text
stringlengths 8
185k
| embeddings
sequencelengths 128
128
|
|---|---|
Lyle Brown, Justice.
Joe Neal and wife were formally charged, tried, and convicted in the Arkadelphia Municipal Court with willfully violating Ark. Stat. Ann. § 41-1431 (Repl. 1964), titled “Creating Disturbance on School Property.” The charges stemmed from their activities on the campus of Henderson State College. The pertinent point on appeal here is that the statute is unconstitutional.
An appeal to the circuit court was not perfected. Appellants filed in that court a petition which named the municipal judge, Hon. J. E. Still, as the respondent. The petition was styled, “Petition for Certiorari, Petition for Writ of Coram Nobis, and Petition for Writ of Prohibition.” The circuit court granted die petition for certiorari -and after deleting that part of the sentence which was admittedly objectionable, denied -any other relief. That amendment left each appellant with a fine of $500. The part of § 41-1431 which is relevant to this appeal reads:
Any person who shall enter upon any public school-property, school cafeteria,' ... in the State of Arkansas, and while therein or thereon shall create- a disturbance, or a breach of the peace, in any way whatsoever, including, but- not restricted to, loud and offensive talk, the making of threats or attempting to intimidate, or any other conduct which causes a disturbance or breach of the peace or threatened breach of the peace, shall be guilty of a misdemeanor, and upon conviction thereof shall be fined not more than five hundred dollars ($500.00) or imprisoned in jail not more than six [6] months, or both such fine and imprisonment.
Appellants contend the statute is “void in that it is vague and overbroad in violation of the fourteenth amendment and productive of a chilling effect on the exercise of rights protected by the first amendment to the Constitution of the United States.”
A legislative act is unconstitutionally vague which imposes criminal sanction for the doing of- an act, and that act is so nebulously described as to require men of common intelligence to guess at its meaning. Winters v. New York, 333 U. S. 507 (1948). We presume an act of the Legislature to be constitutional and must so hold unless it is clearly incompatible with the Cons titu don; any doubt is resolved in favor of constitutionality. Walden v. Hart, 243 Ark. 650, 420 S. W. 2d 868 (1967). In light of the stated principles we examine and resolve appellants’ contention.
It is difficult to conceive of language more vague than that which declares one a law violator when he “creates” a disturbance or breach of the peace “in any way-whatsoever.” The same is true of language whicb makes it a misdemeanor to use “offensive talk.” Then_ we find a prohibition against “attempting to intirrtfdate,” which is about as vague as one can imagine. Finally, we find in the forbidden category “any other conduct which causes a . . . threatened breach of the peace.” We have no hesitancy in concluding that men of common intelligence would have to guess as to what conduct is proscribed by those phrases.
The United States Supreme Court has considered, and unfavorably, a host of -cases involving phraseology similar to that with which we are concerned. In Ashton v. Kentucky, 384 U. S. 195 (1966), there was a conviction for an offense described as “any writing calculated to create disturbances of the peace.” The Court held that language to be so indefinite and uncertain as to be unconstitutionally vague. In Cantwell v. Connecticut, 310 U. S. 296 (1940), the charge of “inciting a breach of the peace” was condemned as being of general and indefinite character. In Terminello v. Chicago, 337 U. S. 1 (1949), an ordinance which as construed punished an utterance as a breach of the peace “if it stirs the public to anger, invites dispute, brings about a condition of unrest, or creates a disturbance.” It was held unconstitutional. For other cases in which convictions for breaches of the peace were reversed because the offenses were imprecisely defined, see Edwards v. South Carolina, 372 U. S. 229 (1963), and Cox v. Louisiana, 379 U. S. 536 (1965). In Ashton the Court said:
“Here ... we deal with First Amendment rights. Vague laws in any area suffer a constitutional infirmity. When First Amendment rights are involved, we look even more closely lest, under the guise of regulating conduct that is reachable by the police power, freedom of speech or of the press suffer.”
The indefiniteness of penal laws is the subject of a recent annotation in 16 L. Ed. 2d, p. 1231.
This brings us to the question of whether the entire § 41-1431 must fall because of the unconstitutionally vague portions. The different parts of the section are so mutually connected and interwoven as to lead us to believe that the Legislature intended them as a whole. The entire section consists of one sentence. In fact, when the impermissive words and phrases are deleted there remains hardly a skeletal sketch of a section with which to deal. We are further persuaded in that view because any permissible portions of the section are duplicated in misdemeanor statutes of long standing.
It is our conclusion that § 41-1431 should be, and is hereby, declared unconstitutional in its entirety.
Reversed and dismissed.
Fogleman and Jones, JJ., dissent. | [
-80,
-22,
-47,
62,
11,
-31,
26,
-66,
115,
-79,
-29,
83,
-21,
-43,
4,
113,
-13,
111,
117,
105,
-52,
-74,
99,
64,
-78,
-5,
-37,
-43,
-77,
-49,
-27,
-1,
8,
116,
-30,
85,
-122,
-54,
-19,
-44,
-114,
35,
-120,
101,
81,
-64,
48,
43,
82,
15,
49,
-113,
-13,
44,
24,
67,
-23,
44,
91,
45,
67,
-103,
-100,
29,
-49,
22,
-79,
-89,
30,
-127,
96,
57,
-100,
17,
1,
-24,
115,
-92,
2,
116,
79,
-119,
9,
-32,
98,
-120,
41,
-41,
-88,
-120,
6,
31,
-67,
-90,
-110,
73,
74,
37,
-98,
-105,
112,
-112,
15,
122,
99,
-44,
120,
108,
12,
-50,
-108,
-73,
-115,
104,
-106,
-46,
-29,
35,
48,
69,
-57,
-90,
94,
71,
51,
27,
78,
-75
] |
John A. Fogleman, Justice.
Appellees are the personal representatives of the driver and three passengers of a Plymouth automobile who died as the result of a mishap which occurred on Interstate Highway BO in Saline County at about 11:45 p.m. on June 4, 1968. They brought wrongful death actions against appellant Lloyd F. Prickett, Prickett Dairy, Inc., E. W. Prickett, Texas Tool Traders and Eulogio B. Gonzales, Jr. Trial of the consolidated actions resulted in a judgment for appellees against Lloyd F. Prickett only, and he brings the direct appeal. As his only point for reversal, he contends that the uncontradicted evidence shows that he was guilty of no negligence which was a proximate cause of the deaths. We do not agree.
There seems little doubt that the chain of events resulting in the unfortunate deaths of four young people originated because of the presence of a brown and white spotted horse, or pony, in the lanes provided for southbound traffic on this divided, controlled-access highway. The vehicle in which appellees’ decedents were riding was being driven by Bradley Maxey in a southerly direction on the highway in the lanes provided for vehicles traveling in that direction. The circumstances clearly indicate that this horse or pony was struck by this Plymouth automobile and that the automobile then careened at an angle across the median, entered the northbound traffic lanes on the opposite side and collided with a tractor-trailer owned by Texas Tool Traders and driven by Gonzales. The issues as to liability of appellant and E. W. Prickett were limited by a pretrial order, entered without objection, to the sole question whether they were guilty of negligence for violation of Ark. Stat. Ann. § 41-430 (Repl. 1964). The gist of appellant’s argument is that there was no substantial evidence that he was the owner of the horse or that he was guilty of any negligence in allowing it to be on the highway.
One Roy Bishop testified that he sold the pony in question to Beecher Bullock, Lloyd Prickett’s father-in-law, who purchased it for the use of Prickett’s son; David. Lloyd Prickett testified that Bullock had given the pony to David about two years before this occurrence, when the lad was nine years of age. Appellant admitted that the gift was accepted both by him and his son. From this time until two weeks before the collision, the pony was kept in a pasture around Lloyd Prickett’s house. According to appellant, David looked after the pony for the most part, but both father and son fed and cared for it. Feed for the pony was bought by Lloyd Prickett and Bullock but not by David. Lloyd Prickett paid to have the horse shod. Appellant knew that this pony and another had escaped from the Lloyd Prickett pasture at least three times over a period of one year. The third time was on a Sunday about two weeks before the incident resulting in these deaths. When appellant returned to his home that Sunday after noon, he saw boards off the pasture fence and immediately called his father, E. W. Prickett, to ascertain whether these ponies had escaped from the pasture. E. W. Prickett replied that they had gotten out and crossed the “freeway” and that he had put them in his own five-acre pasture on the opposite side of the highway from Lloyd’s pasture. Thereafter, the ponies were kept in E. W. Prickett’s pasture, but Lloyd Prickett never made any physical inspection of the fences or condition of the wire around this pasture bordering the busy highway.
