Toffelmire case we held that improvements should not be valued for residential use before the taking but for commercial use afterwards.
We find no error. In the case at bar what is referred to as the Morrilton Airport was situated on the property and was owned by the landowners. Used mainly for crop dusting, it comprised a 4,000-foot cleared runway plus appurtenant improvements. The interstate highway will cut the runway in two, destroying the airport. The landowners’ witness Pearce, for example, assessed $11,500 damages for the loss of the airport and also testified that after the taking an entire 118.7-acre tract, of which the airport had been a small part, would be reduced in value by $15 an acre for agricultural purposes.
In the Toffelmire case the jury had no way of reconciling the two conflicting valuations of the same structure. But here the airport was destroyed, so that no after-valuation was assigned to it as such. We find nothing in the testimony that could have confused or misled the jury, which in this instance had all the facts before it. Moreover, even if an error were shown, it would apparently be substantially less than 1% of the verdict and would be susceptible of correction by a remittitur. The highway department, however, has not requested that relief nor furnished us with the evidence necessary to the computation of the trivial excess; so we do not explore tíre matter of a possible remittitur.
Affirmed. | [
-13,
-22,
-12,
-68,
-21,
64,
26,
-56,
73,
-85,
-28,
83,
47,
66,
20,
51,
-90,
63,
101,
43,
87,
-93,
87,
-30,
22,
-13,
115,
-57,
-69,
-51,
-28,
-43,
76,
113,
-54,
-99,
100,
-56,
79,
-40,
110,
-114,
-104,
77,
105,
-64,
56,
107,
18,
11,
53,
-113,
-5,
44,
24,
-61,
9,
44,
91,
-84,
73,
-8,
-102,
-113,
127,
4,
32,
116,
-78,
3,
88,
42,
-104,
-11,
8,
28,
115,
-90,
-110,
-28,
75,
-103,
8,
-72,
99,
17,
45,
-41,
-20,
-104,
14,
-8,
-115,
-90,
-110,
24,
75,
33,
-73,
-43,
121,
16,
67,
122,
-26,
77,
89,
104,
5,
-53,
-78,
-79,
-59,
60,
-104,
83,
-29,
9,
48,
113,
-49,
-61,
94,
69,
113,
-101,
6,
-16
] |
Lyle Brown, Justice.
The sufficiency of service of process in two separate personal injury suits is the subject of this appeal. One suit was filed by Jack Bullard and Ruth Bullard Chambliss, and the other by Benny and Anita Clark. The Bullards and the Clarks filed suits in Jackson County against Crown Coach Company for damages arising out of a collision, or collisions, with the latter’s bus in that county. All plaintiffs were alleged to be residents of Jackson County. Crown Coach is a foreign corporation authorized to do business in Arkansas. Summonses were served in Pulaski County on W. E. Crowder, who was alleged to be amenable to service for Crown Coach. The trial court sustained the bus company’s motion to quash service and the Bullards and the Clarks appeal. The only question properly before us is the question of validity of service. That is because the only action taken by the trial court was to quash the summonses.
Service of summons was had on W. E. Crowder, terminal manager for Central Greyhound Lines in Little Rock, Pulaski County. Crown Coach had a contract with Greyhound whereby Crown Coach used Greyhound’s terminal facilities. Under the contract, Greyhound’s terminal employees sold Crown Coach tickets, handled its freight shipments, and furnished schedule information to Crown Coach customers. At the close of each day’s business, Crowder would prepare a daily report on receipts from Crown Coach business and mail it to the latter’s home office with check to cover. Crown Coach paid a commission to Greyhound’s home office, based on the volume of business.
Appellants do not contend that Crowder was an agent of Crown Coach in the usual sense in which that term is used when referring to agents upon whom process may be served. Rather, they contend the service on Crowder is valid under certain provisions of Ark. Stat. Ann. § 27-543 (Repl. 1962). That section provides, among other things, that service may be had by serving any clerk “selling tickets or transacting any business for such owner or operator.”
Section 27-343 is an extraordinary procedure for service of summons; its use is restricted. That restriction was first enunciated in Dixie Motor Coach Corp. v. Toler, 197 Ark. 1097, 126 S. W. 2d 618 (1939), where we said the provision “was intended to afford service rights only in those cases where adequate provision had not been made by previous statutes. . .” To the same effect see Lindley v. Kincannon, 200 Ark. 772, 140 S. W. 2d 1005 (1940).
Appellants recognize the holdings in the cited cases but counter with the assertion that no other method of service was open to them. “Thus the question,” say appellants, “is simply were other methods of service open to us other than 27-343.” Section 27-350 (Repl. 1962) was a part of our Civil Code:
Service on Foreign Corporations — Where the defendant is a foreign corporation having an agent in this State, the service may be upon such agent.
We have concluded, as apparently did the trial court, that service was available under the recited statute. For several years appellee had a designated agent for service registered with the Secretary of State, but long before the date these cases were filed he died. However, the record shows that Crown Coach did have an agent in this State. It was related that Crown Coach was running five round trips daily between Little Rock and Ft. Smith in Sebastian County. (Its route does not go through Jackson County; the bus involved in the accident was chartered for a special trip.) It was further testified that Crown Coach had a superintendent, Robert Young, stationed at Ft. Smith; and that he resided there and was serving in that capacity before, during, and after the filing of these cases. It was also testified that Mr. Young was registered with the Arkansas Commerce Commission as the designated, resident agent for service in Arkansas, as required by Ark. Stat. Ann. § 73-1778 (Repl. 1957); the trial court could consider that evidence in determining whether Robert Young was a resident agent of appellee. The status of Robert Young, and his relationship with Crown Coach, were questions of fact. Hot Springs School Dist. No. 6 v. Surface Combustion Corp., 222 Ark. 591, 261 S. W. 2d 769 (1953); Keith v. City of Cave Springs, 233 Ark. 363, 344 S. W. 2d 591 (1961). The trial court did not state its reason for quashing the summonses but we have no doubt it decided that other service was available under § 27-350. We are unable to say as a matter of law that the trial court was in error.
Appellee cites a number of other statutes under which it is claimed service could have been effected. However, the facts developed before the trial court were directed only at the status of Crowder and Young as regarded their connections with Crown Coach. We perceive that the trial judge reached his conclusions on the basis of the evidence before him and therefore deem it unnecessary to explore the other possibilities.
Affirmed. | [
48,
-20,
-28,
60,
8,
98,
50,
26,
81,
-117,
39,
83,
-81,
-59,
13,
41,
-9,
31,
-11,
123,
-41,
-73,
87,
34,
-48,
-13,
113,
69,
-77,
73,
-28,
-42,
76,
48,
-50,
85,
70,
79,
-57,
24,
-18,
34,
59,
101,
121,
18,
52,
120,
86,
7,
49,
-113,
-45,
46,
25,
71,
45,
62,
89,
-19,
-40,
-48,
-54,
-121,
111,
6,
48,
36,
-102,
7,
120,
58,
-116,
53,
0,
-8,
48,
-74,
-118,
-44,
107,
-71,
9,
-94,
98,
-31,
1,
-51,
-68,
-87,
6,
122,
15,
-89,
-106,
120,
107,
5,
-74,
-97,
120,
18,
11,
-4,
-33,
69,
25,
44,
11,
-114,
-106,
-93,
5,
1,
30,
11,
-30,
67,
16,
113,
-52,
-14,
93,
71,
16,
-101,
-122,
-98
] |
J. Fred Jones, Justice.
James A. Penney was convicted in the North Little Rock Municipal Court and fined $25 for failure to wear protective headgear while operating a motorcycle in violation of § S of Act 201 of 1959, as amended by Act 296 of 1967 (Ark. Stat. Ann. § 75-1703 [Supp. 1969]). On appeal to the Pulaski County Circuit Court, Penney was again convicted and on appeal to this court he relies on the following point for reversal:
“The Court erred in refusing to grant the defendant’s Motion to dismiss on the grounds that the Act under which he was charged was unconstitutional.”
Act 296, approved March 10, 1967 (§ 75-1703, supra) provides, in part, as follows:
“From and after the effective date of this Act, all riders used upon the public streets and highways of this State and passengers of motor driven cycles and motorcycles shall be equipped with the following equipment under standards set forth by the department of motor vehicles for the State of Arkansas:
(a) Protective headgear,
(b) Protective glasses, goggles or transparent face shields.”
We take judicial notice of Motor Vehicle Division regulation No. 1967-3 promulgated under authority of Act 296 of 1967, supra, which sets forth standards for the equipment required under the Act. The sole question presented on this appeal is whether the Act under which Penney was convicted is constitutional, and we hold that it is.
The appellant contends that the Act involved is unconstitutional “in that it is beyond the police power of the legislature. The Act was passed for the protection of the rider himself and not the general public.” The appellant insists that the Act is unconstitutional and urges us in so holding, to adopt the views of the Michigan, Ohio, New York and Louisiana courts as announced in the following cases: By Michigan in American Motorcycle Association v. Davids, 158 N. W. 2d 72; by Ohio in State v. Betts, 252 N. E. 2d 866; by New York in People v. Carmichael, 279 N. Y. S. 2d 272, 53 Misc. 2d 584, and by the Court of Appeals of Louisiana as announced in Everhardt v. City of New Orleans, 208 So. 2d 423.
We are of the opinion that the better reasoning favors the courts who have held similar statutes constitutional and we feel more comfortable aligned with the final decision of the New York court in People v. Carmichael, as announced in 288 N. Y. S. 2d 931, and the final Louisiana Supreme Court decision in Everhardt v. City of New Orleans, as announced in 217 So. 2d 400. In reversing the Special Sessions Court in Carmichael, the Genesee County Court in 288 N. Y. S. 2d 931, said:
“. . . While concededly the instant legislation may infringe on the rights of the individual, it is equally apparent that such is incidental to a valid exercise of the police power and is not unreasonable. * * # The use of protective helmets is an accepted and widely used safety device in our so-1 ciety. A standard by its nature may be a general one and nonetheless valid if it is capable of reasonable application under the circumstances.”
The Supreme Court of Louisiana in the final disposition of the Everhardt case, reversed the Fourth Circuit Court of Appeals and held that the Louisiana statute was constitutional. The Fourth Circuit Court of Appeals in Everhardt, as reported in 208 So. 2d 423, found the Carmichael decision as announced by the Special Sessions Court for the Town of Oakfield in New York, persuasive and proceeded to follow it. It is interesting to note that by the time Everhardt was finally decided and reversed by the Supreme Court of Louisiana, the New York Special Sessions Court in People v. Carmichael had also been reversed and the New York statute held to be constitutional.
In the Texas case of Ex Parte Smith, 441 S. W. 2d 544, the constitutionality of a similar statute was involved and the defendant-appellee also relied on the earlier New York and Louisiana decisions in Carmichael and Everhardt, but the Texas Court of Criminal Appeals aligned itself with the later and final decisions in Carmichael and Everhardt, as well as with the decisions from a number of other states in holding similar statutes constitutional.
The protective headgear statutes appear very similar in all the states where they have been adopted, and in a majority of such states, where the constitutionality of the Act has been questioned, the courts have held the Acts are constitutional. Kentucky seems to be the most recent state to join the majority in holding a similar statute constitutional. In the case of Commonwealth of Kentucky v. Coffman, rendered on May 1, 1970, and not yet reported in printed form, it is pointed out that the Kentucky statute requires that all persons operating or riding motorcycles are required to wear protective helmets of the type approved by the commissioner of public safety. In aligning Kentucky with the majority view, the Supreme Court of Kentucky said:
. . [Ojnly two states, Illinois and Michigan, have declared acts similar to the one here in question to be unconstitutional. See People v. Fries, Ill., 250 N. E. 2d 149, and American Motorcycle Association v. Davids, Mich., 158 N. W. 2d 72.
At least thirteen other states have upheld the constitutionality of similar acts. In Bisenius v. Karns, Wis., 165 N. W. 2d 377, the Wisconsin Supreme Court in a well-reasoned opinion upheld the constitutionality of a similar act. This case went to the Supreme Court of the United States where the appeal was dismissed ‘for want of a substantial federal question.’ 395 U. S. 709, 89 S. Ct. 2033 (1969).
Among other states that have upheld statutes requiring motorcycle operators and riders to wear protective headgear are North Carolina, Louisiana, Rhode Island, Massachusetts, North Dakota, Vermont, Missouri, Florida, Washington, Oregon, and Connecticut. See Everhardt v. City of New Orleans, 217 So. 2d 400 (La., 1968); State ex rel. Colvin v. Lombardi, 241 A. 2d 625, (R. I., 1968); Commonwealth v. Howie, 238 N. E. 2d 373 (Mass., 1968) cert. den. 393 U. S. 999, 89 S. Ct. 485; State v. Odegaard, 165 N. W. 2d 677 (N. D., 1969); State v. Colomon, 260 A. 2d 377 (Vt., 1969); State v. Darrah, 446 S. W. 2d 745 (Mo., 1969); State v. Eitel, 227 So. 2d 489 (Fla., 1969); State v. Laitinen, 459 P. 2d 789 (Wash., 1969); State v. Fetterly, 456 P. 2d 996 (Oreg., 1969); State v. Burzychi, 252 A. 2d 312 (Conn., 1969).
Since the Missouri court decided State v. Darrah, supra, it had occasion on March 9, 1970, to again decide a case involving the identical questions raised in the present case in State v. Cushman, Mo., 451 S. W. 2d 17, to which we refer the reader for a more detailed reason for the results herein reached.
... in the narrow -scope in which the safety device is here presented, we have no hesitancy in holding that the statute in question has a real and substantial relation to the public welfare and is therefore constitutional.”
We join, the decisions of what appears to be by far the great majority of the courts of the other states, in holding that § 3 of Act 201 of 1959, as amended by Act 296 of 1967, is a proper exercise of the police powers of the state of Arkansas and is constitutional. In doing so we are unable to find better expressed reasons than has been given in the various cases, supra, but we consider the reasoning, as expressed by the New Jersey court in State v. Mele, 247 A. 2d 176, to be very much in keeping with our own view in the case at bar. In that case the New Jersey court said:
“. . .At first glance, a requirement of protective headgear seems aimed only at protection of the individual. However, serious thought indicates otherwise. The general public has a right to be protected from the accidents which might result from a blow on the head received from objects kicked up from the highway. The blow, however slight, might be just enough to distract a motorcyclist and cause him to lose control and become a menace to other vehicles or pedestrians on the highway.”
We also approve the language used by the Supreme Court of North Carolina in the case of State v. Anderson, 164 S. E. 2d 48, where, in holding constitutional a statute almost identical with our own, the North Carolina Court said:
“Death on the highway can no longer be considered as a personal and individual tragedy alone. The mounting carnage has long since reached propor tions of a public disaster. Legislation reasonably designed to reduce the toll may for that reason alone be sufficiently imbued with the public interests to meet the constitutional test required for a valid exercise of the State’s police power. However, it is not necessary to invoke so broad a premise in order to find the statute here attached to be constitutional.”
We, therefore, hold that since the statute in question bears a reasonable, real and substantial relation to the public health, safety and welfare, it is constitutional as a valid exercise of the police power of the state of Arkansas. Therefore, since the facts are not in dispute, the judgment of the circuit court must be affirmed.
Affirmed. | [
52,
-17,
-12,
-66,
10,
64,
3,
-108,
18,
-95,
-91,
83,
39,
91,
4,
49,
-5,
-1,
85,
107,
-43,
-77,
87,
-94,
-94,
-5,
-53,
71,
-78,
73,
-18,
-14,
76,
112,
-54,
85,
68,
66,
-123,
94,
-82,
2,
11,
-24,
88,
81,
60,
122,
16,
-117,
49,
-97,
-61,
46,
26,
-38,
-19,
36,
-53,
-91,
121,
121,
-97,
-99,
111,
20,
-77,
36,
-102,
-91,
-8,
76,
28,
49,
80,
-8,
115,
-90,
-122,
-12,
109,
-103,
12,
98,
102,
1,
33,
-25,
-8,
-88,
14,
122,
-83,
-121,
-106,
81,
65,
12,
-97,
-105,
107,
19,
15,
118,
-30,
85,
87,
120,
7,
-49,
-108,
-79,
-27,
114,
-116,
-26,
-21,
99,
48,
113,
-58,
-10,
87,
69,
-75,
-34,
-42,
-44
] |
Carleton Harris, Chief Justice.
The question presented on this appeal is the construction of certain language appearing in an insurance policy. Pertinent facts are undisputed, and are as follows: On December 12, 1968, A. G. Abbott purchased a life insurance policy from appellant company. The policy provided for the payment of $2,000 upon the death of Abbott and, additional protection of $2,000 (not here in question) making a total of $4,000. For an additional premium, the company agreed to pay Abbott’s beneficiary an additional $4,000 if the insured were killed in a non-vehicle accident, as defined in the policy, or an additional $8,000 if the insured should be killed in a vehicle accident as defined in the policy. Two days after the policy was issued, Abbott was killed while driving his 1965 one-half ton Dodge pickup truck. It was stipulated between the parties that Abbott owned this truck and that it was used for pleasure only and not for work or for hire. Appellant, the National Life and Accident Insurance Company, paid Abbott’s beneficiary, Murl Dean Abbott, his wife, $8,000, but refused to pay a total of $12,000. Thereafter, Mrs. Abbott instituted suit for $4,000. The company denied liability on the basis that the pickup truck driven by Abbott at the time of his death was excluded from coverage under the provisions of the policy. The vehicle accident provision reads as follows:
“The Vehicle Accident Benefit shall be payable in lieu of the Non-Vehicle Accident Benefit (1) if in the absence of this paragraph a benefit would be payable under the conditions and limitations of the preceding paragraph, (2) if the bodily injuries causing the death of the Insured are sustained at a time other than during a period of military service, and (3) if such injuries result from his (a) driving or riding in an automobile, (as defined below) operated on a public street or highway other than in racing, drag racing, or in willful violation of any traffic law or ordinance, or (b) riding as a fare paying passenger in a public conveyance operated by a licensed common carrier for the regular transportation of passengers, or (c) riding as a passenger in an official school bus operating on an authorized trip. The term “automobile” shall mean a four-wheeled passenger motor vehicle exclusively of the pleasure car type, not operated by the insured for hire” [Our emphasis]
After the company had submitted Request for Admissions, both sides moved for a summary judgment on the basis of the facts heretofore recited. The court held that Mrs. Abbott’s motion should be granted, and that appellant’s motion should be denied. It thereupon entered judgment for appellee in the amount of $4,000, plus a 12% penalty, and an attorney’s fee in the sum of $1,000, making a total judgment of $5,480. From the judgment so entered, appellant brings this appeal. For reversal, it is simply asserted that the court erred in granting appellee’s motion for summary judgment and denying appellant’s motion for summary judgment, since as a matter of law, the appellee’s 1965 Dodge one-half ton pickup truck was not an automobile as defined in the policy.
We have, of course, held that when policy language is clear and unambiguous, the court should decide, as a matter of law, the construction. McDaniel v. Missouri State Life Insurance Company 185 Ark. 1160, 51 S. W. 2d 981. On the other hand, we have also held that if the language is ambiguous, such ambiguity is con strued against the party who prepared the contract, in this instance, the insurance company. Employers Mutual Liability Insurance Co. of Wisconsin v. Puryear Wood Products Company, 247 Ark. 447 S. W. 2d 139. The question therefore really is whether the italicized language in the agreement is ambiguous. We do not find this language to be ambiguous and it appears that this view is in accord with the majority of jurisdictions. Cases supporting this concept are logical and well reasoned. One of the leading cases on this subject is Spence v. Washington National Insurance Company (Ill.) 50 NE 2d 128. There, an accident policy compensated for death occurring while riding in a private passenger type automobile of the exclusively pleasure type. The construction of Part four was an issue in the litigation, the court stating,
“The salient words of part four (a) which was the part upon which liability is here claimed reads as follows: 'part four: Automobile, Taxi Cab, Burning Buildings and other specified accidents, (a) By the wrecking or disabling of any private passenger type automobile of the exclusively pleasure type (motorcycles excepted) * * * within which the Insured is riding or driving as a passenger at the time of such wrecking or disabling’.”
In holding that a Ford truck was not included in the coverage just mentioned, the appellate court of Illinois (Fourth District) said:
“The remaining question for consideration is whether the Ford truck in which Willie Spence was riding at the time of the accident brought him within the terms of his contract of insurance with this company. We have quoted, above, the terms of Part 4 of this policy. It seems clear to us that this Ford truck was not such a vehicle. It was the ordinary standard model half ton Ford pick-up truck. It had an enclosed cab with an express type body in the rear. Such trucks are built for light pick-up work, hauling of material, delivery of groceries and the like.
“The contention of plaintiff in her argument is that she has proven that Willie Spence used this truck for hauling persons whom he picked up on the highway or at church and for transporting his family to church and other places; that he rode in it to and from work; that sometimes he put benches in the back part of the truck upon which persons sat; and that he only hauled coal and articles in it for his own family use. Plaintiff concludes that as to him, Spence, his truck was a passenger type automobile of the exclusively pleasure type.
“But it seems to us that such is not the proper yardstick with which to measure this insurance contract. It is not a question whether this truck was a passenger automobile ‘as to Spence’. Defendant had the right to prescribe the kind of vehicle and type of vehicle it desired to cover by its insurance policy. Whether accidents are more likely to occur to people riding in trucks or whether more serious injuries may result to people in truck accidents might be a reason why defendant was pleased to exclude such vehicle by the wording in its contract. But any reason defendant might have had for such exclusion is immaterial. This policy did not say that it covered a vehicle which might be used as a passenger car by the insured. If the construction urged by the plaintiff is recognized an insured might then ride in a tractor or tank or caterpillar vehicle, and call it, as to him, a passenger automobile.” [Our emphasis]
In Gray v. North American Co. for Life, Acc., & Health Insurance 128 So. 2d 233, the Court of Appeal of Louisiana (Second Circuit) held likewise in construing a policy provision which afforded accidental insurance if the insured lost his life through the "wrecking or disablement of a private automobile of the exclusively pleasure type * * The policy holder, Gray, was accidentally killed while a guest passenger in a pickup truck, and the question presented was whether this vehicle was susceptible of classification as a private automobile of the exclusively pleasure type. It is interesting to note that here too, the contention was advanced that inasmuch as the driver of the truck used it exclusively for his own pleasure and convenience, it was within the policy coverage. After discussing cases on the subject, including Spence, the court concluded:
“We have not been able to discover any ambiguity in the policy that would permit us to hold that the insured who met his death while riding in a pick-up truck of less than 1,500 pounds capacity, was riding in a private automobile of the ‘exclusively pleasure type’.”
A like view is expressed in Pennell v. United Insurance Company, Inc. (Texas) 243 S. W. 572. There, Pennell was accidentally injured while driving a jeep in the performance of his duties, and he held a policy providing benefits for total loss of time caused by accidental injury. There was a further provision in the policy that the monthly indemnity would be doubled if the insured was injured “while driving or riding within any private passenger automobile exclusively of the pleasure car type”. In holding with the insurance company, the court found no ambiguity and stated:
“The words are simple. We do not find, as petitioner contends, that the word ‘exclusively’ causes the description to be ambiguous or that ambiguity arises from the ‘placement’ of that word. ‘Exclusively’ gives emphasis to the description as an automobile of the pleasure car type. We believe the words clearly mean that the double indemnity provision applies only to automobiles that are constructed and intended to be used exclusively for pleasure, and does not apply to automobiles constructed and intended to be used for freight carrying or agricultural or industrial purposes, and does not apply to automobiles constructed and intended to be used both for pleasure and for freight carrying or agricultural or industrial purposes.”
In both this case and.Gray v. North American Com pany for Life, Acc., & Health Ins., Supra, the cases are distinguished, in the opinions, from the Tennessee case of Aetna Life Insurance Company v. Bidwell 241 S. W. 2d 595, the Tennessee case holding that a recovery was proper where an insured was killed while riding on a pleasure trip in a one-half ton pickup truck, this case being cited by appellee in her brief. There, the clause in question set out that the insured was covered, if killed, “while — riding in — a private passenger automobile of the pleasure type”. The contract then provided that the term “auto” did not “include a motorcycle or any vehicle or mechanical device for aerial navagation”. In distinguishing the case, both the Louisiana and Texas courts pointed out that the policy in Bidwell did not use the word “exclusively”. In fact, a part of the Bidwell opinion is quoted in Gray as follows:
“Under the immediately above stated view of the matter, it would follow that in a policy where the word ‘exclusively’ is omitted, then the expression ‘of the pleasure car type’ is ambiguous and evidence as to the common use of a given type passenger automobile for pleasure purposes would be material to the question of whether that particular type passenger automobile may be reasonably considered as one of a pleasure type, if the policy furnished no definition.”
Since the present policy contains that word, Bidwell is not authority for appellee’s position.
The only other authority cited by appellée interpreting similarly worded contracts is the Missouri case of Hoover v. National Casualty Company 162 S. W. 2d 363. There, Hoover contended for recovery under a clause which provided a $1,000 benefit if the death of the insured was caused;_
“(a) By the wrecking of a private pleasure type automobile or horse-drawn vehicle within which the insured is driving or riding as a passenger, (excluding motorcycle and farm machinery) or while so driving or riding by being accidently thrown from within such wrecked automobile or vehicle.”
The court allowed recovery, giving its reason as follows:
“Under the rule expressio unius, the phrase ‘pleasure type automobile’ used by defendant in its contract of insurance necessarily excluded all other types of motor vehicles. 13 C. J. 537: 17 C. J. S., Contracts, § 312. But defendant was not content with use of a term which it contends is unambiguous and which excludes automobiles of the type in which insured was riding when killed. It went further and specifically excluded motorcycles and a whole class of automotive farm machinery which, we think, could not have been considered as coming under the classification of ‘pleasure type automobile’. When the above rule is, applied to the exclusion clause, it would seem that all automotive vehicles not specifically named and excluded are meant to be included in the coverage. Thus defendant has created an ambiguous contract which, to the uninitiated in the law, might indicate that an insured would be protected against accidents while riding in almost any kind of a privately owned and operated automobile, of which the bus in question would be one.”
Appellee likewise argues in the case before us that the insuror created an ambiguity by adding the exclusion as to vehicles operated for hire . We cannot agree that this one little phrase creates an ambiguity; rather, it seems that the language is clear and unmistakable. The clause simply provides that an insured is covered if he is killed while driving, or riding in, a passenger motor vehicle exclusively of the pleasure car type, and he is not at the time operating that vehicle for hire.
Appéllee also predicates her case in large measure-upon the fact that it is stipulated that the pickup truck had been used by Abbott entirely for pleasure. But -use” does not govern whether the vehicle involved here was included in the coverage; rather, liability is determined by- the “type” of vehicle involved. This same contention was considered in Spence v. Washington National Insurance Co., Supra, and it will be noted that we have italicized the language from that opinion which relates to the argument now made.
. It is also argued that it is .unconscionable to permit an insurance company to sell a policy providing to benefits from death by accidental means in a motor vehicle, and then deny coverage when death occurs in the only motor vehicle owned by the deceased. In the first place, the clause speaks for itself; in the next place, there is-nothing in -the record-to indicate that the company knew the pickup truck was the only vehicle owned by Abbott; and of course, Abbott was afforded coverage if killed while riding as a passenger in some other person’s four wheeled passenger motor vehicle exclusively of the pleasure car type.
Finally, appellee says it would have been - simple for the clause to have excluded pickup trucks from coverage. We daresay, however, that there would then be disagreement as to what constituted a pickup truck; also, it would have been necessary to list a long line of excluded types of vehicles in order to make clear that only -“motor vehicles exclusively of the pleasure car type” were covered.
For the reasons herein set out, we have concluded that the court erred in entering summary judgment for appellee, instead of rendering a summary judgment for appellant. The judgment is accordingly reversed, and the cause dismissed.
It is so ordered.
In Penell, the court pointed out that Iowa and North Carolina courts both held that the same words of description as those construed in Bidwell, i. e., the words “private passenger automobile of the pleasure car type” do not include a Ford pickup truck or a Ford one and one-half ton truck, although the truck may be used and is sometimes used for transporting passengers.
Appellee offered a brochure published by the company describing the benefits of this policy and it is argued that the explanation of the benefits of the clause here in question showed that the provision in the policy was ambiguous. However, this brochure was not offered until over two months after the case had been submitted. Appellant objected to its admission, contending that it had not been tendered in proper time, and also that it was immaterial and irrelevant. The court refused to consider it, not giving a reason, but ordered that the exhibit be placed in the record. Certainly, we could not say that the court abused its- discretion in holding that the offer was made "out of time”, and no consideration is given to this brochure. | [
-70,
124,
-48,
-84,
25,
-96,
106,
18,
113,
-128,
-91,
83,
-81,
-57,
5,
97,
-4,
45,
101,
106,
-75,
-89,
23,
-94,
-78,
-13,
-7,
-43,
-80,
89,
110,
-68,
77,
32,
-118,
-43,
102,
75,
-59,
28,
-50,
-124,
-72,
-15,
-103,
18,
48,
107,
84,
95,
101,
-97,
-93,
42,
26,
103,
41,
40,
91,
40,
-64,
-80,
-117,
7,
-1,
18,
-79,
4,
-104,
33,
88,
10,
-104,
-79,
40,
-8,
50,
-90,
-58,
-76,
107,
-103,
-120,
102,
99,
4,
33,
109,
-68,
-104,
15,
-54,
63,
-124,
22,
57,
41,
9,
-73,
31,
123,
20,
-113,
124,
-4,
85,
28,
96,
5,
-117,
-108,
-79,
-19,
-4,
28,
10,
-17,
-123,
34,
117,
-55,
-22,
77,
69,
126,
-109,
22,
-112
] |
Carleton Harris, Chief Justice.
Elgin Martin was charged with the murder of his son, James Guice Martin, the killing occurring on December 8, 1968. On trial, Martin was convicted of voluntary manslaughter, and sentenced to three years imprisonment in the State Penitentiary. From the judgment so entered, appellant brings this appeal. For reversal, it is urged that the testimony was insufficient to sustain a conviction, and that the court erred in permitting the state to introduce alleged threats of Martin toward his son, the first, occurring 10 years before the homicide, and the second, occurring about 9 months before this event.
The evidence reflects that, on Sunday evening, December 8, 1968, James Guice Martin and an occasional employee, James Lewis, were at Martin’s shop, located 4 or 5 miles from Wilmar. Late Sunday afternoon appellant went to the shop to see about borrowing young Martin’s tractor to pull a dead mule away from the older man’s premises. The elder Martin asked if he could use the tractor, and was told that he could. Guice and Lewis then went back to Wilmar, Lewis getting out at the washateria. Lewis testified that there were no angry words between the Martins before leaving, but that on the way back to town, Guice Martin said that he was going back and “get things straight.” Appellant testified that, after his son told him he could use the tractor, he left, and walked back to his home, about 500 or 600 yards from the shop, to feed his dogs. While he was so engaged, Guice drove up in his truck, got out, and said, “I’ve got a little deal for you. You’ve been lying to me long enough about that tractor.” He said that the son cursed him, grabbed him by the coat, jerked him around, and said, “You stand up here, ..I’m going to do the talking and you’re going to do the listening.” According to appellant, he was then hit in the 'mouth and knocked down. He further stated that Guice then said, “I’m going to finish you once and for all,” and started back to his truck. It was dark and appellant testified that he (appellant) then ran to his own truck, obtained a shotgun, and “squatted down. He stood there with his flashlight hunting me.” Martin said that he ran east for a short distance, then north over to a road, through another field, and stopped in a lane, traveling in all about a quarter of a mile. “Just as I stopped a flashlight ca^ne on behind .me. It was on and off. I just wheeled around and shot.” The shot was fired with a 12-gauge automatic shotgun, loaded with No. 6 shot. According to officers who shortly thereafter investigated the shooting, Guice was shot in the face and chest, and was lying on his back with" a flashlight beside his left hand. The light was not on. There was no evidence of a struggle, and no weapon was found. The testimony reflected that the shot was fired at a distance of about BO feet, and one of the officers testified that the deceased was struck by at least 150 No. 6 shot, though only one shell was fired. A written statement was subsequently given by Martin to the officers.
Appellant stated that, after his son struck him, and started back toward the truck, he (appellant) thought that Guice was going after a gun, “because he always carried a gun in his truck.” Appellant’s testimony • and the statement first made to the officers, differed in one important respect, viz., in the statement, appellant said that, when he fired the shotgun, he did not know who was flashing the light. On trial, he testified that he knew Guice was the person with the flashlight. After the shooting, appellant did not investigate to see whether he had hit the son, but instead, went to his daughter’s home, and no one being present, went about two miles to the home of Dale Avery, and told Avery and his wife that he thought he had shot Gúice, but “Go see if I hit him or not.”
Of course, there were no witnesses to the shooting, •bther than appellant himself, but there was certainly evidence to clearly indicate to the jury that the shooting was unnecessary, and not done in self-defense. In the first place, it was established that Guice Martin was not armed, for there was no weapon by the body when the officers arrived on the scene. A search of Guice Martin’s home revealed that the three guns that he owned were all in the house, and there was no gun in his truck. In fact, it was clear from the testimony of appellant himself that he was the only one who endeavored to obtain a weapon. Appellant said that he started to get his knive hut of his pocket, and that was when'- he was struck by Guice. “This had happened before, I had bluffed him'before with my knife and I was going to, try to do it again.” Admittedly, he did not warn his son that he had the gun and not to come closer, and when asked why he didn’t shoot the son in the legs, instead of the face, replied, “I jüst shot. I didn’t even know it was oh him. I just shot to scare him to get on out of the way:” Appellant himself earlier testified, “F just feel like it shouldn’t have ever happened,-wasn’t no use of it.” The testimony was ample to sustain the conviction, and, in fact, coupled with evidence of threats, hereinafter discussed, would have sustained the charge of murder.
As to the second point, Robert H. Martin, 27 years of age, son of appellant and brother of the deceased, testified that, in 1958, when he was 16 or 17 years of age, and Guice was 23 or 24, he heard his father threaten to kill Guice in Wilniar while they were standing in front of the bank:
“Well, he was behind on the alimony and we walked up to him and Guice asked him did he have any money for mother. He said, 'You want if, you come get it,’ and pulled his knife.”
He stated that nothing further happened, and he and Guice went on about their business.
Creóla Reynolds, 32 years of age, daughter of Elgin Martin and sister of the deceased, married, and with two daughters, testified that she lived about 400 yards from her father, and that he had visited with her and eaten supper in her home many times. When asked if appellant Was having any trouble' with Guice, she replied, “As far as I knew, everything was OK at times.” She stated, however; that, about 9 or' 10 months before the killing, while in her home, he said, “If that s — of-a-b--ever lays a. hand bn me, I’ll kill him.” When asked if she thought he was serious, she replied:
“I didn’t know. In my own feeling, the way I felt, in a way I did. I’d get nervous, because I’ve heard that threatening remark many many times.”
The daughter also testified that she was present on the occasion of an argument relating to her father’s agreement to give Guice 11 or 12 acres of his land located near the younger Martin’s shop. Her brother was getting ready to leave for a job away from home, and he wanted to get the deed before he left:
“I was picking strawberries, me and my children. Guice came up and asked him would he have maybe 30 minutes time that morning, being that it had rained and the ground was wet, to go sign and have the papers notarized. He had everything fixed to have them signed and notarized that next morning. He was going to come pick him up and bring him to have them notarized and carry him back. He said, ‘You won’t lose over 30 minutes work.’ He told him, ‘Hell no, I don’t have time:’ That’s all I heard.”
She testified, however, that in the early part of November, at the beginning of the first deer season, her father, Guice, and a man named Mercer were up at the shop engaged in target practice with Guice’s, gun, all firing the gun, and it “looked like everything was just as calm and peaceful as could be.” She also said that, after the death of one of the brothers who was apparently close to his father (and had been killed in an accident), the children told him they would help him as best they could.
Cade Reynolds, husband of Creóla, corroborated the testimony of his wife, relative to appellant’s threat to kill Guice; he also said that Martin added that he should have done it a long time ago.