In answer to inquiries on cross-examination as to the extent of his control over the animal, Lloyd Prickett stated that he felt sure that he could do anything he felt like he wanted to, like selling it, and get away with it. E. W. Prickett called his son Lloyd when he found the ponies were out. Lloyd Prickett was first notified of the tragic disaster, from which the deaths of these victims arose, by his brother-in-law, who heard the collision, went to the scene and called appellant.
We agree with appellant that only the “owner” of livestock at large upon a public highway may be held liable for damages resulting. Even though Ark. Stat. Ann. § 41-430 (Repl. 1964) is a penal statute to be strictly construed in favor of one against whom it is asserted, the word “owner” therein does not have the very narrow meaning appellant would have us give it. We have previously held that even in a statute of this nature the word “owner” should not be construed in a technical sense, but in a popular one. See Bush v. State, 128 Ark. 448, 194 S. W. 857. There we relied upon and quoted from a Pennsylvania case in which the statute involved required owners of certain buildings to proyide fire escapes. Yet, in a suit against a tenant, who leased a building, for damages resulting from the failure to provide a fire escape, it was held that the tenant was an “owner” in the sense of the statute. We applied that precedent in holding that a receiver of a railroad corporation, or anyone operating it came within the purview of the words “the corporation owning a railroad” in a penal statute requiring the giving of signals by trains approaching crossings. In arriving at this conclusion, we were greatly influenced by the obvious design of the legislature in enacting that law to protect travelers against accidents that might occur at railroad crossings were the signals not given. In this case, the obvious design of the General Assembly was to afford a similar measure of protection to travelers upon our highways.
We have also said that the word “owner” in an act subjecting an “owner” to civil and penal consequences for intentionally or negligently permitting his animals to run at large, includes one who has the right of immediate possession and control, and to exclude the one holding absolute title but not having such rights at the critical time. Fraser v. Hawkins, 137 Ark. 214, 208 S. W. 296. We once recognized that circumstances might exist under which a parent might exercise a certain degree of control over a slave given his child. Dodd v. McGraw, 8 Ark. 83, 46 Am. Dec. 301. Certainly we should not say as a matter of law that a parent may not, under any circumstances, have any control over an animal given his minor child.
When we consider the legislative purpose in enacting the statute in question here, w;e think it clear that the word “owner” therein was intended to encompass a father who actually had the right of control of an animal given to his minor son. Even though we doubt appellant’s legal authority to sell his son’s pony without court authorization, we find the evidence stated above sufficient to pose to the jury the question whether appellant was an owner of the pony in the sense that he had a right of dominion and control over it.
Appellant also argues that, even though this pony was on the highway outside the enclosure in which he was kept, there was no evidence of negligence on his part. Of course, violation of the statute is itself evidence of negligence to be considered along with other facts and circumstances. Rogers v. Stillman, 223 Ark. 779, 268 S. W. 2d 614. It then becomes necessary to determine whether there was substantial evidence that appellant allowed the pony to run at large on the. highway. We find such evidence.
Appellant knew that this pony and another kept with him had escaped three times. On at least one of these occasions it seemed to him that the animals had kicked boards off the fence enclosing the pasture where they were then kept. After these ponies were taken up by E. W. Prickett, appellant made no effort to determine whether the fences and gates enclosing the pasture where they were kept thereafter were adequate to confine them. Trooper Ronnie Burk,- who arrived at the scene soon after the occurrence, investigated the enclosures. Looking along the fence of the pasture where the Prickett boy’s pony was kept, he saw fresh manure at a point where the fence line crossed a creek. He also found fresh hoof marks both inside and outside the fence near the creek and fence. The bottom strand of this barbed wire fence struck the officer at a height two inches below his belt. If he had stepped into the creek to make his measurement the wire would have struck a higher point on his body. He described the wire as being extremely loose and without supporting posts for quite a distance at the creek. He found the first post west of the creek either broken off or rotted off at the ground, so that it did not keep the wire taut even though the wire was nailed to it. He described the whole fence line as having been in poor condition, with posts rotted off at the ground and the barbed wire extremely loose. He said that two or three strands of the wire were not even nailed to the post at one point.
Trooper Frank Mitchell, who arrived later and assisted in the investigation, found the pasture fence in a bad state of repair in the area near the creek. He found the wire loose and a strand broken at the creek. He described the post near the creek as broken or rotted off at the ground so that it was hanging on the wire. He estimated the height of the lowest wire on this post as “waist high” and said that the wire was higher off the ground than the pony would have been if it were standing.
The word “allow” in the sense it is used in this statute means “to permit by neglecting to restrain or prevent.” Webster’s Third New International Dictionary. The evidence was sufficient to support a finding by the jury that the Prickett pony escaped from the pasture because appellant was negligent in failing to observe that the fence was in a bad state of repair and to take reasonable precautions to prevent the escape. See Lavender v. Southern Farmers’ Association, 246 Ark. 762, 440 S. W. 2d 241.
Appellant also argues that we should reverse the judgment against him because the jury found that the fence was in good condition, that the horses did not escape because of any defect therein and that E. W. Prickett was not guilty of any negligence, by its verdict in his favor. Of course, this is not a case where the liability of either E. W. Prickett or Lloyd F. Prickett is dependent upon the liability of the other. Inconsistent verdicts are not grounds for reversal in a case like this. An alleged joint tortfeasor held liable cannot complain because the verdict was not against all the wrongdoers. Fireman’s Insurance Co. v. Jones, 245 Ark. 179, 431 S. W. 2d 728; Patterson v. Risher, 143 Ark. 376, 221 S. W. 468; Roach v. Rector, 93 Ark. 521, 123 S. W. 399; Harris v. Preston, 10 Ark. 201. Actually, the jury was instructed, without objection, that each defendant’s case would be decided as if it were a separate lawsuit. Furthermore, the jury may well have found that E. W. Prickett did not have such custody and control of the animal as to constitute him to be an owner in the sense of § 41-430, if in fact there was sufficient evidence to raise a jury question in this regard. So far as this record discloses, he did nothing except take up the ponies when he found them out, advise appellant, and subsequently allow the ponies to be kept in his pasture as an accommodation.
As a matter of fact, appellees on cross-appeal argue for reversal of the judgment in favor of E. W. Prickett on the sole ground that the court should have given their requested instruction which would have permitted recovery against both Pricketts on the basis of res ipsa loquitur. We have never applied that doctrine under the statute in a case such as this. Actually, we have held that the presence upon the highway of animals which had escaped from a pasture in the nighttime did not even constitute prima facie evidence of negligence. Favre v. Medlock, 212 Ark. 911, 208 S. W. 2d 439. Their argument, based upon one decision in a foreign jurisdiction, that we should adopt the “modern trend” and make the doctrine applicable here, is not found persuasive. It is sufficient, however, to say that the complaints were not based upon application of res ipsa loquitur, and that the pretrial order limited the issue to determination whether there was negligence in violation of Ark. Stat. Ann. § 41-430, without any objection on the part of appellees. It is clear from the record that the theory of res ipsa loquitur was first suggestéd when appellees’ requested instruction No. 21 was offered. Furthermore, the doctrine could not have applied to E. W. Prickett, because the evidence clearly shows that he never exercised the requisite exclusive control over the animal. See Bullington v. Farmer's Tractor & Implement Co., 230 Ark. 783, 324 S. W. 2d 517.
Appellees also contend that the court erred in directing a verdict in favor of Eulogio B. Gonzales, Jr., and Texas Tool Traders. Even giving the evidence its strongest probative force in favor of appellees, we find no error in this respect. Gonzales was driving the Texas Tool Traders tractor-trailer in his proper lane in a lawful manner. He was proceeding northwardly on the inside lane of a 24-foot concrete slab separated by a 40-foot median from the southbound lanes on which the Maxey Plymouth was proceeding. The total distance between the concrete slabs was 61' 6". After the Plymouth struck the pony, it traveled 253 feet at an angle across the median into the path of the truck driven by Gonzales in the northbound traffic lanes.
According to Gonzales, he saw a white object in the southbound lanes and a sudden flash. Immediately the white object came across the median toward his projected path of travel at a high rate of speed. When he became aware that this object, which he then realized was an automobile, was coming into his line of travel, he swerved his vehicle sharply to his right and reached for his brakes. The brakes on the truck had not taken effect at the moment of the impact. Gonzales said that only a split second elapsed between the time he saw that the Maxey vehicle was headed toward him and the collision. The object approaching him had no headlights, and it appeared to him that lights on the object disappeared when he saw the flash. The major impact of the collision was on the right front of his tractor, but both front wheels were damaged. The police officer testified that the left front wheel was damaged by efforts to stop the truck. Apparently the full impact of the collision was on the driver’s right-hand side of the Plymouth. Gonzales testified that the impact destroyed the braking system on the truck. Certainly, it cannot be said that a driver traveling in a proper lane in a lawful manner on a divided highway should constantly maintain a lookout for vehicles suddenly projected across a 40-foot median into his path of travel. He had a right to assume that vehicles proceeding in the opposite direction would not cross into his lane of travel. We cannot say that there is any evidence that Gonzales did anything he should not have done or failed to do anything he should have done or that any act or omission on his part con tributed to the cause of this tragic collision. In the absence of proof of facts, or evidence from which reasonable inferences might be drawn, to establish substantial evidence that Gonzales was guilty of any negligence which was the proximate cause of the collision causing the deaths of appellees’ decedents, a verdict was properly directed. Steinberg v. Ray, 236 Ark. 569, 367 S. W. 2d 445.