Martin admitted the altercation with his son in Wilmar in 1958, stating that Guice had walked up and “said he was going to beat hell out of me,” and that he (appellant) had reached in his pocket to get his knife, and told Guice to go on, as he didn’t want any trouble. He also admitted the argument with Guice about fixing up the deed, but denied making the threat testified to by Mr. and Mrs. Reynolds.
Appellant argues that the court erred in admitting the testimony about the threats, and he relies on our case of Billings v. State, 52 Ark. 303, 12 S. W. 574. There, the widow of the deceased was permitted to detail the particulars of a difficulty between the deceased and the killer about 2Yz years prior to the killing, and was further permitted to testify about a conversation with appellant 2 years before. These facts are set out in the opinion, as follows:
“* * # Her testimony was substantially, that at a picnic her husband and one Wilson had a fight; that a few moments after the fight her husband said to one Bostic that he had knocked his brother-in-law, meaning Bostic, down. That appellant, who heard the remark, ran up with a drawn knife, and said, ‘If it’s brothers-in-law you are after, I am here,’ coupled with curses and oaths, at the same time striking at him with the knife. As to the conversation of the appellant with her, she testified, that he wanted to buy her interest in their father’s estate. That she offered to sell for cash, which he could not pay; that she refused to sell on credit. That he then said he would have the land or some man’s hide.”
Billings was convicted of manslaughter, and this court reversed because of the admission of this testimony, stating, inter alia that the conversation of appellant with Mrs. Wallace was ambiguous, if not appearing to whom he intended his threat to apply, and that in view of all the facts, including lapse of time, and no recurring trouble, the testimony was inadmissible. The court specifically stated that it is impossible to say how far back, with respect to time, such testimony would be admissible. A strong argument can be made that the testimony of the threat made 9 or 10 months before the homicide was admissible, and even that the threat 10 years before was admissible, these occurrences tending to show malice. It will be recalled that appellant, in reaching for his knife on the night that he killed the son, mentioned that he had “bluffed” young Martin before with the knife, this apparently being a reference to the occurrence 10 years before.
Likewise, the daughter, in testifying about the threat made to kill Guice, said, “I’ve heard that threatening remark many many times.” Her husband also testified that the father, in threatening to kill Guice, had said that he should have done it a long time ago. It thus appears that, throughout the 10-year period, there may have well been a feeling of animosity on the part of appellant toward this son. However, we need not pass upon this evidence for the reason that it is not deemed prejudicial under the verdict reached by the jury. In Witham v. State, 149 Ark. 324, 232 S. W. 437, in rejecting the argument here advanced, this court stated:
“Appellant next insists that the court erred in permitting Mart Kelt to testify, in substance, that, some six years before the killing, he heard accused say he grudged deceased the ownership of the land, and that some day, in some way, he would acquire it himself. This evidence only tended to establish a motive -for the killing. Any prejudice resulting from the admission of this1 evidence was eliminated by appellant’s ácquittal of murder in either the first or second degree, because motive was not an ingredient of the crime of manslaughter, for which he was convicted, and was. a necessary ingredient of the crimes of which he was acquitted.”
Of course, Billings was also convicted of manslaughter, but it is obvious that the threats made in this instance were specific, and somewhat repetitious, a fact not true in Billings. However, even if the cases are considered as being in total conflict, we might point out that Billings was handed down in 1889, while the opinion in Witham was rendered in 1921. Aside from that, the last holding seems much more logical, and we think the quoted language is apropos in the present case. After all, it could hardly be argued that the jury dem onstrated passion or prejudice in giving appellant a sentence of three years for killing his son.
We find no reversible error.
Affirmed.
Testimony reflected that appellant was advised of his constitutional rights, and signed a waiver, and there is no contention here that the statement was not voluntarily given.
The deed, sometime subsequent thereto, was executed.
Appellant also testified that, when this son was killed, Guice and Robert went to the brother’s home, asked him to come outside, and said, “What’s done happened, let it be happened, we're going to be better from now on.”
If not a reference to that occasion, then yet another time, the two had had trouble. | [
112,
-22,
-104,
28,
26,
49,
42,
88,
84,
-30,
-12,
115,
-85,
78,
4,
109,
-5,
101,
84,
41,
-28,
-109,
-41,
-63,
-102,
-13,
-15,
-43,
51,
-51,
-2,
85,
77,
96,
-54,
89,
98,
0,
-59,
-106,
-114,
0,
-24,
-46,
90,
16,
-76,
59,
22,
-117,
-75,
-98,
-29,
46,
28,
-21,
9,
44,
91,
-81,
-64,
56,
18,
7,
-51,
51,
-77,
-90,
-65,
1,
88,
46,
-39,
-107,
0,
-8,
114,
-112,
-122,
-12,
109,
-103,
12,
102,
102,
-127,
77,
-18,
-24,
-55,
47,
102,
-99,
-89,
-98,
120,
13,
36,
-65,
-1,
106,
20,
-102,
-12,
-28,
85,
92,
100,
2,
79,
22,
-93,
-51,
40,
30,
88,
-53,
15,
38,
113,
-49,
-82,
92,
69,
115,
-37,
-126,
-80
] |
Carleton Harris, Chief Justice.
Appellants, J. W. McCarty and Lucy McCarty, his wife, on December 24, 1958, sold and deeded certain property to Robert Earl Blaylock and wife. On May 19, 1959, appellees, Blaylock and Felver A. Rowell, Jr., were the grantees of another deed wherein appellants purportedly conveyed certain lands abutting and adjacent to the lands conveyed in the first deed. This latter conveyance is in question in this litigation, appellants contending that they did not execute same, and that the deed is a forgery. The McCartys instituted suit on August 26, 1968 asking that title to the lands (conveyed in the second deed) be quieted and confirmed in them. After the filing of an answer, a reply, and amendment to answer, the case proceeded to trial and after the taking of testimony, the court dismissed appellants’ complaint for want of equity. From the decree so entered, the McCartys bring this appeal.
Only four witnesses testified before the court, Mr. and Mrs. McCarty and Leo Denton testifying on behalf of appellants, and Robert Blaylock testifying on behalf of appellees.
Both McCarty and his wife stated that they executed only the one deed to Blaylock, the deed of December 24, 1958. Mr. McCarty, a truck driver, testified that his log book showed that he arrived in Sallisaw, Oklahoma at 4 A. M. on May 19, 1959 (date of the questioned deed), and remained there for at least eight hours. He said he did not appear before Carroll W. Johnston, the notary who reportedly acknowledged the deed, on May 19, and Mrs. McCarty likewise stated that she did not sign the deed, and did not appear before Johnston to have any papers notarized. She said that she was at home in West Memphis on that date.
Blaylock testified that he met the McCartys at Johnston’s office where the deed was prepared, and that both McCartys signed the deed. Blaylock further stated that the agreed purchase price for the property, $800.00, was paid at that time. McCarty admitted that he had been paid $800.00 as total consideration for property to be deeded to Blaylock, but he contended that the property purchased was other than that described in the deed.
We agree with the chancellor when he said, "It is found that the deed is not a forgery. No other conclusion is possible under the admitted facts in this case”.
The evidence reflects that the McCartys had deeded the property here in litigation to Frank E. Hampton and wife on December 7, 1956. McCarty admitted that Blaylock had come to him and asked to buy the property, but McCarty advised he had already sold it to Frank Hampton.
“And he wanted to know if I could get the lot from Frank. In the meantime he had made several calls to Frank to buy the lot, and Frank told him he couldn’t sell that lot back to it [him] because I hadn’t put a road down through there. And he just let me have it back. And I told Blaylock, I couldn’t sell him a full sized lot because there had to be a BO foot road put down through there. * * * *
“So then after I got the lot back from Frank, I told him I would have a wide strip down through here which would have been 40 feet width.”
Blaylock testified that McCarty told him that the land had been sold to Hampton with the understanding that Hampton would sell it back to him if the latter did not decide to build on it. “He told me about this thing of Mr. Hampton and he said that Mr. Hampton hadn’t built on. Been quite a while. Which evidently he did. And he told me one day he was ready to sell it and we met down here at Carroll Johnston’s office and fixed it up.”
The circumstances support appellees. Hampton and wife deeded the property they had purchased earlier from the McCartys back to appellants on May 19, 1959, which is the exact date of the McCarty deed to appellees. This certainly adds weight to the contention of appellees. Then we find an unusual occurrence. Though McCarty stated that he was given the $800.00 (at his home), he did not give Blaylock a deed to the 40 foot strip that he contends he was selling to ap pellees. Appellant said that Blaylock “caught me the morning I started to work and I told him I did not have time to draw him up a deed.” He said that he subsequently gave Blaylock the deed wherein the Hamptons had conveyed the property back to the Mc-Cartvs, for them to “hold”, apparently as security. This was, of course, a little unusual, but not as much so as the fact that, though receiving the $800.00 in 1959, the McCartys, according to their testimony, have never yet deeded the strip that appellants say appellees were to receive from the $800.00 consideration. If this is correct, Blaylock was both extremely patient and extremely careless.
McCarty admitted that the signature on the deed acknowledged by Johnston “resembles my signature”, and we agree that there is a close resemblance in McCarty’s signatures on the various deeds and also a signature specimen offered as evidence in the case. It is also noteworthy that, though McCarty testified that he learned in 1963 of the deed herein questioned, no action was taken for about five years. This is hardly the normal way a person acts when he has lost land through a forgery.
Be that as it may, we think the proof heavily preponderates in favor of appellees and we cannot agree that the court erred in dismissing the complaint.
Affirmed.
Denton had been interested in buying some land from McCarty but on examining the tax books, went back to McCarty and, “told him he did not have as much land as he told me he had according to the tax books”. The witness knew nothing about the alleged forgery.
This strip was roughly something over 200 feet long and according to the witness, was the only part of the so-called Hampton property that was to be sold to Blaylock.
"I told him I couldn’t sell him the lot, but he still insisted he wanted the 40-foot strip so his land would be on one side and mine would be on the opposite side. So I told him he could have it and he paid me for it. Then after that, I told him I didn’t have time to make him up a deed. Then he came over one morning when I started to Russellville and that was the time I handed him the deed that I got from Frank Hampton. And I told him, I says you can hold this deed dll I get down and draw you up a deed.” | [
112,
108,
-88,
76,
56,
96,
40,
-70,
107,
3,
116,
83,
-1,
68,
8,
113,
119,
109,
-11,
120,
-28,
-93,
71,
96,
114,
-13,
-53,
69,
-75,
77,
-12,
87,
76,
32,
-54,
87,
-58,
-54,
-57,
-36,
-114,
-90,
58,
100,
89,
16,
52,
57,
20,
15,
81,
-106,
-10,
40,
53,
79,
104,
44,
-49,
40,
65,
-79,
-81,
5,
125,
17,
-128,
38,
-114,
-127,
72,
10,
-112,
53,
1,
-40,
114,
-90,
-106,
-12,
9,
-101,
12,
38,
98,
32,
-51,
-17,
-96,
-68,
70,
123,
-123,
-90,
-78,
8,
65,
97,
-106,
-99,
120,
16,
6,
-14,
-20,
-107,
29,
104,
15,
-21,
-42,
-95,
41,
126,
-116,
3,
-13,
15,
-128,
113,
-55,
-26,
92,
71,
59,
-101,
-114,
-15
] |
Lyle Brown, Justice.
Appellant James Tygart was convicted of violating the Arkansas Drug Abuse Control Act. He was found in possession of an automobile containing a large quantity of dextroamphetamine tablets, marketed under the trademark Dexedrine. Appellant here alleges the drugs to have been confiscated under illegal searches and seizures; also, he contends that the testimony of the accomplice was not substantially corroborated.
The facts incident to Tygart’s first encounter with the officers are brief. Officer Quimby Johnson testified that he and two fellow officers were on the lookout for Tygart; that from facts furnished Johnson by a confidential source, Johnson had reasonable grounds to believe that Tygart was returning from Mexico in a red and white Rambler station wagon with a large quantity of Dexedrine tablets. At approximately 3:30 a.m. on May 22, the officers spotted the described vehicle on Highway 68 just east of Tontitown, Washington County, and recognized the driver, Tygart. The latter stopped the station wagon on signal from the officers. After checking Tygart’s driver’s license, the officers made a cursory search of the car and found 120 bottles of tablets. After that discovery the officers placed Tygart and his companion under arrest. The first point for reversal is that the fruits of the described search, having been made without a search warrant, were not admissible in evidence, being precluded by the unreasonable search provisions in the Fourth Amendment to the United States Constitution and Ark. Const, art. 2, § 15.
The right of officers to stop and there search a motor vehicle under certain circumstances without a warrant or previous arrest was treated thoroughly in 1925 with the pronouncement in Carroll v. U. S., 267 U. S. 132. The fundamental requirements of the "Carroll Rule” are (1) that the officers have reasonable cause to believe the vehicle contains that which by law is subject to seizure, and (2) that it is not reasonably practicable to obtain a search warrant. To the same effect see Wharton’s Criminal Law and Procedure (12th Ed. 1957); also see Chimel v. California, 395 U. S. 752 (1969). In Burke v. State, 235 Ark. 882, 362 S. W. 2d 695 (1962), the officers stopped the car and searched it without a warrant. In upholding the reasonableness of the search this court said:
In the case at bar, the testimony of the officers as to the heavily loaded car, their knowledge of appellant’s reputation as a known bootlegger, and the strong odor of wild-cat whiskey in the car all add up to probable cause for the search.
In commenting on the search of an automobile involved in Mann v. City of Heber Springs, 239 Ark. 969, 395 S. W. 2d 557 (1965), we said:
It is true that not all searches and seizures without a warrant are prohibited. Only those searches and seizures which are unreasonable are prohibited by the Fourth Amendment to the United States Constitution and Art. 2, § 15, Arkansas Constitution. We recognize the rule that an automobile may be searched without a warrant where there is reasonable or probable cause for the belief of the officers that contents of the automobile offend against the law.
In view of the total circumstances in the case before us, we think the search was reasonable and the fruits of that search admissible. Officer Johnson. testified that he had been reliably informed that James Tygart would be returning from Mexico with a quantity of illegal drugs and that he would be driving a 1960 red and white Rambler. Subsequently, and at an unusual night hour, Johnson identified the car and the driver on a “back-door route” to Springdale or Fayetteville, his logical destinations. Appellant did not challenge the search on the grounds that it would have been practicable under the circumstances for the officer to have obtained a search warrant before making a cursory examination of the contents of the vehicle.
Now to the second search of the automobile. In the afternoon of May 23, Officer Johnson obtained a search warrant from Judge Cummings, searched1 the car, and found an additional box containing 128 bottles of Dexedrine tablets. Appellant moved to suppress that evidence on the ground that the State could not produce an affidavit upon which the issuance of the search warrant should have been based. Neither Officer Johnson nor Judge Cummings could state for certain that an affidavit was in fact executed. It is undisputed that Officer Johnson related under oath to Judge Cummings facts which constituted probable cause for the search. Thereupon the judge executed a standard printed form search warrant after inserting in his handwriting the substance of the facts related to him by Officer Johnson. That warrant was introduced in evidence over appellant’s objection. The warrant reads:
SEARCH WARRANT
In the Circuit Court of Washington County, Arkansas
STATE OF ARKANSAS ) ss COUNTY OF WASHINGTON)
TO ANY SHERIFF, CONSTABLE OR POLICEMAN IN THE STATE OF ARKANSAS:
Affidavit having been made before1'me by Quimby Johnson that he has reason to believe that on the premises known as 1960 Rambler Station Wagon, License No. AGE 157, registered to Chester Hill, located behind Washington Co. Court House in the City of Fayetteville, County of Washington, State of Arkansas, there is now being concealed certain property, namely firearms and/or amphetamine and other stimulant and depressant drugs and other illegal drugs which are concealed in and about said car for the reason some 'firearms and illegal drugs were found on the floor of the said station wagon when the car was stopped and the occupant, James Harvey Tygart was arrested. He was taken by me to the County Jail before I had completed search of the car and I am satisfied that there is probable cause to believe that the property so described is being concealed on the premises above described and that the foregoing grounds for application for issuance of the search warrant exist. YOU ARE HEREBY COMMANDED to search forthwith the place named for the property specified, serving this warrant and making the search at any time in the day or night and if the property be found there to seize it, leaving a copy of this warrant and a receipt for the property taken, and prepare a written inventory of the property seized and return this warrant and bring the property as required by law.
DATED this 23 day of May, 1969.
[Signed] Maupin Cummings, Circuit Judge
Most jurisdictions, federal and state, have statutes requiring a written affidavit as a prerequisite to the issuance of a search warrant. In fact they are so numerous that most text writers flatly state as a general rule of law that a written affidavit is required. We have no general and comprehensive search warrant statute. As various criminal laws have been enacted the Legislature has added a search provision in those situations when it was deemed needed. Examples of such statutes are gaming, stolen property, prostitution, machine guns, and intoxicating liquors. None of those specific statutes requires a written affidavit for a search warrant.
The Constitution of the United States, amendment 4, and Ark. Const, art. 2, § 15, are almost identical, and we see no substantive difference. Our Section 15 is as follows:
UNREASONABLE SEARCHES AND SEIZURES. —The right of the people of this State to be secure in their persons, houses, papers and effects against unreasonable searches and seizures shall not be violated; and no warrant shall issue except upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched and the person or thing to be seized.
The phraseology is not complicated. They both require a showing of probable cause, supported by oath or affirmation, and the warrant must particularly describe the place to be searched and the objects to be seized. There is no mention of a written affidavit.
We find three jurisdictions in which the courts dealt with the same phraseology contained in the provisions above cited. The statutes of Washington require only an oath or affirmation to support a finding of probable cause. In two different cases writings were presented to the magistrate and they were both void. However, in each case, witnesses appeared before the magistrate and gave oral testimony. State v. Walcott, 435 P. 2d 994 (Wash. 1967); State v. Malbeck, 419 P. 2d 805 (Wash. 1966). In Walcott the court said:
Although the federal practice, which results in making and preserving a contemporaneous record of the proceedings before the magistrate, may be preferable; however, it is not a constitutional requirement under the Fourth Amendment.
Sparks v. U. S., 90 F. 2d (1937). At the time of the decision in Sparks the Criminal Code, 18 U. S. C. A. § 287, authorized the issuance of a search warrant upon a showing of probable cause submitted under oath or affirmation. The affidavit which formed the basis of the search warrant was insufficient. However, the United States Commissioner testified that the affiant’s informant appeared before him under oath and related that the accused had told him that he had counterfeit molds at his home. The court held that the oral testimony related by the Commissioner was sufficient to support a finding of probable cause. The court related that it had been cited no case (save one which was not in point) construing a search warrant statute such as the one cited which holds that competent oral testimony does not establish probable cause. The court said, “oath or affirmation,” within the meaning of the Fourth Amendment, includes sworn oral, as well as written, testimony.
In United States ex rel Boyance v. Myers, Superintendent, 270 F. Supp. 734 (1967), Boyance sought to set aside a Pennsylvania conviction of 1961. He attacked the validity of the search of his home and automobile. The affidavit for the search warrant did not support a finding by the judicial officer that there was probable cause for the issuance of the warrant. However, it being established that the officer who obtained the warrant gave sufficient unrecorded oral testimony, the warrant was held valid. There the court said:
The Fourth Amendment requires only that probable cause be 'supported by Oath or Affirmation,’ it does not require that the support be in writing. Oral testimony as well as affidavit in writing, may serve as the basis for the issuance of a warrant under constitutional standards.
There can be no question as to the better procedure. The preservation of the proceedings before the magistrate issuing the warrant is much to be preferred. Time erases the availability of witnesses and the memory of those witnesses still available, particularly in the instances of the many belated petitions in criminal cases. On the other hand, it is not for us to insert the provision into the law.
Finally, appellant contends that the corroboration of the accomplice is insufficient to sustain the verdict. Harry Lane testified that he furnished the automobile for the trip; that the two went to Mexico for the purpose of buying Dexedrine tablets; and that appellant made the purchase and loaded the two boxes in the car. When appellant was apprehended he was driving the vehicle; he was driving on a secondary highway at 3:30 a.m. Within reach of his right arm were two weapons, and immediately to the rear of the front seat, and within the driver’s reach, were 120 boxes of illegal cargo. Harry Lane was sleeping in the rear of the ve hide. The facts we have recited tend to connect appellant with the crime and that is sufficient, it being found that the corroborating evidence is substantial.
Affirmed.
Byrd, J,, dissents. | [
48,
-29,
124,
44,
27,
96,
60,
-100,
67,
-21,
-28,
115,
-19,
84,
1,
57,
-6,
-23,
117,
-7,
-11,
-73,
19,
82,
-30,
-13,
121,
-62,
53,
-53,
-84,
-42,
44,
112,
-126,
85,
102,
-52,
-29,
88,
-54,
1,
56,
119,
88,
18,
40,
43,
85,
15,
113,
-113,
-29,
46,
16,
-53,
-23,
8,
75,
-68,
105,
113,
-103,
93,
-19,
22,
-125,
36,
-71,
-123,
-8,
93,
-36,
16,
17,
-8,
115,
-90,
-110,
116,
13,
-103,
12,
32,
98,
-119,
24,
-19,
-80,
-128,
30,
-86,
-113,
-90,
24,
112,
64,
37,
-106,
-100,
62,
16,
8,
-4,
123,
77,
85,
124,
7,
-49,
-108,
-95,
77,
96,
-122,
51,
-21,
39,
48,
117,
-57,
-26,
84,
84,
115,
-97,
-114,
-44
] |
Carleton Harris, Chief Justice.
Appellants, Lonnie Deane Barker and Clayton Barker, were charged by information on February 17, 1969, with the crime of cattle stealing, it being alleged that they feloniously killed with intent to steal an Angus heifer calf, the property of’Max Trice. The alleged crime occurred on February 6, 1969. On trial, appellants were convicted by a jury and each was sentenced to one year imprisonment in the state penitentiary. From the judgment so entered, appellants bring this appeal. For reversal, it is contended that the court erred in refusing to give appellants’ requested Instruction No. 1, and that appellants were prejudiced by the testimony of the sheriff when he testified that appellants refused to talk with him about the alleged crime, saying that they had rather not tell him anything.
Appellants’ requested Instruction No. 1 was as follows:
“The court instructs you the jury that larceny is the felonious taking of the property of another with the felonious intention of depriving the owner of his property and converting same to his own use and the burden is on the prosecution to prove beyond a reasonable doubt that the defendants intentionally and feloniously took the property with the intention of depriving the owner thereof.”
The court refused this instruction but gave it in a modified form, leaving out the phrase, “and converting same to his own use.”
The court had already, in its Instruction No. 2, instructed the jury:
“Larceny is the felonious stealing, taking and carrying, riding or driving away the personal property of another with the intent to deprive the true owner of his property. The statute upon which this prosecution is based is as follows:
“ ‘Every person who shall mark, steal or kill, or wound, with intent to steal, any kind of cattle, pigs, hogs, sheep, or goats, shall be guilty of a felony and, upon conviction thereof shall be imprisoned in the penitentiary for any time not less than one nor more than five years.’
“The value of the cow is immaterial. If he is guilty of stealing this man’s cow, he is guilty of a felony.
“The defendants start out with the presumption of innocence in their favor, and that presumption of innocence follows them throughout the trial, or until the evidence convinces you of their guilt beyond a reasonable doubt and that the offense occurred in this county and state within three years next before the filing of the information.”
As mentioned, appellants’ requested Instruction No. 1 differs from the modified form of the instruction only in that the version given leaves out the words “and converting same to his own use”. This omission, says appellants, constituted reversible error.
The evidence reflected that Lonnie Barker, his brother Clayton Barker, and Clayton’s wife, Betty, were travelling in an Oldsmobile on Highway 146 towards Stuttgart when Lonnie Barker got out of the car and killed the calf owned by Trice which, with other cattle, was being pastured adjacent to Highway 146. Appellánts then put the dead calf in the trunk of the car, where it was, within a short time, found by the sheriff, who had received a call from a neighbor who witnessed the occurrence. At the trial, the Barkers all testified that they saw a wolf in the field, and that Lonnie Barker was shooting at the wolf, but missed it, and hit the calf. Lonnie testified that he went out into the field looking for the wolf but it “got away”; that the calf was quivering and kicking, with no chance to ■ live, and he shot it in the head. Appellants were aware that the cattle in the field belonged to Trice, and they both testified that they had no intention of depriving Trice of his calf but placed it in the trunk of the car for the purpose of taking it to the owner. They did not stop at Trice’s farm barn since, according to Clayton, Trice’s truck was not there, and they had in mind taking it to the owner’s home in the city of Stuttgart. Appellants were arrested by the sheriff while they were still driving on Highway 146, the officer testifying that the car was travelling 60 or 70 miles per hour, and that he forced them into the ditch. Within a few minutes, Mr. Trice arrived at the scene, and upon request of the sheriff, one of the appellants opened the trunk revealing the calf.
Appellants contend, that inasmuch as they testified that it was their intention to return the dead calf to Mr. Trice, the jury should have been instructed that they must find that appellants had the intent to deprive the owner of his property and to convert the same to their own use.
The objection to the modification of the instruction is tied in with the objections made to Instruction No. 2. The latter objections were as follows:
“To which said instructions the defendants, at the time objected, to the language that the defendants are accused of the crime of grand larceny, they are charged with killing of a cow, property of the prosecuting witness on the 6th of February, 1969. This leaves the jury who is not familiar with the law with the impression that the crime of grand larceny may be or is the killing of a cow, the property of another, or the prosecuting witness, and that it is the killing of the cow on the 6th day of February which is the property of the prosecuting witness [which] is grand larceny. The words ‘felonious stealing’ are not definite, they don’t have a definite meaning to someone who is unfamiliar as the jury is and then the quoting of the statute is objected to because the definition of larceny given by this instruction is not clear to the jury or is uncertain to the jury and the jury will have to make some conclusion as to what the law is and the jury is not versed in the law.”
We do not agree that error was committed in the giving of the instruction.
In Harrell v. State, 177 Ark. 505, 7 S. W. 2d 23, this same contention was made, but we said:
“Instruction 5 told the jury that, if they found from the evidence, beyond a reasonable doubt, that appellant did ‘unlawfully and feloniously take, steal and carry away one Remington automatic shotgun, of a value in excess of $10, the property of G. W. Barker’, they should find him guilty. It is said that the instruction fails to tell the jury that the felonious intent at the time the gun was taken, if taken, was of the essence of the offense, and that it does not tell the jury that the taking must be with the intent to deprive the true owner of his property. We think the words ‘unlawfully’ and ‘feloniously’, as used in the instruction, are sufficient to cover the matters complained of. If the taking was done unlawfully and feloniously, it necessarily follows that it was done with felonious intent at the time of the taking, and done with the intent to deprive the owner of his property.”
The court correctly instructed the jury on the appropriate statutes governing the offense here involved. The first part of the instruction quotes § 41-3901, 1964 Replacement, and the second paragraph quotes § 41-3917 , 1964 Replacement. We have held that it is proper to instruct a jury in the terms of the statute. Gentry v. State, 201 Ark. 729, 147 S. W. 2d 1, and cases cited therein. The court very clearly told the jury that the question was whether appellants killed the calf, “with intent to steal”.
As to the assertion that the court erred in striking the clause “and converting same to his own use” in appellants’ requested Instruction No. 1, appellants mainly rely on Dove v. State, 37 Ark. 261 and Export Insurance Co. v. Royster, 177 Ark. 899, 88 S. W. 2d 468. We do not consider the Dove case as having any applicability to the present set of facts. In Dove, the question was whether one actually stole a mare, in taking her from the lot, or intended only to ride the mare for some miles (as he did) to escape a whipping and then abandon her. In other words, the question was whether the offense was a theft or a trespass. Export Insurance Co. v. Royster, supra, contains language supporting appellant’s contention, but it is pointed out in Sullivant v. The Pennsylvania Fire Insurance Co., 223 Ark. 721, 268 S. W. 2d 372, that this case cannot be relied upon. In fact, the last mentioned case is the only time that Export Insurance Co. has been mentioned since it was handed down. In Sullivant, we said:
“In support of the judgment, appellee relies on the case of Export Insurance Co. v. Royster, 177 Ark. 899, 8 S. W. 2d 468, where this court held that it is necessary to show that there was an intent to convert the property to the use of the taker to constitute larceny. This case was decided prior to the 1947 and 1953 amendments which resulted in § 41-3929, supra. At that time the statute provided that there exist an intent to convert to the taker’s use.”
Of course, sound logic dictates that there is no reason to expressly require an intent to convert property taken to one’s own use before it constitutes larceny. If one should be angry at his neighbor, and, as a matter of vengeance, steal a calf, kill it, and throw it in the Arkansas River, the owner would still be as much deprived of his property as though the neighbor had taken it to his own farm and claimed it as his own. The question of whether appellants intended to steal the calf was a matter for jury determination, and the evidence was more than ample to sustain this finding.
As to the second point, the testimony complained of is as follows:
“Q. You did advise them of their rights at the time you put them in jail?
“A. I didn’t at the time. I went back and talked to Lonnie first and he advised he didn’t want to tell me anything and I talked to Clayton second and he didn’t want to tell me anything and Betty she didn’t want to say.
“Q. Then you made no effort to question them further?
“A. No sir. I did not.
“Q. They did refuse to talk to you?
“A. They said they had rather not tell me anything.”
It is argued that this testimony constituted reversible error because the jury was told that the appellants had invoked the protection of the Fifth Amendment to the Federal Constitution, and this fact prejudiced the jury against appellants. We find no merit in this assertion and need say no more than that no objection was made to this evidence. Counsel says that the “Prosecuting Attorney and the Trial Court had agreed with counsel for appellants that appellants were objecting and excepting to testimony that might be given by the sheriff, without appellants having the same noted as the testimony was given.”
We do not agree that the record reflects any such agreement. Prior to the sheriff appearing before the jury, his testimony was taken in chambers and a discussion between the court, prosecuting attorney, and defense counsel, related to whether appellants had been informed of their constitutional rights before being asked any questions. The testimony dealt with questions asked on the highway at the time appellants were arrested. There is no testimony at all before the court in chambers conforming to the testimony heretofore quoted, and which appellants say constituted reversible error. As to the questioning at the time of the arrest appellants’ counsel stated:
“I want to show a continuing objection and exceptions to each question and answer as being objected to and to save our exceptions and if he doesn’t make a statement in answer to a question why naturally there would not be an objection.”
The Prosecuting Attorney responded that he was “going to bring out matters not brought out in chambers.” The court stated, “That is perfectly all right. Show a continuing objection to matters discussed in chambers.” (our emphasis) The court further stated:
“The court has no wav of knowing the questions going to be asked and the competency or incompetency of the questions and if any new matter is brought out to which you object you should let the court have a chance to rule on it.”
The Prosecuting Attorney then said: “I have no objection to continuing objections to the testimony he gives if the court has no objection”, and the court responded that it had no objection but that “I was saying that it puts the court in the attitude of having to watch the testimony and say ‘You can’t say that’ that is point. Go ahead. I will handle it that way.”
As stated, the testimony now complained of was not given in chambers at all, and this means that there was never any objection to the evidence under discussion. It is really not clear from this record whether the “continuing objection” was to testimony only that was given in chambers, or whether there was supposed to be“a continuing objection” to all of the sheriff’s testimony. According to appellants’ argument, the court would actually have been required to act in the same capacity as appellants’ attorney.
The testimony here complained of raises an entirely different question from, the matters discussed in chambers. There, the question really was whether appellants had been adequately warned before questions were asked at the .time of the highway arrest under Miranda v. Arizona, 384 U. S. 436, and Escobedo v. Illinois, 378 U. S. 478. Here, the contention of error is based on the fact that the sheriff revealed that the defendants were taking advantage of the Fifth Amendment to the Constitution. The testimony of the sheriff imparting this knowledge to the jury, say appellants, was reversible error, but we need not discuss the authorities cited for the reason already given.
Finding no reversible error, the judgment is affirmed.
A 1969 amendment by the General Assembly increased the maximum penalty from 5 to 21 years. This change has no application here for two reasons; first, because appellants only received the minimum sentence, and second, because the alleged offense was committed about a month prior to the effective date of the amendment.
This section actually deals with persons who lawfully obtain possession of property but subsequently deprive the true owner thereof. Originally, there was a provision that there must exist an intent to convert to the taker’s use, but this provision was eliminated by a 1947 amendment. | [
112,
-20,
-100,
61,
26,
-31,
58,
-72,
67,
-85,
118,
87,
-23,
-44,
4,
97,
81,
101,
85,
121,
-106,
-74,
23,
-47,
-94,
-37,
-39,
-57,
-79,
105,
-18,
-25,
9,
16,
-118,
85,
102,
40,
-31,
92,
-118,
-127,
-88,
100,
-23,
20,
41,
107,
86,
6,
49,
30,
-25,
42,
60,
67,
105,
44,
91,
45,
-40,
121,
51,
111,
127,
18,
-93,
39,
-118,
5,
-8,
110,
-99,
49,
1,
-8,
115,
-76,
-117,
84,
77,
-101,
-116,
38,
98,
1,
92,
79,
32,
-116,
47,
127,
-99,
-122,
-112,
0,
3,
64,
-98,
-35,
116,
-44,
38,
-10,
-25,
20,
93,
40,
-91,
-97,
-108,
-93,
-114,
60,
-106,
-48,
-37,
-89,
50,
113,
-114,
-22,
92,
103,
120,
-109,
12,
-107
] |
Frank Holt, Justice.
This is a suit by appellee to recover benefits provided by a Franchise Group Cancer Policy issued by appellant.
On August 17, 1966, appellee signed an application for a policy of insurance covering both himself and his wife which provided benefits for hospital services and other expenses caused by cancer. Appellant issued this policy, dated September 1, 1966, to appellee for which the premium was paid. According to the terms of the policy, it was issued solely and entirely upon the written answers to the questions contained in the application. The questions, and portions thereof pertinent to the present suit, are as follows:
1. To the best of your knowledge, does any member of the family group to be insured now have or ever had cancer?
2. To the best of your knowledge, has any member of the family group to be insured ever had:
(a) lumps, growths, or swellings;
(b) sores that have not healed;
(c) coughed or vomited blood;
* * *
3. To the best of your knowledge, has any member of the family group to be insured, been under medical treatment during the past six (6) months?
4. If the answer to Question 1, 2 or 3 is “yes ”> use this space to indicate the name of the person treated, date treated,, name and address of the attending physician, cause for hospitalization or treatment.
Appellee answered questions 1, 2 and 3 in the negative, leaving question 4 blank.
Approximately ten months subsequent to the issuance of the policy, it was discovered that appellee’s wife, Mrs. Reeves, was suffering from what appeared to be cancer. Appellee filed a claim which was promptly denied by appellant. On June 26, 1968, appellee filed suit against appellant and prayed damages in the amount of $5,070.00, 12% penalty, reasonable attorney’s fee, and costs. Appellant answered with a general denial. Mrs. Reeves died from cancer on November 19, 1968, and thereafter appellee amended his complaint to allege damages of $7,020.00, 12% penalty, attorney’s fee, and costs. Appellant filed an answer to this amended complaint, asserting by way of affirmative defense that appellee had made misrepresentations in his application for the policy which were fraudulent and material to the risk and that if the true facts were known, the certificate of insurance would not have been issued to insure appellee’s wife. Also, it was pleaded in. the alternative that sufficient diagnosis was not furnished and, further, that the benefits claimed exceeded the benefits payable. The case was submitted to the court sitting as a jury; and the court granted judgment for appellee in the amount of $2,064.00, plus 12% penalty of $247.68, plus attorney’s fee of $500.00. From that judgment appellant brings this appeal.
We discuss in inverse order the first two points which appellant asserts for reversal, namely:
I
The court erred in excluding the testimony of Pekar [a soliciting agent] concerning the underwriting rules of appellant.
II
The uncontroverted evidence shows that there was a misrepresentation in the application which was material to the risk and that if the true facts had been made known, the policy would not have been issued and judgment should therefore have been for appellant.