The judgment is affirmed in all respects.
This statute reads: "After the passage of this Act it shall be unlawful for owners of cattle, horses, mules, hogs, sheep, or goats to allow them to run at large along or on any public highway in the State of Arkansas.”
For other cases in which we have held that the word "owner” in a penal statute has a meaning broader than its most restricted technical sense, see Hood v. State, 206 Ark. 900, 175 S. W. 2d 205; Arnett v. State, 188 Ark. 1106, 70 S. W. 2d 38; Chicago, R. I. & P. Ry. Co. v. State, 84 Ark. 409, 106 S. W. 199.
Mercer v. Bryons, 200 F. 2d 284 (1st Cir. 1952). Other jurisdictions have refused to apply the doctrine, e. g., see Wilson v. Rule, 169 Kan. 296, 219 P. 2d 690 (1950); Abbott v. Howard, 169 Kan. 305, 219 P. 2d 696 (1950); Gardner v. Black, 217 N. C. 573, 9 S. E. 2d 10 (1940); Rice v. Turner, 191 Va. 601, 62 S. E. 2d 24 (1950). | [
112,
108,
-44,
-84,
11,
-32,
58,
10,
-57,
-83,
117,
83,
-17,
-61,
69,
53,
-18,
45,
-43,
42,
-11,
-77,
87,
-16,
-110,
-37,
121,
77,
-111,
75,
-26,
-9,
76,
48,
-54,
85,
-58,
10,
-59,
92,
-50,
0,
26,
100,
25,
-110,
56,
120,
54,
79,
33,
-114,
-29,
42,
28,
71,
109,
46,
123,
45,
-63,
113,
-86,
5,
95,
6,
51,
6,
-97,
-127,
-8,
58,
-112,
49,
48,
-8,
114,
-90,
-110,
-44,
105,
-103,
12,
-30,
103,
33,
24,
-51,
60,
-120,
14,
-2,
31,
-89,
-106,
113,
11,
11,
-97,
29,
58,
82,
13,
126,
-35,
-59,
94,
-24,
-125,
-50,
-108,
-95,
-27,
52,
-108,
41,
-29,
-91,
18,
113,
-53,
-30,
85,
69,
54,
-101,
7,
-78
] |
George Rose Smith, Justice.
This is a workmen’s compensation case in which the claimant asserts that he sustained a back injury while working for the appellant on December 18, 1964. Both the referee and the commission denied the claim upon the ground that the proof did not establish the occurrence of an accidental injury in the course of the claimant’s employment. This appeal is from a judgment of the circuit court reversing the commission’s decision.
We find the testimony to be in such conflict that a decision either way by the commission -would be supported by substantial evidence. At the time of the asserted injury the claimant was one of a crew of carpenters engaged in roofing a small church at Gould. McFalls testified that he hurt his back while he was pulling up a two-by-six timber, sixteen to twenty feet long, which was being handed up by another workman below. Several of the claimant’s coworkers testified that they heard him say that he had hurt his back, but there is hardly any proof that they observed any indication of an injury other than hearing McFall’s statement.
Other evidence leaves the occurrence open to doubt. McFalls continued to work that afternoon and lost hardly any time from work during the following two months. He did not consult his doctor about the asserted injury until about ten days later. That physician had treated McFalls for pain in his back in 1957, 1958, 1961, and 1963, preceding the alleged injury in 1964. The doctor, with respect to the claimant’s visit some ten days after the accident, stated that he had no recollection of McFall’s having mentioned any cause for his condition, nor had the doctor made a notation of such a statement.
McFalls apparently waited for some time before reporting the asserted injury to his employer. He testified that he at once told his foreman, who was his brother, about the accident, but the brother was not offered as a witness. McFalls also testified that he reported the in jury to the employer’s managing partner some two months later, but that witness stated that he knew nothing of the injury until the following June. With the substantial evidence in such conflict we have no choice except to sustain the commission’s decision. Reynolds Mining Co. v. Raper, 245 Ark. 749, 434 S. W. 2d 304 (1968).
The circuit court judgment is reversed.
Harris, C. J., not participating. | [
-80,
122,
-88,
-116,
56,
97,
42,
122,
105,
7,
-75,
115,
-3,
-124,
13,
103,
-29,
127,
-47,
35,
-34,
-77,
22,
75,
-14,
-9,
115,
-59,
-79,
79,
-92,
80,
77,
48,
-118,
-43,
-30,
-118,
-51,
30,
-122,
-114,
-87,
-19,
89,
80,
120,
110,
-48,
95,
49,
-98,
126,
42,
28,
-17,
41,
40,
79,
40,
-63,
-15,
-126,
13,
125,
16,
-95,
70,
30,
15,
88,
28,
-40,
-79,
32,
-116,
112,
-74,
-126,
-43,
57,
-71,
12,
96,
98,
33,
-99,
-27,
104,
-8,
14,
22,
-35,
-91,
-78,
40,
41,
13,
-66,
-79,
114,
20,
44,
124,
-28,
93,
29,
40,
11,
-113,
-106,
-78,
15,
32,
-100,
-125,
-13,
-113,
54,
113,
-52,
-78,
92,
71,
115,
-101,
23,
-104
] |
J. Fred Jones, Justice.
This is an appeal by John A. McKnight from a judgment of the White County Circuit Court in favor of John H. Bellamy, Jr. in a suit brought by Bellamy against McKnight for the return of the purchase price of a mare which McKnight sold and Bellamy purchased at an auction sale.
John A. McKnight, doing business as Meadowland Quarter Horse Ranch, breeds registered quarter horses and sells them at public auction. In advance of the auction, and in preparation therefor, the history and credentials, including blood lines and descriptions of the animals to be sold, are published in catalogue, or booklet form, and the booklets are distributed among prospective purchasers of quarter horses. At an auction sale held on November 27, 1965, one of the McKnight mares to be sold was “Holiday Dandy” and as to her, the booklet stated: “1966 Sells bred to Silver Light 14,-398 by Show Boy.” John H. Bellamy, Jr. farms and raises quarter horses. He attended the auction on November 27, 1965, for the purpose of purchasing a brood mare, and relying on the information contained in the booklet, he bid and paid the sum of $575 for the mare, “Holiday Dandy,” believing her to be in foal by the registered stallion, “Silver Light.”
The record reveals a custom in the horse auction business and one announced and followed by McKnight, that when a mare is sold under the representation that she had been bred, such representation conveys a reason able assumption that the mare is pregnant or in foal. If it should develop following the sale, that a mare which has been sold as a bred mare is not actually in foal, then the purchaser has “return privileges.” He may return the mare to the seller’s ranch for the purpose of being rebred, and in such event, the purchaser is entitled to select any stallion on the seller’s ranch to which the mare may be rebred.
Two days after Bellamy purchased and paid for the mare, he learned that she was not in foal and on December 11, 1965, he returned her to McKnight’s ranch to be rebred. Bellamy heard nothing further from the McKnight ranch until on March 8, 1966, Bellamy was advised by McKnight’s ranch manager that the mare had died on March 3. Bellamy filed suit in the White County Circuit Court for damages in the loss of the mare because of McKnight’s negligence and for the return of the purchase price because of breach of warranty. The trial court, sitting as a jury, rendered judgment in favor of Bellamy for $575. On appeal to this court McKnight relies on the following points for reversal:
“The risk of loss shifted to the buyer at the time of the sale.
That there was no evidence that the appellee sustained any damages.”
Mr. McKnight contends that the Uniform Commercial Code sustains his oosition. He cites Ark. Stat. Ann. § 85-2-519 (Add. 1961 j as authority for his first point, and § ’85-2-714 (2) as authority for his second. We are of the opinion that neither section is an aid to Mr. McKnight’s position under the facts of this case. In citing § 85-2-519, Mr. McKnight quotes from § 85-2-510(1). This latter section was obviously intended and it reads as follows:
“Where a tender or delivery of goods so fails to conform to the contract as to give a right of re jection the risk of their loss remains on the seller until cure or acceptance.”
When this section of the Code is applied to the facts in this case, it is in aid of affirmance, rather than reversal, of the judgment of the trial court.
In his complaint, as amended, Bellamy alleged breach of warranty, and also McKnight’s negligence, as a cause of the mare’s death. There was substantial evidence from which the trial court could have rendered the judgment it did on either count. There is ample evidence that Bellamy purchased the mare for a brood mare and that McKnight’s agents represented the mare as being bred to Silver Light and led Bellamy to believe that the mare was in foal. The evidence is also clear that the mare was not in foal when she was purchased by Bellamy and that McKnight’s agents and employees knew she was not in foal at the time she was sold to Bellamy under misleading representations.
R. T. Nelson was an employee of McKnight in charge of the mares in pasture. Mr. Albritton was the ranch manager in charge of the entire operation, and Mr. Donald Gray was a trainer for McKnight and assisted in grooming and showing the animals at the auction sales. The only evidence that the mare purchased by Bellamy was ever bred to Silver Light, as represented in the booklets and at the sale, came from the testimony of R. T. Nelson who testified that the mare ran in the pasture with Silver Light and that he witnessed coverage on two occasions during the summer prior to the sale.
“Q. Do you recall the date, approximate date that you last saw Silver Light cover this mare?
A. Well, no, sir; it was in the summer time when he had them running in the pasture there together.”
Donald Gray knew more about the entire transaction than anyone else who testified, and he testified as follows:
“A. I told Mr. Albritton approximately three days before the sale that we had found this mare in heat, which would definitely indicate she was not bred or in foal.
Q. Now, what is the practice when you find that one of these mares has not ‘taken’ or is not in foal, or if you get evidence she was in heat before a sale?
A. The policy, if your catalogue is already printed, which in this case it was, this should have been brought to the attention of the prospective buyers in the ring before the mare was sold.
Q. In other words, when the horse is run through the ring, if you have knowledge to this effect you announce that condition is out?
A. Yes, sir.
Q. Was this done on that particular day?
A. No, sir, not on this mare."
There is no evidence that the mare was ever bred again after she was returned to the McKnight ranch on December 11, 1965, but there is substantial evidence from which the court could have found that it was through the negligence of McKnight’s agents and employees that the mare died on March 3 from sheer lack of proper veterinary medical attention. In this connection Mr. Gray testified:
“Q. Do you recall anything after this mare was sold, concerning this particular mare?
A. Well, in a very short time the mare reappeared at the ranch, was said not to be in foal, and was going to be rebred to one of the farm stallions; the mare was placed in a pasture with some of the company mares, and when I say company I mean Mr. McKnight’s mares, in the pasture with them; that was, oh, approximately sometime in December; now, through the month of December and into January this mare, she continued to fall off in weight, and the mare’s looks just weren’t what they should be; I reported this to Mr. Albritton, and about the 15th of February or 1st of March she was brought into the sick pen, mares that had various and sundry ailments, old mares that just weren’t doing as well as they should have been.
Q. Was it your responsibility to take care of the horse?
A. Just the mares in the pasture; I was required to see and report to Mr. Albritton every day.
Q. If there was something wrong with the mare you were to call it to their attention?
A. Yes, sir.
Q. Have you had quite a bit of experience in dealing with animals like this?
A. Yes, sir.
Q. When the condition of the horse came to your attention, in your opinion what should have been done?
A. In my opinion the mare should immediately have had a veterinarian’s attention.
Q. Did it get a veterinarian’s attention?
A. Not immediately.
Q. Did you call the condition of the mare to the attention of Mr. Albritton?
A. Yes, sir.
Q. Do you recall how long it was before the mare got a veterinarian’s attention?
A. Approximately two to three weeks.
Q. Do you recall what finally happened to the mare?
A. One morning we found her down; in other words, she was on the ground and unable to rise; then we, with the help of about four men, we got the mare up, put her in the stall, and then the veterinarian was summoned.
Q. And she died?
A. Yes, sir.”
Mr. McKnight testified as follows:
“Q- When you learn, Mr. McKnight, before an auction that a breeding has not taken, or that you learn positively one is not in foal, do you ordinarily announce that in the ring, or do you make the change in the advertisement?
A. Certainly if I had known the mare was not in foal I would have said something about it, yes.
Q. Isn’t this the custom in the ring when you know it?
A. I wouldn’t say it is the custom; yes, a man should do it if he knows it, certainly.
Q. Otherwise the people buy it believing it has been bred • to this particular horse?
A. That is correct. . .
# *
Q. ... [W]hen the representation was made that the mare had been bred to Silver Light, what does that mean?
A. Bred and supposedly in foal to the Silver Light Horse.
Q. It is not guaranteed?
A. To the extent that , they have the return privileges to breed the mare again the next season.” '
In viewing the evidence in the light most - favorable to the appellee, as we are required to do, there is substantial evidence in the record before us from which the court could have found a flagrant breach of an express warranty bordering on fraud in the sale of the mare in this case. The trial court would have been justified in finding that McKnight’s agents represented that the mare was bred with the full knowledge and intent that buyers would assume that the mare was in foal, when as a matter of fact the mare was not in foal and the seller knew she was not in foal when the representation was made but did not reveal this knowledge at the sale. As a matter of fact the only evidence that the mare had been bred at all was the testimony of Nelson as to such pasture occurrence in the summer prior to the sale in November 27, 1965, and in the light of Mr. Gray’s testimony as to the breeding cycles of open mares, it would appear incredible that McKnight’s ranch manager and agents would have believed the mare in foal at the time of her sale on November 27, 1965.
There is also substantial evidence from which the court could have found that McKnight’s delay in calling a veterinarian upon learning the mare was ill, con stituted negligence which was a proximate cause of the mare’s death. In any event we conclude that there is substantial evidence to support the judgment of the trial court and that the judgment should be affirmed.
Affirmed.
Apparently referring to § 85-2-510(1). | [
112,
100,
-103,
108,
56,
-32,
34,
-98,
66,
-125,
54,
23,
9,
-126,
20,
123,
-29,
109,
69,
101,
-62,
-78,
87,
-30,
-109,
-45,
-63,
-33,
117,
77,
-28,
67,
73,
48,
-118,
21,
-46,
-94,
-55,
88,
-106,
97,
63,
-51,
57,
72,
52,
123,
17,
105,
33,
46,
-117,
36,
31,
127,
105,
14,
127,
41,
-127,
-16,
-69,
13,
127,
6,
2,
118,
-74,
33,
-40,
-82,
-104,
48,
16,
-55,
90,
-92,
-34,
-12,
9,
-119,
40,
38,
-17,
9,
77,
-51,
104,
-68,
47,
127,
-115,
-89,
-62,
88,
34,
99,
-106,
-99,
120,
0,
-89,
124,
-30,
-107,
28,
-96,
19,
-50,
-106,
-93,
-18,
110,
-104,
14,
-1,
-73,
19,
113,
125,
-30,
116,
82,
48,
-101,
-122,
118
] |
J. Fred Jones, Justice.
This is an appeal by Tim Bowden from a judgment of the Pope County Circuit Court, affirming an order of the county court, laying out and establishing a private road for David and Bill Oates over Bowden’s land.
David and Bill Oates are co-owners of land in the Northeast Quarter of Section 8, Township 7 North, Range 19 West in Pope County. The appellant Bowden owns the west half, and a Mr. Yarbrough owns the east half, of the east one-half of Section 5 immediately north of the Oates property. A county road runs east and west along the north boundary line of the Bowden and Yarbrough properties in Section 5. The south boundary line of the Bowden and Yarbrough properties forms the north boundary line of the Oates property, and this line is one mile south of the county road.
David Oates filed a petition in the Pope County Court under authority of Ark Stat. Ann. § 76r110 (Repl. 1957), for the laying out and establishment of a private road over adjacent lands from the county road to his own land. The sufficiency of the petition and the procedure followed under it, and under the statute, are not specifically questioned here, but Mr. Bowden contends that the case should be remanded to the circuit court for a new trial and he relies on the following point for reversal:
“The order of the county court was not in accordance with the report of the viewers and the judg ment of the circuit court is not in accordance with the report of the viewers and in fact the viewers report is so vague that a valid order could not be entered thereon.”