A determination of these two points requires an examination of Ark. Stat. Ann. § 66-3208 (Repl. 1966). This statute provides:
(1) All statements in any application for a life or disability insurance policy or annuity contract, or in negotiations therefor, by or in behalf of the insured or annuitant, shall be deemed to be representations and not warranties. Misrepresentations, omissions, concealment of facts, and incorrect statements shall not prevent a recovery under the policy or contract unless either:
(a) Fraudulent; or
(b) Material either to the acceptance of the risk, or to the hazard assumed by the insurer; or
(c) The insurer in good faith would either not have issued the policy or contract, or would not have issued a policy or contract in as large an amount or at the same premium or rate, or would not have provided coverage with respect to the hazard resulting in the loss, if the true facts had been made known to the insurer as required either by the application for the policy or contract or otherwise.
Subsections (a), (b) and (c) constitute affirmative defenses which the insurer must plead and prove by a preponderance of the evidence if it is to prevail. Continental Cas. Co. v. Campbell, 242 Ark. 654, 414 S. W 2d 872 (1967).
Appellant contended at trial and argues here on appeal that there were two misrepresentations perpetuated by appellee in that he answered “no” to questions 1 and 2 in the application for insurance. To support its position, appellant introduced evidence tending to show that Mrs. Reeves had had her left eye removed because of a malignant tumor or growth some seven or eight years prior to the effective date of the policy. Appellee, however, testified that neither he nor his wife had ever been informed that the eye was removed as a result of a cancerous condition. In the application form provided by the appellant, the pertinent questions relative to the alleged misrepresentations are qualified by the prefacing words: “To the best of your knowledge * * *.” Ark. Stat. Ann. § 66-3208 provides that answers to the questions in an application are representations and not warranties; therefore, in view of the above quoted prefacing words to the questions in the application, a misrepresentation could occur only if the applicant answered those questions contrary to his knowledge of the true facts.
We have had previous occasion to state:
“The questions propounded in the application * * * call for answers founded on the knowledge or belief of the applicant, and in such cases a misrepresentation * * * will not avoid the policy unless willfully or knowingly made with an attempt to deceive.”
Metropolitan Life Ins. Co. v. Johnson, 105 Ark. 101, 150 S. W. 393 (1912). Although this case, since it was decided long before the enactment of § 66-3208, distinguishes the effect of representations from that of warranties, its rationale is, nonetheless, cogent to the case at bar where the application for insurance expressly required answers only to the best of the applicant’s knowledge. The trial court here, in granting judgment for appellee, necessarily found that the questions were not fraudulently answered; and certainly we cannot say, as a matter of law, that this finding was against the weight of the evidence. Aetna Life Ins. Co. v. Mahaffy, 215 Ark. 892, 224 S. W. 2d 21 (1949).
The appellant, however, pleaded at trial and asserts on appeal its affirmative defense, pursuant to subsection (c) of § 66-3208 that had the true facts been known, the certificate of insurance would not have been issued to insure Mrs. Reeves. As noted above, subsection (c) provides that recovery may be prevented if “[t]he insurer in good faith would * * * not have issued the policy * * * if the true facts had been made known to the insurer as required either by the application for the policy or contract or otherwise.” Logically, in the circumstances of the case at bar, this affirmative defense cannot be construed to be affected by the “[t]o the best of your knowledge” qualifying phrase in the questions of the application. The “true facts” referred to in subsection (c) relate to whether or not there was a pre-existing malignant growth, as contended by appellant, and not to whether the appellee had actual knowledge of this condition.
Appellee, on cross-examination, stated that he was aware that the removal of his wife’s left eye was required because of a growth, although “no one ever told me” it was cancerous. Appellant argues that this prior knowledge of the growth established a fraudulent misrepresentation since appellee answered “no” to ques tion 2 in the application — i. e.\ “To the best of your knowledge, has any member of the family group to be insured ever had: (a) lumps, growths, or swellings; * * * .” Appellee, however, gave this explanation for his answer: “* * * It didn’t show. As far as being a lump or anything else, I don’t know whether it was or not.” The total context of question 2 (i. e., “(a) lumps, growths, or swellings; (b) sores that have not healed;” etc.), must be considered, and apparently the trial court believed the appellee’s version that the question referred to external or visible growths. We cannot say that there was substantial evidence from which the trial court could have found that appellee gave a fraudulent opinion. See Continental Cas. Co. v. Campbell, supra. Nonetheless, appellee appears to have had firsthand knowledge of a growth; and his testimony, therefore, was sufficient to establish the fact that Mrs. Reeves had a growth prior to the application for insurance. From this, appellant could have properly asserted its subsection (c) affirmative defense.
We now come to appellant’s assertion that the exclusion of the testimony of its former soliciting agent, Herbert Pekar, was error. We must agree this requires reversal. In an effort to prove that it would not in good faith have issued its policy if the true facts were known, appellant attempted to introduce evidence regarding its practice of accepting or rejecting applications through the testimony of Pekar, one of the two agents who presented the Franchise Group Cancer Policy to the group which included Reeves and who were responsible for forwarding any applications to the appellant. Appellee objected to Pekar’s testimony in that as a mere soliciting agent, he was not competent to state appellant’s underwriting procedure for accepting or rejecting applications. The objection was sustained, and appellant made an offer of proof by Pekar that he was directed not to send any application into the home office wherein either question 1 or 2 was answered in the affirmative. We think this proffered testimony was admissible. See Lin Mfg. Co. of Arkansas, Inc., et al v. Courson, 246 Ark. 5, 436 S. W. 2d 472. It was prejudicial error to exclude Pekar’s testimony since appellant had the burden of proving its subsection (c) affirmative defense that its agent would not have forwarded the application. Of course, Pekar, if allowed to testify in this regard, would have been subject to cross-examination as would any other witness, or appellee might have produced witnesses to refute his testimony. Further the fact that he was an employee of appellant can be said to touch upon his credibility. See Old Republic Ins. Co. v. Alexander, 245 Ark. 1029, 436 S. W. 2d 829.
The offer of proof by Pekar as to question no. 2 in the application appears deficient as to materiality. In order to prevail in its subsection (c) defense, ap pellant must show that the growth was material to its risk. In Life & Cas. Ins. Co. v. Smith, 245 Ark. 934, 436 S. W. 2d 97, we said:
“If the matter omitted or incorrectly stated could logically have no bearing on the assumption of the risk then it could not be successfully argued that the insurer’s ‘good faith’ defense should prevail.”
Finally, if the appellee should again be successful at a retrial of this cause, his recovery must be limited to the expenses incurred subsequent to the time that Mrs. Reeves’ condition was first sufficiently diagnosed in 1968 as cancer as required by the terms of the insurance contract.
Reversed and remanded.
Fogleman, J., dissents. | [
48,
108,
-92,
-99,
25,
-30,
98,
18,
119,
-128,
-89,
83,
-3,
98,
29,
111,
-1,
45,
97,
122,
-77,
-93,
21,
34,
-42,
-5,
-5,
-43,
-79,
95,
-27,
-4,
72,
32,
-118,
6,
-30,
-117,
-59,
-100,
-64,
8,
-71,
101,
-103,
86,
32,
-5,
90,
71,
85,
-34,
-13,
44,
29,
-61,
44,
44,
91,
36,
-111,
48,
-85,
13,
-3,
18,
-80,
7,
-72,
37,
-56,
10,
-104,
49,
32,
-4,
51,
-74,
-58,
100,
43,
-103,
-116,
96,
103,
32,
33,
-27,
-8,
-104,
47,
14,
15,
-121,
-14,
113,
57,
13,
-74,
-100,
124,
20,
-105,
-68,
-36,
84,
30,
40,
9,
-82,
-44,
-77,
-41,
-24,
28,
-126,
-9,
-121,
50,
113,
-55,
-78,
92,
71,
55,
19,
66,
-126
] |
George Rose Smith, Justice.
This case involves the matter of plea bargaining in criminal prosecutions. Over a period of years there has developed a widespread practice by which an accused person' and his counsel negotiate with the prosecuting attorney for a recommendation of leniency in return for a plea . of guilty to the offense charged or to a lesser offense. Despite the prevalence of the practice, which has certainly become a substantial factor in the administration of criminal justice, this is the first case on the subject to reach this court in a good many years.
The appellant, Joseph Cross, was charged with first-degree rape, to which he pleaded not guilty. The prosecutrix was the accused’s stepdaughter, apparently just four days under sixteen years of age on the date of the offense. By the process of plea bargaining it was agreed between the prosecution and the defense that Cross would plead guilty to third-degree rape in exchange for a recommendation that the court suspend all except two years of the maximum sentence of ten years confinement in the penitentiary.
The change of plea was presented to the trial judge on August 12, 1969. That proceeding was stenographically reported. The court meticulously explained to the accused practically all his rights, but, manifestly by oversight, the judge wholly failed to explain that he was not bound by recommendations for leniency. At the end of the hearing the judge accepted the plea of guilty to the lesser offense but postponed for a few days the determination of the sentence, explaining that he had not studied the report of the accused’s criminal record.
On August 15 the accused and his counsel appeared before the court for the imposition of the sentence. The judge gave his reasons for not following the recommendation that eight of the ten years confinement be suspended. Instead, the court suspended only four of the ten years, so that the period of confinement was three times as long as the accused and his counsel had bargained for.
Defense counsel at once called the court’s attention to the parties’ understanding about the plea of guilty. Counsel also asked for time to brief the law with respect to the accused’s right to withdraw his plea of guilty. The judge, in denying that request, stated (quite erroneously, as far as the record shows) that he had made it clear at the earlier hearing that he would not be bound by the recommendation for leniency. A motion for a new trial and a companion motion were filed and overruled within a day. It was therein stated, without contradiction, that the State had agreed that the accused might withdraw his plea of guilty if the court did not accept the parties’ recommended sentence. (We do not imply that the State’s agreement would be binding on the trial court.)
Upon the facts of this case we have no doubt that the trial court’s action should be set aside. Plea bargaining was discussed in a recent Arkansas Law Review casenote, where this summation of the basic principles appears:
Where the defendant enters a plea of guilty in anticipation of a lighter sentence recommended by the state, and where the court has forewarned the defendant that it was not necessarily bound by the state’s recommendation, it has been held that the court did not exert prejudicial surprise when it meted out a heavier sentence. Thus, the mere fact that an accused, knowing his rights and the consequences of his act of pleading guilty, hoped or believed that he would receive a shorter sentence, a milder punishment, or some like favor by entering a plea of guilty, presents no ground for the withdrawal of the guilty plea. But . . . courts have also indicated that there is a counter-vailing legal principle — that the refusal to grant leave for a change of pleas from guilty to not guilty will be ruled an abuse of the trial court’s discretion when it appears that the plea of guilty was based on a misapprehension of the facts or of the law, or in consequence of a misrepresentation by his own attorney, or the state’s attorney, or someone else in authority. [Casenote, 23 Ark. L. Rev. 281 (1969).]
Substantially the same point of view was expressed by this court sixty years ago in Joiner v. State, 94 Ark. 198, 126 S. W. 723 (1910).
Here the record wholly fails to show that the accused was forewarned by his own attorney, by the prosecutor, or by the court, that the bargain reached by the lawyers would not necessarily be given effect by the court. Thus the record indicates that the accused may have changed his plea to guilty under a misunderstanding about the law. We therefore set aside the sentence and remand the cause with directions that the accused be allowed to withdraw his plea of guilty.
Reversed. | [
48,
-14,
-100,
-1,
11,
64,
58,
-72,
104,
-5,
118,
83,
-83,
78,
1,
121,
-117,
119,
85,
97,
-47,
-106,
87,
101,
-69,
-13,
-31,
-43,
-71,
-33,
-84,
-108,
76,
-32,
-58,
-99,
98,
-54,
-60,
82,
-98,
17,
-8,
-31,
-46,
2,
112,
27,
26,
15,
33,
-98,
-93,
46,
20,
-23,
41,
40,
27,
45,
72,
-95,
-110,
29,
-17,
52,
-93,
-90,
-66,
6,
124,
60,
-40,
49,
8,
104,
50,
-106,
-122,
116,
101,
-119,
-116,
98,
98,
0,
-27,
-10,
-8,
-88,
126,
62,
-99,
-122,
88,
120,
72,
64,
-75,
-3,
96,
20,
41,
120,
-32,
5,
85,
96,
72,
-33,
-74,
-109,
-49,
118,
-50,
27,
-21,
28,
4,
117,
-51,
102,
76,
119,
121,
-45,
-49,
-73
] |
Conley Byrd, Justice.
This declaratory judgment action arises out of a collision between a state owned vehicle driven by appellee and cross-appellant Virgil Butler, Jr., and a vehicle driven by James R. Burrow in which Albert Poole was a passenger. After suits were filed by Poole and Burrow against Butler, Butler sought a declaratory judgment against cross-appellee United States Fidelity and Guaranty Company upon his personal automobile policy. Butler contended that he was covered under a non-owned automobile clause or, in the alternative, that U.S.F.&G. was estopped to deny liability because of its agent’s representations. U.S.F.&G. brought in appellant Batesville Insurance & Finance Company, Inc.., as a third party defendant and asked for judgment over in the event U.S.F.&G. should be held liable for the alleged representations of appellant. Thereafter, Butler amended his complaint to also ask for relief against appellant.
The trial court found that appellant Batesville Insurance through its agent had represented to Butler that his personal automobile liability policy, issued by U.S.F.&G., provided coverage while driving an automobile owned by his employer, the Arkansas State Highway Commission, and that Butler had relied upon such representation. The court also found that Butler, at the time of the June 11, 1968, collision, was operating a non-owned vehicle “regularly used by him.” Pursuant to its findings the trial court denied Butler any relief against U.S.F.&G. but héld that appellant was liable to Butler for all benefits which would have been available to him if the representations as to coverage had been correct. Appellant has appealed and Butler has cross-appealed against U.SlF.&G. For reversal appellant contends:
“I. The judgment of the court below declaring that appellant is liable to the appellee, Butler, because of misrepresentation of the extent of Butler’s coverage under family automobile policy is not supported by the evidence in this case.
II. The appellee, Butler, is estopped from relying on any misrepresentation as to coverage allegedly made by appellant and cannot recover against appellant.
III. The court below erred in failing to give appellant credit for the amount of premiums appellee, Butler, would have had to pay for coverage under a ‘Driver-other-cars’ endorsement.”
Butler, for reversal of the judgment in favor of U.S.F.&G., contends:
“1. The trial court applied an erroneous test to determine the coverage issue, and,
2. Because of representations made by appellant as agent of U.S.F.&G., the latter should be estopped from denying coverage.”
By its policies issued from 1962 to 1968, U.S.F.&G. agreed to pay on behalf of Butler all sums he became legally obligated to pay because of bodily injury and property damages, "... arising out of the ownership, maintenance or use of the owned automobile or any non-owned automobile. ...” The policy defines a “non-owned automobile” as “. . . an automobile or trailer not owned by or furnished for the regular use of either the Named Insured or any relative, other than a temporary substitute automobile.”
Through answers to interrogatories, U.S.F.&G. described appellant Batesville Insurance as a “soliciting agent”, furnished with blank insurance policy forms and riders which it was authorized to countersign and issue as binding upon U.S.F.&G. on payment of the proper premium. The answers to interrogatories also stated that U.S.F.&G. did write endorsements providing coverage for what is commonly known as “extended non-owned auto coverage” but because of the manner in which it kept records, it did not know whether it had furnished such forms to appellant. Batesville Insurance had not issued such an endorsement prior to the date of Butler’s accident.
Mr. Butler testified that his work at the time of the 1968 accident was in the field and that he had to leave the office to do his work for the Highway Department. To get from the office to the field, he went by state owned automobile. On the day of the collision, he had been to Sidon, Arkansas, on state business and was returning. The cars which he drove were obtained from a vehicle pool, issued according to rank. He was the highest ranking employee using the pool and entitled to drive a car home.
Mr. Butler’s testimony about his dealings with appellant, Batesville Insurance & Finance Co., Inc., shows that he was living in Searcy, Arkansas, in 1962 when he first secured his automobile liability policy from appellant. The insurance was renewed from year to year — he is still insured through appellant with U.S.F.&G. During this time Butler had some accidents which he says he reported. At the time he reported a 1964 Forrest City, Arkansas, accident to Mr. Bert Stephens, appellant’s manager, Mr. Stephens informed him that he was covered. Sometime in May or June, 1965, while Butler was living across the street from Mr. Stephens, Butler received a call from a man involved in the Forrest City accident inquiring about a “rider” to cover that accident. Butler told the man that he did not have a “rider” but that he thought he was covered. The man replied, “Well, never mind anyway, we’re going to the Claims Commission.” Because Butler had heard “riders” discussed at the Highway Department’s offices, he again discussed the proposition of a rider with Mr. Stephens. This discussion took place as Mr. Stephens drove in his driveway. Mr. Stephens again told Butler that he didn’t need a rider, that he was covered and mentioned something in regard to secondary liability. Notwithstanding the foregoing assurances, Butler requested Mr. Stephens to check and make sure. Sometime within the next month, Butler again saw Stephens, either in his or Butler’s front yard, and Stephens again assured Butler that he was covered while driving a state owned vehicle. Following the Claims Commission hearing on the Forrest City accident, Butler and his immediate superior, Mr. George Cavaness, were at the Batesville Outing Club with Mr. Stephens. Butler and Cavaness asked Mr. Stephens about Butler’s coverage while driving a state vehicle. Mr. Stephens again assured Butler that he was covered while driving a state car.
Mr. George Cavaness testified that the matter of liability insurance coverage was of some concern to his department and a matter that was discussed around the office. He had always made it a policy to specifically talk to the people under his supervision about obtaining some kind of coverage. Since he was having to pay for a “rider” to have coverage and Butler was not, he had called Butler’s attention to the fact that Butler should make doubly sure that he had coverage. Cavaness says he was with Butler at the Batesville Outing Club when the discussion was had with Stephens about Butler’s liability coverage, and that he heard Mr. Stephens assure Butler that he was adequately covered.
Mr. Stephens, now retired from Batesville Insurance but still receiving some money from it, acknowledged that he knew both Butler and Cavaness. He could not recall the alleged conversations, but he would not deny that they occurred.
Appellant contends that the evidence is insufficient to sustain the trial court’s findings because Stephens’ statements to Butler were true and correct until such time as Butler made known to Stephens that Butler was driving a non-owned vehicle furnished for his regular use. Then appellant argues that there is no evidence showing that Stephens ever knew that Butler was talking about a vehicle furnished for his regular use and that consequently Stephens’ statements did not amount to a misrepresentation. We find no merit in this argument because the evidence specifically shows that Butler’s inquiries concerned his possible need for a “rider” and also why Cavaness’ policy needed a rider and his policy did not.
Appellant’s second contention is that the alleged misrepresentations were made under circumstances which would not afford Butler the right to rely thereupon blindly and without further investigation, and that Butler, who had the specific policies in his possession at all times but simply failed to read or examine same, is now estopped from relying upon any representations which appellant might have made as to the extent of coverage.
The failure of the insured to read the policy issued is not ordinarily a defense to an action against an agent who has misrepresented to the insured that the policy delivered contains the coverage bargained for. See Couch on Insurance 2d, § 25:60. Agents such as Mr. Stephens are licensed by the state and hold themselves out as having more knowledge than an ordinary citizen concerning insurance policies and their coverages. For these reasons we find no merit to this contention.
Appellant’s last argument is that the trial court erred in failing to give it credit for the premium that Butler would have paid had he been given the coverage represented. Since this alleged error was not raised in the trial court, we will not consider it for the first time on appeal. Royal Crown Bottling Co. v. Terry, 246 Ark. 128, 437 S. W. 2d 474 (1969).
We find no merit to the arguments on cross-appeal. The first point raised is that the trial court used the wrong test — i. e., the policy excludes a non-owned vehicle “furnished for the regular use of . . . the named insured,” and the trial court in its decree found that Butler was operating a state vehicle “regularly used by him and not within the definition of an insured vehicle as set forth in the policy.” The declaratory decree was prepared by counsel and approved as to form by all parties without objection. Furthermore, the findings of the trial court dictated in the record show that the trial court properly used the term within the meaning of the policy.
Butler’s second point on cross-appeal is that U.S.F.8cG. should be estopped from denying the cow erage in question because of the representations of its agent, the Batesville Insurance 8c Finance Co., Inc. In making this argument, Butler has shown us no reason to overrule our many decisions holding that the doc trines of waiver and estoppel, based upon conduct or action of an insurer, cannot be used to extend coverage of an insurance policy to a risk not covered by its terms or expressly excluded therefrom, Life & Casualty Co. v. Nicholson, 246 Ark. 570, 439 S. W. 2d 648 (1969). Furthermore, the only authority, apparent or otherwise, shown to have been delegated to the agent was to countersign and issue policies and riders on printed forms when the proper premium was paid. This falls far short of apparent authority to extend the risk contained in a printed policy by an oral representation as suggested by cross-appellant.
Affirmed. | [
-12,
-4,
97,
46,
9,
64,
40,
-118,
80,
-125,
37,
83,
-85,
-59,
4,
-95,
-20,
25,
117,
107,
-107,
-105,
23,
35,
-46,
-110,
-21,
69,
-105,
91,
109,
-49,
76,
32,
-54,
-59,
-90,
10,
69,
28,
-58,
0,
-70,
-4,
-71,
81,
32,
120,
84,
15,
65,
-113,
-62,
38,
27,
75,
108,
44,
-39,
41,
-48,
-79,
-113,
5,
111,
18,
33,
100,
-102,
37,
120,
26,
-108,
49,
16,
-8,
114,
-90,
2,
117,
99,
-103,
8,
102,
103,
10,
33,
-123,
-68,
24,
6,
-2,
15,
-122,
62,
49,
97,
1,
-73,
-97,
122,
24,
5,
122,
-4,
93,
28,
-20,
3,
-114,
-106,
-95,
-19,
98,
-37,
1,
-25,
-51,
48,
113,
-56,
-32,
77,
69,
118,
-69,
6,
-40
] |
George Rose Smith, Justice.
In this action for personal injuries the appellee obtained a verdict and judgment for $38,500, the defendants’ liability being admitted. The only issue here is whether the award is excessive.
Barnett suffered severe neck and back injuries on August 28, 1968, when his car was struck from behind by a vehicle owned by the appellant Batesville Funeral Home and being driven by its employee, the other appellant. For a few months Barnett was able to continue his work as a security officer or watchman, but eventually he was forced to give up his employment, which required him to walk extensively and to climb stairs. At the trial Barnett testified that he was unable to work: “I couldn’t work if my life depended on it.” That testimony was corroborated by Dr. Williams, who stated that Barnett cannot do extensive walking or climbing, that the patient is not going to get any better, and that normally he will get progressively worse. It is enough for us to say, without detailing the proof, that there is substantial evidence from which the iury could have found that as a result of the accident Barnett is totally and permanently disabled.
Before Barnett was injured he had been earning $519 a month, or $3,828 a year. By the date of trial he had lost some seven months’ work, amounting to more than $2,000. It was stipulated that his life expectancy was 15 years, which would represent total future earnings of $57,420. In Strahan v. Webb, 231 Ark. 426, 330 S. W. 2d 291 (1959), we used a 5 percent interest factor in reducing the plaintiffs’ loss to its present value. Such a calculation, according to the table given at page 332 of the American Jurisprudence (2d) Desk Book (1962), would fix the present value of Barnett’s loss at $39,734.64. Even with a 6 percent interest factor the same table would fix the present value of the loss at $37,177.53. The verdict, it will be remembered, was for $38,500.
It is conceded that Barnett’s injuries aggravated a disc condition that had not previously given him any trouble. In view of that fact the appellants make this argument: “Reality does not permit the substantial likelihood that a 61-year-old man suffering from degenerative disc disease at the time of an injury would complete his life expectancy in good health and with earning capacity unimpaired.” We appreciate the logical force of that reasoning, but in the absence of any proof touching upon the extent to which the plain tiff’s life expectancy might have been affected by his pre-existing condition, such an argument properly addresses itself to the jury rather than to this court. Moreover, the court gave without objection AMI 2203, which permitted the jury to consider the full extent of Barnett’s injuries even though his existing condition might have been aggravated thereby. We have no basis for saying that the jury should have awarded a smaller amount than the figure to be reached by a conscientious adherence to the court’s instructions.
Finally, by no means does the verdict depend solely upon Barnett’s loss of future earnings or earning capacity. We have mentioned his loss of $2,000 as a result of his having been out of work before the trial. In addition, his medical expenses before the trial amounted to $948.89. We need not narrate his testimony about his pain and suffering, except to say that it was substantial. Before the trial Barnett had received 45 therapy treatments, including traction, and was expected to need additional treatment in the future. On the record as a whole, it will be seen that we cannot declare the award to be excessive without infringing upon the jury’s exclusive right to weigh the evidence.
Affirmed. | [
82,
106,
-104,
-66,
10,
32,
10,
18,
113,
-62,
-90,
25,
-23,
-59,
85,
37,
-13,
55,
81,
107,
-105,
-77,
23,
42,
-38,
-77,
43,
-43,
-79,
-51,
100,
-43,
77,
112,
-118,
117,
102,
74,
101,
114,
-54,
-128,
41,
105,
-39,
82,
48,
47,
-60,
15,
-79,
-97,
-113,
10,
16,
110,
41,
10,
89,
33,
-40,
-31,
-118,
13,
-33,
20,
-96,
4,
-100,
46,
-38,
28,
-40,
51,
0,
-24,
50,
-90,
-58,
116,
107,
-103,
-116,
-30,
98,
-79,
85,
101,
-8,
-120,
15,
-94,
-97,
-122,
14,
121,
27,
15,
-97,
-68,
94,
20,
22,
120,
-4,
93,
93,
45,
91,
-114,
-106,
-93,
-49,
97,
-98,
-102,
-9,
7,
33,
113,
-50,
-94,
93,
71,
124,
-101,
27,
-80
] |
Conley Byrd, Justice.
Appellant Lonnie Edward Flurry was convicted of burglary and sentenced by the jury, pursuant to Ark. Stat. Ann. § 43-2328 (Supp. 1969), the habitual criminal act, to 21 years in the penitentiary. For reversal of the judgment he contends that the findings and sentence are not supported by the law and the evidence; that there is no evidence presented from which a jury could infer intent to commit a burglary upon entering the building; and that the evidence presented to the jury concerning his prior convictions was contradictory, unclear and confusing, thus letting the jury speculate.
The record shows that the burglar alarm at the Star Towel and Linen Company on North Third and A Streets in Fort Smith is connected to police headquarters. On July 25, 1969, about 10:03 P.M. the burglar alarm sounded. Officer J. W. Gilbreath arrived two minutes after the alarm went off. From where he stationed himself outside the building he could see the office door. He noticed the door open slightly and then close. Officers Charles J. Thomas and Lawrence Tidwell were up on the building’s roof at the time Gilbreath was making his observation. The officers then shouted for whoever was in the office to come out. Appellant came out of the building and started walking toward the back of the building where it was dark, but turned around and came to the door as instructed after the officers pulled their revolvers and threatened to shooot. ( The officers again yelled for anyone inside to come out and then appellant’s co-defendant George Ross appeared.
The officers testified that one had to open the office door inside the building to trip off the burglar alarm. They observed that the cold drink machine inside the building had been forceably opened with some sort of' tool, the office door had been pried open and several file cabinets had been pried open and the contents spilled all over the floor. Further examination showed that the outside south door, which had been locked on the outside with a hasp and lock had been pried open. At this time officer Gilbreath told his fellow officers they should check the area for an automobile and a possible look-out. At that point appellant Flurry volunteered that a search of the area wouldn’t do the officers any good because Flurry and Ross were on that job by themselves.
Officer Tidwell in searching Flurry found some dimes but did not know the amount thereof.
Officer Odell Davis testified that while appellant and Ross were in the “run-a-round” — i. e., a small barred enclosure adjacent to the elevator, Ross said to Flurry, “If we hadn’t been in Moffett and got drunk, they’d never caught us.” Davis said that Flurry replied, “This’ll learn you, damn you, not to steal.”
Ross testified in his own behalf that he and Flurry got together at a beer tavern in Moffett, Oklahoma, and left Moffett because they ran out of money. Somebody took them to Ross’s sister’s house in Fort Smith where they got five dollars. While walking back to Moffett they passed the Star Towel and Linen Company about a mile and a half from his sister’s house and entered through an open door to get a drink. While they were looking for the water fountain the officers came up.
We find that there is ample evidence to substantiate the jury’s findings. Consequently we find no merit in appellant’s contentions that the findings and sentence are not supported by the law or the evidence or that there is no evidence from which a jury could infer the requisite felonious intent.
Mr. Odis Harris, Sr., Circuit Clerk of the Twelfth Judicial District, testified at the hearing on the habitual criminal charge. He testified that his record showed two felony convictions of appellant Flurry in 1960 and four felony convictions in 1963. We find nothing in this testimony to support appellant’s contention that this evidence was contradictory, unclear and confusing so as to allow the jury to speculate as to the number of previous convictions.
Affirmed. | [
112,
-4,
-16,
30,
26,
-31,
58,
-68,
83,
-91,
32,
83,
33,
80,
69,
97,
-77,
123,
117,
113,
-51,
-74,
87,
97,
-70,
-13,
-37,
-60,
-69,
79,
-4,
-2,
9,
96,
-62,
81,
102,
66,
-49,
-36,
-122,
-127,
0,
-14,
-42,
16,
40,
42,
108,
15,
49,
-98,
-13,
106,
22,
-54,
105,
46,
77,
-87,
-16,
123,
-120,
13,
-17,
20,
-125,
-122,
-101,
7,
80,
28,
-36,
49,
0,
-8,
115,
-94,
-126,
116,
101,
43,
4,
96,
98,
0,
-119,
-65,
40,
-116,
6,
62,
-67,
-89,
-104,
104,
65,
37,
-65,
-99,
51,
17,
14,
108,
99,
-11,
89,
108,
-113,
-33,
-108,
-109,
13,
48,
-106,
-6,
-21,
33,
34,
113,
-49,
-30,
-36,
87,
113,
-101,
-114,
-48
] |
George Rose Smith, Justice.
The appellee, Colonial Penn Life, insured the life of the appellant’s husband, Jim E. Spicer, for $10,000, under a group policy issued to the Disabled American Veterans, of which Spicer was a member. Spicer died a few months later, after four monthly premiums had been paid. The insurer denied liability on the ground that Spicer did not personally sign the application for the policy. The only question here is whether the circuit court was right in sustaining that defense to this action upon the policy.
Colonial Penn Life agreed with the D. A. V. to issue the group coverage regardless of the health of the ap plicants if at least ten percent of the D. A. V. membership joined in the plan by July 1, 1968. Leaflets explaining the plan and containing an application for insurance were sent to the D. A. V. members. There was no personal solicitation nor any medical examination of the applicants.
Spicer applied for the insurance, truthfully stating in his application that he had multiple sclerosis. The application form contained a blank signature line, with this accompanying directive: “Sign Yoür Name Here.” At Spicer’s request, and in his presence and that of his mother-in-law, Spicer’s wife signed his name to the application, because Spicer’s eyesight had begun to fail. In due course the company mailed a certificate of coverage to Spicer. Neither the promotional leaflet nor the certificate, which were the only documents received by Spicer, contained any request for a personal signature, other than the directive that we have quoted.
In denying liability after Spicer’s death the company relied upon a provision in the master policy which fixed the effective date of coverage “if the Company has received the individual application personally completed and signed by the proposed Insured,” and the initial premium. It was stipulated that one of the company’s underwriters would have testified that in view of the liberal offer of coverage to members of the D. A. V., all of whom have some disability, the requirement that the application be personally completed and signed b? the applicant was felt to be of extreme importance, and that if it had been known that Spicer did not complete and sign the application the company in good faith would not have issued the certificate of insurance.
Upon the undisputed facts the insurer’s defense must fail. In the absence of a specific requirement that-one’s signature be written personally, as in the Statute of Wills, a signature made for a person in his presence and at his request is as effective as if written by the person himself. Chipman v. Perdue, 135 Ark. 559, 205 S. W. 892 (1918). Hence Mrs. Spicer’s action in signing her husband’s name satisfied the directive, “Sign Your Name Here.”
In common fairness, if the company intended to attach exceptional importance to a personal signature, it should have inserted unmistakable notice to that effect in the form of application. In a very similar case the combined promotional leaflet and application purported to describe the coverage of the policy, with its exceptions. We held that the company could not introduce new limitations in the master policy that would have reduced the coverage that the applicant had a right to expect. Lawrence v. Providential Life Ins. Co., 238 Ark. 981, 385 S. W. 2d 936 (1965). In like manner, inasmuch as the application in this case gave no indication to the applicant that something more than a legally sufficient signature was required, no such extraordinary requirment could validly be inserted in the master policy, without notice to the insured.
Reversed, with judgment to be entered here in favor of the appellant in the amount of the policy, plus a 12% statutory penalty and a $2,000 attorney’s fee. | [
48,
108,
-36,
-97,
8,
32,
58,
98,
-10,
-30,
-25,
81,
-1,
65,
21,
47,
-1,
37,
81,
24,
-73,
-77,
55,
0,
-10,
-109,
-5,
-43,
-80,
77,
-2,
-36,
76,
40,
-118,
93,
-26,
-118,
-51,
24,
-62,
4,
-71,
-23,
-103,
-46,
56,
111,
-48,
79,
65,
-98,
-29,
-66,
49,
67,
45,
46,
121,
-31,
-64,
-72,
-114,
4,
-1,
25,
-79,
68,
-98,
39,
-8,
10,
-104,
-79,
0,
-8,
18,
-90,
-58,
-92,
45,
-103,
-127,
-30,
99,
-95,
-79,
-19,
-52,
-104,
7,
-58,
47,
-122,
-73,
121,
57,
12,
-73,
-65,
126,
20,
-121,
120,
-4,
93,
95,
41,
11,
-117,
-106,
-77,
-49,
-8,
-98,
3,
-17,
16,
-92,
113,
-53,
-70,
92,
69,
117,
19,
94,
-118
] |
Frank Holt, Justice.
This is a condemnation proceeding in which the state acquired 11.02 acres of land belonging to appellees. This was necessary for the construction of a controlled access highway which bisects appellees’ 137.5 acre tract of land. The landowners estimated their damages at $45,000 ($75,000 value before the taking and $30,000 after). Their expert value witness placed the damages at $35,300 ($67,100 value before the taking and 31,800 after). Appellant’s only witness estimated $14,750 as the landowners’ total damages ($47,500 value before the' taking and $32,750 after). The jury awarded $40,000. On appeal the appellant contends for reversal that the trial court erred in not striking the testimony of Mr. Kennedy, the landowner, with respect to damages.
On this point the appellant argues only that Mr. Kennedy was unable to give any basis for the per acre value and consequently no substantial basis for the $45,000 damages which he claimed. We cannot agree. On direct examination the landowner testified that:
“Q. Mr. Kennedy, are you familiar with, general- „ ly, the value of lands and beef ranches or cattle ranches within the area where you, reside here, within this area of Sebastian County?
A. Well, I certainly couldn’t be classified as an authority. Of course, I’m actually interested in the price of land and try to keep up with the price of land, and know something about it.
Q. Generally, you know what land is worth?
A. I feel that I do, yes sir.
Q. Based on your knowledge of land in this area and your position as an owner, what would you tell the jury what the fair market value of the total acreage was, including the improvements which have been taken and destroyed, plus your home, of this whole tract?
A. I believe in the neighborhood of $75,000.00.
Q. Now, you say $75,000.00. Is this your opinion of the fair market value at that time?
A. Yes sir.”
On cross-examination he was asked on what basis he arrived at this particular value. He testified:
“Q. Did you hear about some other property in close proximity to you that had sold?
A. Yes, I heard — I heard, it was just hearsay —of some property that Mr. Bill Lewis sold for $300.00 an acre.
Q. And is this one of the factors you’re using in arriving at your land value?
A. That’s one factor.
Q. Where is Mr. Bill Lewis’ land located?
A. Well, it lays south and east. He owns a lot of land, in the vicinity of Greenwood.”
Although appellee could not give the exact location of the particular land sold he did testify that it was in close proximity. Appellee lives on his property which is also in the vicinity of Greenwood or three miles southwest.
Upon further cross-examination appellee testified that the before value of his 137.5 acre farm was $300.00 per acre which included all improvements except his new home. However, appellee followed this by an explanatory version. In doing so he excluded all improvements. Separate from this acreage value he placed a value of $6,000.00 for the old homesite and $4,000.00 for the barns and related outbuildings, all of which were acquired in the taking. He valued his new home at $25,000.00 which was not acquired by the appellant. He was further asked:
“Q. Now, if we pull that $25,000.00 out of your $75,000.00 before figure, we have $50,000.00?
A. Yes, sir.
Q. Is that what you’re saying the value of this farm is worth at the time you purchased it?
A. I believe that’s what it was worth at the time I purchased it. Not at the time I purchased it, but at the time you took it.
* * *
Q. Now, if we pull the value of the improvements off of the land — and you say the improvements and the land were worth $50,-000.00 — if we pulled $10,000.00 off the improvements, we would have $40,000.00 for the value of the land. And this, of course, would make it figure on a per acre basis something less than $300.00 per acre, would it not?
* * *
Q. Would it be less than $300.00?
A. A little bit less, I’d think would be right.”
Thus, by a computation of 137.5 at $300.00 per acre plus all improvements, it is clear that the appellant is incorrect in its argument that the landowner did not testify to a total before value of at least $75,000.00. ($40,000 + $25,000 + $10,000).
Mr. Kennedy candidly admitted that he was not an expert on land values and only had a general knowledge from being a resident landowner in the vicinity. Recently we have reiterated the well established principle of law that a landowner’s testimony is competent and admissible as to the value of his lands, regardless of his lack of knowledge of property values, if a satisfactory explanation is given for his conclusion. Arkansas State Highway Comm. v. Duff, (May 12, 1969), 440 S. W. 2d 563; Arkansas State Highway Comm. v. Clark, (Sept. 22, 1969), 444 S. W. 2d 702; Arkansas State Highway Comm. v. Taylor, (Dec. 8, 1969), 447 S. W. 2d 646. This is based upon the landowner’s intimate knowledge of his property. Any infirmities bear upon the weight.
The fact the landowner was able to testify that he knew of only one sale for $300 per acre in close proximity is of little consequence. This single sale was only one factor he considered as a landowner. He testified that the property had been, in his family for more than fifty years. He has resided on the property all of his life, except during his service in World War II. He had acquired it from his family a few years before. Practically all improvements on the land were taken except his new house. He further testified that the controlled access highway almost equally divides his lands and that he now has no access from one residual to the other except an existing unimproved county road that traverses the northern portions. He was using his property for a cattle ranch and planned to expand this activity. No direct access is provided from one residual to the other. He built his new residence between one-fourth to one-half mile from any existing highway facility. The new highway runs in front of his home which results in an access facility which is steep and undesirable. He described the terrain and demonstrated a per acre value of the varied parts of his lands as a single unit before the taking and, also, the consequent damages after the taking. According to him, as previously indicated, the before value of his property was $75,000, the after value was $30,000, and his just compensation was $45,000.
Mr. Kennedy’s long standing and demonstrated familiarity with his land and the improvements thereon, its advantages, its present and future utility as a cattle ranch operation affords a reasonable basis for his value opinion as a resident owner. We cannot say that his testimony is insubstantial.
Appellant next contends that the court erred in not striking that portion of the landowners’ expert witness’ testimony relative to damages to the landowners’ new home. The expert witness testified that in his opinion the construction and location of the new highway in front of the landowners’ home had damaged it $2.00 per square foot, or a total of $4,950. He placed a before value of $20,800 on the home. Appellant asserts that the witness included elements of damage which are not properly a part of just compensation and the jury should not have been allowed to consider them. Appellant lim its its argument to the element of noise. We find no merit in this contention. The trial court instructed the jury not to consider these separate items as constituting the measure of damages. The jury was told that it could only consider the separate items as an aid and that the true test of damages is the before and after value. Assuming, without deciding, that the element of noise is an improper element in the case at bar, we think the trial court correctly refused to strike all of the witness’ testimony with reference to damages to the home. One of the elements assigned as damage was the "steep driveway due to the Cut.” Certainly this was a proper element for the jury to consider. It is improper to strike all of a witness’ testimony if any part of it is proper and admissible. Arkansas Highway Comm. v. Phillips, (Nov. 24, 1969), 447 S. W. 2d 148. Further, we perceive no prejudice to the appellant in view of the court’s admonition to the jury.
With reference to the element of noise, appellant relies upon Campbell v. Arkansas State Highway Comm., 183 Ark. 780, 38 S. W. 2d 753 (1931), reaffirmed in Arkansas State Highway Comm. v. Kesner, 239 Ark. 270, 388 S. W. 2d 905 (1965), to the effect that noise is not a compensable element of damages. We unanimously observe that we will re-examine this view when it is appropriately and fully presented to us. The recognition of noise as being a compensable element of property damages is not an innovation nor is it unknown in our decisions. Little Rock, M. R. & T. Ry. Co. v. Allen, 41 Ark. 431 (1883). The general rule seems to be that the loss of rights which render property and its ownership or possession valuable is compensable when not suffered by the public in general.
The appellant next asserts that the verdict is excessive because there is no substantial evidence to support an award of $40,000. We find no merit in this contention. We have previously discussed the testimony of Mr. Kennedy, the landowner, and concluded that it is substantial. He placed his just compenstadon at $45,-000. His expert value witness testified that just compen sation was $35,300. There is no attack upon the expert’s testimony except as to his enumerated elements of damages to the new house. We have found no reversible error on that point. The landowners’ expert witness is the owner of a real estate agency. It appears that he is a landowner, a real estate broker, a rancher and is experienced in the sale of farms and ranches in the general area. He testified as to four comparable and recent sales in the area of appellees’ property. The value per acre ranged from $625 to $310 per acre. He gave a detailed analysis of the before and after value of appellees’ property. We cannot say that the jury’s verdict is unsupported by substantial evidence.
Affirmed.
Harris, C. J. and Fogleman and Jones, JJ., dissent. | [
-15,
110,
-75,
61,
11,
96,
106,
24,
73,
-95,
-10,
83,
-19,
-54,
16,
103,
-25,
-83,
101,
-24,
-57,
-93,
87,
-13,
-48,
-77,
107,
-59,
-71,
76,
-18,
87,
77,
48,
-54,
85,
34,
-24,
-27,
84,
-114,
-124,
-69,
92,
-53,
98,
60,
63,
70,
75,
-75,
-113,
-13,
44,
29,
-53,
109,
40,
11,
57,
1,
-8,
-66,
13,
91,
3,
33,
38,
-68,
3,
-56,
106,
-112,
53,
8,
-40,
115,
38,
-122,
84,
1,
-101,
12,
36,
103,
17,
93,
-49,
120,
-120,
47,
92,
12,
-90,
-110,
88,
75,
64,
-97,
-99,
120,
86,
22,
-4,
-28,
13,
93,
109,
-121,
-117,
-108,
-29,
-113,
38,
-104,
67,
-57,
-105,
19,
113,
-51,
-94,
92,
101,
118,
-101,
-113,
-107
] |
George Rose Smith, Justice.
The appellant, Franklin Bosnick, age 40, was charged with first degree murder jointly with his son, Franklin Bosnick, Jr., 17, Danny Wayne McKay, 18, and Dewey Ray Murray, 24. The homicide occurred in the perpetration of robbery, but the information made no mention of that fact, charging the defendants instead with a willful, deliberate, malicious, and premeditated killing. Ark. Stat. Ann. § 41-2205 (Repl. 1964). The appellant, tried separately, was found guilty and sentenced to death. The most serious question in the case is whether the trial court was right in refusing to instruct the jury on the lesser degrees of homicide.
We state only the essential facts pertinent to the appeal. On December 31, 1968, the elder Bosnick and the three youths decided to rob a combined filling station, grocery store, and residence owned and occupied by Mr. and Mrs. James Gatteys, near the community of Shannondale. All four men were armed, their weapons comprising a rifle, two shotguns, and a pistol. The older man drove the group to the scene and waited outside in the car while the three younger men, their faces masked with silk stockings, entered the store to accomplish the robbery. It was then about dark.
The Gatteyses and a young clerk were in the store. Franklin, Jr., took the leád in holding up the three occupants of the premises and taking what money there was available. While the robbery was in progress a neighbor, Jimmy Vance, approached the store, looked in, and surmised what was happening. Vance went back to his truck and used a two-way farm radio to summon the police.
The deceased, Jessie J. Morgan, a city policeman at Hughes, was the first officer to arrive. Morgan knocked at the door twice, saying both times: “Mrs. Gatteys, it’s the law.” Young Bosnick idirected Mrs. Gatteys to open the door while he stood behind her. Bosnick fired once over the woman’s shoulder and then ran outside and continued to fire until his weapon was empty. He then ran back indoors, and Murray in turn went outside with the rifle and put additional shots into Officer Morgan’s, chest. It was later found that one cartridge in the officer’s pistol had been fired.
While the youths were completing the robbery a voice from the outside — presumably the appellant’s— said: “Come on; let’s go.” The three youths, having taken money and two additional guns from the Gatteyses, then left the premises and joined the older Bosnick in the waiting car. As they were about to drive away, two state policemen arrived, disarmed the robbers, and took all four into custody without further gunfire or violence.
As we have indicated, the trial court refused the defendant’s request that the jury be instructed on the lower degrees of homicide. Had the information charged the defendants with murder in the perpetration of robbery, then the court’s action might have been correct (leaving aside for the moment the fact that the elder Bosnick merely waited outside), because proof of a homicide in the course of a robbery or other felony specified in the statute relieves the State of the burden of proving premeditation or the specific intent to take life. Hence, under such an indictment, the proof may justify the court in refusing to submit the lesser degrees of homicide. Davis v. State, 182 Ark. 123, 30 S. W. 2d 830 (1930); Washington v. State, 181 Ark. 1011, 28 S. W. 2d 1055 (1930); Clark v. State, 169 Ark. 717, 276 S. W. 849 (1925).
In the case at bar, however, Bosnick was not charged with murder in the perpetration of robbery. It would therefore have been error for the court to submit that charge only, with no reference to deliberation or premeditation. See our opinion on rehearing in Rayburn v. State, 69 Ark. 177, 63 S. W. 356 (1901); also House v. State, 192 Ark. 476, 92 S. W. 2d 868 (1936).
Nor, in this case, do we think that a different view of the matter is called for by Initiated Act 3 of 1936. That act permits the indictment or information simply to charge that “John Doe, on January 1, 1936, . . . did murder Richard Roe.” Ark. Stat. Ann. § 43-1007 (Repl. 1964). If the defendant is not satisfied with such an abbreviated charge he may request a bill of particulars. § 43-1006. In response to that request the State would presumably be required to amplify the indictment or information by charging premeditated murder, or murder in the perpetration of a specified felony, or both.
Here, however, Bosnick had no reason to request a bill of particulars, because the State elected from the outset to charge him with premeditated murder rather than with felony murder. The initiated act was intended to abolish technicalities in the wording of criminal charges, but it certainly was not intended to enable the State to charge one “class of murder” (the phrase used in the Rayburn case, supra), and then prove a different class of murder. Hence, as far as the initiated act is concerned, we treat this case just as if the State had elected, in response to a request for a bill of particulars, to charge premeditated murder rather than murder in the perpetration of robbery.
With respect to the need for instructions on the lower degrees of homicide, Bosnick’s comparatively passive participation in the crime raises added problems. First, we have pointed out that when a group plans an armed robbery, “each one of the party would be responsible for every thing done which followed directly and immediately in the execution of the common purpose as one of its probable and natural consequences.” Clark v. State, supra. But whether the homicide was a probable and natural consequence of the common plan would ordinarily be a question for the jury.
Secondly, the jury could have attributed to the elder Bosnick a full share of responsibility for what took place inside the Gatteys store, even though the original plan did not contemplate a homicide. Henry v. State, 151 Ark. 620, 237 S. W. 454 (1922). But the jury was not required to do so. By the decided weight of authority, and by what we regard as the better rule, the jury may assign degrees of guilt among the conspirators in accordance with their respective culpability.
In Texas, for example, at a time when the distinction between principals and accessories had been, as in Arkansas, modified to some extent, the court had this to say:
Under our statute there is no such division of principals, but all are principals who are present and encourage in the act; including both the one actually performing the act, and others who may be present aiding in its performance. . . . The contention of appellant that a principal of the second degree, or one who, under our statute, did not actually commit the offense himself, but who was present, and, knowing the unlawful intent, etc., aided the person who did commit it, can only be convicted of the same degree as the actual doer, is not a sound one. If he enters into the commission of the offense with the same intent and purpose, then his offense will be of the same degree as the actual doer, but he may have a different criminal intent from the one who perpetrates or does the act; and in such case he will be guilty according to the intent with which he may have performed his part of the act. [Citing authority.] We therefore hold that it is competent, under an indictment charging all as principals in murder, to convict one of such principals of one degree of felonious homicide, and another of some other degree of felonious homicide, according to the intent with which such principals may have performed the particular act attributed to and proved against them. [Red v. State, 39 Tex. Crim. R. 667, 47 S. W. 1003 (1898).]
A similar thought was expressed by the New Mexico court in State v. Lord 42 N. M. 638, 84 P. 2d 80 (1938):
The question seems to be, whether under this statute, every person connected with the murder, whether principal or aider and abettor, must necessarily have been guilty of the same degree of murder. The statute does not say so. For instance, their participation in crime might have lacked the essential element of premeditation and deliberation that must exist before a homicide is murder in the first degree; whereas the principal may have long prepared himself to commit the murder and had deliberated over the matter sufficiently to make the crime murder in the first degree.
Other authorities to the same effect include State v. Absence, 4 Porter (Ala.) 397 (1837); McCoy v. State, 40 Fla. 494, 24 So. 485 (1898); Perkins, Criminal Law, p. 586 (1957). The opposite view was taken, by a divided court, in State v. Shon, 47 Haw. 158, 385 P. 2d 830 (1963).
In this case the appellant waited outside the Gatteys store while the three younger men consummated the robbery that led to Officer Morgan’s death. The jury might or might not have considered this defendant to have been equally as culpable as one or more of the/ others. We think the issue should have been submitted to the jury by instructions defining the lesser degrees of homicide. For this reason the judgment must be reversed. (We need not and do not decide — the point not being before us — whether the lesser degrees of homicide should be submitted to the jury with respect to a passive conspirator such as the appellant when the information charges a homicide in the perpetration of another felony.)
The appellant’s remaining arguments do not require an extended discussion. The trial court was right in allowing the State’s witnesses to testify to the declarations made by the three youths during the course of the robbery, such declarations being admissible against all the conspirators. Lesieurs v. State, 170 Ark. 560, 280 S. W. 9 (1926). Nor do we find any abuse of discretion in the trial court’s decision to allow the introduction of photographs of Officer Morgan’s body. Oliver v. State, 225 Ark. 809, 286 S. W. 2d 17 (1956). At the trial there was no objection to the court’s giving an instruction in the language of Ark. Stat. Ann. § 41-2246, having to do with the accused’s burden of proving the justification or excusability of the homicide; but upon a retrial that instruction should not be given, for the reasons stated in Bagley v. State, decided September 15, 1969, 444 S. W. 2d 567.
Reversed and remanded for a new trial.
Harris, C. J., and Jones, J., dissent. | [
49,
-22,
-56,
-98,
59,
-32,
10,
26,
67,
-14,
-96,
-13,
-51,
-53,
21,
97,
-65,
117,
85,
105,
-96,
-105,
23,
1,
26,
115,
59,
-59,
-77,
-55,
-4,
-99,
76,
96,
-22,
89,
114,
-54,
-27,
-42,
-114,
16,
104,
113,
118,
18,
48,
62,
102,
15,
-75,
-116,
-13,
-85,
30,
-53,
9,
40,
73,
-83,
80,
122,
-54,
85,
-52,
16,
-77,
-91,
-102,
3,
88,
22,
-39,
53,
32,
120,
115,
-90,
-126,
116,
73,
27,
-116,
102,
114,
18,
9,
76,
-88,
-119,
-66,
-26,
-107,
-121,
30,
105,
1,
-124,
-74,
-97,
120,
84,
6,
-16,
99,
94,
121,
120,
-91,
6,
-74,
-111,
-51,
56,
-42,
-69,
-5,
7,
32,
49,
-34,
-94,
92,
69,
117,
-45,
14,
-43
] |
John A. Fogleman, Justice.
Petitioner asks that the circuit court be prohibited from proceeding further upon an intervention of Robert C. and Betty E. Jordan in an eminent domain proceeding brought in that court by it. The intervenors alleged that they had an interest as remaindermen in a tract of land taken by petitioner in that proceeding and were entitled to compensation as such. Their petition alleges that the highway department has entered upon the property, but nothing in the record indicates the date of entry or the extent of construction upon the right-of-way taken. These intervenors asserted that they were not made parties in the action and asked that they be permitted to become parties defendant for the purpose of determining the amount of compensation due them. This intervention was permitted by the trial court after the entry of consent judgment awarding compensation to the life tenant as the owner of the fee simple title to the tract in question. The circuit court held that the judgment was void as to these owners.
There can be no doubt that the life tenant and the remainderman are entitled to separate compensation. Missouri & N. A. R. Co. v. Chapman, 150 Ark. 334, 234 S. W. 171; Bentonville R. R. v. Baker, 45 Ark. 252. The owner of any interest in the land involved is a proper and necessary party to the action. Arkansas State Highway Commission v. Thomas, 231 Ark. 98, 328 S. W. 2d 367. There also can be no doubt that a remainderman has no right to possession until the death of the life tenant. Wilson v. McDaniel, 247 Ark 1036, 449 S. W. 2d 944; Smith v. Kappler, 220 Ark. 10, 245 S. W. 2d 809.
At the outset it must be emphasized that when the state becomes a suitor in its courts, it is subject to like restrictions as a private suitor, must be treated as other litigants and must submit to, and abide by, the result. Arkansas Game and Fish Commission v. Parker, 248 Ark. 526, 453 S. W. 2d 30; Arkansas State Highway Commission v. Partain, 193 Ark. 803, 103 S. W. 2d 53; Arkansas State Highway Commission v. McNeil, 222 Ark. 643, 262 S. W. 2d 129.
While the proceeding to acquire rights-of-way has been called a proceeding in rem, it is also a civil action between adverse parties, and subject to the ordinary incidents of a civil suit, at least insofar as determining just compensation is concerned. Linwood and Auburn Levee District v. State, 121 Ark. 489, 181 S. W. 892; State v. Rowe, 69 Ark. 642, 65 S. W. 463.
Notice to the owner of hearing on the highway commission’s petition in condemnation is required by Ark. Stat. Ann. § 76-533 (Repl. 1957). If the owner is a non-resident of the state, notice by publication is required for the same length of time “as may be required in other civil causes.” Of course, due process requires that the owner of lands taken under the power of eminent domain be given reasonable notice and opportunity to be heard with respect to compensation in pending proceedings. Arkansas State Highway Commission v. Scott, 238 Ark. 883, 385 S. W. 2d 636. We have said that a statute undertaking to permit determination of compensation without notice is void. State Life Ins. Co. of Indianapolis v. Arkansas State Highway Commission, 202 Ark. 12, 148 S. W. 2d 671. Statutes governing procedures must be pursued strictly. Hare v. Ft. Smith and W. R. Co., 104 Ark. 187, 148 S. W. 1038.
The owner of any interest in lands being taken under eminent domain is a proper and necessary party to the proceedings to determine compensation. Arkansas State Highway Commission v. Thomas, 231 Ark. 98, 328 S. W. 2d 367. It is the duty of the condemnor to ascertain the owners of the land and make them parties, and it acts at its own peril in selecting the parties against whom the proceedings are conducted. Bentonville R. R. v. Stroud, 45 Ark. 278; Young v. Red Fork Levee District, 124 Ark. 61, 186 S. W. 604; Board of Directors, St. Francis Levee District v. Home Life & Accident Co., 176 Ark. 558, 3 S. W. 2d 967; Arkansas Real Estate Co. v. Arkansas State Highway Commission, 237 Ark. 1, 371 S. W. 2d 1. An owner or one having any interest in land taken without notice to him is not ordinarily bound by any allowance of damages which may have been made, and the proceedings are nugatory as to him. Southwestern Bell Telephone Co. v. Biddle, 186 Ark. 294, 54 S. W. 2d 57; Hare v. Ft. Smith and W. R. Co., supra; Board of Directors, St. Francis Levee District v. Home Life & Accident Co., supra; Schichtl v. Home Life & Accident Co., 169 Ark. 415, 275 S. W. 745.
The sole argument relied upon by petitioner is the contention that granting this petition permits the intervenors to sue the state in contravention of Arkansas Constitution Art. 5, Sec. 20, citing Arkansas State Highway Commission v. Bush, 195 Ark. 920, 114 S. W. 2d 1061. This contention was rejected in Arkansas Real Estate Co. v. Arkansas State Highway Commission, 237 Ark. 1, 371 S. W. 2d 1. There we said that permitting intervention by an owner not named in an eminent domain proceeding against lands owned by him was not contrary to the holding in Arkansas State Highway Commission v. Kincannon, 193 Ark. 450, 100 S. W. 2d 969, the authority on which the Bush case depends.
We are unable to say from this record when the intervening parties had notice of the pendency of this condemnation suit, or the entry of the petitioner upon the right-of-way condemned. We are likewise uninformed as to the date a deposit to secure the payment of compensation was made by petitioner, although a certified copy of the consent judgment in favor of the life tenant filed November 30, 1965, indicates that the deposit had then been made. We have no means of assessing whether intervenors have unduly delayed their demand for compensation or the effect of that delay on their right to compensation or to a jury trial to determine it.
Prohibition is an extraordinary and discretionary writ, used cautiously. Harris Distributors v. Marlin, 220 Ark. 621, 249 S. W. 2d 3. Faver v. Golden, 216 Ark. 792, 227 S. W. 2d 453. It is never granted unless the applicant therefor is clearly entitled to the relief and the tribunal against which it is sought is wholly without jurisdiction. Schley v. Dodge, 206 Ark. 1151, 178 S. W. 2d 851; Skinner v. Mayfield, (April 21, 1969), 439 S. W. 2d 651. It will not be granted if the jurisdiction of the trial court depends upon determination of questions of fact. Skinner v. Mayfield, supra; Patrick v. Wood, 243 Ark. 418, 420 S. W. 2d 92.
On the basis of the record before us, we cannot say that the circuit court is clearly without any jurisdiction. Of course, this decision does not prevent petitioner from asserting any bar that may exist because of matters occurring or actions or omissions on the part of the remaindermen after the filing of its petition for condemnation.
The writ is denied.
Arkansas State Highway Commission v. Hammock, 201 Ark. 927, 148 S. W. 2d 324.
The record before us does not disclose whether intervenors are residents or non-residents. | [
85,
-17,
-44,
62,
-53,
66,
24,
-116,
64,
-5,
101,
83,
-17,
-38,
16,
35,
-29,
61,
113,
105,
-41,
-74,
119,
106,
83,
-109,
81,
-57,
-88,
75,
100,
-41,
76,
33,
-50,
85,
65,
98,
45,
-34,
78,
13,
-102,
109,
-39,
64,
48,
37,
82,
15,
21,
-66,
-29,
-84,
49,
-29,
73,
46,
93,
39,
-40,
-70,
-98,
-115,
123,
6,
49,
7,
-104,
-63,
104,
24,
-112,
49,
8,
-24,
119,
38,
-57,
-11,
15,
-103,
-120,
98,
103,
32,
65,
-57,
-48,
-72,
30,
-22,
13,
-90,
-110,
9,
75,
9,
-97,
-105,
120,
4,
-25,
-6,
-10,
13,
93,
-20,
1,
-82,
-42,
-77,
-121,
-12,
-99,
3,
-30,
5,
48,
113,
-49,
-26,
92,
-61,
54,
-37,
-113,
-111
] |
Frank Holt, Justice.
Appellant seeks to collect commissions due her as a real estate salesman on the basis that her commissions constituted wages as an employee within the meaning of our probate code. She worked many years for Hal Moore, a real estate broker in Little Rock, until the latter’s death in 1968. When appellant made a sale, Moore paid her a commission and retained a brokerage fee for himself. Appellant furnished her own car and transportation expenses; however, Moore provided her with a desk and other sundry needs incidental to her work. Appellant was not required to contribute to any of the office overhead expenses. She had complete freedom to work whenever she desired and received no compensation other than her commissions. Nor did Moore withhold taxes of any kind from her commissions; income taxes and Social Security payments were appellant’s own responsibility.
Upon Moore’s death, unpaid commissions, amounting to $8,564.92, from transactions up to four years previous were owing to appellant. She presented her claim for payment to the appellee, asserting that her unpaid commissions should be given subsection (b) priority, pursuant to Ark. Stat. Ann. § 62-2606 (Supp. 1969), in the distribution of Moore’s estate. The probate court, however, found this claim to be of subsection (c) classification and, therefore, not entitled to preference in payment. This appeal follows.
The sole question on appeal is whether unpaid real estate commissions, due a salesman from a number of transactions over a period of years, come within the compass of subsection (b) of § 62-2606. This statute classifies, in order of priority, the payment of claims to be made by the personal representative where the applicable assets of the estate are insufficient to pay all claims. The specified classifications are as follows:
“a. Costs and expenses of administration.
b. Reasonable funeral expenses and reasonable medical and other expenses incident to the last illness, and wages of employees of the decedent.
c. All other claims allowed.
No preference shall be given in the payment of any claim over any other claim of the same class, nor shall a claim due and payable, be entitled to a preference over claims not due.”
Appellant insists that her unpaid earnings are “wages of employees” within the purview of this statute and should therefore be given priority over subsection (c) claims. We do not agree.
Appellant urges us to interpret the terms “wages” and “employees,” as used in this statute, in their generic sense. She asserts arguments to the effect that “commissions” are a species of “wages,” as “sales agents” or salesmen are sometimes a species of “employees.” Our Employment Security and Workmen’s Compensation Acts are cited to us as examples. However, each statute dictates whether these terms are to be taken as synonymous or whether they must be distinguished. Therefore, the controlling consideration is a determination of the legislative intent.
In reviewing the history of this statute and the precursor of subsecdon (b), appellee correctly notes that the Revised Statutes of 1838, Ch, IV, § 80 [Ark. Stat. Ann. § 62-1003 (1947)], listed “expenses of the last sickness, wages of servants, * * *” as high priority claims, [emphasis added] Appellee’s contention is that the legislature, both in 1838 and in 1949 (the year in which the present statute was enacted), was attempting to provide for only those persons directly dependent upon an employer for wages for a livelihood. See 35 Am. Jur., Master and Servant § 63, and 29 ALR 2d 772 (1953). In the situation presently before us, appellant is requesting priority for commissions which are in arrearage up to four years. Clearly such commissions cannot be construed to be wages, the continuity in the payment of which she depended upon for her livelihood; rather, they reflect the posture of past debts entitled to no greater priority than other subsection (c) claims.
Appellant argues that § 62-2606 is a remedial statute and, as such, should be interpreted liberally by this court so as to give generic import to the terms “wages” and “employees” thus including her claim within subsection (b). This subsection has a primarily protective complexion, precisely delineating those claims to be given such priority — i. e., “reasonable funeral expenses, reasonable medical and other expenses incident to the last illness, and wages of employees of the decedent.” One could not effectively argue that this subsection should apply to unpaid medical expenses unconnected to the last illness and originating up to four years prior to decedent’s demise; so, too, we do not think that its scope should be broadened to include appellant’s claim which would thereby not only diminish the specific protection afforded to any personal wage earners the decedent might have had, but also unfairly divert assets which should be applied to subsection (c) claims equally, as is directed by the last paragraph of § 62-2606.
Affirmed.
Byrd, J., disqualified and not participating. | [
82,
126,
-60,
-36,
-120,
96,
58,
8,
115,
-32,
53,
87,
109,
-58,
84,
61,
-13,
-99,
81,
107,
-107,
-80,
7,
107,
91,
-13,
-15,
-61,
-87,
77,
-28,
-100,
77,
32,
-54,
-43,
-58,
66,
69,
82,
78,
-127,
25,
101,
-7,
-64,
48,
105,
90,
75,
65,
-50,
-69,
40,
53,
74,
108,
46,
125,
35,
-64,
-96,
-118,
-123,
127,
7,
19,
4,
-38,
3,
88,
72,
-112,
48,
32,
-56,
115,
-90,
-90,
68,
107,
-101,
8,
96,
98,
50,
-123,
-83,
-8,
-104,
47,
-2,
-99,
-91,
-74,
121,
11,
3,
-66,
-100,
123,
0,
-121,
-4,
-10,
-35,
-35,
104,
11,
-113,
-42,
-79,
-57,
72,
-100,
-117,
-1,
5,
16,
113,
-50,
-94,
93,
3,
119,
-101,
-122,
-112
] |
Conley Byrd, Justice.
The sole issue on this appeal is whether a recited agreement in a divorce decree with reference to alimony is subject to modification. Upon a petition for modification and a petition for contempt, the trial court held that the agreement was an independent contract entered into by the parties not subject to modification, but found that it would be inequitable for the court to hold the defendant in contempt for failure to comply with the contract entered into because of failure to pay the arrearages.
The matter comes here on a partial record, Ark. Stat. Ann. § 27-2127.6 (Repl. 1962), containing only the original pleadings and the decree, together with the petitions for modification and the order of the court as aboved outlined. The original decree, after awarding custody of the eldest son to appellant Pascal T. Law and the three other children to appellee Patricia Rich Law, dismissed appellant’s cross-complaint and awarded appellee a divorce upon her complaint. The decree further recites:
“THE COURT FURTHER FINDS that the parties have reached an agreement for the settlement of their property rights and for support, maintenance and alimony which is fair and equitable as between the parties and which should be approved. The terms of such agreement and settlement are as follows:
1. The residence of Plaintiff and Defendant is presently held by them as tenants by entirety. The parties have agreed that the Defendant will convey his interest in such property to the Plaintiff.
2. The Defendant shall pay to the Plaintiff the sum of $550.00 per month for support and maintenance of said children and as alimony to the Plaintiff, such sum being allocated as follows:
A: As alimony for Plaintiff, $250.00 per month.
B. For the support and maintenance of Donna Law, Jennifer Law, and Jefrey Law, $100.00 per month for each.
G. The Plaintiff has agreed that out of such sum to be paid by the Defendant, she will make the payments on the mortgage indebtedness on the residence; make the remaining payments on a 1964 Buick Special automobile, which automobile is awarded to the Plaintiff; and that she will make the remaining payments due on the purchase price of a piano.
3. The 1964 Buick Special, presently in the possession of the Plaintiff, is awarded to her, together with the household goods, furniture, and equipment in the residence.
4. The Plaintiff is awarded the right to continue to reside in the residence presently occupied by her.
5. Support and maintenance payments for each of the three children hereinabove named, in the custody of Plaintiff, shall be continued so long as such child shall be in school or college attendance. At the end of such time, the $100.00 per month support and maintenance payment allocated to such child shall be eliminated from the payments made . hereunder to the Plaintiff, and the sum of $50.00 per month shall be added to the alimony payment due Plaintiff.”
By Ark. Stat. Ann. § 34-1211 (Repl. 1962), it is provided that when a decree shall be entered, the court shall make such order touching the alimony of the wife and the care of the children, if there be any, as from the circumstances of the parties and the nature of the case shall be reasonable. Section 34-1213 author izes the court upon application of either party to make such alterations from time to time as to the allowance of alimony and maintenance as may be proper. Section 34-1214 directs that in every final judgment for divorce the court shall make an order with reference to a division of property.
Our cases, McCue v. McCue, 210 Ark. 826, 197 S. W. 2d 938 (1946); Seaton v. Seaton, 221 Ark. 778, 255 S. W. 2d 954 (1953); and Lively v. Lively, 222 Ark. 501, 261 S. W. 2d 409 (1953), recognize that the parties do not always leave to the court the determination of the property rights upon proof but that they often reach an agreement with reference thereto. These same cases recognize that some of the contracts with reference to alimony amount to an independent contract or agreement between the parties that is not subject to modification by the court and that other such agreements amount to nothing more nor less than an agreement as to what the court should put in its decree to avoid the taking of proof. The matter was stated in Lively v. Lively, supra, as follows:
“. . . Our cases hold that where a decree for alimony or support is based on an independent contract between parties which is incorporated in the decree and approved by the court as an independent contract, it does not merge into the court’s award and is not subject to modification except by consent of the parties. Pryor v. Pryor, 88 Ark. 302, 114 S. W. 700, 129 Am. St. Rep. 102; McCue v. McCue, 210 Ark. 826, 197 S. W. 2d 938; Bachus v. Bachus, 216 Ark. 802, 227 S. W. 2d 439. Although a court of equity may decline to enforce payments due under an independent agreement by contempt proceedings where changed circumstances render such payments inequitable, the wife retains her remedy at law on the contract. Pryor v. Pryor, supra.
There is a second type of agreement in which the parties merely agree upon the amount the court should fix by its decree as alimony or support, without intending to confer on the wife an independent cause of action. This type agreement becomes merged in the decree and loses its contractual nature so that the court may modify the decree. Holmes v. Holmes, 186 Ark. 251, 53 S. W. 2d 226; Wilson v. Wilson, 186 Ark. 415, 53 S. W. 2d 990; Seaton v. Seaton, 221 Ark. 778, 255 S. W. 2d 954.”
Appellee, to sustain the holding of the trial court that the agreement involved here is an independent agreement not subject to modification, relies upon McCue v. McCue, supra, and argues that Mr. Law here was so anxious to marry his present spouse that he met with the respective attorneys and entered into the alleged independent agreement.
We are unable to agree with appellee because in the first place there is nothing in the record to show the facts which she argues. Furthermore, since the appellee was relying upon an independent contract the burden of proving the existence thereof was upon appellee, 17A C. J. S. Contracts § 579.
So far as the record here shows the only agreement reached by the parties is the recitals in the decree— i. e., the agreement was not otherwise reduced to writing. We can find nothing in the decree to indicate that the agreement reached was intended to be anything other than a stipulation as to the amount the court should fix for alimony. If the parties had intended otherwise, it would have been a simple matter to have so stated as was done in Armstrong v. Armstrong, 248 Ark. 835, 454 S. W. 2d 660, handed down this date.
Reversed and remanded. | [
16,
120,
-107,
109,
-54,
-96,
11,
-120,
122,
-119,
39,
83,
-93,
126,
20,
121,
114,
107,
96,
107,
85,
-77,
22,
65,
-21,
-13,
-15,
85,
-67,
95,
-68,
30,
76,
32,
-62,
-43,
98,
-125,
-59,
88,
-50,
-117,
11,
100,
-39,
70,
48,
101,
0,
15,
33,
-113,
-93,
39,
25,
74,
108,
46,
77,
105,
-48,
-32,
-118,
13,
127,
7,
-77,
36,
-102,
45,
88,
14,
-108,
57,
1,
104,
51,
-90,
-122,
116,
105,
-69,
9,
116,
98,
0,
69,
79,
-72,
-100,
6,
-2,
-113,
-89,
26,
89,
74,
73,
-82,
-100,
124,
16,
-113,
118,
120,
-115,
29,
108,
10,
-49,
-108,
-87,
-115,
90,
-108,
8,
-21,
-29,
48,
117,
-55,
-30,
93,
82,
51,
-101,
-58,
-110
] |
Carleton Harris, Chief Justice.
Frank Dolphus, Jr., appellant herein, was charged by an Information filed on December 4, 1968, with the crime of Grand Lar ceny, alleged to have occurred on November 22, 1968. On trial, Dolphus was found guilty, and after being found guilty, the jury determined sentence on the basis of the Habitual Criminal Statute, Sec. 43-2328 Ark. Stat. Ann. (1969 supplement), fixing his sentence as a fourth offender at twenty-six years and three months confinement in the penitentiary. From the judgment entered in accordance with these verdicts, appellant brings this appeal. No brief has been filed by the appellant, but his motion for a new trial, in effect, questions the substantiality of the evidence to sustain the conviction. It is also contended that the court erred in imposing a sentence upon Dolphus as an habitual criminal, it being asserted that this statute is unconstitutional in that Dolphus is being punished twice for previous offenses, and also, it constitutes cruel and unusual punishment. We proceed to a discussion of each point.