We agree with the appellant that this case should be remanded for a new trial. The statutory procedure for establishing a private road through lands of another is set out in Ark. Stat. Ann. § 76-110 (Repl. 1957) as follows:
“When the lands, dwelling house or plantation of any person is so situated as to render it necessary for the owner thereof to have a private road from such lands, dwelling house or plantation to any public road or navigable watercourse over the lands of any other person, and such person shall refuse to allow such owner such private road, it shall be the duty of the county court, on the petition of such owner, and it appearing that he hath given to such, person twenty [20] days’ notice of such intended application, and that it is necessary for petitioner to have such private road, and that said person will not allow the same, and on said petitioner having first deposited with the clerk of said court a sum of money sufficient to pay all costs and expenses accruing on account of said petition, notice, view and survey of said private road, to appoint the viewers to lay off said road. Such viewers shall take the same oath, and shall be governed in all respects as viewers appointed to public roads are governed under this act. They shall examine the route proposed for such road, and any other route which they may deem proper, and; if they or a majority of them, shall be of opinion that a private road is necessary and proper, as prayed in the petition, they shall lay out the same in such manner as to produce the least inconvenience to the parties through whose land the same shall pass, and shall make a written report to the county court, describing the route of the road and the land through which the same shall pass, naming the owner thereof, if known, and the damages* sustained by each owner of lands through which such road passes, which damages shall include the value of the land of each owner sought to be appropriated. Such report shall be recorded on the records of said county court.” ^
The order for the establishment of a private road is provided for by Ark. Stat. Ann. § 76-111 (Repl. 1957) which reads as follows:
“If, upon the return of the viewers, the Court shall be of the opinion that it is necessary for the petitioner(s) to have said road from his said lands, dwelling house, or plantation, to said public road, or navigable water course, and said petitioner shall pay all costs and expenses, accruing on account of said petition for such private road, and all things relating thereto and following therefrom, including, the view and survey of said road and said damages sustained by each owner of the lands over which such road passes, an order shall be made establishing the same as a private road not exceeding thirty (30) feet wide, and the person applying for such road may proceed to open the same. Either party may appeal to the Circuit Court from said order within sixty (60) days from the rendition of such order, and not thereafter.”
A case on appeal from a county court to a circuit court is tried de novo by the circuit court as other cases at law. (Ark. Stat. Ann. § 27-2006 [Repl. 1962]).
The record indicates that the three viewers appointed by the county judge made two separate trips to view the property involved, and that on their first trip they laid out the route for a road as well as appraised the acreage value of the property to be taken. The record is not clear as to why the viewers made the second trip to view the property, but the record indicates that on the first trip they attempted to lay out the road along the quarter section line with a part of it on the east side of the line which would be on Mr. Yarbrough’s land, and part of it on the west side of the line which would be on Mr. Bowden’s land. An undated typewritten report of the viewers, together with a plat they apparently prepared, was apparently filed with the county court, The report reads as follows:
“Beginning at NW corner of NE NE of Section 5, Township 7, Range. 19 West thence go South 14 mile with a 10 ft. right of way on the East line and a 20 ft. on the Vest side thence continue South with 15 ft. right of way' on the East side and the West side to East-West line of Oates Property. Must be fenced by buyer on the West side, of road.
“Appraised $150.00 per acre.”
On a separate page of the transcript appears a handwritten instrument, or statement, dated November 21, 1968, and signed by the three viewers. It is not clear whether this instrument is intended as a separate written report or an amendment or supplement to the typewritten report, but it reads as follows:
“It is our opinion a line should be established and the road built 30 feet West of line for one mile running North and South.”
The prime difficulty, and our reason for reversal, lies in the county court order which we set out in full as follows:
“Now on the 24th day of February, 1969, comes on to be heard the report of the viewers heretofore appointed by this court to view land adjacent to:
The Northeast Quarter of the Northeast Quarter and the East half of the Northwest Quarter of the Northeast Quarter, the Southwest Quarter of the Northeast Quarter, the Southeast Quarter of the Northeast Quarter and the Northeast Quarter of the Southeast Quarter of Section 8, Township 7 North, Range 19 West, located in Pope County, Arkansas.
for the purpose of describing the best route for an access road to said premises, damages to be sustained by the owner of the land determined to be the best route; and from said report the court doth find:
That a road should be established along the East 30 feet of the West half of the East half of Section 5, Township 7 North, Range 19 West. It is further ordered and decreed that said road shall be located immediately West of a fence (that reportedly runs along the East line of the West half of the East half of said section.) It is further ordered and decreed that the petitioners herein shall pay to T. E. Bowden the sum of $150.00 per acre or fraction thereof for all lands taken pursuant to this order.” (Our emphasis).
On appeal from the county court the case was tried de novo before a jury in the circuit court, and after both sides had rested, the record reveals in-chamber proceedings as follows:
“Mr. Irwin: I would like to ask the Court to direct a verdict in our favor, because of the fact that a necessity has not been shown.
The Court: Over-ruled.
Mr. Irwin: Note our exceptions.
Mr. Gardner: I would like for the jury to be instructed it is their duty to find out if the Oates— if this route is the most feasible to use.
The Court: Sure. The necessity and feasibility is what we have here and nothing more.”
The court then instructed the jury as follows:
“Ladies and gentlemen of the jury, you have heard the testimony in this case. Without going through all the formalities of giving the instructions, this law suit, as I told you at the beginning is the right to use property belonging to another person. The law gives an individual that right. The mechanics of it are set up that the county court— County Judge — appoints three persons who are known as appraisers or viewers. They go out and look at the property and come back and make their findings:
These people have testified and their testimony is before you. The thing that you will be instructed on by the Court is the necessity and feasibility of this roadway.
You’ve also heard testimony that the feasible, or the logical place to place the road, if you so find, would [be] the east 30 feet of the Bowden property.
It is undisputed as the value of that property. Without commenting on the testimony, it’s virtually stipulated, if it’s not so, that the value of such land was $150.00 per acre.
Now, under the form of the verdicts which we will submit to you, you will not be required to figure out the amount of dollars and cents involved in it, whether it’s worth $150.00 or what. The first form of your verdict, ‘We, the jury, find for the petitioner, David Oates and Bill Oates, and assess their liability in the amount of $_ per acre.’ Signed by one of your body as foreman.
If you do not find that this roadway is feasible, or a necessity exists, then the form of your verdict will be, ‘We, the jury, find for the respondent, Tim Bowden,’ again signed by one of your body as foreman.”
After hearing the testimony of Mr. Oates, Mr. Bowden, and the three viewers; and after receiving the above instructions without objection, the jury returned its verdict as follows:
“ ‘We, the Jury, find for the Petitioners, David Oates and Bill Oates, and assess their liability in the amount of $150 per acre.’
The judgment of the circuit court, omitting the formal parts, is as follows:
“IT IS THEREFORE BY THE COURT CONSIDERED, ORDERED AND ADJUDGED that the liability of the Petitioners, DAVID OATES and BILL OATES, be assessed at One Hundred Fifty Dollars ($150.00) per acre.”
There is no objection in the record to the form of this judgment, but we agree with the appellant that it “is not in accordance with the report of the viewers.” We also agree with the appellant that the county court order was not in accordance with the report of the viewers, and that the viewers’ report is vague and indefinite when the typewritten portion is read in connection with the handwritten portion or statement, and they both are compared with the plat.
In the 1944 case of Roth v. Dale, 206 Ark. 735, 177 S. W. 2d 179, the county court entered an order, as prayed in the petition, and directed that:
“A strip of land 25 feet wide, off the south side of the southwest quarter, northeast quarter, section 10, township 10 north, range 1 east, owned by defendant, running the entire length of the 40-acre tract, be laid off as the road.”
On appeal from the county court order, a circuit court jury rendered a verdict as follows:
“ ‘We, the jury, approve the establishment of the road in question, and fix the damages of the defendant at the sum of $200.’ ”
The circuit court judgment affirmed the order of the county court, and in affirming the circuit court on appeal, this court said:
“Before the trial in the circuit court, the defendant filed a motion to dismiss, for the reason that the report of the viewers and the judgment of the county court thereon were so indefinite that the road could not be located. We think this motion was properly overruled. The order of the court was ‘To lay off a strip of land 25 feet wide off the south side of the southwest quarter of the northeast quarter of section 10, township 10 north, range 1 east, owned by defendant, running the entire length of the 40-acre tract of land.’ ”
However, in the recent case of Armstrong v. Cook, 243 Ark. 230, 419 S. W. 2d 308, a county court in laying out a private road adopted the viewers’ description as follows:
“We recommend that a 20 foot road be built at the same location where the old road is now. There will be no damage to the Cook Farm in the construction of this road.”
The circuit court, on appeal, vacated the county court order, and on appeal to this court we said:
“If that report, along with the order of the county court, were recorded, it is apparent that the description is so vague that the road could not be located from an examination of the records.”
We pointed out in Armstrong that the county court failed to follow the statutory requirements in several respects, but we held that the circuit court should have tried the case de novo.
In the case at bar, the notices of appointment sent to the viewers by the county clerk seem to assume the necessity for a private road into the Oates’ land. The notices are as follows:
“You are hereby notified that you are appointed by County Judge Wayne Nordin of Pope County Arkansas to view the land of David and Bill Oates, together with, surrounding land to determine the best and most economical means together with location of a Private Road into their land.
You are further notified to be present at the Office of Pope County Judge, Wayne Nordin of Pope County Arkansas on the 7th. day of October 1968, at 10:00 A.M., for the purpose of receiving your instructions.”