Mrs. Virginia Hammett testified that she and her husband had operated a grocery store for about 20 years in West Memphis; that on the morning of November 22, 1968, she opened the store a little after 7 o’clock A.M., her 20 year old son, Ed Hammett, being there with her. She said that about 7:50, a Negro man came to the store, went to the back, picked up a ten cent cake, and walked back to the cash register. She was behind the counter and he handed her a ten dollar bill. According to her testimony, as she opened the register and rang up the dime, the man said “No, wait a minute, I’ve got some change”. She then gave back the ten dollar bill, and he slammed the change over the counter away from the register, which was still open. In the meantime, he had asked for a can of baby food, and her son had gone around the counter to obtain it. At the same time, Mrs. Hammett was “down on the floor picking up the change”. The man then left the store. Mrs. Hammett stated that he was the first customer for the day, and that no money had been taken in at the time he walked in; the only money in the cash register was what she had placed there in opening the store for business that morning. She also said that no suppliers had been paid prior to the man’s coming into the store; that after he left, she discovered that $50.00 in $5.00 bills was missing from the cash register. At the trial, the witness identified Dolphus as the man in the store.
The son also identified Dolphus as the man who was present in the store, stating:
“Well, he had come in to buy — to purchase something from the store, and he brought it up to the counter, and asked my mother, Mrs. Hammett, where the tall thin man was, which meant my daddy who was sick, and then he asked for spinach and bacon baby food. I thought there was no such thing, but I thought maybe there was and started to look, then I thought, I know there is not, and I started back, and I guess I returned to the front quicker than he thought I would, and I saw him reach over the cash register and grab money out of the cash register and put it in his pocket.’’
On cross examination, young Hammett said he didn’t actually see Dolphus with his hand in the cash register, but saw him reach over to the cash register. The witness followed Dolphus out of the store, and saw appellant drop something and stop to pick it up. Hammett stepped back into the grocery and told his mother to call the police. He then observed Dolphus get into a 1964 light blue Imperial, bearing a Tennessee license number, took down the license number, saw the car leave in the direction of Memphis, and reported the matter to a police patrol car. Hammett said there was another person also in the car, a woman. Dolphus was arrested by officers of the Memphis Police Department, and he voluntarily returned to Crittenden County. No evidence was offered by appellant. The testimony was sufficient to sustain the conviction. It is true that no one actually saw Dolphus put his hand into the cash register, but such proof was not necessary. We have held that participation in larceny may be shown by circumstances. Puckett v. State 194 Ark. 449, 108 S. W. 2d 468. This assignment of error contains no merit.
Nor do we find merit in the second contention. The record reflects that counsel for the state and counsel for the appellant stipulated that Dolphus had previously been convicted of robbery in the State of Oklahoma, serving time in the Oklahoma penitentiary in 1952; that he had previously been convicted of the offense of larceny in 1956, serving time in the state penitentiary in Illinois, that he had also been previously convicted of the offense of attempted larceny of a building in 1964, serving a sentence in Jackson, Michigan.
After finding appellant guilty of the current offense, the jury was instructed as to punishment for a fourth or subsequent conviction under the statute previously cited, and his sentence was fixed at 26 years and 5 months. The same contention now made by appellant was made in the federal case of Oliver v. United States of America 290 F. 2d 255, where Oliver was convicted of a narcotics violation in 1959, but was sentenced on the basis of having also been convicted of a similar offense in 1941. The Circuit Court of Appeals (8th Circuit), in rejecting the contention, said:
“An application was thereafter filed by appellant, which was in effect a motion under 28 U. S. C. A. § 2255, challenging the validity of the heavier sentence to which he had been subjected from the existence of his 1941 conviction. The basis of his challenge was that the increased penalty provision invoked against him for a second offense violation of the narcotics statutes had been enacted after his 1941 conviction, and that its application to him therefore made it an ex post facto law, in violation of Art. 1, § 9, cl. 3 of the Constitution. * * * *
“The trial court denied the § 2255 motion without a hearing and refused to allow appellant to proceed on appeal in forma pauperis, except to permit him to file a notice of appeal without payment of fee. He now seeks leave from us to prosecute his appeal in forma pauperis.
“The increased penalty imposed upon appellant under § 7237 (a) because of his 1941 conviction is not a punishment for that offense, but simply ‘a stiffened penalty for the latest crime, which is considered to be an aggravated offense because a repetitive one.’ (citing other cases) Appellant was not being made to pay an additional penalty for the violation he committed in 1941, but he was merely being given more severe punishment for what he had done in 1959, in that he had seen fit to engage in another narcotics offense after § 7237 (a) was enacted”.
Nor can we agree that the penalty constitutes cruel and unusual punishment.
Affirmed.
Fogleman, J., not participating.
The reporter evidently inadvertently made an error in transcribing the Court’s charge to the jury; in quoting the Court’s recitation of the stipulation, the location of the Illinois penitentiary is shown as “Bernard” instead of "Menard”, and the serving of the sentence at Jackson is shown as “Mississippi” instead of “Michigan”.
Under the statute, Dolphus could have received thirty-one years and six months. | [
48,
-18,
-40,
-36,
58,
-96,
42,
-70,
66,
-95,
-12,
-13,
-87,
71,
68,
113,
115,
109,
84,
105,
-100,
-73,
37,
-31,
-110,
-5,
-87,
-59,
-79,
73,
-20,
-35,
78,
48,
-54,
85,
70,
72,
-61,
22,
-118,
49,
-87,
64,
81,
2,
36,
59,
92,
15,
53,
62,
-89,
42,
30,
-51,
73,
108,
77,
62,
-64,
-71,
-110,
15,
109,
20,
-79,
38,
-78,
-121,
-8,
46,
-40,
57,
0,
-8,
115,
-106,
-126,
20,
111,
-103,
4,
96,
98,
-125,
21,
111,
-72,
-120,
54,
-10,
-67,
-89,
-104,
73,
3,
101,
-65,
-97,
126,
20,
10,
122,
119,
-59,
49,
108,
5,
-118,
-68,
-127,
-81,
60,
-106,
-6,
-21,
5,
32,
49,
-50,
-30,
92,
22,
121,
-109,
-114,
-108
] |
Carleton Harris, Chief Justice.
Arkansas Power and Light Company, appellant herein, condemned a right-of-way 462.9 feet in length, and 40 feet in width running parallel to and near the South boundary line of a 40 acre tract owned by E. L. Lantrip, appellee herein. This right-of-way is situated in the Southwest comer of the tract, and, beginning at a point about 25 feet north of that corner, runs easterly 462.9 feet. The taking also includes two strips of right-of-way, one 75 feet in length and 16 feet in width and the other 40 feet in length and 16 feet in width abutting against the larger taking for purposes of locating guy wires. The entire taking for this distribution line consisted of slightly less than one-half acre. On trial, the jury returned a verdict in favor of Lantrip in the amount of $7,000.00, and from the judgment entered in accordance with said verdict, appellant brings this appeal. For reversal, two points are asserted, first, that the trial court erred by refusing to give appellant’s requested instruction No. 10, and second, the verdict was not supported by substantial evidence and was excessive. We proceed to a discussion of each point.
Appellant offered the following instruction, which was refused by the court:
“Evidence has been introduced with respect to sale of other lands made in the general vicinity of the lands involved in this case. That evidence should be accorded the weight, if any, which you think it should have in determining- the market value of the tract or tracts of land with which you are concerned, as of the date of taking.
“In weighing that evidence you should take into consideration the facts and circumstances of such sales, as shown by the evidence, the relationship of the parties to such sales, the location, accessibility and quality of the lands so sold as compared to the location, accessibility and quality of the lands involved in this case, and any other established factors of similarity or dissimilarity, as shown by the evidence.”
We do not agree that the refusal to give this instruction constituted error. It is argued that in Baker v. City of Little Rock, November 3, 1969, 446 S. W. 2d 253, this court approved the instruction offered; that assertion is correct, but the circumstances were different from the case at bar. Of course, in the first place, the contention there was that the giving of the instruction constituted error, and we held the instruction to be proper under the evidence offered. However, we pointed out that this instruction was offered relative to direct evidence of comparable sales, rather than hearsay evidence of comparables, and Mr. Block described in- detail a sale handled by him which, in his opinion, was highly comparable. We said,
“Evidence of comparable sales and comparable values given by those having firsthand information may be introduced as substantive evidence going to the value of the subject lands. * * * * (citing cases) Instructions 13 and 14 were proper, at least insofar as they applied to any comparables not based on hearsay; whether they are otherwise applicable is not before us because a specific objection was not made.”
The question is now before us, but we do not agree with appellant’s position. Let it be remembered that evidence of comparables given by an expert based on hearsay evidence, is not evidence of just compensation to be considered by the jury, but rather, such evidence is only to show the basis of the expert’s opinion, and to aid in enabling the jury to better determine the weight that should be given his evidence. In Volume 5, Nichols’ The Law of Eminent Domain, § 21.3, there is a discussion of this subject, including the following comment:
“Upon the question whether the price paid at voluntary sales of land similar to that taken at or about the time of the taking is admissible as independent evidence of the value of the land taken there is a conflict of authority. It is held in most jurisdictions that such evidence is admissible. * * * *
“Such evidence is capable of direct proof; it has considerable probative value. * * * *
“The price paid for similar land, when admitted as independent evidence of value, must be proved with as much formality as any other material fact, and witnesses are not permitted to testify in regard to sales unless they were parties thereto, or were the brokers who effected the sale, or in some other- manner knew the price paid of their own knowledge, and not as a matter of common rumor or hearsay.”
In the case now before us, there was na evidence by any person purporting to have firsthand knowledge of sales which were considered comparable.
It follows that there is no merit in this contention.
Nor do we agree that there is -no substantial evidence to support the verdict. Following the testimony of the landowner, Mr. D. Thomas Cox, a realtor for 22 years in Pulaski County, testified on behalf of the landowner. Mr. Cox stated that he was familiar with property values in that particular area prior to March 1967, (date of the taking) and the 40 acres owned by Lantrip fronted on the east on the expressway access road of Jacksonville, and he valued the property (before the taking) at $160,000.00. Cox, who was apparently looking at a map, , stated:
“* * * this would be an ideal road for the subdivision going over to the access road of the expressway and commercial could be used on the access road and this would be prime for a residential development. Of course, this has affected the property and damaged it. I would say that part affected by this — putting this easement through there, the right of way —has reduced the value of the over-all 40 acres, is that what you want?”
Appellant complains that Cox does not use the words “fair market value”, and that he testified to- the overall value of the entire 40 acres after the taking, rather than the value of the remainder after the taking. This, says appellant, renders his testimony in this regard completely incompetent. It is true that the witness did not use the exact phrase mentioned by appellant, but there is no magic in those particular words. The important consideration is whether Mr. Cox actually used the proper approach. For instance, when he said -that the entire forty was worth $160,000 before the taking, and the forty was worth $150,000 after the taking, he was certainly, in effect, giving that as the value of the “remainder”. After all, this was not a taking in fee simple, but was only the condemnation of a right-of-way easement. Lantrip still owned the entire forty. It might be added that the jury was properly instructed relatives to before and after values.
Mr. Cox stated that the best use of the property on Lantrip Road was residential, and that the best use for that on the access road would be as commercial property. He mentioned a subdivision directly west of the Lantrip tract and stated that the subdivision was served with all utilities except sewer. He said it had been cleared, contained streets, and that a new house, built within the last six months, was within 200 feet of the Lantrip acreage. He added:
“Well, I think by the idea of the guy wires or highlines being there it affects this property to that extent. Not only that half acre but I think it affects property within a hundred or two hundred feet of it. It depreciates the value of that whole strip of land. And on each side it will. . . on the north side it will affect the value of that particular property and then to put a 50 foot street which is the minimum requirement by the county and the city and the Planning Commission, to put a 50 foot street there, then he’s going to have to acquire 25 feet south of him to put in a road through there to the access road of the Jacksonville Highway, which would come over his property there.”
Appellant apparently questions the qualifications of Mr. Cox, stating that Cox was not a Senior Real Estate Appraiser, and that Cox was not a member of the American Institute of Real Estate Appraisers, while its own expert, William Payne, was a Real Estate Appraiser, President of a mortgage company, a graduate Civil Engineer from the University of Arkansas, a graduate of various reál estate appraiser’s courses, a graduate of the School of Mortgage Banking at Northwestern University, a Senior Member of the Society of Real Estate Appraisers, and a member of the American Institute of Real Estate Appraisers and held a MAI designation.
It may be that, educationally speaking, Mr. Payne was better qualified than Mr. Cox, but it is not our function to determine which witness was better qualified, or which better demonstrated his knowledge of the property under discussion. That is a jury function, and we have no right to set aside its opinion except for legal reasons.
Appellant mentions that Cox did not offer any comparable sales in support of his opinion, but this was a matter that could have been easily handled on cross-examiation. In Sunray DX Oil Co. v. Thurman, 238 Ark. 789, 384 S. W. 2d. 482, we said:
“Appellant contends that the witnesses should have testified more specifically, and in more detail, as to how they reached these figures, but these facts could have been ascertained on cross-examination. Counsel did not interrogate Thurman on this point, and did not cross-examine O’Bier at all.”
Likewise, in Urban Renewal Agency of Harrison v. Hefley, 237 Ark. 39, 371 S. W. 2d. 141, this court said:
“The testimony of Carr, another real estate dealer, is challenged on the ground that he gave no basis for his expert opinion. As we pointed out in Ark. State Highway Comm. v. Johns, 236 Ark. 585, 376 S. W. 2d. 436, that opinion was admissible on direct examination. Counsel might have attempted to discredit the witness by showing through cross examination that he had made no reasonable basis for his conclusions, but no such effort was made.”
In the case before us, on cross-examination, counsel for appellant suggested that Cox had not used the proper method in arriving at his conclusions. When the witness inquired of counsel what method he should have used, the attorney replied? “comparable sales method”. The record then reveals the following:
“A. I’ve got some comparable sales. If you want them. You haven’t asked me that.
Q. No, I didn’t ask you.
A. Do you want some?
Q. What I’d like to know is just the factors that you considered on this property?
A. I’ve got to go into some comparable sales now if you want me to.
COUNSEL FOR APPELLANT
I believe that’s all I have.”
Appellant is hardly in a position to complain about the lack of comparable sales used by Cox when we consider the testimony just quoted.
Nor can we agree that the verdict was excessive. In Arkansas State Highway Commission v. Sargent, 241 Ark. 783, 410 S. W. 2d. 381, the same conention was made, but this court said that if the testimony .had any reasonable basis, though it might have seemed questionable, the jury was entitled to accept the valuations, and we could not say that the verdict was excessive, “being well within the range of damages testified to by witnesses for appellees”.
Finding no reversible error, the judgment is affirmed.
It is so ordered.
& 1a Emphasis supplied.
The language used by the witness very clearly conveys this impression. For instance, he stated, “well, this part is only affected. It wouldn’t affect the whole 40 acres.”
b, c The italicized words are confusing since the transcript contains no plat or map.
Cox had attended an appraiser’s school.
We do not discuss Payne’s testimony inasmuch as we are only concerned with whether there was substantial evidence offered by appellee. | [
118,
126,
-40,
60,
24,
-32,
58,
-104,
121,
-95,
-28,
83,
47,
-62,
28,
113,
-93,
-3,
84,
121,
-44,
-93,
3,
97,
-110,
-45,
-101,
-59,
-75,
-35,
-28,
-42,
76,
96,
-54,
21,
102,
-64,
-51,
28,
78,
-124,
-101,
72,
88,
96,
52,
43,
86,
-49,
117,
-98,
-13,
40,
24,
-53,
-51,
44,
75,
52,
25,
-72,
58,
-113,
95,
22,
49,
-92,
-102,
1,
-24,
60,
-40,
113,
9,
-8,
115,
-90,
-106,
-12,
9,
-101,
44,
32,
103,
1,
77,
-25,
-72,
-120,
7,
-3,
-83,
-90,
4,
24,
73,
65,
-65,
-4,
68,
16,
7,
-2,
-25,
21,
91,
108,
13,
-113,
-76,
-91,
-125,
124,
-108,
65,
-53,
-121,
16,
116,
-49,
-22,
92,
71,
50,
-101,
-114,
-80
] |
Conley Byrd, Justice.
This appeal by Martin Borchert and Virgil T. Fletcher questions the constitutional validity of the documentary tax stamp act, being Act 239 of 1969, under amendment 20 to the Constitution of Arkansas. The matter was instituted by Borchert as a property owner and taxpayer against appellees Bob K. Scott, individually and as Commissioner of Revenues for Arkansas; James C. Morris, J. A. West, L. C. Dial, J. R. McKinley, Orville I. Richolson, Óvid Switzer, arid C. E. Tudor, individually and as members of the State Parks, Recreation and Travel Commission of the State: Keith Tudor, J. W. McCracken, Dr. Joseph L. Rosenzweig, Mrs. Fred MacDonald, Harold F. Ohlen•dorf, Gordon Gurley and James Cuthbertson, individually and as members of the Arkansas Board of Mental Retardation. Virgil Fletcher intervened. After a stipulation of the facts and issues and that all moneys received by the commissioner of revenues were to be received as paid under protest, the trial court dismissed the complaint and intervention. For reversal appellants rely upon a number of Constitutional provisions including Amendment 20, which provides that, “. . .THE STATE OF ARKANSAS SHALL ISSUE NO BONDS OR OTHER EVIDENCE OF INDEBTEDNESS PLEDGING the faith and credit of the State or ANY OF ITS REVENUES FOR ANY PURPOSE WHATSOEVER, except by and with the consent of the majority of the qualified electors.”
The appellees contend that Amendment 20 applies only to general obligations of the State of Arkansas and that so long as the bonds authorized by the legislature are secured by revenues to be derived from a special and defined source, such as the revenues produced by Act 239, Amendment 20 is not involved. In this connection they contend that there is no constitutional restriction on the power of the legislature to allocate revenues collected from a single source between “treasury funds” and “cash funds”.
Insofar as here pertinent Act 239 provides:
“AN ACT to Impose a Tax on the Transfer of Real Property; to Provide for Penalties for Failure to Comply With This Act; and for Other Purposes.”
Be It Enacted by the General Assembly of the State of Arkansas:
SECTION 1. There is hereby levied on each deed, . . . when the consideration for the interest or property conveyed exceeds One Hundred ($100.00) Dollars a tax at the rate of One Dollar and Fifty Cents ($1.50) for each Five Hundred ($500.00) Dollars, or fractional part thereof.
SECTION 2. The tax imposed by this Act shall not apply to transfers of the following: . . .
SECTION 3. The tax levied by this Act applies at the time of transfer and shall be computed on the basis of the consideration for the real estate transferred.
SECTION 4. The County Recorder of Deeds shall not record any instrument evidencing a transfer subject to this Act unless the instrument shall have affixed thereto a documentary stamp or stamps evidencing the full payment of such tax. . . .
SECTION 5. The Commissioner of Revenues shall design such documentary stamps. . .
SECTION 6. All revenues derived from the tax levied by this Act shall be paid over to the Commissioner of Revenues and shall be deposited in one or more banks selected by him and from time to time withdrawn from such banks in the pro portions indicated for use for the following purposes:
(a) An amount not exceeding three percent (3%) of such deposits for payment of the expenses of the Commissioner of Revenues in administering the provisions of this Act, including the costs of designing and printing the documentary stamps, the preparation and printing of information material and of any regulations which he may promulgate with respect to the use of such stamps and their safe-keeping, and for reimbursing the State Treasury for any such expenses of administration hereunder which were paid by the use of State-appropriated funds.
(b) The remainder thereof, but not less than ninety-seven per cent (97%) shall be deposited by the Commissioner of Revenues as follows:
(1) Twenty per cent (20%) shall be deposited by the Commissioner of Revenues in the State Treasury and credited to the County Aid Fund and distributed at the end of each month to the respective counties from which the revenues originated.
(2) Forty per cent (40%) thereof to the Arkansas Children’s Colony Board (the ‘Colony Board’). Funds so remitted to the Colony Board are hereby specifically declared to be cash funds and shall not be deposited in the State Treasury but shall be deposited in trust in a bank or banks in this State, as the Colony Board may from time to time select and used by the Colony Board, as it shall determine, to operate, maintain, develop and improve institutional and community facilities and services for the mentally retarded, and all or any part may be pledged to and used for the payment of revenue bonds issued by the Colony Board pursuant to Act 186 of 1963, as and to the same extent as the charges referred in Section 7 of Act 186 of 1963. So long as any revenue bonds are outstanding, to the payment of which revenues derived from the tax levied by this Act are pledged, the tax levied by this Act shall continue to be collected and the revenues derived therefrom shall continue to be deposited as provided in this Act and to be pledged to and used for the payment of the outstanding bonds, principal and interest, until the outstanding bonds are fully paid or adequate provision made therefor; and
(3) Forty per cent (40%) thereof to the State Parks, Recreation and Travel Commission of the State of Arkansas (the ‘Commission’). Funds so remitted to the Commission are hereby specifically declared to be cash funds and shall not be deposited in the State Treasury but shall be deposited in trust in a bank or banks in this State as the Commission may select, and used by the Commission as it shall determine, to operate, maintain, develop and improve the Public Parks system of the State, and all or any part may be pledged and used for the payment of revenue bonds, issued by the Commission pursuant to Act No. 539 of 1953, as amended, as and to the same extent as revenues derived from the properties and equipment of the State Parks System. So long as any revenue bonds are outstanding, to the payment of which revenues derived from the tax levied by this Act are pledged, the tax levied by this Act shall continue to be collected and the revenues derived therefrom shall continue to be deposited as provided in this Act and to be pledged to and used for the payment of the outstanding bonds, principal and interest, until the outstanding bonds are fully paid or adequate provision made therefor.
Act 186 of 1963 referred to in Section 6(b) (2) provides that, "bonds issued under the provisions of this act shall be general obligations only of the Board, and in no event shall they constitute an indebtedness for which the faith and credit of the State of Arkansas or any of its revenues are pledged. . . .” Act 399 of 1953 referred to in Section 6(b) (3) contains a similar provision.
Amendment No. 20 has been before this Court in a number of cases. See Miles v. Gordon, 234 Ark. 525, 353 S. W. 2d 157 (1962); Holmes v. Cheney, 234 Ark. 503, 352 S. W. 2d 943 (1962) and McArthur v. Smallwood, 225 Ark. 328, 281 S. W. 2d 428 (1955). Commencing with Davis v. Phipps, 191 Ark. 298, 85 S. W. 2d 1020 (1935), we have consistently held that revenue bonds based upon revenues of an agency in the nature of “cash funds” could be pledged for the payment of bonds issued by a state agency without violating Amendment No. 20, so long as the faith and credit of the State of Arkansas was not pledged. However in each case thus far decided, when discussing the sources of the pledged revenue, we have been careful to point out that the revenue source involved was not taxes. In the McArthur case, supra, we pointed out that the funds there involved were special funds not otherwise available for the general purposes of the state.
The distinction between “cash funds” and “taxes” as public revenues was made in Gipson v. Ingram, 215 Ark. 812, 223 S. W. 2d 595 (1949). There the sole issue was whether a legislative appropriation, pursuant to Article V, § 29, was a prerequisite to payment by an agency from an accumulated cash fund, derived from various sources such as student fees, dormitory charges, etc. We held that no appropriation was necessary, after determining that no part of the funds were derived from taxes.
In Moore v. Alexander, 85 Ark. 171, 107 S. W. 395 (1908), we had before us “An Act to Provide for the Completion of the State Capitol Building” which levied a tax of one-half mill on each dollar of taxable property to be “continued to be levied and collected and appropriated. . . until said Capitol is fully completed.” We there held a continuing appropriation to be violative of Article V, § 29, which provides that “. . .no appropriation shall be for a longer period than two years.” This court in Dickinson, State Auditor v. Edmondson, 120 Ark. 80, 178 S. W. 930 (1915), commented upon Moore v. Alexander, above, as follows:
“. . . We are unwilling to recede from the position taken in that case, for it is plain that the framers of the Constitution intended to place an unmistakable limitation upon the authority of public officials in paying out public funds, and to declare that all the State funds which are within the purview of that provision must be held in the treasury, until a specific appropriation thereof has been made by the Legislature. The power of the General Assembly with respect to the public funds raised by general taxation, is supreme, and no State official, from the highest to the lowest, has any power to create an obligation of the State, either legal or moral, unless there has first been a specific appropriation of funds to meet the obligation. The Constitution provides, too, that no appropriation shall be for a longer period than two years, and thus a period is fixed over which the lawmakers hold complete control over the purse-strings of the State.”
When we remember that the U. S. Constitution, Art. 1, § 10, provides that, “No state shall. . . pass any. . . law impairing the obligation of contracts. . .” and that the law existing at the time of the issuance of bonds by a state agency becomes a part of the contract within the meaning of the contract clause of the U. S. Constitution, the reason for the distinction between revenues of an agency or “cash funds” and taxes becomes obvious. If the 1969 General Assembly can delegate to a state agency the authority to make the documentary stamp tax irrevocable for a number of years through the issuance of bonds, then no reason appears why the 1971 legislature cannot do the same thing with the income tax or the gross receipts tax. After a few such instances, the people of this State would be powerless to obtain any relief from any tax levied irrespective of the prevailing economic conditions. It was a sad economic condition that caused the enactment of Amendment 20. See Davis v. Phipps, 191 Ark. 298, 85 S. W. 2d 1020 (1985), where we said:
. . . “Citizens of the State who have been interested in its welfare and who have attempted to keep themselves reasonably well-informed know what the evils were for which Amendment No. 20 was framed to cure. It must be a fact well recognized in State history that, at the time Amendment No. 20 was being considered I» the electors of the State, the financial affairs of our Commonwealth, had been well-nigh wrecked by issuance of bonds far in excess of the amount justified by the liquid resources of the State. High taxes had been imposed to raise revenues to meet these enormous obligations. It was well understood then, as it is now, that a continuation of these practices that had grown up were pyramiding debts and tapping every source of revenue for payment thereof and could not continue without practical bankruptcy.”
It is suggested that the act here involved does not levy a tax, even though the act consistently refers to the stamps as a tax and notwithstanding that it in effect constitutes a three percent excise upon the sale price of all real estate. Furthermore, the stipulation shows that one single real estate transaction produced approximately $350,000 in revenues. We find no merit in, the suggestion. Neither do we accept the appellees’ assertion that the legislature’s classification of the revenues as “cash funds” is conclusive under the authority of McArthur v. Smallwood, supra. That same decision makes plain that a determination of whether an act violates Amendment 20 by pledging the faith and credit of the State is one of substance for the court even though the act contains an express provision to the contrary.
Thus as we analyze Act 239 it levies a tax, by passes the State Treasury, and delegates to a created agency, under the federal contract clause, the authority to issue evidence of indebtedness and to irrevocably pledge, for a number of years in the future, the right of the people of this State to use or to repeal that part of the State’s taxing power involved. It must be remembered that Amendment 20 applies not only to evidence of indebtedness for which the State’s faith and credit is pledged, but also to evidence of indebtedness for which any of its revenue is pledged. To hold that the bonds here authorized are not in violation of Amendment 20, because of the creation of the agency and the bypassing of the State Treasury with the tax, would be to put form above substance. This we refuse to do because a tax is clearly a revenue of the State of Arkansas as distinguished from a revenue of a State agency.
Having determined that Sections 6(b) (2) and 6(b) (3) are violative of Amendment No. 20, the issue then arises whether the whole act must fall or only the invalid portion. The rule is stated in Cotham v. Coffman, 111 Ark. 108, 163 S. W. 1183 (1914), quoting from Cooley’s Constitutional Limitations (6 ed.), in this language:
«# # # Where, therefore, a part of a statute is unconstitutional, that fact does not authorize the courts to declare the remainder void also, unless all the provisions are connected in the subject-matter, depending on each other, operating together for the same purpose, or otherwise so connected together in meaning that it can not be presumed the Legislature would have passed the one without the other. The constitutional and unconstitutional provisions may even be contained in. the same section, and yet be perfectly distinct and separable, so that the first may stand, though the last fall. The point is not whether they are contained in the same section; for the distribution into sections is purely artificial; but whether they are essentially and inseparably connected in substance. If, when the unconstitutional portion is stricken out, that which remains is complete in itself, and capable of being executed in accordance with apparent legislative intent, wholly independent of that which was rejected, it must be sustained. The difficulty is in determining whether the good and bad parts of the statute are capable of being separated, within the meaning of this rule. If a statute attempts to accomplish two or more objects, and is void as to one, it may still be in every respect complete and valid as to the other. But if its purpose is to accomplish a single object only, and some of its provisions are void, the whole must fail, unless sufficient remains to effect the object without the aid of the invalid portion. And if they are so mutually connected with and dependent on each other, as conditions, considerations, or compensations for each other, as to warrant the belief that the Legislature would not pass the residue independently, then if some parts are unconstitutional, all the provisions which are thus dependent, conditional, or connected must fall with them.”
For the reasons stated in Cotham v. Coffman, supra, and Conway County Bridge Dist. v. Fullerton, 196 Ark. 413, 117 S. W. 2d 1065 (1938), we do not believe that the Legislature would have passed Act 239 without Section 6 or even without subsections b(2) and b(3). Thus the further issue arises whether the invalid portions of subsections 6(b) (2) and 6(b) (3) can be severed from the valid portions. We reach the conclusion that the invalid portions cannot be separated. It appears to us that the provisions declaring the tax to be cash funds and directing that the funds not be paid into the State Treasury but deposited in trust in such banks as the Board or Commission shall designate are so mutally connected with and dependent upon the provision authorizing issuance of bonds as to warrant the belief that the legislature would not have passed the residue independently. | [
116,
-17,
-16,
62,
11,
-64,
18,
2,
99,
-85,
-95,
83,
-17,
66,
20,
113,
-13,
-67,
112,
104,
-57,
-74,
19,
2,
114,
-77,
-39,
-43,
-75,
89,
-20,
-121,
76,
56,
-54,
-43,
64,
106,
-121,
92,
-90,
-118,
41,
69,
-7,
-64,
48,
110,
82,
11,
49,
-97,
-30,
62,
28,
98,
13,
46,
91,
-79,
65,
-79,
-118,
31,
91,
23,
1,
85,
-120,
65,
88,
-88,
-108,
17,
-119,
-8,
123,
-74,
-122,
-44,
15,
25,
8,
102,
103,
-127,
45,
-3,
-72,
8,
38,
-69,
-115,
-121,
-46,
89,
75,
47,
-106,
-99,
127,
-48,
7,
-2,
-30,
-107,
-35,
108,
-121,
-114,
-42,
-93,
37,
120,
-108,
3,
-61,
97,
16,
117,
-57,
-62,
92,
87,
48,
-102,
-122,
-16
] |
George Rose Smith, Justice.
In this condemnation suit the highway department is acquiring a 24.07-acre strip of land needed in the relocation and improvement of Highway 71 in Sebastian county. The taking divides into two parts what was previously a 135-acre farm. The landowner Woody fixed the total damages at $45,-000. His expert witness, Glenn West, put the figure at $32,275.50, which was precisely the amount of the jury’s verdict. Witnesses for the highway department testified to total damages of about $9,000.
For reversal the highway department argues that the trial court erred in refusing to strike (a) the entire value testimony of the landowner, (b) the entire value testimony 'of the witness West, (c) the landowner’s testimony as to the damage to his house, and (d) West’s testimony upon the latter point. For convenience we will discuss the first two arguments together and the last two together.
First, it is certainly true that in some instances a witness’s entire value testimony is so lacking in substance as to be subject to a motion to strike. That was true in Ark. State Highway Commn. v. Darr, 248 Ark. 730, 437 S. W. 2d 463, where Mrs. Darr had no reasonable knowledge of market values in the community. It was true in Ark. State Highway Commn. v. Stanley, 234 Ark. 428, 353 S. W. 2d 173, 4 A. L. R. 2d 749 (1962), where the landowner simply plucked an obviously exaggerated figure from the air. It was true in Ark. State Highway Commn. v. Roberts, decided June 9, 1969, 441 S. W. 2d 808, where the witnesses relied upon sales that were demonstrably lacking' in comparability to the tract being taken.
Here the situation is decidedly different from that in the cases cited. Woody, the landowner, had lived on the property for 28 years. West, a real estate broker, had been engaged in that business for five years. Both men were qualified to give their opinions on direct examination. Both men reasonably explained their views on cross examination. They showed, for example, why part of the land along Highway 10 was valuable as possible home sites, why other parts of the farm were valuable as pasture land, and why the taking especially diminished the worth of the land left west of the new highway — that tract being almost three quarters of a mile long and tapering from a width of only 540 feet at the south end down to zero at the north end.
In the matter of comparable sales, Woody had sold a less desirable seven-acre tract across Highway 10 for $3,500 — a price comparing reasonably to the values fixed by Woody and West on the witness stand. Counsel for the highway department insist that the tract was actually 12 acres, reducing the selling price to about $300 an acre, but the record is by no means clear on this point. The department produced no proof about the size of the tract. As we read Woody’s testimony, he admitted that the purchasers thought the tract to be more than seven acres, but he did not accept that view. His statement that the tract was “probably a little more” than a certain size can-be read in context to mean either a little more than seven acres or a little more than 12 acres. On the record as a whole the jury may fairly have concluded that the sale had been for a price of about $500 an acre. Without detailing the proof at length, we think it enough to say that the trial court was fully justified in refusing to strike the value testimony of Woody or that of West.
Secondly, it is argued that the court should at least have stricken the testimony of both men about the damages to the landowners’ house. There are two answers to that contention. One, the jury could have found that the dwelling will be diminished in value by the new right-of-way’s cutting across the yard and by the lights from traffic at an intersection that did not previously exist. See Ark. State Highway Commn. v. Davis, 245 Ark. 813, 434 S. W. 2d 605 (1968), with respect to damage from the lights from traffic. Two, with regard to both Woody and West the highway department attorney moved to strike the testimony about the damage to the house because the witness “has taken an improper element of damage into consideration” in assessing the damage to the house. In fact, Woody had mentioned two elements of damage; West had mentioned four or five. In both instances at least one of the elements mentioned by the witness was a proper matter to go to the jury. Hence the general reference to one unspecified element of damage did not pinpoint the matter for the trial court’s determination. In that connection we have pointed out that the witness should be afforded an opportunity to specify the amount of money attributable to the improper element of damage. Ark. State Highway Commn. v. Wallace, decided September 22, 1969, 444 S. W. 2d 685. That precaution was not taken here.
What we have said also answers the appellant’s final contention, that there is no substantial evidence to support the amount of the verdict. We find the testimony of both Wood and West to be substantial.
Affirmed. | [
115,
-18,
-96,
60,
10,
-32,
26,
-72,
73,
-93,
54,
83,
-27,
-122,
17,
35,
-90,
31,
85,
104,
71,
-78,
83,
55,
82,
-13,
121,
-59,
57,
-51,
-92,
85,
77,
16,
-54,
-35,
98,
-64,
-51,
88,
-34,
2,
-120,
109,
-55,
68,
56,
111,
6,
79,
53,
-113,
-1,
45,
29,
-53,
77,
44,
43,
41,
73,
-8,
-70,
31,
95,
6,
33,
100,
-118,
3,
-56,
106,
-112,
53,
9,
24,
115,
-74,
-122,
116,
5,
-103,
12,
-92,
102,
16,
93,
-49,
104,
-120,
46,
120,
-115,
-90,
-110,
72,
67,
65,
-98,
-108,
120,
80,
6,
-6,
-28,
5,
93,
104,
7,
-18,
-42,
-93,
-121,
60,
-102,
27,
-61,
15,
48,
113,
-49,
-30,
93,
69,
114,
-101,
15,
-47
] |
George Rose Smith, Justice.
In this condemnation proceeding the highway department is taking 16.56 acres of a 99-acre tract as a right-of-way for the Highway 63 Bypass at Jonesboro. For reversal it is argued that there is no substantial evidence to support the jury’s verdict for $19,000.
Spurlock, the landowner, was unquestionably a qualified witness, having bought and sold land in the vicinity and having passed upon real estate loan applications as a member of the board of a Federal Land Bank. Spurlock valued his tract at $200,000 before the taking and $167,000 afterwards, or a difference of $33,000. On cross-examination no serious effort was made to discredit Spurlock’s testimony, counsel merely eliciting admissions that Spurlock had not considered any sales in arriving at his valuation and that he did not think that the new highway had enhanced the value of his property.
We cannot say that Spurlock’s own testimony was not substantial evidence. In its argument the highway department does not stress Spurlock’s failure to consider comparable sales, for of course there are other methods of arriving at a reasonable valuation of property. See Arkansas State Highway Comm’n v. Roberts, 246 Ark. 1216, 441 S. W. 2nd 808 (1969). ).
The department argues instead that the testimony of its own expert witness, R. E. Shockley, shows con clusively that there will be an enhancement in value, even though both Spurlock and his expert witness stated that there will not be. We think that issue was for th,e jury. After the construction the new divided four-lane bypass will intersect Young Road at grade level. The remainder of the Spurlock tract will lie in the northeast corner of that intersection, abutting both highways. Shockley envisaged an enhancement of $6,395, principally because the three acres right at the intersection will be a valuable site for a commercial enterprise such as a restaurant, service station, or food store. Shockley mentioned instances of enhanced values at other newly created intersections.
The jury, however, may not have accepted Shockley’s view of the situation, because there will be no ready access to the supposedly valuable commercial site at the intersection. In that vicinity both the bypass and Young Road will be controlled-access thoroughfares, protected by fences. The nearest turnoff from Young Road will be 400 feet north of the intersection. On the bypass, which is the main thoroughfare, the department’s plans merely show a 50-foot opening for a turnoff for westbound traffic only at a point 1,295 feet east of the intersection. Any service roads from the turnoffs to the site at the intersection will have to be constructed by the landowner at his own expense. In view of those facts, which were established by Shockley’s own testimony, the jury were justified in concluding that the enhanced values foreseen by Shockley will not actually be realized by the landowner. Hence we cannot say that the amount of the verdict is not supported by substantial proof. Ark. State Highway Comm’n v. Tilley, 247 Ark. 336, 445 S. W. 2d 510.
Affirmed. | [
115,
-18,
-16,
60,
74,
-62,
26,
-71,
65,
42,
-28,
123,
39,
-50,
17,
5,
-94,
-33,
-43,
41,
-42,
-77,
71,
115,
-110,
-13,
123,
-27,
56,
-51,
-28,
-43,
76,
49,
-54,
21,
102,
-24,
-49,
80,
78,
8,
-103,
85,
-49,
-64,
60,
43,
6,
79,
53,
-116,
-9,
44,
56,
-61,
105,
44,
-53,
-72,
81,
-8,
56,
-107,
95,
4,
49,
-28,
-118,
1,
88,
42,
-104,
53,
8,
-24,
119,
-90,
-106,
116,
13,
-101,
12,
-90,
99,
0,
60,
-1,
-16,
-116,
15,
-2,
-115,
-89,
18,
24,
-61,
105,
-105,
-97,
124,
80,
6,
-2,
-26,
5,
-39,
108,
-113,
-113,
-106,
-79,
-123,
-68,
-104,
27,
-29,
-127,
16,
112,
-49,
-30,
95,
69,
114,
-101,
-113,
-79
] |
Carleton Harris, Chief Justice.
On September 12, 1968, James A. Bass was charged with the crimes of burglary and grand larceny, the Information alleging that he broke into the Delta Case Company at West Memphis, and took payroll checks, an IBM electric typewriter, a Victor calculator and a Pay-Master check pro tector. Two other persons were likewise charged with the offenses. On September 16, the Circuit Court appointed counsel for appellant and his brother. On September 30, after counsel had talked with the Prosecuting Attorney, appellant entered a plea of guilty in open court, and was given a 5-year sentence for burglary with 20 months to be served before parole eligibility; the charge of grand larceny was hot acted upon. Appellant’s brother was given a 5-year suspended sentence. On December 10, appellant filed a petition based upon Criminal Procedure Rule No. 1, alleging violation of his constitutional rights, and the Circuit Court subsequently conducted a hearing, at which time evidence was taken. At the conclusion of the hearing, the petition for relief was denied. From the judgment so entered, appellant brings this appeal.
The petition first asserts that the appellant was arrested, taken into custody, and was not advised of the charges against him, nor was he advised of the amount of bail set for his release. In the first place, it would appear that the matters raised in this point became moot, since appellant entered a plea of guilty to the charge. The testimony of Bass was denied by Detective Raymond Gaia of the West Memphis Police Department, who testified that appellant’s brother had confessed to his part in the burglary, and had implicated James.
This information was conveyed to appellant, and the evidence makes plain that the latter was well aware of why he was being taken into custody. It is not really clear but that Bass voluntarily accompanied the officers to the station, but at any rate, the implication of appellant by his own brother furnished probable cause to make an arrest. Probable cause was discussed in Jackson v. State, 241 Ark. 850, 410 S. W. 2d 766.
As to the bail bond, the record reflects that bail was set in the amount of $5,000.00. Appellant complains that this bond was not properly fixed, but there is no reason for complaint, for there is nothing in the transcript that indicates that appellant ever made a request for bond, nor any request that the amount of the bond be reduced. We find no merit in these contentions.
Appellant complains that he was entitled to be served with a copy of the Information, which set out the nature of the charge against him. Amendment 21 to the Arkansas Constitution, which authorizes the several Prosecuting Attorneys to file Informations, contains no requirement that a copy of the Information be served on the person charged with the offense. Bass was served with a warrant when the information was filed, and it is certain that he was acquainted with the nature of the charges against him. Prior to the plea, the charges were explained to appellant by the attorney appointed to represent him, and the offer of the Prosecutor to recommend a term of five years on a plea of guilty to burglary had been discussed by the attorney and the prisoner.
Complaint is made that, though appellant was taken into custody on September 7, 1968, no attorney was appointed on his behalf until September 16. Bass, who executed a waiver of rights, testified that he had requested an attorney prior to signing this waiver; that he signed a confession, but did so in order to keep the officers from “locking up” his sister. Appellant stated in court that he was “repudiating” the confession, and denied that he had anything to do with the burglary. This evidence was very much in dispute. Detective Gaia testified that there were no threats made concerning the sister; that he did not recall Bass’ requesting an attorney before interrogation; that he advised appellant of his right to remain silent, and to have counsel; that Bass voluntarily signed the waiver. Appellant admitted signing the waiver, which appears in the record and meets the standard set out in Miranda v. Arizona, 86 S. Ct. 1602, 384 U. S. 436, 16 L. Ed. 2d 694 (1966). Of course, since appellant pleaded guilty, the confessions were not used, and it is doubtful that that holding could have any application to this case. However, the Circuit Court, at the conclusion of the hearing, relative to the volun tariness of appellant’s statements, said:
“* * * petitioner has testified with some degree of positiveness with relation to his constitutional rights having been violated by the investigating officer at the time he did sign the two statements the record reveals. And the court would like these to be introduced as evidence in this matter, because they were referred to freely. Give it to the court reporter. The court will accept it as an exhibit in the case.
“The court, however, finds that the officers did instruct the petitioner with reference to his rights, as indicated by the waiver, which is in evidence, and those rights were observed by the officers.”
This finding is supported by the record.
We find no reversible error.
Affirmed.
Fogleman J., not participating. | [
48,
-21,
-7,
-65,
26,
-32,
26,
-70,
-45,
-125,
-32,
-13,
-83,
70,
4,
97,
121,
125,
-12,
-7,
-84,
-110,
38,
97,
-110,
-77,
105,
-43,
-79,
107,
-4,
23,
72,
96,
-122,
-45,
70,
80,
-57,
90,
-114,
33,
114,
-28,
81,
16,
48,
43,
28,
15,
117,
-99,
-13,
42,
48,
75,
73,
40,
91,
12,
80,
123,
-101,
23,
-19,
84,
-96,
-89,
-70,
-123,
-8,
126,
-40,
-71,
0,
-6,
115,
-108,
-126,
116,
109,
-101,
-116,
34,
98,
0,
-35,
-27,
-72,
-87,
55,
-113,
-99,
-90,
-39,
33,
75,
69,
-66,
-67,
126,
20,
45,
-12,
125,
20,
81,
108,
39,
-113,
-80,
-125,
9,
40,
28,
-78,
-21,
1,
112,
113,
-50,
-22,
76,
71,
121,
-109,
10,
-107
] |
Carleton Harris, Chief Justice.
Starkey Construction, Inc., one of the appellants herein, hereafter called Starkey, was low bidder as general contractor for two Arkansas Power and Light Company projects, one a service center in Arkadelphia and one an office building in Conway. Maryland Casualty Company, Starkey’s bondsman, is the other appellant. Eicon, Inc., was given a subcontract on both jobs, being required to furnish labor, electrical, and mechanical materials for the Arkadelphia job, and to furnish electrical and labor for the Conway project. The subcontract for Arkadelphia was let on October 10, 1967, for $79,882.00, plus $114.25 later added; on November 7, 1967, the Conway subcontract for $38,912 was let. Eicon was unable to acquire a payment and performance bond for either contract, having reached its bonding limit on other jobs.
Eicon purchased materials from various companies, and furnished labor for the two jobs, and these materials and labor were to be paid by Eicon, which received periodic progress payments as required by the contract. Each progress payment-was computed to pay for 90% of the “completed work and materials stored on site” as of the 25th of each month. The first progress payment on the Arkadelphia job was received on December 5, and thereafter progress payments were made at approximate intervals of thirty days until June 26, 1968, such payments totalling $96,748.89. All Starkey checks except one for $1,661.00, were joint payee checks i. e., the checks were made out to Eicon and some of the suppliers, some of the checks including as many as six payees, and the rest in varying numbers. Starkey’s bank was the First State Bank and Trust Company in Conway, and Eicon’s bank was the First National Bank in Little Rock. When the joint payee checks were presented and honored against Starkey’s account in the First State Bank, all bore one or more forged endorsements. Relative to the Arkadelphia job, $70,339.25 in Starkey checks bore unauthorized or forged endorsements, and $22,994.00 of total progress payments totalling $26,305.00 on the Conway job bore forged endorsements. When the various progress payments were received by Jerry Lee, General Manager of Eicon at the time of the execution of the contracts, (subsequently elected president in February 1968), he endorsed one or more of the suppliers’ names to the checks before taking them to the First National Bank. However, each supplier except Graybar Electric Company was paid the amount due by Eicon. The bank had previously made loans to Eicon for job operating expenses, and had secured said loans by assignment of invoices -in most instances. When the progress payment checks were presented at the bank and cashed, Lee would apply part of the proceeds to the indebtedness due the bank by his company. The records reflect that after some of the loans were satisfied in full, additional loans would be made, and these were handled in the same manner. The final check given by Starkey which is involved in this litigation, was a progress payment made on the Conway job and was in the amount of $6,287.00, said check being dated June 26, 1968. This instrument likewise bore a forged signature, that of Mike Matula, and when it was presented to First National, was applied by the latter to indebtedness due it by Eicon. Starkey, who had just found out about the forgeries on the progress payment checks, learning that Matula’s name had also been forged, notified his bank, First State Bank and Trust Company of Conwa-y, that he was stopping payment on this check. Following this event,- Eicon ceased operations, and the completion of the job was taken over by Starkey (as of July 1, 1968), appellant expending $38,948.60 to complete the Eicon contracts. Of this amount, Starkey would have owed Eicon $22,000 if the latter had completed the job; accordingly Starkey spent $16,948.60 of its own money in the completion.
In November, 1968, after notice of an intent to file liens on Arkansas-Power 8c Light Company properties by Graybar, Starkey instituted suit in the Faulkner County Chancery Court naming Eicon, both banks, and all known possible unpaid labor and material suppliers of Eicon, seeking an accounting and adjudication of rights between all parties.
Consent judgments were entered for all material-men except Loren Cook Co. and Graybar, and these judgments were satisfied by Starkey. After the filing of numerous pleadings, the court heard evidence on behalf of all parties, and entered its decree on June 4, 1969, findings pertinent to the appeal now before us, being as follows;
“It is, therefore, considered, ordered and decreed that: (1) That the the pleadings are amended to conform to the proof. (2) Graybar Electric Company have judgment against Starkey Construction, Inc., and Maryland Casualty Company in the sum of $19,648.17 together with interest thereon at 6% per annum from August 1, 1968 until paid: (3) Starkey Construction Company have judgment against the First State Bank in Conway in the amount of $7,244.18: (4) that First State Bank, Conway, have judgment against the First National Bank in Little Rock for $7,244.18: that the First National Bank in Little Rock have judgment against Starkey Construction, Inc. in the amount of $5,428.52: (6) all other claims among Starkey Construction, Gray-bar, First State Bank and First National are dismissed: (7) That Starkey Construction, Inc. have judgment against Eicon, Inc. in -the amount of $23,827.40, and upon payment by Starkey Construction,- Inc. or Maryland Casualty Co. of the judgment awarded Graybar Electric Company herein, jurisdiction is retained for judgment over against Eicon, Inc. for the sums paid:”
Each of the judgments bore interest at the rate of 6% per annum from the date of decree and the court ordered that costs be borne equally by Graybar, Starkey and First National Bank. From the decree so entered, appellants bring this appeal. The two banks have cross-appealed from the judgments entered against them respectively. For reversal, appellants assert four points, as follows:
I
The Court erred in not awarding Starkey judgment against First State Bank for $93,337.89.
II
Alternatively, -the court erred in not declaring First National Bank to be constructive trustee for $31,604.29 for payment of materialmen.
III
The court erred in awarding Graybar Electric Company judgment for $19,648.17 against Appellants.
IV
The court erred in holding First National Bank to be a holder in due course of the June 26, 1968, check of $6,287.00.
The cross-appeal relates to point three, the banks contending the Court erred in awarding Starkey a judgment against them for $6,814.41, this judgment being based upon checks wherein Graybar was a payee. We proceed to a discussion of each point.
I
This contention is based upon the provisions of Ark. Stat. Ann. 85-3-419 Addendum). Subsection 1(c) provides that an instrument is converted when it is paid on a forged endorsement. Subsection (2) provides that in an action against a drawee, the measure of the drawee’s liability is the face amount of the instrument. Appellants point out the comment on these two subsections, as follows:
“3. Subsection (1) (c) is new. It adopts the prevailing view of decisions holding that payment on a forged indorsement is not an acceptance, but that even though made in good faith it is an exercise of dominion and control over the instrument inconsistent with the rights of the owner, and results in liability for conversion.
“4. Subsection (2) is new. It adopts the rule generally applied to the conversion of negotiable instruments, that the obligation of any party on the instrument is presumed, in the sense that the term is defined in this Act (Section 1-201), to be worth its face value. Evidence is admissible to show that for any reason such as insolvency or the existence of a defense the obligation is in fact worth less, or even that it is without value. In the case of the drawee, however, the presumption is replaced by a rule of absolute liability.”
It is thus appellants’ argument that the forged endorsements of one or more payees upon Starkey’s checks (totaling $93,337.89) destroyed their negotiability, and the drawee-payor bank wrongfully debited Starkey’s account. We find no merit in this contention, for it is agreed that all of the suppliers whose names were forged on the checks, except Graybar, were paid the money due them from the proceeds of each progress payment, notwithstanding the fact that they did not themselves endorse the checks.
Lee testified that he endorsed the names of various payees only in order to expedite the cashing of the checks; for instance, on checks in excess of $500.00, where Graybar was a payee, it would have been necessary to obtain the endorsement from the St. Louis office.
We cannot believe that it was the intent- of the General Assembly to hold a drawee (the bank) liable where the -money actually reached the parties intended by the drawer of the check.
The Chancery holding which denied Starkey recovery against the bank to the extent the money actually reached the payees appears to be the general rule in this country, and is so stated in 10 Am. Jur. 2d, Banks § 625, as follows:
It is generally held that a drawer will be precluded from-recovering from the drawee bank for paying his check on a forged endorsement where, notwithstanding the forgery, the proceeds of the check actually reached the person whom the drawer intended to receive them.” (Our emphasis)
The same statement appears in 9 C. J. S. Banks and Banking, Sec. 356 (c):
“Generally a bank is liable to the drawer of a check for paying it on a forged indorsement, in the absence of estoppel, contributory negligence, or ratification, or unless the money has reached the intended person.” (Our emphasis)
We find no reference in the statute heretofore mentioned to the situation presented in the instant case, i. e., where the money actually reached the party intended by the drawer.
Of course, as pointed out by appellees, in attempting to codify a large body of law it is almost impossible to anticipate all the factual situations that may arise. And it is for this reason that courts have adopted the principle, of statutory construction that a statute will not be construed so as to overrule a principle of established common law, unless it is made plain by the act that such a change in the established law is intended. In Barrentine and Ives v. State, 194 Ark. 501, 108 S. W. 2d 784, we said,
“It has long been the rule in this state that ‘A statute will not be taken in derogation of the common law unless the act itself shows such to have been the intention and object of the legislature.’ (citing cases). A careful reading of the act fails to convince that such was the intention and object of the Legislature.”
We also agree that the unauthorized endorsements were ratified by the persons or companies whose names had been forged when the payees accepted payments due them from the proceeds of the checks, Section 85-3-404 Ark. Stat. Ann. (1961 Addendum) provides that any unauthorized signature is wholly inoperative as that of the person whose name is signed unless that person ratifies it or is precluded from denying it. Of course, Starkey, contending that it is somewhat in the position of a subrogee of the payees whose names were forged, cannot possibly be in any better position than the payees of the check.
Since they unquestionably ratified the signatures by retaining the benefits of the transaction, Starkey is likewise in the same position. Appellants say that the issue of ratification was not raised in the pleadings filed by the banks; however, the initial finding of the Court in its decree was that the pleadings were amended to conform to the proof. We reiterate that the contention is without merit.
II
We likewise disagree that this contention contains merit. Starkey, of course, could have refused to make the progress payments to Eicon if Starkey found that materialmen were not receiving their money. This appellant was due, under its contract with Arkansas Power & Light, to first ascertain that Eicon was entitled to each progress payment before same was made. Certainly, there was a duty on Starkey to check each application for progess payments, and Truman Starkey, President and General Manager of- the construction Company testified that his brother would call the job superintendent and verify the percentages completed for the month; he would then obtain the approval of the architect that Eicon was entitled to an advance for supplies and labor under the contract, and would make the progress payment. He said that he called the material suppliers, and called Graybar nearly every month, talking with F. C. Lanigan, financial manager of the Graybar -Electrical Company, to determine how much Eicon owed Graybar, and- if the account was being paid satisfactorily. The witness stated that Lanigan would answer “Q.K.”, and Starkey did- not know otherwise until June 28, at which time he was told by Lanigan that the latter had not received any checks issued by Starkey. Appellant then learned that Lee was forging the names of payees.
Starkey testified, that as far as he knew, the First National Bank had-no better information than the contractor relative to whether Eicon was paying its bills, and he said that he did not request Fikes( Robert Fikes, Assistant Vice-President and a loan officer of the bank) or anyone else at the bank to go and examine the books on each of the payees to determine if the latter had received-their money before the bank accepted-one of the checks. The witness stated that he was aware of the fact that the bank was lending money to Eicon, and if the signature-s had been good, and the suppliers had been paid, it would have been all right for First National to apply proceeds from the checks to payment of loans it had made to Eicon.
As previously stated, Starkey was obligated under its contract with the power company to determine that all bills, labor, and material, going into the job, were paid before-each progress payment was applied for by Starkey. It was in compliance with this duty that Starkey made the investigation, heretofore mentioned, to determine if Eicon’s suppliers were being paid. In addition- to a job superintendent and architect to help in making his determination, Starkey also had the name of every supplier which had been furnished to it by Eicon. Starkey did not do what it is now contending the First National Bank should have done i. e., require the suppliers to furnish the company with paid invoices for the materials known to have been placed on the site of the job each month. On the other hand, First National had no contractual duty to conduct such an investigation of Eicon to determine that all labor and material bills were being paid; in fact, it was not even aware of the names of all of these suppliers. It had no job superintendent or architect at its disposal, and the testimony reflected that it is not customary in the banking business to make a check on each contractor who desires to cash progress checks at the bank to first ascertain if he has paid all labor and material bills. In fact, Starkey testified that he had no reason to believe that even if First National had conducted such an investigation, it would have gotten any -different answer from the suppliers than was given Starkey. Also, should not Starkey’s knowledge that Eicon was unable to furnish payment and performance bonds for the two jobs have made him particularly careful to see that Eicon’s suppliers had been paid?
It would seem that under the circumstances, the bank was entitled to rely upon the determination al ready made by Starkey that Eicon’s bills were being paid as contemplated; actually, it would appear that Starkey is now in the position of contending that the First National Bank is liable to Starkey for its mistakes. We think the evidence is rather clear that, even if the names of payees had not been forged, Starkey still would be in the same position, -for its troubles stem from the fact that it did not make-sure that suppliers were being paid before issuing new progress payment checks. It must also be remembered that the loans made by the bank to Eicon were for “operating capital”, i. e., the proceeds of these loans were to be used for the payment of labor, materials, and various overhead expenses for completion on this job as well as others, and progress payments were designed to cover overhead and profit as well as cost of materials and labor. In other words, the first monies received by Eicon to be applied to the costs of the Starkey job came from the bank.
Ill
This point pertains to the Arkadelphia job only, since Graybar was not listed as a payee on any of the checks given on the Conway job. The trial court found that, using the 25th of the month as cut-off date for each estimate, the amount of Graybar’s billings to Eicon which were included in all of the checks (Arkadelphia job) amounted to $14,697.21
After proper credits for three payments no longer involved in this litigation, the Court held that Graybar was due to receive $6,818.41 because of progress payments made, wherein Graybar was a payee, but where it did not receive its money, its name being forged by Eicon. This amount was included in Graybar’s judgment against Starkey, and Starkey was given judgment for said sum against First State Bank of Conway; First State Bank was in turn given judgment for the amount against First National Bank of Little Rock. The basis of judgment was, of course, the fact that Graybar’s endorsement had been forged.
We agree that if Graybar had been deprived of its money because of the forgery, this appellee would be entitled to the judgment, but we think, and find, that the preponderence of the evidence reflects that the forging of its name on the progress payment checks had nothing to do with Graybar’s failure to be paid monthly. To the contrary, it appears that Mr. Lanigan of Graybar voluntarily extended credit to Eicon with frill knowledge of the progress payment checks that were being issued to Eicon by Starkey.
Jerry Lee testified that he had done business with Graybar since 1961 or 1962, and he further stated that he had always followed the practice of endorsing Gray-bar’s name on any check in which that company was a payee. He said that Mr. Lanigan knew that this practice was being followed, and the reason for not getting the company to endorse the check was that the Graybar checks had to be sent to St. Louis for endorsement; this would require a week or ten days before a check could be endorsed and returned, and Lee said that he just could not wait that length of time to receive his own money from a check. The witness testified that Lanigan told him that he could not give any authorization to sign the checks, but that what Lee did with the checks was his own business. The Eicon president said that he had endorsed such checks in Lanigan’s presence (on other occasions) more than once. Lee also testified that Lanigan would permit him to pay Graybar less than the amount due under a particular check, provided that the Eicon arrearage did not exceed $5,000.00 for over ninety days. He said that Lanigan knew within a few days each time that Eicon received a check; that the two had conversations almost weekly, and that the crux of the matter was that his account had to be kept within the $5,000.00 within a ninety day period.
Lanigan denied that he knew any progress payments were being made to Eicon until April 12, when Lee came to his office with a check made payable to Eicon, Graybar, and three other suppliers. Lanigan said that Lee asked him to endorse that check since the latter had to have it to meet his payroll that day, but the witness testified that he told Lee that he (Lanigan) had no authority to endorse the check. He said that it was not unusual to carry job accounts and progress payments for from 60 to, at times, 120 days, and that the Eicon account was always in that category because of a lack of working capital, but toward the end of a job, Eicon would catch up, since it would receive its 10% retainage at that time. He said that he had made no inquiry of Starkey to see if progress payments had been made. After first denying any knowledge that Lee had, on some previous occasions, endorsed Graybar’s name to a check, the witness admitted that about four years previously, this had happened, but Lanigan said he did not quarrel about the matter after Lee made the check good. Lanigan also agreed that it was unusual for a job to have been in progress since October without progress payments being made. He concurred with the testimony of Lee that Graybar policy required a separate report to New York if an account totaled over $5,000.00 for more than 90 days.
“We have to make a separate report to New York, and up to that time I decided if I could get that and get out from making this extra report, it was just a lot of work and get that down, that was the main reason we arrived at these figures.”
Lanigan said that he had the authority without consulting anyone else to make the decision whether to accept payments on an account rather than payment in full. Graybar’s answer to the testimony of Lee is principally that the latter is an “admitted forger”, but irrespective of that fact, we think the evidence substantiates the contentions of the two bank appellees.
What are the facts which support this contention? Graybar opened a separate account for the Arkadelphia job on October 23, 1967, and the first charge was made to Eicon on that date. On October 25, before any progress payments had been made, Lanigan wrote Starkey Construction that his company was handling the electrical materials on the Arkansas Power 8c Light building at Arkadelphia for Eicon, stating “we would appreciate it if you make the checks co-payable to Graybar 8c Eicon covering the material as billed. Thank you,” It is thus apparent that Lanigan knew the job was under way, and it will be noted that he did not request a check upon completion of the job, but rather upon material “as billed”. Of course, the purpose of a request to be included in the progress payment checks is to assure the supplier that it will be paid for its supplies furnished on the job as the job progresses.
Counsel for the banks- correctly list the dates of the progress payment checks and the status of Eicon’s account with Graybar on the- corresponding dates. Seven progress payment checks were issued by Starkey on the Arkadelphia job including Graybar as a payee, beginning in December, 1967, and continuing-monthly thereafter through June, 1968. The first check was issued on December 5, 1967, for the November estimate, and was in the amount of $3,895.00; payees were Eicon, Plumbers Supply, and Graybar Electric. The Eicon account with Graybar, as of the monthly cutoff (25th of the preceding month) was $106.04. Gray-bar neither requested nor received money from this check, nor did it advise Starkey or First National that it had not received its money or that it had not endorsed the check. The second progress payment check, for the December estimate, was issued on January 12, 1968, in the amount of $16,478.00. Again, Eicon, Plumbers Supply, and Graybar Electric, were listed as payees. Graybar neither requested nor received any amount from this check, and again, did not advise Starkey or the bank that it had not received its money-, or that its signature had not been placed on the check. The third progress payment check, for the January estimate, was issued on February 12, 1968, in the amount of $4,633.00. Again, the same three payees were listed. At that time, the Graybar account, as of the cut-off date, was $3,-005.35. Here, it will be observed that the account is more than ninety days old; however, it is not greater than $5,000. Graybar did not request, nor did it receive, any amount from this check. Again, Starkey or the bank was not advised that Graybar had not received its money and had not endorsed this check. The fourth progress payment check, for the February estimate, was issued on March 11, 1968, in the amount of $8,866.12. Payees were the same three previously listed, together with Barber-Coleman. The amount of -the account had now risen to $5,810.14, and $106.04 was more than ninety days old. At this point it becomes necessary to discuss other testimony that was offered.
Lanigan admitted that at the time he called Starkey on June 28, after all progress checks had been issued, he had denied- seeing any progress payment checks. However, the witness admitted that he had seen the April 12 check, hereafter discussed, although he did not examine it, and subsequently he admitted that J. C. Burton, estimator for Eicon during March, 1968, came to his office with the Starkey March check asking that Lanigan endorse it. He said he really didn’t remember seeing the check, but- that if Burton testified to the contrary, the witness wouldn’t deny it. Burton testified that Lanigan refused to endorse it,- but commented, “He told me that Jerry knew how to handle the check”. Lee testitfied that he discussed the matter with Lanigan, and was told by the latter that he needed $596.65 to apply to Eicon- accounts; that on March 15, a check in that amount was issued by Eicon to Gray- bar and cashed by that company. Lanigan denied knowing of this check. This payment, according- to Lee, eliminated that portion of the account that was more than ninety days old. The April progress payment check was $18,905.88, and from this amount, Graybar received a total of $7,530.31; However, Graybar was only entitled to $408.15 for supplies furnished on the Arkadelphia job during the previous 30 days. The banks argue that Graybar was only entitled to this amount, rather than $5,810.14. In other words, the argument is that $7,122.16 should have been credited forward to apply to subsequent billings rather than permitting this amount to apply to previous billings, Graybar having had the opportunity to receive that total amount in previous progress payments, but refusing it without notifying Starkey.
Concluding this point, we are of the opinion that a look at Graybar’s conduct during the seven month period of this job (along with the testimonies of Starkey and Lee), establishes that it would -be inequitable to permit Graybar to, in effect, go back and collect each successive progress payment check at the expense of First State and. First National for the reason that the forgery of Graybar’s name was not the cause of Gray-bar’s failure to receive its money from the progress payment checks; rather, the cause was the conduct of Graybar in improvidently carrying Eicon’s account. Likewise, Graybar’s judgment against Starkey cannot stand in the present amount. Starkey complied with Graybar’s request by including its name in progress payment checks. Not once in the period of December 5, 1967, to June 26, 1968, did Lanigan advise Starkey that it was not taking its money. We think this conduct operates as an estoppel, and Graybar should not be permitted to recover any amount which it had the opportunity to receive from progress payments.
In Degen v. Acme Brick Co., 228 Ark. 1054, 312 S. W. 2d, 194, a case bearing some similarity to the one at bar, we said:
“The parties recognize the fact that a materialman may estop himself from asserting the lien that would otherwise be available to him. (citing case) * * *”
“Without enumerating the familiar elements of estoppel, we think it enough to observe that the appellants’ proof satisfies every requirement. The Brick company represented to Degen that it would collect the money as the title was delivered and gave receipts indicating that this practice was being followed. Although the company’s manager had stated in effect that no credit would be extended to Bell, the unreasonable delay in the depositing of the contractor’s checks was equivalent to an extension of credit. If the checks of early September had been- presented promptly and found to be worthless, it would evidently have been the company’s duty to notify Degen, which could and should have been done long before he settled his account with Bell in October.”
This holding is in accord with the general rule stated in 57 C. J. S. Mechanics’ Liens, Section 229, p. 803, as follows:
“As a general rule a person entitled to a mechanic’s lien may be estopped to assert or enforce it in equity by any act which will render it inequitable for him to do so.”
IV
We agree with the trial court in its holding that Starkey was not entitled to stop payment on the June 26, 1968, check of $6,287.00. It will be remembered that the bank had given value for the check without knowing of any defense available to Starkey. Appellant’s argument is based on the fact that the name of Mike Matula had been forged and, says appellant, the forged signature destroyed the negotiability of the check. We have already somewhat discussed this issue under Point I.
We agree that that is generally true, but the name of Mike Matula had been placed on this check through mistake, and the record clearly reflects, in fact, almost without contradiction, that Matula was not due any money at that time from the Arkadelphia job. As stated in 11 Am. Jur. 2d, Section 321:
“The rule that indorsement of all joint payees is essential to negotiation has been held inapplicable in regard to a joint payee whose name had been mistakenly inserted or left on the paper, or to one who refused to be a payee to it and who was treated by the drawer or promisor and other parties, both in the delivery of the instrument and in its transfer or negotiation, as no party and as having no interest in it. Accordingly, it has been held that real payees can transfer the ownership of an instrument without obtaining the indorsement of a payee whose name is thus upon the paper.”
Of course the actual reason why Starkey stopped payment on the check was that he had just learned that Eicon had not been paying its material bills and that the check should not have been issued, and we agree with the position taken by the banks that - the unauthorized endorsement had nothing to do with stopping payment on the check, and appellant cannot be permitted to take advantage of the immaterial unauthorized endorsement to the detriment of the bank, which had purchased the instrument in good faith.
Summarizing, we affirm the trial courts decree as to points I, II, and IV. As to point III, our holding has been fully stated. Starkey’s judgment against First State- Bank and its judgment against First National Bank, are hereby reversed, set aside, and held for naught. However, it is difficult to ascertain from the briefs the exact amount that Graybar’s judgment against Starkey should be reduced. Certainly, it should be reduced by as much as the amount of the judgment Starkey had obtained against the banks, i. e., $6,818.41, and it would appear that this is the proper amount; however, the figures are quite confusing and it is felt that the case should be remanded to the Chancery Court for the purpose- of properly determining this amount, i. the sole question on remand accordingly is, “What amount of money did Graybar have the- opportunity to receive but did not accept- (or demand payment) from progress payment checks issued by Starkey, and bearing the name of Graybar at its request?”
Affirmed in part; reversed in part and remanded.
It is so ordered.
Brown, J., concurs.
Fogleman, J., dissents in part;
After the trial was over, the Cook judgment was likewise satisfied.
Counsel for the banks give their version of the intent of Sec. 85-3-419, as follows:
“The drafters of the Code were addressing themselves to the problem of the value to be placed on a converted instrument, in view of the fact that many instruments are worthless because of the inability of the obligor to make the instrument good even if it had not been converted. Because of the difficulty in establishing that an obligor would have been able to pay had the instrument not been lost, the Code wisely provides that the instrument is 'presumed’ to be worth its face value. Evidence may be introduced, however, to show otherwise. (Ark. Stats. § 85-1-201) In the case of conversion by a drawee (payment on an unauthorized endorsement) the measure of the drawee’s liability is stated to be the face amount of the instrument. Certainly a bank should not be able to argue that the instrument was worthless when it has charged the customer’s account the full face value of the check. Without the Code, the point would have been obvious. It was so obvious that the Uniform Negotiable Instruments Law did not even deal with the point.”
Such a ratification does not of itself affect any rights of the person ratifying against the actual signer.
Some of the funds which wore used by Eicon to repay First National Bank loans were monies received from other jobs. It is interesting to note that total deposits made during the period December 1, 1967, to July 1, 1968, to the Eicon account were $180,729.82, and of this amount, only $96,748.89 was deposited from Starkey funds; the balance of $83,980.93 came from other sources, $42,000 of this last amount being deposited in the account by First National Bank.
The total judgment for Graybar against Starkey and Maryland Casualty was in the amount of $19,648.17, $11,199.51 being admittedly duo for materials furnished on the Conway job, and $8,448.56 on the Arkadelphia job.
A similar letter was sent to Starkey by Lanigan on November 13, with reference to the Conway job.
The reason for the payment of this particular amount is not at all clear in the record. Whether this included some materials sold subsequent to February 25, or whether the check constituted partial payment on some account other than the Arkadelphia job, is difficult of determination.
This included $1,720.17, which Graybar credited to another Eicon job, but the court held that this amount should be credited to the Eicon Arkadelphia job. | [
48,
108,
-8,
92,
8,
-128,
26,
26,
-1,
34,
-27,
83,
-87,
110,
20,
99,
-31,
109,
116,
107,
-11,
-77,
49,
120,
-46,
-13,
-7,
-43,
-79,
-35,
-27,
-42,
76,
112,
-62,
-107,
-26,
-62,
-51,
-100,
78,
-128,
40,
-32,
124,
85,
32,
63,
-14,
15,
5,
-107,
-13,
40,
24,
79,
108,
46,
-39,
40,
80,
-70,
-102,
-123,
109,
23,
33,
37,
-102,
5,
120,
62,
-112,
-79,
0,
-8,
115,
-74,
-58,
100,
105,
-39,
12,
116,
98,
0,
-111,
-57,
-20,
-120,
22,
-1,
-99,
-90,
-109,
57,
11,
13,
-105,
-98,
120,
21,
6,
-10,
-9,
-123,
27,
44,
11,
-114,
-58,
-31,
28,
-71,
-107,
3,
-17,
-127,
48,
117,
-50,
-14,
93,
23,
58,
27,
14,
-112
] |
J. Fred Jones, Justice.
The appellants, including Red Line Transfer and Storage Company, Inc., are certified motor carriers operating in intrastate commerce pursuant to authority granted by the Arkansas Commerce Commission; and the appellee-respondent, Atlas Transit, Inc., is a competitor engaged in the same business under similar authority. Red Line and the other competitors of Atlas bring this appeal from an adverse decision of the Pulaski County Circuit Court affirming an order of the Arkansas Commerce Commission denying the appellants’ petition to clarify, revise and correct certificate No. 651 issued by the Commission to Atlas on December 14, 1966.