The record reveals no additional instructions from the county court, but the circuit court considered the necessity and feasibility of the road as the only matter before the court and jury for determination.
It is obvious from the record that the viewers were all three well acquainted with the property involved. It is apparent, however, that neither of them, nor the appellant, knew where the quarter section division line lay between the Bowden and Yarbrough properties. It might appear that regardless of the exact location of the division line between Bowden and Yarbrough, it was the intention of the viewers, as well as the county court, to lay the road out on Bowden’s land and to stay clear of Yarbrough’s land. I'j is apparent, however, that the land claimed by Yarbrough had been cleared, terraced and set in orchard and the adjacent land west of that cleared by Yarbrough, was undeveloped and grown up in bushes.
Apparently the viewers assumed that Yarbrough had only cleared and built terraces to his fence on the quarter section division line and they attempted to lay out the road just outside the land cleared by Mr. Yarbrough and along the east edge of Bowden’s land, which was grown up in bushes. One of the viewers, Mr. Robards, lives on his own land joining Yarbrough’s on the east, and he testified, in part, as follows:
“We based our opinion on the farms involved, the road which we are undertaking to — the strip of land which we are undertaking to build the road on, or request that it be built, you would call it waste land. It’s ditches, fence rows, and it has very little value to it, which if a road was built, it would value both farms — all parties concerned.
* * *
. . . the second time we were sent out there we were instructed not to set a price, that that would be left up to the Court.
Q. You had given the price the first time?
A. Yes, the first time.
Q. All right, where did you establish the line— Where did you establish the land that the road was to be built?
A. I believe in our report we signed I recommended, the fact is I was the one that dictated the report, that a line he established between the estates of Loyd Yarbrough and Tim Bowden, and that the road be built 30 feet west of the established line.
* * *
A. I’m not so surfe that there is not a few apple trees comes within twenty foot of what we would assume the line to be. I just assume the line.” (Emphasis supplied).
Benton Jones, another viewer, testified, in part, as follows:
“Q. Where did you all determine to be the most practical and feasible place to put the road?
A. You’re asking about the last time we was there?
Q. Yes, sir.
A. From the established line, the west side, which would be on Tim.
Q. It would be on Tim?
A. Yes.
Q. It would be on the line — are we speaking about the line between Mr. Bowden and Mr. Yarbrough?
A. That’s the line I was speaking of.
Q. It would be 30 feet west of that line. That would be in line between the East Half of Section 5 and the West Half of Section 5?
A. I’m not familiar with the section, but if you will show me that map, I’ll be glad to show you.
Q. (Shows him the map) This line runs right here between Mr. Yarbrough and—
A. It’s this line.
* * *
A. Mr. Irwin, I don’t know about how wide that strip would be. I don’t know where the line is. Loyd goes down the side of his orchard, all the way around the side of his place. He won’t set a tree that he can’t get around.
* * *
Q. Now, did you all consider running that road on up on the outside of Loyd’s trees?
A. Well, the first thing that we considered, and you know how it come in here, the first was to give half and Tim half—
Q. That’s' right.
A. And then the way I understood it, when Loyd had it surveyed, he was already over on Tim. As far as I’m concerned, I will tell you I don’t care where the line is, and I wouldn’t care care to leave it that way, if you want to talk about it, but it didn’t suit nobody, so I wound up, there was three of us signed it, but it all come off of Tim.”
Mr. L. B. Fendley, the third viewer, testified, in part, as follows:
Q. It’s been testified that the route you all selected was an area 30 feet west of a line between Mr. Bowden and Mr. Yarbrough?
A. That’s true.
Q. Was that, in your opinion, the most practical and feasible route for that road to be located on?
A.Yes, sir.”
On cross-examination Mr. Fendley testified as follows:
“Q. Do you know where that line is, Mr. Fendley?
A. I’m not worried about where it is. That’s up to the surveyor.
Q. It’s up to somebody anyway?
A. It’s up to the surveyor, ever where the surveyor surveyed. We said 30 feet west of the line.
Q. Did you see the survey?
A. Did I see the survey?
Q. Yes.
A. They had some stuff down there, but I don’t know whether that was it or not.
Q. Do you know whether or not Mr. Bowden and Mr. Yarbrough agreed on the location of the line?
A. All I know is where he’s got the fence posts set. ”
Mr. Bowden testified, in part, as follows:
“Q. Tim, do you and Mr. Yarbrough know where your east line is and where his west line is?
A. No.”
The typewritten report of the viewers standing alone with the plat appears definite enough to be followed had the county court, and the circuit court on appeal, seen fit to do so. (See Roth v. Dale, 205 Ark. 735, 177 S. W. 2d 179). The line referred to in the typewritten report is obviously in reference to the divi sion line between the east and west halves of the east half of Section 5, which is also the division line between the Bowden property on the west and the Yarbrough property on the east. The plat, however, shows a well-defined and affirmatively designated fence an unmarked number of feet west of the west boundary line of the proposed road. The designated fence is obviously more than 20 feet west of the division line between the east and west halves of the half section according to the plat. Yet, the county court, in an attempt to follow the viewers’ handwritten statement, or supplemental report, attempted to establish the road as if laid out over the east 30 feet of the west half of the east half of Section 5, and at the same time establish it “immediately west of a fence (that reportedly runs along the east line of the west half of the east half of said section).” If the plat is correct, then the county court’s order is wrong because according to the court order the fence is “reportedly” in one place and according to the plat, it is obviously in another. The judgment of the circuit court, on trial de novo, does not mention the road or the fence, but simply amounts to an affirmance of the county court order.
As already pointed out a county court order was held invalid for indefinite description in Armstrong, but error was found in dismissal by the circuit court, as it is the duty of the circuit court to try a case de novo on appeal from the county court.. In the case at bar, the description in the county court order is not so indefinite as it is conflicting, if the plat accompanying the viewers’ report is to be considered. The court order, in effect, not only tends to establish the fence as a division line between Bowden and Yarbrough, but according to the plat, tends to move and establish the quarter section line to and along the fence. We are of the opinion that an attempt to lay out a road as directed in the court order would complicate, and add potentially interested parties to an already potential land line dispute between neighbors.
Although the road here involved is referred to in the pleadings and in the statute as a “private” road, when it is laid out and established it will be public to anyone who has occasion to use it, and its description should be definite enough not only to be located trom land records, but its location should be definite enough to avoid future litigation.
This cause is reversed and remanded to the circuit court for a trial de novo on the merits, as other law cases are tried.
Reversed and remanded.
Byrd, J., dissents.
This undated report bears no filing mark. | [
-11,
108,
-43,
60,
40,
64,
88,
-118,
-63,
-85,
101,
83,
111,
-54,
1,
51,
-89,
31,
-11,
105,
85,
-78,
87,
-32,
80,
-69,
-37,
-33,
-3,
-55,
-26,
-45,
72,
96,
-50,
85,
68,
104,
-49,
88,
-114,
14,
11,
101,
-63,
-61,
56,
45,
18,
15,
53,
-113,
-77,
44,
49,
-61,
105,
108,
-39,
41,
25,
-6,
-67,
31,
126,
5,
-79,
100,
-119,
-123,
-8,
106,
-112,
49,
0,
-8,
119,
-74,
-106,
116,
75,
25,
8,
40,
103,
2,
72,
-49,
-88,
-120,
14,
126,
9,
-122,
-110,
57,
67,
104,
-75,
-99,
88,
84,
83,
126,
-28,
77,
25,
108,
-91,
-17,
-110,
-79,
-123,
-88,
-112,
0,
-29,
5,
48,
115,
-61,
-18,
85,
69,
52,
-37,
-114,
-15
] |
Conley Byrd, Justice.
This litigation was formerly before us in Arkansas State Highway Commission v. Schmoll, 245 Ark. 21, 430 S. W. 2d 852 (1968). Following the reversal, the matter was again submitted to a jury which awarded a judgment of $52,000. For reversal of the $52,000 judgment, appellant Arkansas State Highway Commission contends that the verdict is excessive and that there is no substantial evidence to support it.
The record shows that Mr. Schmoll’s ownership consists of 107.67 acres being SWM of SW‘i of Sec. 18, the NW% of the NWM of Sec. 19, and a portion of the NEM of the NWH of Sec. 19, all in T. 7 N., R. 18 W. The property is bordered on the south by Highway 64. The Highway Department is here taking 84.52 acres, for construction of 1-40 and the balance for a scenic drive. The southeastern corner of this property lies some 200 feet west of the city limits of Atkins, Arkansas. The topography of the property is such that it commences at the foot of and rises to the top of Crow Mountain.