The facts are not in serious controversy and the question presented is primarily one of law, stated by the appellant as follows:
“The specific legal question here involved is whether under Section 10 of Act 397 of 1955 (The Arkansas Motor Carrier Act) — Section 73-1763, Ark. Stats., requiring a Certificate issued by the Commission to specify whether the permitee is authorized to serve intermediate and off-route points, which requirement is contained in the statute, and which Appellants contend have throughout the years been omitted from all Certificates issued to Atlas, and its predecessors (except the Certificate of July 15, 1966 not here involved) are erroneously included in the Certificate of December 14, 1966. The power and authority of the Commission to correct its errors of omission and commission by inserting in the Certificate of December 14, 1966, without notice, hearing and proof of public need, specific authority to serve intermediate and off-route points, is also here involved.”
Atlas received its first certificate in 1930 under authority of Act 99 of the Acts of 1927, as amended by Act 62 of 1929. Section 3 (a) of Act 62 pertains to applications for permits and provides as follows:
“Application for such permit shall be made by such corporation or persons, their lessees, trustees, or receivers, to the Commission, and shall specify the following matters:
The public highway or highways over which applicant intends to operate, and the cities and towns and the termini on the regular route to the [be] operated over.”
Subsection (1) of § 3 (a), among other things provides that the applicant “shall maintain an office at some town or city along the route on which it proposes to operate.”
The 1929 Act changed the responsibility from the applicant to the Commission for the giving of notice in connection with hearings, and Act 62 of 1929, § 3, (6), (c), in part, provides:
“. . . After such hearing the Commission may issue the license certificate or refuse the same, or may issue the same with modifications, and upon such terms and conditions as in its judgment the public convenience and necessity may require. No license shall be issued to any person, firm, corporation or association or to associated interests for a total mileage in excess of an aggregate twenty per cent of the total mileage within the State Highway System, nor shall any such license, in any event, be exclusive.”
Section 3, subsection (6), (d) also provides:
“Each license certificate issued under the provisions of this Act shall contain such matters as may be prescribed by the Commission, and sháll specify that the same is issued for an indeterminate period of time, and after such license has been issued the same shall be cancelled only for cause after notice and a hearing as herein provided.”
The Arkansas Motor Carrier Act of 1941 was enacted by Act 367 of the Acts of Arkansas for 1941, and § 10 of this Act (Ark. Stat. Ann. § 73-1763 (a) (b) [Repl. 1957]) is as follows:
“(a) Any certificate under this Act shall specify the service to be rendered and the routes over which, the fixed termini, if any, between which, and the intermediate and off-route points, if any, at which, and in case of operations not over specified routes or between fixed termini, the territory within which, the motor carrier is authorized to operate; and there shall, at the time of issuance and from time to time thereafter, be attached to the exercise of the privileges granted by the certificate such reasonable terms, conditions, and limitations as the public convenience and necessity may from time to time require, including terms, conditions, and limitations as to the extension of the route or routes of the carrier, and such terms and conditions as are necessary to carry out, with respect to the operations of the carrier, the requirements established by the Commission under this Act; provided, however, that no terms, conditions, or limitations shall restrict the right of the carrier to add to his or its equipment and facilities over the routes, between the termini, or within the territory specified in the certificate as the development of the business and the demands of the public shall require, (b) A common carrier by motor vehicle operating under any such certificate may occasionally deviate from the route over which, and/or the fixed termini between which, it is authorized to operate under the certificate, under such general or special rules and regulations as the Commission may prescribe, (c) Any common carrier by motor vehicle transporting passengers under a certificate issued under this Act may transport to any place within this State special or chartered parties under such rules and regulations as the Commission may prescribe, (d) A certificate for the transportation of passengers may include authority to transport in the same vehicle with the passengers, newspapers, baggage of passengers, express, or mail, or transport baggage of passengers, in a separate vehicle.”
Many of the common carriers, under the jurisdiction of the Arkansas Commerce Commission, have through the years been issued separate certificates for operation over separately designated highway routes. As a matter of convenience, in enforcing its powers and administering its duties, the Commission has for sometime, and usually on' its own motion, been consolidating the separate route certificates held by a single carrier into a single certificate designating the various routes. It was under such procedure that the Commission issued to Atlas the certificate dated December 14, 1966, setting out the numerous regular routes over which Atlas was authorized to perform transportation service. For example, the routes were designated in language as follows:
“U. S. -Highway 67, Texarkana, Arkansas, to Corning, Arkansas;
U. S. Highway 65, from Junction of U. S. Highway 64 to Eudora, Arkansas;
U. S. Highway 167, Little Rock, Arkansas, to Thornton, Arkansas;
State Highway 81, Jet. U. S. Highway 65, to Hamburg, Arkansas;
U. S. Highway 165, Jet. U. S. Highway 65 to Wilmot, Arkansas;
U. S. Highway 70, West Memphis, Arkansas, to Little Rock, Arkansas;
U. S. Highway 64, Ft. Smith, Arkansas, to Conway, Arkansas;
U. S. Highway 70, Hot Springs, Arkansas, to Kirby, Arkansas;
U. S. Highway 71, Alma, Arkansas, to Bentonville, Arkansas;
U. S. Flighway 79, Marianna, Arkansas, to Fordyce, Arkansas;
U. S. Highway 79, Thornton, Arkansas, to Magnolia, Arkansas;
State Highway 15, Pine Bluff, Arkansas, to Warren, Arkansas;
State Highway 11, Junction U. S. Highway 67 to Batesville, Arkansas.”
The certificate then contained the language to which the appellants object, as follows:
“* * * and applicant is permitted to tack these routes with its presently certificated routes at all common points of joinder and to serve all intermediate points on the routes hereinabove set forth.”
Immediately following the above language, the certificate then provides for an alternate route for operating convenience only, over
“State Highway 7, Camden, Arkansas, to Smack-over, Arkansas, and return serving no intermediate points.”
The certificate of December 14, 1966, further provides that it shall supersede the same numbered certifi cates dated August 15, 1961, and July 15, 1966. The certificate dated August 15, 1961, provided that the transportation service to be performed by Atlas was to be over regular routes, the same as the certificate dated December 14, 1966, less the eight additional routes set out in the certificate dated July 15, 1966. This certificate also authorizes an alternate route for operating convenience only, over
“State Highway 7, Camden, Arkansas, to Smack-over, Arkansas, and return serving no intermediate points.”
The certificate dated July 15, 1966, pertains to eight separate routes and recites that it was issued after notice of hearing at which no one appeared in opposition. The findings and order of the Commission contained in this certificate appear as follows:
“From a consideration of the foregoing it is quite apparent there is a need for the proposed service as set out in the application and that the said application should be granted; that the applicant be permitted to join its presently certificated routes with the routes hereinafter set forth and to serve all intermediate points thereon, and that the applicant is financially able and willing to perform the services necessary. It is further apparent that notice has been properly given to the public by publication of the application in the Federal Register on June 8, 1966, as aforesaid, and proper notice filed with the Interstate Commerce Commission at Washington, D. C.
IT IS, THEREFORE, ORDERED, that the applicant be, and it is, AUTHORIZED to transport General Commodities as a common carrier in intrastate commerce over the following routes:
State Highway 14, Junction U. S. Highway 63 to Batesville;
State Highway 10, Little Rock to Perry;
State Highway 60, Arkansas River to Plainview;
State Highway 113, Junction State Highway 60 to Junction State Highway 10 (serving Fourche as off-route point);
State Highway 7, Junction State Highway 60 to Ola;
State Highway 28, Rover to Ola (serving Kingston as off-route point)
State Highway 27, Rover to Danville;
State Highway 23 and 116, Booneville to State Sanatorium.
This Commission further finds that the present and future public convenience and necessity require operation by applicant in interstate or foreign commerce over regular routes in the transportation of General Commodities and that applicant be permitted to tack with its presently certificated routes at all common points of joinder and to serve all intermediate points on the routes herein above set forth.” (Emphasis supplied).
The certificate in controversy, No. 651, has more or less grown up with the highway transportation business in Arkansas and it is no stranger to litigation. It was originally issued on January 28, 1930, to Pine Bluff Baggage and Transfer Company (P. D. Gathright). Linder this original certificate authority was granted “to operate a general transfer and drayage business between the following points to-wit:
General transfer and drayage business at Pine Bluff and to engage in long distance transportation of property.” (Emphasis supplied).
Gathright sold out to Johnson in 1948 and under date of January 3, 1951, an ex parte proceeding was insd tuted by the Commission in order to clarify the word “property” as used in the 1930 certificate and to define the routes over which Atlas was authorized to operate. Other carriers appeared as interested parties at a hearing on the matter and in the order issued on January 3, 1951, the Commission, among other things, found as follows:
“The evidence of defendant Johnson, shows that the Gathright Van & Transit Company and his Company, Atlas Transit 8c Warehouse Company, as successors, have been engaged in the transportation of all kinds of property on call and demand over the major highways within the State of Arkansas. * * * The Commission finds from the pleadings in this case that in response to the complaint and the intervention, the defendants assert, contend and admit that they are and have been carriers of general commodities.
# # #
The Commission further finds that since a valuable consideration was paid for the property rights involved in these certificates, that to revise the Certificate No. 651 as sought by the plaintiffs and interveners herein, would destroy these valuable property rights heretofore purchased by defendants. Moreover, after a twenty year lapse of time since the original issue of these certificates and by the transfer of the operating rights by this Commission on three separate occasions, the operating rights have become fixed and the defendants should continue to operate over the highways as hereinafter set out as a Common Carrier of General Commodities, Household Goods and Heavy Machinery.
IT IS, THEREFORE, ORDERED by the Commission that the defendants, Otis P. Johnson, Jr. and Robert C. Johnson, dba ATLAS TRANSIT 8c WAREHOUSE COMPANY, be and they are hereby authorized to operate as a COMMON CARRIER OF GENERAL COMMODITIES, HOUSEHOLD GOODS, and HEAVY MACHINERY, within the State of Arkansas, INTRASTATE, between the points on the following highways:
U. S. Highway 67 from Texarkana to Corning;
U. S. Highway 65 from Omaha to Eudora;
U. S. Highway 167 from Little Rock to Thornton;
State Highway 81 from Junction of U. S. 65 to Hamburg;
U. S. Highway 165 from Junction of U. S. 65 to Wilmot;
U. S. Highway 70 from West Memphis to Little Rock. . .”
This order of the Commission became effective September 11, 1951; and was approved by the circuit court, and this court on appeal. Ark. Motor Freight Lines v. Johnson, 221 Ark. 157, 252 S. W. 2d 814. The intermediate points along the designated highways were not involved in Johnson, but the logic pertaining to the commodities Atlas was authorized to carry in that case is just as valid in the case at bar. In Johnson we said:
“. . . Under the authority of that permit he [Johnson] expanded his business to include the conveyance of general commodities, and he and Atlas occupied that field for about a decade. It does not appear that any competing carrier objected until the Commission itself raised the issue in 1950. In these circumstances we cannot say that Gathright’s conduct was unauthorized or that the Commission was in error in allowing it to continue.”
In compliance with the mandate from this court in Johnson, on January 8, 1953, the Commission entered its order as follows:
“That in compliance with the mandate of the Supreme Court of Arkansas issued in this cause and the order of the Pulaski Circuit Court filed with this commission, that Otis P. Johnson, Jr., and Robert C. Johnson, doing business as Atlas Transit and Warehouse Company, be and they are hereby authorized to operate as a common carrier of general commodities, household goods and heavy machinery within the State of Arkansas, intrastate between points and places on the following highways, as ordered by the Pulaski Circuit Court, 2nd Division, in its order of January 7, 1953.” (Emphasis supplied).
We are not impressed by the appellants’ argument pertaining to the reasons for granting a motion to strike the testimony of a Mr. Gilmore in another and different proceeding before the Commission. We are impressed with the logic of the Commission’s reasoning, which was carried forward in our own opinion in Johnson, and we affirm the judgment of the trial court for two primary reasons. Atlas and its predecessor in title of certificate No. 651 have been servicing the routes here involved, including the intermediate points, for forty years without question by the appellee interveners, any other common carrier or the Commission itself, and as we said in Johnson: In these circumstances we cannot say that Atlas’ conduct was unauthorized or that the Commission was in error in allowing it to continue. Furthermore, Atlas and its predecessor were servicing intermediate points without objection even before there was a statute requiring designation. After proper notice and without opposition, the Commission, by its order of July 15, 1966, authorized eight separate routes with express authority to service all intermediate points. On July 15, 1966, Atlas already had authority to service the remainder of its routes under certificate order dated August 15, 1961. The July 15, 1966, order not only authorized the additional eight new routes» and intermediate points thereon, but the July 15, 1966, order permitted Atlas to tack with its routes already authorized at all points of joinder “and to serve all intermediate points on the routes hereinabove set forth.” We are of the opinion that the words “hereinabove set forth” are broad enough to cover the routes Atlas had been servicing for thirty-six years, as well as the eight new routes authorized in 1966 to which the old routes were tacked.
We conclude, therefore, that the order of the Commission, as affirmed by the circuit court, is not void for lack of notice that Atlas was proposing to do what everyone knew it had been doing without protest for over thirty years. We are of the opinion that the wording of the order of July 15, 1966, satisfies the statutory requirements anyway.
Affirmed.
Harris, C. J., not participating. | [
52,
-18,
-12,
-100,
74,
64,
24,
-88,
83,
-125,
103,
83,
-17,
-58,
20,
49,
-25,
127,
-11,
89,
-11,
-74,
65,
107,
82,
-13,
123,
-25,
114,
-35,
100,
-122,
78,
16,
-54,
85,
-122,
72,
-125,
26,
-2,
2,
-117,
101,
-55,
-127,
52,
-95,
82,
-113,
85,
-114,
-13,
44,
26,
-61,
-87,
110,
89,
-88,
-37,
-48,
-65,
-41,
126,
6,
49,
100,
-103,
1,
120,
28,
-112,
49,
56,
72,
83,
-74,
-58,
-26,
41,
-103,
8,
36,
103,
1,
20,
-25,
-4,
-100,
6,
-6,
47,
-90,
-126,
17,
67,
3,
-105,
-108,
92,
22,
2,
-2,
126,
68,
27,
92,
11,
-113,
-108,
-79,
53,
-31,
-122,
11,
-21,
-57,
16,
116,
-52,
-10,
95,
87,
49,
-101,
-57,
-122
] |
Carleton Harris, Chief Justice.
Lloyd G. Hobbs is president of S. & H., Inc., and these parties are appellees. On September 12, 1966, Jack Starnes entered into a 10-year lease agreement with S. & H., whereby Starnes was to léase and operate the Holiday Inn Motel in Springdale. The lease provides for certain rentals, the minimum monthly rental being $6,000.00 per month for the first year, $7,000.00 per month for the second year, and $7,500.00 per month for the third and subsequent years of the lease term. Paragraph S provides that, in order to secure and insure payment of' the rentals, the lessee agrees not to withdraw as salary from the income acquired from operation of the property an amount in excess of $800.00 per month gross without the written consent of the lessor. It was further agreed that all receipts should be deposited in a bank account, and that all disbursements (other than petty cash items) should be made by check on said account. Further, that the lessor might require that all funds be disbursed from the account only upon a check countersigned by an officer or other representative of the lessor. Paragraph 5 provides that Starnes agrees:
“* * * to observe and fully keep and perform at his expense all obligations, covenants and agreements imposed upon or assumed by Lessor as a licensee under the terms of that certain License Agreement granted by Holiday Inns of America, Inc., under date of June 28, 1965; (b) to operate the premises demised herein as a 'Holiday Inn’ Restaurant, according to the terms of said License Agreement; and (c) to keep said License Agreement in full force and effect during the entire term hereof, and, if Lessee should fail to do so, Lessor may, but shall not be obligated to, take any action Lessor deems necessary or desirable to cure any default by Lessee in the performance or observation of any of the obligations, covenants and agreements due under said License Agreement, and Lessee hereby agrees to pay Lessor immediately and without further demand all such sums so paid and expended by Lessor in curing any such default * *
The record reflects that about September 15, 1966, Hobbs and Starnes went to the First National Bank of Springdale and talked with Mr. Robert Moore, president of the bank. Moore yras already acquainted with Hobbs, but had not previously met Starnes. An account was opened, termed, “Holiday Inn Operating Account.” According to the evidence, Hobbs told Moore that he was entering into a lease with Starnes, and that they would open the aforementioned account, this account requiring two signatures for any check written on it, the signatures to be that of Starnes and Hobbs. Starnes mentioned that someone would be needed to sign the checks during the absence of Hobbs, and it was agreed that David Curry, Hobbs’ son-in-law, would come to the bank, sign the signature card, and that he could then sign checks along with Starnes or even with Hobbs.
Within a few days, Curry signed the signature card, and Mrs. Starnes also went to the bank and talked with Nancy Tucker, a bank teller. Miss Tucker testified:
“Well, when she first came in, she had "the Holiday Inn deposits so I took her deposit and then she took change in return to the Holiday Inn and when she was through, she told me she wanted to sign a signature card! So we had been told that she would be in to sign the cards and I asked her which one she was to sign and she said she didn’t know. So I called upstairs and they sent them down and when I handed them to her, I asked her if those were the ones and she said, yes.”
Mrs. Starnes actually was supposed to sign two signature cards with her husband on two accounts (not involved in this litigation), the “Holiday Inn Advance Reservation,” and “Holiday Inn — Payroll Account,” and her name had been typed on these cards for signature; her name was not typed on the Holiday Inn operating account card. Subsequently, it appears that Mrs. Starnes signed numerous checks on the Holiday Inn operating account. Six checks signed by Mrs. Starnes are questioned in this litigation; on five of these the co-signer was her husband, Jack Starnes; on the other, her co-signer was Curry. On November 20, 1966, a check in the amount of $12,000.00, made payable to Ruth H. Bell, Mr. Starnes’ mother, was written on this account by Starnes and wife, and Mr. and Mrs. Starnes left town. Within a few days, the check was deposited in a Dallas bank, and subsequently honored by appellant. Appellees’ evidence reflects that Hobb* learned of this check, and the others that had been signed on November 30, when a vice-president of the bank called and advised that the account was overdrawn.
On February 1, 1967, this appellee instituted suit against the First National Bank of Springdale, appellant herein, seeking judgment in the amount of $31,-001.49, this amount representing checks which Hobbs alleged had been wrongfully paid by the bank. It was alleged that the bank paid out this amount on the unauthorized signature of Mrs. Starnes, and improperly charged the Holiday Inn operating account, contrary to and in breach of the agreement entered into between the parties. The bank answered, asserting that the account was vested in Jack Starnes as lessee of the Holiday Inn of Springdale; that Hobbs had no interest or claim to the funds deposited; further, that Hobbs had notice and was fully aware that Mrs. Starnes was signing checks on the account, and was thus estopped from asserting that her signature was unauthorized; it was further denied that he sustained any damage as a result of the bank honoring said checks. Subsequently, S. & H., Inc., intervened, asserting that Hobbs was one of its principal stockholders, and seeking the same relief sought by appellee Hobbs. Following the filing of other pleadings not pertinent to the issue before us, the case was tried before a jury. A verdict was returned for Hobbs and S. & H., Inc., in the amount of $12,495.53, and, from the judgment entered in accordance therewith, appellant brings this appeal. Six points are asserted for reversal, and we proceed to a discussion of these points.
It is first contended that the operating account was vested in Jack Starnes, and neither Hobbs nor S. & H. had any right, title, interest, or claim to funds deposited in that account. At the conclusion of the plaintiff’s case, appellant moved for a directed verdict on this basis, and also at the close of all the evidence, but both motions were denied. We agree that the trial court properly denied the motions. Appellant says that Starnes was only obligated to pay a specified rental for the leased premises, and the arrangement for two signatures was only a security arrangement between lessor and lessee, entered into for the purpose of securing to appellee, S. & H., its monthly rental. It is argued that Starnes was the owner of all receipts taken in by the Holiday Inn, and that the most appellees could be entitled to would be the amount of rent which had not been paid. It is also contended that neither Hobbs nor S. & H. were “customers” of the bank, within the meaning of Ark. Stat. Ann. § 85-4-104 (Add. 1961).
We disagree with these contentions, and it will be noted that the account was not carried in the name of either of these individuals or the corporation; rather, it was styled “Holiday Inn — Operating Account.” However, it appears clear from the testimony of Robert Moore, president of the bank, and principal witness for appellant, that the banker recognized Hobbs as the person mainly interested in setting up the account. Referring to the occasion when Hobbs and Starnes came to his office in the middle of September, Moore testified:
“He asked me to get some signature cards, that he wanted to open a new account and let the Charlie Haile account run its course, close itself.”
Moore stated that he assumed that the bank account belonged to both Hobbs and Starnes. The banker said that no one ever told him that Mrs. Starnes would have any authority to sign checks on the account, and also that no one ever told him 'that only Hobbs, Curry or Jack Starnes were to have signature authority. Subsequently, however, on cross-examination, the witness stated that Hobbs said that “he wanted his [Hobbs’] signature, his wife’s signature and Jack Starnes’ signature on the card,” and Moore admitted that, if three people were authorized to sign checks on an account, two signatures being required to properly clear a check, the instrument would have to be signed by two of the three authorized persons; this, he stated, would constitute proper banking practice. The banker said that as far as he knew, no one ever gave the bank authority to add the name of Mrs. Starnes, and though other employees of the bank testified, none ever stated that they had been authorized to permit Mrs. Starnes to sign the signature card. It was established that the signing was due to the bank’s error, and in fact, it is not argued otherwise. Section 85-4-104 defines a customer as:
“Any person having an account with a bank, or for whom a bank has agreed to collect items and in- eludes a bank carrying an account with another bank * * *
It seems clear from Moore’s own testimony that Hobbs was the “customer” who opened the account, and directed the manner in which it was to be handled, but, to say the least, he was certainly as much a customer as Starnes.
We cannot agree that Starnes owned the account, or that the money belonged to him — or Hobbs’ only interest was to secure his monthly rental payments. It will be noted within the provisions of the lease agreement, heretofore quoted, that Starnes agreed to fully perform all obligations and agreements imposed upon the lessor under the license agreement with Holiday Inns of America, and the lease further provided that, if Starnes should fail to observe and keep all agreements, the lessor might do so, and Starnes would pay the lessor all sums paid and expended by the latter in curing any such default. Hobbs testified that, as holder of the franchise, or licensee, he was responsible for the bills, and could not keep the franchise unless they were paid; that he paid bills that were incurred during Starnes’ operation of the Holiday Inn in an amount in excess of $23,000.00, such bills being paid from his own revenues or the revenues of S. & H., Inc.
As previously stated, the lease agreement reflects that, from revenues taken in by the motel, Starnes was only entitled to $800.00 per month salary, and could not draw any further money himself until $50,000.00 had accumulated in the account. This did not happen.
It is next asserted that appellees breached the duty imposed by Ark. Stat. Ann. § 85-4-406 (Add. 1961) in failing to notify the bank of the unauthorized signature, and therefore were not entitled to recover. This section provides, in effect, that when a bank sends its customer a statement of account accompanied by items paid in good faith in support of the debit entries, or holds the statement and items pursuant to instructions from the customer, or makes the statement and items available to the customer, the latter must exercise reasonable care and promptness in examining the statement and items to discover any unauthorized signature or authorization, and must promptly notify the bank thereof. Appellant argues that statements were available; that some of the items were not paid until after the availability of the statements, but the bank was not notified of the unauthorized signature. This is no defense for the bank, since the same section, Sub-section (3), provides “the preclusion under Sub-section (2) does not apply if the customer establishes lack of ordinary care on the part of the bank in paying the item(s).” We see no need to discuss whether the statements were actually available to appellees, although it is not entirely clear that this was true, but we think unquestionably that the evidence establishes a lack of care on the part of appellant in paying the checks under discussion; at least, the proof certainly presented the question of whether bank employees were negligent in permitting Mrs. Starnes to sign the Holiday Inn operating account signature card, and thereafter honoring checks signed by her.
It is pointed out that five checks signed by Mrs. Starnes were also signed by either Curry or Hobbs, the first as early as October 15, that these checks were signed on the second line, indicating that Mrs. Starnes had already signed before either of these men. Yet, says appellant, the bank received no notice.
Hobbs testified that, at the time he signed the checks, Mrs. Starnes’ signature had not already been placed upon them. Mr. Curry said that he signed every check placed in front of him by Mr. Starnes, but had no recollection of seeing the name of Mrs. Starnes already on the instrument. Of course, the fact that these men signed on the second line does not establish that the signature of Mrs. Starnes was already on the checks before the others signed; after all, the checks for expenditures were made out by the operator of the inn, and, as the maker of the bills, it would normally be expected that he would sign on the top signature line. At any rate, the significance (or lack of it) of appellee’s and Curry’s signing on the second line, and whether this act indicated that Mrs. Starnes had already signed on the top line, or whether there was negligence, was a question for the jury, and evidently one that they considered, since they only allowed recovery on the checks signed by Mr. and Mrs. Starnes.
It is also asserted that one check written to S. & H., Inc., was signed by Mrs. Starnes and Curry, and that this check was subsequently endorsed by Hobbs; thus, he had notice of the unauthorized signature, and should have notified the bank. Mr. Hobbs testified that his secretary frequently prepared deposit slips, and brought checks into his office which were to be deposited; that he endorsed them without ever paying any attention to the front side, because they were being taken to the bank for deposit. He emphatically denied ever seeing the signature of Mrs. Starnes. At any rate, as stated under Point Two, the question of negligence under the circumstances enumerated, was an issue for jury determination.
Appellant asserts that the court erred in giving its Instruction No. 11, which told the jury that the burden of proof was upon appellees to establish by a preponderance of the evidence the terms and conditions upon which the deposits were made with the bank, i. e., prove the number of signatures required for withdrawal and the names of the persons authorized to sign the checks. The instruction then set out that when a bank accepts a deposit on agreed terms and conditions, it is held to strict accountability to pay out funds in strict compliance with those terms and conditions, and the burden to show that that was done is upon the bank. Appellant objected, stating that several elements such as ratification, negligence, etc., were not included in the instruction, and it was further contended that the instruction did not require a showing that appellee had an ownership interest in the account. We have already said that there is no merit in the ownership contention, and Instruction No. 12 presented the issue of whether appellees were negligent. The question of ratification was covered in Instruction No. 13. We find no merit to this contention.
As to Point Five, the record reflects that Hobbs was asked to state Moore’s response when appellee demanded reimbursement for the checks erroneously paid. The witness replied:
“In the beginning, he was very concerned about getting the money reimbursed from his insurance company.”
Appellant moved for a mistrial,, and the court interrogated the jury as follows:
“Can the jury disregard anything in regard to insurance? * * * Just a minute now. Now, I am telling you to disregard this reference to insurance. It has no bearing whatsoever. Can you do that? Is there anybody who cannot completely disregard it and remove if from consideration in every form in this matter? I am not going to poll you individually but I am going to deny your request for a mistrial.”
In Back v. Duncan, 246 Ark. 494, 438 S. W. 2d 690, we pointed out that the granting of a mistrial is a step so drastic as to be the exception, rather than the rule, as a means of correcting an error. There, we said that the trial court is only reversed if there is an abuse of discretion involving manifest prejudice to the complaining party. We do not think that such drastic action was called for in this case. It does not appear that the question was asked for the purpose of showing that losses were covered by insurance; certainly, any conversation between Hobbs and Moore was pertinent to the litigation, and it does not appear that the reference to insurance occurred in bad faith. We think the admonition by the court was sufficient to correct the error. Lin Manufacturing Company of Arkansas, Inc. et al v. Courson, 246 Ark. 5, 436 S. W. 2d 472.
Finally, it is contended that the court erred in permitting Hobbs to testify relative to the value of certain real estate, which Starnes’ mother, at his behest, had deeded to S. 8c H., Inc. Appellant, under the theory that appellees were not damaged, asserts that the check from Starnes and wife to Mrs. Bell for $12,000.00 was in payment of real estate that Hobbs had purchased from her. Hobbs had testified that Starnes had offered the lot, located three and one-half miles from Long-view, Texas, as security “simply because he did not have any money and he was trying to do anything he could to get me to lease him the Holiday Inn, therefore, he wanted to bring up anything he could to help this situation. This lot was actually taken just because he offered it and we didn’t turn it down. I have never seen the lot, I don’t feel it has any value of consequence but it was taken as security.” This appellee testified that the lot was assessed at $250.00, and that he had paid three years’ taxes, which had amounted to $1-14 per year. A state and county tax receipt for 1968, and a redemption receipt were offered in evidence. These exhibits, along with the testimony, were objected to by appellant, first as irrelevant, and second, as hearsay evidence. We agree that the exhibits were not in proper form for Introduction, and we also agree that the evidence was irrelevant. It was evidently offered because appellant was claiming that the lot was worth $12,000.00, and that the check given to Mrs. Bell was to repay her for the property. This transaction was entirely alien to the question being tried, viz., was the bank liable for honoring. checks on a customer’s account, such checks being executed by a person without authority to draw on the account? No instruction was given to the jury relating to this testimony, for it was not an issue between appellant and appellees, and we agree with counsel for appellees that any error committed was harmless.
The jury heard the evidence concerning the manner in which Mrs. Starnes became authorized to sign checks on the operating account. It also heard the evidence, pro and con, relative to whether Hobbs knew, or should have known, that Mrs. Starnes was signing checks. The contentions of both sides were fully presented. The jury found for appellees in the amount previously stated, and we find no prejudicial error.
Affirmed.
Fogleman, J., dissents.
In the previous Holiday Inn account, Mrs. Hobbs had also been authorized, but there was no authorization for her signature on the new account.
Other checks bearing her signature are not questioned, since it is conceded that the funds were drawn to pay legitimate bills of Holiday Inn.
&3a Emphasis supplied.
The former operator of Holiday Inn.
Apparently appellees recognized that recovery could not be obtained on checks reflecting Hobbs or Curry as co-signers, for they offered an instruction at the conclusion of the evidence directing the jury to find for appellees in the amount of $13,295.33. This amount covered the checks paid on the signatures of Mr. and Mrs. Starnes, plus one check signed by Mrs. Starnes and Curry. This last check was in the amount of $800.00, being a payment to an attorney which appellees contended was a personal obligation of Starnes, and should not be charged against the account. The jury evidently did not agree with this contention, since Curry was one of the signers. The verdict was $800.00 less (amount of the check to the attorney) than the $13,295.33 finally contended for by appellees.
The record indicates that there is, or was, a dispute between the bank and the insurance company relative to coverage. | [
112,
-7,
-64,
108,
10,
96,
10,
-102,
123,
-32,
-73,
91,
-93,
-18,
4,
49,
-9,
127,
85,
105,
-105,
-93,
6,
96,
-63,
-5,
-39,
-43,
-16,
77,
-76,
85,
72,
32,
-118,
31,
102,
-61,
-57,
84,
14,
-127,
57,
-32,
-15,
-126,
32,
57,
16,
13,
33,
-121,
-93,
44,
25,
95,
77,
44,
95,
40,
-47,
-16,
-70,
-124,
127,
53,
-112,
4,
-108,
31,
-8,
12,
-100,
53,
9,
-23,
83,
-74,
-42,
117,
8,
-65,
44,
38,
98,
34,
65,
-19,
-20,
-68,
14,
-38,
-83,
-91,
-73,
25,
2,
1,
-65,
-99,
120,
1,
51,
-10,
-23,
-107,
24,
96,
-111,
-114,
-106,
-89,
-115,
-3,
-122,
10,
-1,
3,
33,
113,
-50,
-90,
92,
102,
56,
-109,
14,
-112
] |
J. Fred Jones, Justice.
This is a workmen’s compensation case involving a claim for hernia. The referee and the full commission awarded compensation benefits and the award was affirmed on appeal to the circuit court. On appeal to this court, the employer and compensation insurance carrier rely on the following point for reversal:
"The appellee’s claim for workmen’s compensation benefits does not come within the purview of Arkansas ‘Statute 81-1313 (e).”
We conclude that the judgment of the circuit court must be reversed. To hold otherwise would, in our opinion, do more than merely approve a liberal construction of the statute. It would, in effect, amend or nullify a provision of the compensation law which the legislature has seen fit to leave unchanged in effect for more than thirty years.
Ark. Stat. Ann. § 81 -1313 (e) (Repl. 1960) provides, in part, as follows:
“In all cases of claims for hernia it shall be shown to the satisfaction of the Commission:
(1) That the occurrence of the hernia immediately followed as the result of sudden effort, severe strain, or the application of force directly to the abdominal wall.
(2) That there was severe pain in the hernial region;
(3) That such pain caused the employee to cease work immediately;
(4) That notice of the occurrence was given to the employer within forty-eight (48) hours thereafter;
(5) That the physical distress following the occurrence of the hernia was such as to require the attendance of a licensed physician within forty-eight (48) hours after such occurrence.”
There is little question that on September 12, 1968, the appellee, Mr. Cotter, either sustained a hernia while in the course of his employment, or he sustained an injury on that date which later resulted in a hernia. Mr. Cotter testified, without controversion, that he and four other men were lifting a 4 x 9 inch eye beam about 20 feet long, when he felt something pull in his side and felt a stinging sensation in his inguinal region. He testified that the accident occurred about 10:00 o’clock on Thursday, September 12, and that he at first thought he had strained a muscle. He testified that he went ahead and worked the remainder of the day on Thursday, as well as all day Friday, and all of the following week. He says that he got to hurting at night until he couldn’t sleep so he decided he had better go to a doctor. He says that on Monday, September 23 he went to Dr. Carl B. Arnold, and at this point Mr. Cotter testified:
“Q. Did he discover that you had an inguinal hernia?
A. He said that I had a direct hernia he thought he could feel a direct there but he said to stay off work a few days — he said it would not get any better — it would have to be operated on but it might be put off until a later date so I stayed off that week and then on a Thursday there was a big knot come up there in my side — well I thought my intrals come out — I don’t know what it was.
Q. This would be Thursday following the Monday examination?
A. Yes, sir.”
Mr. Cotter testified that he returned to the clinic on Friday morning and saw Dr. Ducker who diagnosed a hernia and recommended an operation. He says he entered the hospital on Sunday, September 29, and was operated on the following day. On cross-examination Mr. Cotter testified that he reported his injury to his employer on the day it occurred, Thursday, September 12, but that he continued to work on that and the following day. He testified that no one worked on Saturday, but the following week he worked the full five days and then went to the doctor on the following Monday, September 23. Mr. Cotter testified under questioning by the referee, as follows:
“Q. When you told Mr. Harkleroad, what did he tell you?
A. He told me to take it easy — I thought it was just a pulled muscle in there — it was hurting — the muscle went up to my ribs — it was hurting around my hip on there — I thought I had just sprained something.”
Mr. Harkleroad, the appellant employer, testified that the appellee was working for him at the time of his injury and reported the injury to him. He says that actually, the claimant and three other men were lifting the beam because he himself had a weak back and wasn’t doing much lifting. He says that Mr. Cotter reported that he had pulled something in his side but didn’t know just what it was—
“so we just went ahead — I told him not to do any more lifting that day and see what happened to it because we didn’t know exactly what it was.”
Dr. Carl B. Arnold reported that he examined the appellee on September 23, 1968, and diagnosed a right inguinal hernia which was repaired on September 30, 1968. Dr. Arnold concluded his report as follows:
“His hernia was indirect inguinal with no significant ring formation on a fairly good sized sac. This means to me the hernia was of very recent occurrence and I assume related to his work.”
The opinion of the referee which was adopted by the full commission sets out conclusions as follows:
“Section 13 (e) of the Workmen’s Compensation Act, pertains to hernias and provides:
‘(1) That the occurrence of the hernia immediately followed as the result of sudden effort, severe strain, or the application of force direcdy to the abdominal wall;
(2) That there was severe pain in the hernial region;
(3) That such pain caused the employee to cease work immediately;
(4) That notice of the occurrence was given to the employer within forty-eight hours thereafter;
(5) That the physical distress following the occurrence of the hernia was such as to require the attendance of a licensed physician within 48 hours after such occurrence.’