For valuation purposes appellee introduced himself and Jackson Ross, a real estate expert. Mr. Schmoll testified that his property had a before value of $135,110 and an after value of $41,725. In arriving at his before value he used $750 per acre for the north 40 and $1,500 per acre for the south 63.18 acres. On cross-examination he testified that the attorney for the Highway Department was correct in assuming that he was saying that property similar to his upper 40 acres was selling on the market in January 1966 for $750 an acre. At other times Mr. Schmoll stated that he did not use compar-: able sales but just used his opinion of what it was worth. However he stated that the Fengler Estate, just east of the lower portion of his property, sold some lots, 150 by 150, for $1,500 per lot. According to his testimony all such lots were on existing roads. Another was Roy Kindrick’s sale of 2 acres across Highway 64 for $3,000. A third sale was the Orlando Pryor land —a 5 acre sale for $5,000 on the highway near the Highway 64 frontage of the subject property. All of Mr. Schmoll’s testimony was designed to show that the highest and best use of his property was for residential building sites.
Mr. Jackson Ross, an appraiser, testified to a before value of $113,916 and an after value of $33,000 resulting in damages of $80,916. He stated that he made a study of land values in or near Atkins in January 1966, and that his study showed that near the subject property there were “several lots that had sold off north of 64 highway at that time.” He readily admitted that the only road frontage on Mr. Schmoll’s property is Highway 64 and that there are no roads to the back of Mr. Schmoll’s property. He further admitted that all of the comparable sales he considered were on a road of some kind. The comparable sales considered by Mr. Ross were as follows:
1. Emil Fengler et ux, to Paul and Lois Raney, a 150 ft. by 150 ft. parcel for $750.00, which he described as roughly 1/4 of an acre;
2. Fengler to Hurshel and Ruby Miller, a 150 ft. by 218 ft. parcel for $800.00;
3. Fengler to Robert Raney, 150 by 150 ft. for $750.00;
4. Fengler to Dovie Miller, a 190 ft. by 195 ft. parcel for $800.00, which he described as “a frac tion over half an acre;”
5. Joe Stephenson to Melvin Fuller, a 150 ft. by 200 ft. parcel for $1,000.00, described as being just off Highway 105; and
6. Pryor Estate to Pratt, 5.7 acres for $5,000.00 which he described as being bought for the purpose of putting in a market (this was described as being comparable to Mr. Schmoll’s land adjacent to Highway 64).
Throughout his testimony Mr. Ross referred to a parcel 150 ft. by 150 ft. as approximately a quarter of an acre.
Mr. Walker Watson, an appraiser for the Highway Department, arrived at a before value of $27,750 and an after value of $19,750 for total damages of $8,000. Mr. A. R. Jordan, a Russellville real estate broker and appraiser, arrived at a before value of $30,040 and an after value of $21,915 for total damages of $8,125. Mr. Watson used the following comparable sales:
1. A July 1965 sale from Nottenkamper to Kyle, 12 acres for $13,000 — he allocated $7,500 to improvements, leaving $5,500.00 for 12 acres of land at $460 per acre;
2. A 1962 sale from Duval to McElroy 500 ft. west of Schmoll’s property in which a tract with 104 ft. frontage on Highway 64 by 400 ft. deep sold for $500;
3. A 1962 sale from Gibson to Willcutt of a 20 acre tract that sold for $6,000 — he allocated $3,-000 to improvements and $3,000 to land, arriving at a per acre value of $150; and
4. A 1964 sale lb miles west of Mr. Schmoll’s property where a 44 acre tract sold for $7,000 or $175 per acre (at the time of trial 3 houses had been built on the 44 acres.)
Mr. Jordan used the following comparable sales:
1. A sale from Kinslow to Hudson which compared to the back wooded part of Mr. Schmoll’s property — a 110 acre tract at $6,000 or . $55 per acre;
2. A sale from Bowden to Cole, a 44 acre tract at $175 per acre which he considered comparable to Mr. Schmoll’s open lands;
3. The sale from Duval to McElroy used in Walker’s appraisal; and
4. Nottenkamper to Kyle, a 12 acre sale used by by Mr. Walker — however Mr. Jordan allocated $6,500 to improvements and $6,500 to land for a per acre value of $541.
In Arkansas State Highway Commission v. Watkins, 229 Ark. 27, 313 S. W. 2d 86 (1958), we pointed out the speculative nature of evidence which uses the sale price of lots for comparable sales in arriving at the valuation of large tracts of raw ground in this language:
“The reason for the rule above set out is well demonstrated in the case under consideration. While some of appellees’ witnesses explained that, in comparing the value of subject land and lots with other subdivisions of Little Rock and particularly with Lakewood Addition, they had taken into consideration the location and the necessity of supplying paved streets, water and sewerage, etc., yet that fact in no way eliminates the element of chance and speculation. On the other hand, such explanation merely emphasizes that element. Any attempt to determine the cost of such improvements would have entailed the use of time and technical knowledge beyond the scope of practicability and reason. In addition to the above, many more speculative mat ters would arise for consideration. For example: How much other land in the vicinity is available for subdivisions; What will be the future demand for additional building sites; How long will it be before the subject land is made ready for the erection of dwellings; How fast will the lots be sold, and how much will be the finance charges, and; What will be the cost in real estate commissions for selling the property, and what will be the expense of numerous other items that could be mentioned?”
The present case is a classic example of the speculative nature of such testimony. Here the proof shows that the property commences at the foot of Crow Mountain and slopes up to or near the top of Crow Mountain. Both Schmoll and his witness Ross relied entiitely upon plot sales for individual building sites, all located along existing roadways and none more than a quarter mile north of Highway 64. Yet the record shows that Schmoll’s property extends one-half mile north of Highway 64.
While the sales of the individual building plots were properly admitted into evidence for comparison to Mr. Schmoll’s property that is similarly situated, it is obvious that such sales are speculative when used with respect to property some distance from a roadway. For instance, the record here shows that Emil Fengler from 1961 to 1965 only sold 5 parcels for building sites. Notwithstanding this, Mr. Ross insisted that there was a ready market for every building site into which Mr. Schmoll’s property could be subdivided. Also both Schmoll and Ross assigned the back 40 a valuation equal to one-half of the value of the front 40, while admitting that all of their parcel sales were south of the back 40 and that the back 40 was further up the incline toward the top of Crow Mountain.
Therefore, it appears to us that appellee is using plot sales (comparable to the sales of finished lots) along existing roadways with other improvements and comparing the price paid for the acreage involved in those sales with his raw acreage for purposes of determining its value without taking into consideration the many variables such as demand; the cost of engineers; the: installation of improvements, such as roads, water and sewer or septic tanks; and the numerous man hours and financing charges that go into the development of a residential area.
For the reasons stated we find that there is no substantial evidence in the record to sustain a judgment for $52,000.
Reversed and remanded.
Fogleman, J., dissents. | [
112,
-2,
-15,
60,
10,
-64,
26,
-104,
75,
-85,
-90,
91,
-17,
-56,
21,
49,
-29,
25,
100,
104,
-41,
-77,
87,
67,
82,
-13,
-21,
-57,
58,
77,
-28,
-41,
76,
32,
-54,
21,
-28,
-30,
79,
88,
14,
14,
-101,
84,
-55,
-44,
52,
47,
4,
79,
49,
-113,
-2,
45,
60,
67,
109,
46,
-49,
-88,
72,
-8,
10,
7,
-37,
6,
16,
-92,
-104,
3,
-40,
106,
-112,
117,
8,
-40,
115,
38,
-106,
84,
73,
-103,
12,
36,
-30,
24,
77,
-17,
-24,
-120,
14,
-1,
-115,
-89,
-86,
88,
83,
64,
-97,
-107,
120,
94,
5,
126,
-28,
-115,
93,
108,
35,
-113,
-106,
-95,
101,
48,
-108,
18,
-61,
15,
50,
112,
-49,
-30,
93,
87,
112,
-101,
6,
-11
] |
Conley Byrd, Justice.
This multiparty products liability litigation grew out of a collision in appellant Cecil Smith’s lane of travel that occurred when a Ford Falcon driven by appellee Loleta Goble crossed the center line and struck the pickup truck being driven by Smith.
Smith and his wife, a passenger, initiated this litigation against Loleta Goble based on negligence. Mrs. Goble’s answer contained a plea that as to her the collision was unavoidable due to a latent defect in her vehicle’s braking mechanism. By a third party complaint Mrs. Goble, her husband and her passengers sought damages against appellee Ford Motor Company and appellee White County Motor Company. Mrs. Goble alleged that she had purchased the 1966 Ford Falcon from White County Motor Company on February 7, 1967, and that on February 21, 1967, while driving in the south bound lane on Highway No. 67, she approached a slower moving vehicle in her lane; that when she applied her brakes to slow down the brakes grabbed, causing her vehicle to swerve into the path of the Smith vehicle; and that the cause of the collision and resulting damages was a defective braking system, unknown to her, which defect, damages and injuries were the fault of negligence, breach of warranty and responsibility of Ford Motor Company and White County Motor Company jointly and severally. Appellant Smith and his wife amended their complaint to also ask for damages against White County Motor Company and Ford Motor Company.