Respondent has contended that claimant did not comply with sub-section 2, in that there was severe pain in the hernial region. The evidence reflects that at the time of the lifting of the heavy steel beam, along with three other employees, that claimant did feel a stinging sensation and burning in his inguinal region and reported this to his employer and he was told not to do any additional lifting and see how he got along. Section 3 provides that such pain caused the employee to cease work immediately. The evidence reflects that the employer did tell claimant to cease work and not do any heavy lifting. Sub-section 5 provides that the physical distress following occurrence of the hernia was such as to require the attendance of a licensed physician within 48 hours after such occurrence.
The employer was notified at the time by the claimant that he had a stinging, burning sensation in his inguinal region as a result of lifting this steel beam and the provision of Section 13 following subsection 5 comes into being here and it provides: ‘In every case of hernia it shall be the duty of the employer forthwith to provide the necessary and proper medical, surgical and hospital care and attention to effectuate a cure by radical operation of the hernia, to pay all reasonable expenses in connection therewith and in addition to pay compensation not exceeding a period of 26 weeks. In case the employee shall refuse to permit such operation it shall be the duty of the employer to provide all necessary first aid, medical and hospital care and service, and to supply the proper and necessary truss and other mechanical appliances to enable the employee to resume work, etc.’
In construing all of Section 13 (e)- pertaining to hernias it is shown that when the claimant herein reported his injury to his employer the burden shifted to the employer and it was incumbent upon him to send the man to a doctor to determine what was the matter and the extent of his injury. . .”
We agree with the Commission that it was incumbent upon the appellant employer to send the appellee to a doctor to determine what was the matter and the extent of injury, but we do not agree that such obligation stemmed from a shift in burden of proof. The statute places a separate and direct duty on the employer to furnish the necessary and proper medical, surgical and hospital care in hernia cases, as well as in other types of injury, and we see no connection between the duty imposed by statute upon the employer and the duty imposed by statute upon the employee.
This court did not write the workmen’s compensation statutes and we do not propose to do so now. The statute does not provide compensation benefits for every injury sustained by a workman in the course of his employment. The Workmen’s Compensation Law provides no benefits at all for pain and suffering; it provides very limited benefits for head or facial disfigurement (§ 81-1313 [g]), and it provides no benefits in claims for hernia unless five different things be shown to the satisfaction of the Commission.
We pass up further comment on the first, second and fourth requirements, as our decision rests primarily on the third and fifth statutory requirements. Under the third requirement it must be shown that such pain caused the employee to cease work immediately. This requirement could be in no plainer language. We recognize the possibility that the employer may have told the* appellee to cease work, as found by the Commission, but we fail to find such specific instructions in the record. On this point, after testifying as set out on page 3, supra, in answer to questions by the referee, the appellee continued as follows:
“Q. So he told you to take it easy?
A. Yes, sir.
Q. Did he tell you to continue to work?
A. No, sir he didn’t — I didn’t ask him — I went ahead and worked on my own — we was busy and trying to get another house framed up over there.”
The appellant employer testified on this point as follows:
“Q. What, if anything, did you advise him?
A. Well I didn’t know just what it was so we just went ahead — I told him not to do any more lifting that day and see what happened to it because we didn’t know exactly what it was.”
The statute does not require that it be shown to the satisfaction of the Commission that the employee be told by his employer to quit work. The statute requires that it be shown that the employee did cease work immediately, and that he did so because the pain he suffered was severe enough to cause him to do so. If “immediately” means two weeks in the case at bar, what about the next case involving three weeks and the next that may involve three months? There is no waiver or estoppel involved in the case at bar as there was in the case of Prince Poultry Co. v. Stevens, 235 Ark. 1034, 363 S. W. 2d 929. In the Stevens case rather than telling the claimant to cease work, as the Commission found was done in the case at bar, the employer insisted that the claimant Stevens continue to work because he was the only one available who knew the egg truck route. The claimant Stevens suffered pain which prevented him from doing his regular work so he was furnished a helper and only showed the helper where to go. He continued in this' manner for the four days following his injury before he was able to consult a doctor.
The fifth and final requirement that must be shown to the satisfaction of the Commission is that the physical distress following the occurrence of the hernia was such as to require the attendance of a licensed physician within 48 hours after such occurrence.
In the case of Potlatch Forests v. Burks, 244 Ark. 714, 426 S. W. 2d 819, the claimant, while operating a cut-off saw on December 22 sustained an application of force directly to his abdominal wall when a board kicked back and struck him. The appellee experienced severe pain but after resting a few minutes continued to work until quitting time. He slept well that night but was bothered with pain the next morning and although suffering on December 23, he worked that day. The plant closed December 23 for Christmas holidays and appellee was unsuccessful in his attempt to contact a doctor on December 24. He again tried to contact a doctor on December 25 but without success. Being still unable to contact a doctor on December 26, the claimant returned to work on December 27 but the pain became so severe by 9:30 a.m. he was forced to stop working. The claimant finally was able to contact a doctor on December 28 at which time his hernia was diagnosed. The Commission denied the claim for compensation and denial was affirmed by the circuit court. In affirming the circuit court judgment, this court said:
“When the testimony is viewed in the strongest light in favor of the Commission’s finding, as we must do, Fagan Electric Co. v. Green, 228 Ark. 477, 308 S. W. 2d 810 (1958), we find that there was substantial evidence to support the Commission’s denial of relief to appellee.”
In Miller Milling Co. v. Amyett, 240 Ark. 756, 402 S. W. 2d 659, the claimant sustained his injury when he picked up a sack of feed on March 6, 1964. He rested for about 30 minutes and before going home told his employer of the injury. He meant to go to a doctor but kept putting it off for a period of four months, after which time he did go to a doctor who diagnosed a hernia. In reversing a judgment of the circuit court which affirmed an award of compensation by the Commission, this court said:
“The appellee’s position really narrows down to the contention that since he suffered severe pain on March 6 his condition therefore ‘required’ the attendance of a physician within forty-eight hours. The fallacy in this argument lies in its disregard of the fact that severe pain must exist in every instance of a compensable hernia, for that condition is the second of the five statutory requirements. Hence, if the appellee is right, the fifth requirement — that the attendance of a physician be required within forty-eight hours — adds nothing whatever to the earlier statement that severe pain must occur. We are not at liberty to give absolutely no meaning and effect to the plain language of the statute. We must conclude that the requirement of immediate medical attention was not sufficiently established in this case.”
Further discussion of what must be shown by the claimant in order to establish a claim for hernia would only add words without substance to this opinion. The statute is plain as to what must be shown in order to establish a claim for hernia and the record is plain that the appellee failed to make such showing. The appellee failed to show that severe pain caused him to cease work immediately, and he failed to show that the physical distress following the occurrence of the hernia was such as to require the attendance of a licensed physician within 48 hours. The statute seems designed for just such situation. If appellee’s hernia occurred on September 12, the pain was not severe enough to cause him to quit work immediately nor was the physical distress of such nature to require the attendance of a physician within 48 hours, or within two weeks as for that matter. If the hernia did not occur until the "big knot” appeared on Thursday following the examination on Monday, then the occurrence of the hernia did not immediately follow as a result of lifting the steel beam — it followed two weeks later.
Except as to the lapse of time before seeing a doctor, the case at bar is almost op all fours with our very recent case of A. G. Haygood v. Turner, 247 Ark. 724, 447 S. W. 2d 316. The main difference in the Turner case and the case at bar was that Turner did not see a doctor for more than six months, as compared with two weeks in the case at bar. In Turner we distinguished the Prince and Miller cases and reversed the circuit court judgment which had reversed an order of the Commission disallowing the claim.
It might be argued, with considerable logic, that the specific statutory requirements as to proof in claims for hernia, penalize the honest, industrious and conscientious workman who fails or refuses to put down his tools immediately and rush to a doctor every time he feels pain following sudden strain or effort. The record before us in the case at bar indicates that the appellee was just such workman. It is a well recognized fact, however, that hernias may occur following any one of the numerous strains and efforts the average active individual workman may encounter during the 128 hour rest week, as well as during the 40 hour work week. It is a matter of common knowledge that witnesses do not see hernias sustained by fellow workmen as they would see a broken leg or broken arm. Consequendy, the people have seen fit to make, and the legislature has seen fit to leave, a compensable hernia a rather dramatic occurrence under the statute, with little or no room left for question or doubt that it did occur within the course of employment as an immediate result of sudden effort, severe strain or force applied to the abdominal wall. The wording of the statute assumes the existence of a hernia. The statutory requirements of proof are directed at claims for hernia and not the existence or occurrence of a hernia.
The judgment of the circuit court is reversed and the cause dismissed.
Severe pain in the hernial region referred to in the second requirement. | [
52,
-22,
-107,
60,
10,
-29,
34,
-102,
82,
-92,
39,
83,
-17,
-73,
84,
61,
-29,
109,
112,
43,
-42,
-93,
19,
105,
-62,
-45,
-5,
-59,
-72,
107,
-26,
-36,
77,
49,
-118,
-43,
-58,
66,
-55,
28,
-62,
-122,
-118,
-20,
89,
0,
56,
46,
16,
75,
49,
-98,
-22,
42,
24,
-57,
45,
44,
90,
-86,
80,
-15,
-102,
13,
-1,
4,
-79,
4,
-100,
75,
-40,
62,
-100,
49,
96,
-52,
82,
-74,
-126,
52,
43,
-71,
12,
98,
99,
32,
25,
-25,
60,
-72,
14,
-18,
-99,
-92,
-80,
57,
26,
11,
-98,
-99,
122,
12,
-114,
124,
-16,
93,
95,
44,
3,
-114,
-44,
-77,
-57,
100,
-108,
-85,
-25,
15,
-79,
117,
-34,
-90,
93,
69,
67,
27,
22,
-104
] |
John A. Fogleman, Justice.
Appellee recovered j.ugment in a wrongful death action against appellants in the sum of $10,000 for the benefit of the estate of Rosemary J. Bernard, his late wife, and $125,000 for the benefit of her next of kin. Appellants argued that the trial court erroneously refused to direct a verdict for the defendants, that the verdict was such a shocking injustice that they were entitled to a. new trial and that the verdict was excessive.
The action arose from a motor vehicle collision which occurred on June 4, 1968, at a point about four miles east of Vilonia on U. S. Highway No. 64, where it ran east and west. Rosemary Bernard and Eugene Rhodes were the drivers and only occupants of the two vehicles involved. Mrs. Bernard was driving a 1965 model Dodge one-half ton (pickup) truck. Rhodes was operating a 1968 Ford tractor and trailer traveling from Searcy to Russellville in the scope and course of his employment by appellant Penny-Plate, Inc.
The collision took place at a point almost directly in line with a roadway proceeding north from the highway and another proceeding south. From this point the highway was straightaway to the east for approximately one-half mile. Although the approach to the collision site from the east was on a slight downgrade, a driver approaching from that direction had a clear view of the scene for at least 1,400 feet. At the time of the collision Louis Bernard was driving a John Deere farm tractor pulling a planter which extended five feet to the rear of the rear tractor wheels. The planter and tool bar to which it was attached extended beyond the wheels on the tractor on each side. The main highway slab was asphalt pavement 22'3" wide. On each side of the highway slab there was an improved asphalt shoulder which appears to be at least as wide as a normal automobile and without any obstruction preventing its use by vehicles proceeding on or along the highway.
Appellants’ argument that they were entitled to a directed verdict is based entirely upon their contention that the version of the occurrence related by appellee is contrary to the undisputed evidence and the physical facts. Even though we might think that the evidence preponderates against Louis Bernard’s version of the incident, or even if we thought it highly improbable that the collision occurred in that manner, we cannot say that this evidence is not substantial unless it be demonstrated beyond controversy that, applying well-known laws of nature, mathematics, mechanics and physics, it was not physically possible that the collision and the incidents leading up to it occurred in the manner described by him. Hot Springs Railway Company v. Hill, 198 Ark. 319, 128 S. W. 2d 369. When we consider the evidence in the light most favorable to the appellee, drawing all reasonable inferences therefrom in his favor, we cannot say it has been demonstrated that it was impossible that the collision occurred in the manner appellee related.
Louis Bernard’s version of the incident is as follows: she went by the post office. She overtook him at a point approximately one-fourth mile east of the point of the collision and followed him to the scene. The tractor Bernard was driving was equipped with a flashing light on its left rear at such a height that it would not be obscured by the following pickup truck. This light was in operation at all times on that day. From the time that she overtook him, neither his tractor nor the pickup truck was ever pulled entirely off the main-traveled portion of the highway. The left wheels of both were on the highway at all times, and the right wheels were off the highway on the shoulder. Bernard stopped the tractor at a point slightly east of the road to the south which he was about to enter, and his wife stopped the pickup truck immediately to the rear of the tractor and its equipment. Bernard waited until a vehicle approaching from the west passed him, looked to the east and, seeing no approaching vehicle and feeling that both vehicles could clear the highway, started across the highway at an angle in the direction of the roadway to the south. He shifted the tractor into second gear in which it could move at a speed of one to three miles per hour. He did this in order to “weave” the tractor on the road he was about to enter to avoid the planter’s hitting shrubbery, trees and other growth. The first indication of danger that came to his attention was the sound of a horn and the squealing of brakes just as the back wheels of his tractor were leaving the main-traveled lanes of the highway. Bernard looked around and saw the truck strike the vehicle driven by Mrs. Bernard. He got just a glance at the tractor-trailer before the impact. At the time, the front of the Dodge pickup truck was not more than three feet to the rear of the planter on the tractor. His tractor wheels were at the edge of the pavement. He described the collision as having happened like a flash of lightning. • Both vehicles skidded from the point of impact until they met an obstruction in the form of an embankment south of the highway. The sound of the brakes continued until the vehicles came to rest. When they did, the Ford tractor was jammed into the left door of the pickup truck so that the door could not be opened. The impact was not broadside, but the pickup truck was hit on its left-hand side at an angle. The door was mangled in a way which would have been impossible if the pickup truck had been struck broadside.
He and his late wife left their home on the morning in question with the objective of planting soybeans in a field south of the place the collision occurred. When they left home they separated and
The thrust of appellants’ argument is that it was impossible for Mrs. Bernard to have made a left turn from the position described by her husband so that she could have been struck “broadside” as investigating state policeman Gwatney surmised and Rhodes and one Roy Wells testified. We cannot accept the premises upon which this argument is based as conclusive. In the first place, it is abundantly clear that the Bernard pickup was not struck broadside. Rather, the photographs and physical evidence confirm the fact that at the time it was struck the Dodge pickup truck was proceeding at more than a right angle to the path of appellants’ vehicle. We are not favored with any evidence as to the length of the pickup truck or its turning radius. The skid marks made by the front wheels of this vehicle commenced at a point two feet south of the center line of the highway. The front end extended 2 to 2Z> feet beyond its front wheels. Thus, at least four feet of the front of the Dodge pickup was south of the center line at the moment of impact. Examination of pictures of the Ford tractor clearly indicates contact with the top of the cab of the pickup truck at a point at least six feet from the left front corner of the Ford. Virtually all of the damage to the Ford tractor was at or near its right front corner. As indicated by the skid marks, the left front corner of the Ford tractor was very near the center line at the time of impact. Thus, it appears that the major impact to the pickup truck may have been at a point about 10 feet back of its front. Rhodes himself testified that the major damage to the pickup truck was at its left-hand door and left bed. A photograph shows considerable damage to this door, the left rear of the cab and left front end of the bed. It seems clear from the evidence relating to the skid marks that all of the wheels of the pickup truck were on the main-traveled portion of the highway at the time it was struck. A picture shows its right rear wheel angling inwardly at the bottom. Even though the state policeman testified that he “imagined” that a portion of the back of the pickup truck was on the north shoulder of the road at this time there .was no physical evidence to support this statement.
If indeed Bernard turned the tractor to his left from a dead stop, it could not have been traveling more than three miles an hour in second gear when he cleared the highway. He was followed by the pickup truck driven by his wife, who obviously must have started the truck from a dead stop after he commenced his turn. It could reasonably be inferred that the speed of her vehicle never exceeded three miles per hour. Rhodes estimated the distance from which he could see the point where the collision occurred as 900 feet. Appellant admitted that he was driving his truck in excess of the legal speed limit. At one time he admitted a speed of 50 to 55 miles per hour and stated that he increased his speed above 50 miles per hour knowingly. When asked how much he was speeding, his answer was “I don’t know.” Gwatney said that the whole pickup truck, on both sides, was bowed where the Ford struck it. Wells testified that at the time of the impact the Bernard tractor was across the highway on the south shoulder and stopped about 10 feet off the highway.
We do not know the normal rate of acceleration of the Dodge from a standstill to a speed of three miles per hour, but the jury might well have found that Rhodes’ tractor-trailer, even at only 55 miles per hour, could have traveled more than 400 feet in the interval of time required for the pickup truck to reach its position in the highway from a position with the left wheels on the pavement but near its edge. This would be in addition to the distance Rhodes’ vehicle could have traveled at that rate after the tractor turned but before the pickup truck did. The jury might have in ferred that Rhodes was driving his tractor-trailer unit at a much higher speed than he admitted. Not only did it appear from the skid marks on the pavement that he knocked the Dodge pickup truck 137 feet in a southwesterly direction after sliding at least 142 feet on a dry pavement with his brakes on 18 wheels locked, but it could have been inferred that the vehicles stopped then only because of striking the embankment south of the south highway ditch. His vehicle weighed about 25,000 pounds and his load 18,000 pounds.
G. W. Coker, who stopped to assist Bernard in removing Mrs. Bernard from the pickup truck, Gwatney and Wells, all saw marks showing that the pickup truck struck this embankment against which it came to rest. Coker said the right front end was “kind of buried” in the bank. Wells supposed the bank stopped the vehicles. He said that these marks were still there at the time of trial.
It may well be that the jury also inferred that Rhodes was keeping no lookout and exercising somewhat less than that degree of control which would permit him to stop if danger became apparent. Not only is there a conflict in his testimony and that of Wells as to the relative positions of the Bernard tractor and pickup truck before either pulled onto the highway, but Rhodes never mentioned the John Deere tractor to the investigating officer. He testified at the trial that he hit his brakes and blew his horn when the tractor pulled onto the highway, but that, in disregard of the noise from the horn and “squeal” of the tires, Mrs. Bernard pulled the pickup truck onto the highway in front of his skidding truck. Yet when he explained the occurrence to Gwatney, he said “When I saw her start across the road, I hit my brakes.” Unquestionably, Rhodes was then referring to Mrs. Bernard in her pickup truck.
We are also unable to agree with the assertion of appellants that the pickup truck would have been dam aged at the rear or left rear had it been turning left from the westbound lane. This argument assumes that the pickup truck would have been traveling in a normal position with all wheels in the northbound traffic lane at the time it commenced its turn. This is not reasonably to be inferred from Bernard’s testimony. The version of the incident most favorable to appellants would place the left wheels of the pickup at a distance of two feet off the highway as related by Rhodes. We see little difference in the possible angle of impact between a start with the left wheel two feet off the highway and one with those wheels on the highway near the north edge. Rhodes testified that the pickup truck made a sharp left turn when it started.
Appellants also argue that the only evidence worthy of credence is that of appellant Rhodes, Gwatney and Wells. Yet, we find factors from which a jury might have determined their testimony worthy of less than full credit. Except for measurements and observation of conditions after the collision, Gwatney got his version of what happened almost entirely from Rhodes, who certainly was not a disinterested person. Gwatney got little information from Wells other than the fact that the latter was in his yard somewhere close to the accident at the time it happened. The officer merely listed Wells as a witness. He testified that he “didn’t get all that many statements.” Gwatney’s idea that the tractor hit the pickup truck broadside obviously must have come from Rhodes.
The fact that the collision was not broadside lends nothing to the weight of Rhodes’ testimony. According to the version given by him on the witness stand, he first saw the John Deere tractor sitting on the shoulder but off the highway. He did not see the pickup truck until the tractor started across the highway, but said that he immediately started applying his brakes and blowing his horn on account of the movement of the tractor. He said that the pickup truck came onto the highway as he went past the tractor. Yet, he said that the pickup truck was close behind the tractor and that the implement on the rear of the tractor was still in the south lane of the highway when he collided with the pickup truck. Rhodes admitted that on his discovery deposition prior to the trial he had at first placed Bernard’s tractor in a position to his left of the pavement rather than on the right. He had also testified then that the tractor was stopped on the shoulder of the highway in a position to the rear of the pickup truck and that the truck only became visible to him when the tractor pulled out and headed across the highway.
Wells said that the collision occurred right in front of his house which was about 100 feet north of Highway No. 64. Appellants rely strongly on his testimony to show that both the Bernard tractor and the pickup truck were completely off the paved portion of Highway 64. Wells’ testimony on this point is something less than positive. He first said that it “looked like” Bernard pulled his tractor completely off the highway, and it “looked like” the pickup truck stopped right behind the tractor off the north lane about five minutes later. Later, he was “pretty sure” the vehicles were stopped off the highway, but admitted that he made no real effort to see where Bernard stopped and that he didn’t pay any special attention to the vehicles. Wells testified that he went back to work in his yard after the pickup truck arrived. He looked up after he heard first, the tractor go over the road, and then, a horn blowing. He said that Mrs. Bernard had then started the pickup truck up on the highway, but the truck driven by Rhodes was still not within his line of sight because of the obstruction to his view by a house to the east and closer to the, highway than his. According to Wells when the horn started blowing, the pickup truck was on the north side of the road facing west. Wells’ front lawn slopes away from the highway toward his house, so that the level of the highway was higher than his eye level. At the time he claims to have seen Mr. Bernard pull up and stop, Wells was about 75 feet from the highway.
There was no error in the court’s submitting the case to the jury on appellee’s allegations of appellants’ failure to keep a lookout, failure to exercise the requisite control and operation of the vehicle at an excessive speed.
Appellants rely upon the case of Jamison v. Spivey, 197 Ark. 698, 125 S. W. 2d 453, to support their second point for reversal. There the jury verdict for $6,500 was awarded in a case arising out of a relatively slight collision where the evidence of injuries was such as to cause this court to entertain grave doubts that it was sufficient to sustain a recovery of more than nominal damages. Certainly the collision here and the death of Mrs. Bernard could not cause such misgivings. Nor can we say, as did the court in Singer Mfg. Co. v. Rogers, 70 Ark. 385, 67 S. W. 75, 68 S. W. 153, (from which appellants’ quotation in Jamison v. Spivey was actually taken), that the verdict is so clearly and palpably against the weight of the evidence as to shock the sense of justice of a reasonable person. What we have heretofore said has equal application to this point for reversal.
Appellants’ arguments on their second point and those urged as to excessiveness of the verdict are somewhat overlapping, but we do not find the verdict so excessive in amount as to require a remittitur, as prayed by appellants.
Little need be said about the award to Mrs. Bernard’s estate. Funeral expenses amounted to $600. Her husband found her pinned between the back of the Dodge seat and the steering wheel. Her feet were tangled in the brake and clutch pedals. Her right arm was bleeding. A piece of metal was imbedded in it. She was conscious and continuously saying “Lord help me,” calling on her husband for help and whimpering and crying out during all the time efforts were being made by her husband, Coker and others to remove her. Her cries were only interrupted when she would lose her breath and slump over, after which she would raise up and resume them. Estimates of the time spent before she could be removed from the truck ranged from 35 to 60 minutes. Bernard said that when he first went to her, he could see evidence of pain in her eyes and that she held his hand so tightly that it hurt him. After she was removed from the pickup truck she was placed in an ambulance. She was still groaning and crying out and continued to do so, according to her husband, until she went limp, after the ambulance arrived in Conway, some 18 miles away, one hour after the collision. We cannot say that the amount awarded for pain and suffering was so excessive as to shock the conscience of the court, or lead to the conclusion that the verdict was the result of passion or prejudice or that the jury was not governed by the evidence.
Neither can we say that the recovery of $125,000 for the benefit of the next of kin was excessive. There was substantial evidence to show that this 38-year-old woman was an unusual wife and mother, and a dutiful housewife who performed all of the housekeeping and homemaking chores. She contributed her own earned income of $800 per year to the family living. Her contribution to the family livelihood was not limited to this income. She kept all of the books on her husband’s farming operations, managed the finances, paid the bills and assisted in planning. She drove the truck while he was picking up hay and driving the tractor in feeding their cattle. She regularly attended to repairs, and obtained and hauled supplies, feed and fertilizer so her husband would not have to leave the field. She took hot meals to him when he was working in the fields. Her stepfather testified that Mr. Bernard had quit farming because he was unable to conduct his operations without her assistance. She not only did the washing, ironing and cooking for the family, but also kept a large garden. She canned 500 quarts of food for the family annually. She transported her three children wherever they needed to go.
There was also evidence from which the jury might have found that each member of this family suffered mental anguish and more than normal grief over the loss of a loved one. The family consisted of the parents and three children. Edward, aged 20, her child by a previous marriage, was adopted by Louis Bernard. Mark, then 14, and Lou Ann, then 12, were the other two children. The family was described as being very close, and the home a very happy one. There was evidence tending to show that Mrs. Bernard was the central figure and force in that home. She seems to have been the counselor and confidante of all the others. She was shown to be the planner of family activities, which included birthday and holiday celebrations, picnics and fishing trips. It appears that she was a religious woman, who also led her family in this phase of their lives. The home was described as presently being a gloomy one, whose members were reluctant to stay at home.
Edward, a college student, was said to have failed in all his studies because of his inability to settle down or to concentrate after his mother’s death. One witness said that this broke Edward’s heart because he knew how much his mother wanted him to have a college education. One of Edward’s friends testified that this son had missed his mother very much and had taken to frequent drinking.
Mark was said to have been so affected that he changed from a happy, mischievous “kidding” boy to a serious, quiet, sad and very unhappy one, who had been unable to find any substitute for his mother. It was said that on occasion he hangs his head and cries. He was also described as having a sad look in his eyes.
Lou Ann was said to be the closest of all to her mother. The two were described as inseparable. This young daughter had been open in her frequent displays of affection for her mother. Witnesses said that she had become a very unhappy little girl and that her grief was indescribable. Her father has heard her crying at night.
Friends and relatives testified that since his wife’s death Louis Bernard seems a much quieter man, who is unable to express himself or to keep going. He was said to have lost interest in everything and to have taken to heavy drinking. His mood, formerly described as good, was called sour. He said that shortly after his wife’s death he commenced having stomach aches, passing blood and losing weight. His doctor prescribed ulcer medication. He had not regained the lost weight at the time of the trial.
When we consider that the verdict of $125,000 was to compensate all members of the family for earnings and other services Rosemary Bernard might reasonably have been expected to contribute to them in the years to come, the instruction, moral training and supervision reasonably to be anticipated had she lived, the husband’s loss of consortium and the services of a wife so instrumental in assisting him in his labors and managing family and business affairs and for mental anguish above and beyond the usual grief over loss of their loved one, we cannot say that it was so excessive as to warrant a remittitur, even though we might feel that it is liberal.
The judgment is affirmed.
Roy Wells stated that when he first saw the Ford tractor he could hardly see its trailer because of the smoke from the tires grabbing. | [
-15,
-20,
-48,
44,
11,
66,
10,
24,
85,
-95,
117,
83,
-17,
-53,
69,
33,
-9,
25,
85,
107,
-11,
-89,
83,
50,
-109,
-77,
-31,
-59,
16,
75,
102,
-15,
77,
48,
-54,
-35,
-26,
72,
-59,
94,
-26,
6,
-87,
124,
73,
18,
48,
60,
84,
15,
53,
-114,
-29,
46,
19,
111,
109,
44,
123,
41,
73,
-80,
-126,
-115,
95,
0,
-80,
-28,
-104,
1,
-38,
24,
-112,
49,
32,
-8,
115,
-90,
-105,
-44,
41,
-103,
12,
-30,
103,
17,
21,
-83,
-68,
-104,
6,
126,
13,
-122,
12,
9,
73,
-96,
-105,
-107,
90,
116,
22,
122,
-4,
69,
93,
104,
69,
-49,
-74,
-79,
-19,
-48,
-98,
0,
-21,
-115,
50,
113,
-51,
-6,
93,
5,
86,
-101,
7,
-109
] |
Frank Holt, Justice.
This is a railroad crossing accident case in which appellee’s husband, the decedent, was fatally injured. A jury assessed damages at $782.37 for decedent’s estate, $21,000 for his next of kin, and $1,200 for the appellee individually. From that judgment comes this appeal.
The case was submitted to the jury principally upon two theories of liability by the appellant: one, that appellant’s employee and co-defendant, Dennis Chadwick, was negligent in failing to maintain a proper lookout as fireman on the train involved in this accident; two, that the railroad crossing was abnormally dangerous as defined in AMI No. 1805 and, therefore, the appellant was negligent in failing to provide motorists with special warnings of approaching trains.
The accident occurred on South Jackson Road which is a curving, hard surface, twenty-foot-wide double lane road running south from El Dorado for approximately five miles where it intersects U. S. Highway No. 167. It crosses the appellant’s tracks at two points. The accident occurred at the southernmost point which was approximately one mile from the highway intersection. There the road crosses appellant’s single track at a right angle with the track running generally east and west. The appellee’s decedent approached the crossing from the north. From this direction the road is straight and level to the crossing for a distance of three-tenths of a mile. At the crossing was a single double-faced crossbuck sign, 10 to 12 feet high, with the lettering “Railroad Crossing” on the crossarms. A motorist approaching from the north could see this sign continuously for three-tenths of a mile. There was evidence that due to underbrush and trees, the driver of a southbound automobile (as was the decedent) would be within 70 feet of the crossing when the driver could first see an eastbound train (as here) 100 feet to his right. Members of the train crew ' testified that the car driven by the decedent first came into their view as it was about to enter the north end of a highway bridge approximately 226 feet from the crossing and at a time when the train was about 150 to 200 feet from the crossing. At that time the train’s warning devices, the whistle, bell, and running lights, were activated and the emergency brakes applied to stop the train which was traveling at the standard speed of approximately 35 miles per hour as it approached the crossing. It was estimated that the driver of the car was traveling at a speed of 60 to 65 miles per hour as it approached the train crossing. The car made a sudden dip as it approached, indicating a momentary application of the brakes, and then the driver accelerated his speed and veered to his left until the collision with the train at the crossing. There was evidence by the state policeman who investigated the accident that fresh and heavy skid marks existed but stopped 20 to 30 feet in front of the crossing. According to him, on the day of the accident the road was dry and vision was unimpaired by weather conditions.
The jury found no negligence on the part of Chadwick, appellant’s employee and co-defendant. On appeal the appellant contends for reversal that since Chadwick was exonerated, the trial court should have entered judgment for appellant notwithstanding the verdict and that the issue of an abnormally dangerous crossing, as defined by AMI No. 1805, was improperly submitted.
Appellee correctly states that since Chadwick was exonerated, the judgment against the appellant must stand, if permitted, upon its alleged independent negligence in failing to provide special warnings calculated to assure the traveling public the use of the crossing with reasonable safety. Chicago, R. I. & P. R. R. Co. v. Davis, Adm’r., 239 Ark. 1059, 397 S. W. 2d 360 (1965).
The appellee included in her complaint the allegation that appellant’s railroad crossing was abnorbally dangerous and, therefore, required special warnings to the public. As previously indicated, the court told the jury that the appellee “contends that the railroad grade crossing in this case was abnormally dangerous, and they have the burden of proving this proposition.” The court then proceeded to give AMI No. 1805. According to this instruction, the appellee had the burden of proving three concurrent propositions: (1) that the railroad grade crossing is frequently used by the traveling public, (2) that trains pass over it frequently, and (3) that special circumstances render the crossing so dangerous that a person could not use it with reasonable safety in the absence of special warning. In our view the appellee failed to meet the burden of proof necessary to justify this instruction.
In the instant case the direct evidence adduced as to the volume of daily automobile traffic using the crossing consisted of testimony by a state policeman and two railroad employees involved in this particular accident. The state policeman testified only that he had traveled the road several times. One of the appellant’s employees stated that he had, in the past, observed a few cars on the road and had seen traffic stopped waiting for a train. The other employee testified that after the collision he returned to the crossing to flag down passing motorists for help. He waited fifteen minutes for the ambulance without a single car coming by. This was in midafternoon.
As to the amount of train traffic, it is undisputed that a total of three trains pass this intersection daily, only one of which approaches from the same direction as the train involved here. Appellee urges that in this situation “frequent” can be taken to mean “regular.” But these three trains are not run on a set schedule and, therefore, do not cross the intersection with any particular regularity. The only “regular” occurrence is the passing of three trains per day, and this clearly is not “frequent.” The state policeman testified: “Well, I’ve been across it several times at this crossing. I think maybe I’ve seen a train on it two or three times. I didn’t have any trouble.” There was evidence that the decedent was familiar with this crossing. About two months before the accident he was observed at this crossing where he had parked his vehicle and was walking in the vicinity. This testimony by the investigating officer was undisputed.
The appellant maintained a crossbuck sign, al though deficient as to the lettering and size of the lettering as required by Ark. Stat. Ann. § 73-717 (Repl. 1957), which was plainly visible continuously for three-tenths of a mile from the direction in which the decedent was traveling. The purpose of a crossbuck sign is simply to give notice of an upcoming crossing. With regard to the sign, statutory deficiency is merely evidence of negligence which must be shown to be a proximate cause of the alleged injuries. Russell v. Missouri Pac. R. R. Co., 237 Ark. 812, 376 S. W. 2d 545 (1964). Such proximate cause was not demonstrated in the case at bar.
However, here we are concerned with whether conditions at the crossing required “special warnings,” the purpose of which is to alert motorists to approaching trains when an abnormally dangerous crossing exists as defined by AMI No. 1805. It appears that in three cases we have approved the “abnormally dangerous crossing” issue as presently defined in AMI No. 1805. In Hawkins v. Missouri Pac. R. R. Co., 217 Ark. 42, 228 S. W. 2d 642 (1950), it was noted that the accident occurred “on a principal street in the business section of a good-sized city.” In both St. Louis Southwestern Ry. Co. v. Farrell, Adm’x., 242 Ark. 757, 416 S. W. 2d 334 (1967), and St. Louis Southwestern Ry. Co. v. Jackson, Adm’r., 242 Ark. 858, 416 S. W. 2d 273 (1967), traffic counts established that between one and two thousand automobiles, and more than sixteen trains passed the respective intersection each day. There was other evidence in each of these three cases which combined to create an abnormally dangerous crossing situation. See, also, Chicago, R. I. & P. R. R. Co. v. Kinard, 299 F. 2d 829 (8th Cir. 1962).
In applying these cases to the. case at bar, the appellee’s evidence, when viewed most favorably, was insubstantial and insufficient to meet the burden of proof to establish the required elements that constitute an “abnormally dangerous crossing” as defined by AMI No. 1805. It follows that appellant’s motion for a judgment notwithstanding the verdict should have been granted when the jury absolved Dennis Chadwick, appellant’s employee and co-defendant, of any negligence.
Reversed and dismissed. | [
-16,
110,
-108,
-66,
-70,
96,
26,
-102,
97,
-31,
-27,
-45,
-113,
-61,
-103,
39,
-25,
45,
-15,
43,
-10,
-77,
87,
-93,
-45,
-109,
35,
-57,
-106,
74,
110,
-41,
77,
32,
74,
85,
102,
74,
69,
24,
-50,
4,
-85,
96,
27,
16,
-80,
126,
-108,
15,
113,
-114,
-37,
42,
24,
-23,
44,
40,
123,
-88,
-64,
48,
-126,
5,
82,
18,
-95,
38,
-70,
39,
72,
25,
-40,
-107,
24,
-72,
115,
-90,
-109,
-42,
97,
-7,
0,
-30,
102,
33,
21,
-89,
-19,
24,
14,
122,
15,
-25,
30,
16,
89,
6,
-105,
-99,
84,
21,
22,
-8,
-4,
77,
89,
32,
-128,
-53,
-108,
-111,
-33,
38,
-44,
67,
-53,
13,
50,
117,
-56,
-30,
92,
7,
122,
31,
-97,
-106
] |
Subsets and Splits
No community queries yet
The top public SQL queries from the community will appear here once available.