After all parties had rested, the trial court directed a verdict in favor of White County Motor Company. The jury found in favor of Ford Motor Company, but returned a verdict for the Smiths against Mrs. Goble. Mr. Cecil Smith is the only appellant here. For reversal he relies uoon the following points:
“I. The Court erred in requiring the plaintiff to share jury strikes with the original defendant.
II. The court erred in refusing to give instruction on comparative negligence, as between the respective defendants.
III. The court erred in refusing to direct a verdict against Ford Motor Company on the existence of a breach of express warranty.
IV. The court erred in giving instruction No. 40.
V. The lower court erred in permitting dismissal of the complaint against White County Motor Company.”
POINT I: The trial court required the Smiths to share their three peremptory challenges, Ark. Stat. Ann. § 39-229 (Repl. 1962), with Mrs. Goble, her husband and the passengers in her car. In Utley v. Heckinger, 235 Ark. 780, 362 S. W. 2d 13 (1962), we pointed out that in multiparty litigation the parties must be arranged into two groups and each group allowed to exercise three challenges, Ark. Stat. Ann. § 39-231 (Repl. 1962). We can find no abuse of the trial court’s discretion in this instance.
POINT II: The trial court gave the following portion of AMI 501:
“The law frequently uses the expression ‘proximate cause,’ with which you may not be familiar. When I use the expression ‘proximate cause,’ I mean a cause which, in a natural and continuous sequence, produces damage and without which the damage would not have occurred.”
However the trial court, over the objection of all parties, refused to give the bracketed portion that provides:
“[This does not mean that the law recognizes only one proximate cause of damage. To the contrary, if two or more causes work together to produce damage, then you may find that each of them was a proximate cause.]”
The trial court gave instruction No. 14 as follows: “You are instructed that if you find from the evidence that there was a defect in the hydraulic braking system of the Ford Falcon driven by Loleta Goble and that the defect existed at the time the automobile left the hands of the Ford Motor Company, and that the automobile was operated and used properly in its intended manner and that the defect caused damages and injuries to the plaintiffs, or any of them, the Ford Motor Company would be liable for the damages sustained as a result thereof.”
Without objection from appellant, the trial court gave instruction No. 15 as follows:
“. . . If you find that a defect in the hydraulic braking system of the Falcon was the proximate cause of the accident, then Mrs. Goble would not be liable for the injuries to any party to this action____”
Assuming, without deciding, that the trial court erred in failing to give the bracketed portion of AMI 501, still we find that any cause for complaint that appellant may have had was rendered harmless by the other instructions given and the verdict returned by the jury. As we read the instructions, the jury had to find that the brake was not defective or if defective, the defect was not a proximate cause of the collision before it could find in favor of Ford Motor Company and against Loleta Goble. Thus when the jury found in favor of Ford and against Goble its finding rendered harmless any alleged error with respect to the bracketed portion of AMI 501.
POINT III: Appellant moved for a directed verdict on the breach of an express warranty upon the basis that Ford Motor Company’s expert Mr. Frey testified that a braking system properly manufactured would not pull to either side. However, even if we assume that appellant is in a position to take advantage of the express warranty, the trial court properly denied the motion for a directed verdict with respect to a breach of the express warranty because of other testimony that there was no defect in the braking system.
POINT IV: Instruction No. 40 given by the court stated:
“The fact that a collision involving a Ford Falcon occurred is not in itself evidence of any fault or liability on the part of anyone.”
Appellant now argues that this instruction is repetitious and amounts to an overemphasis of the burden of proof covered by other instructions and also that the instruction is similar to the unavoidable casualty intruction. Appellant’s only objection in the trial court was: “Let the record show the original plaintiff objects to the giving of instruction No. 40 generally and specifically, for the reason that it is not applicable to this case.” The objections here made are raised for the first time on appeal and for that reason are not considered.
POINT V: Directed Verdict in Favor of White County Motor Company.
When White County Motor Company was sued, it vouched in Ford Motor Company pursuant to the Uniform Commercial Code, Ark. Stat. Ann. Sec. 85-2-607(5) (Supp. 1969). The only proof with respect to White County Motor Company occurred during cross-examination of witness Alvin Doyle Jr., an expert appearing on behalf of the Smiths and the Gobles. On cross-examination by counsel for Ford Motor Company the following occurred:
“Q. What is the effect of a vehicle standing idle for eight to nine months?
A. Not very good.
Q. What will happen?
A. Lots of things can happen; it is better to use a vehicle than it is to sit idle; I think that is common knowledge, but just what will happen, I don’t know, because I haven’t run any particular tests, but I think it is common knowledge to drive one is better than to set it up.
Q-As an automobile mechanic, do you know what will happen in brake wheel cylinders—
A. They have been known to stick, ffeeze up and seize up; I’ve seen it happen from sitting up, and I’ve seen others sit up five and six years and not a thing happen; so, it’s a rather unpredictable arrangement.
Q-You have seen some that had corrosion after they stayed up several months?
A. Not several months, no sir; it is not uncommon to sit up a car several months; I have several times set mine up several months while I traveled abroad, and I have never had any trouble with it from corrosion, or anything of that kind.”
On cross-examination by counsel for White County Motor Company, Mr. Doyle stated that the defects he found could not have been discovered in making a regular inspection of the automobile; probably the only way the defects could have been discovered would be by disassembling the cylinder and entire braking system on the right front; and that to find that the primary piston was not coated properly one would have to disassemble the cylinder.
Any error the court may have committed in dismissing White County Motor Company is now harmless and does not constitute reversible error. The evidence, above, is not sufficient to show any negligence on the part of White County Motor Company. See 8 Am. Jur. 2d Automobiles § 650 and 60 C. J. S. Motor Vehicles § 165(5). Furthermore, since the jury has exonerated Ford Motor Company for an alleged manufacturing defect that appellant’s expert witness admits was latent and could not have been discovered without a complete disassembly of the right front whed brake, appellant is now estopped to complain against White County Motor Company on a derivative liability upon the theory of an implied warranty. See Davis v. Perryman, 225 Ark. 963, 286 S. W. 2d 844 (1956).
Affirmed. | [
-16,
126,
-32,
12,
12,
98,
32,
-114,
-47,
-127,
101,
-45,
-91,
-53,
28,
113,
-1,
127,
85,
107,
-31,
-77,
23,
18,
82,
-109,
-7,
-43,
-65,
-53,
125,
124,
76,
48,
-53,
-51,
7,
-54,
-59,
94,
-58,
-110,
-71,
108,
-103,
-110,
124,
58,
20,
15,
65,
-114,
-61,
46,
58,
75,
40,
40,
105,
41,
-63,
48,
-50,
5,
127,
18,
49,
-124,
-98,
37,
88,
10,
-104,
49,
40,
-8,
50,
-74,
-126,
-12,
105,
-103,
8,
-94,
102,
0,
1,
-51,
-100,
-104,
38,
-1,
13,
-89,
30,
41,
73,
34,
-74,
29,
122,
82,
13,
122,
-4,
69,
29,
104,
-125,
-54,
-106,
-127,
-19,
98,
-34,
19,
-21,
-121,
50,
115,
-51,
-22,
92,
69,
59,
-101,
-57,
-122
] |
Lyle Brown, Justice.
In 1955 appellant Dora Berry deeded one acre of land, on which was situated a small house, to her brother, Clarence C. Bierman, appellee. The recited consideration was $2,100. There was a down payment of $500 and the balance was timely paid at the rate of $50 per month. A right to repurchase was contained in the deed, as follows:
The grantor herein reserves the right and option to repurchase said property at any time after a period of four years from date hereof for the same price as above mentioned. (Italics supplied.)
Appellee Bierman forthwith moved his family into the house. In 1965 appellee added two small rooms to the house and dug a water well, claiming to have spent some $2,000 for those improvements. He was positive in his testimony that when he accepted the deed the word after was not in the right to re purchase clause. It was his contention that the word within there appeared instead of the word after. In that event the right to repurchase would of course have expired in four years. So, appellee says, he made the improvements at a time when he in good faith thought he owned the property outright.
Appellee testified that he discovered the alleged alteration in April 1969, at which time he sent his wife to talk with appellant about releasing the restriction. This suit was filed to reform the deed when appellant Dora Berry declined to release the reservation. Alternatively, appellee asked for reimbursement for his improvements in the event appellant Dora Berry was given the right to repurchase. Appellant answered, denying any change had been made in the deed and asserting that appellee was not entitled to reimbursement for improvements. She also asked for the right to exercise the option to repurchase.
The trial court denied reformation of the deed. It was decreed that Dora Berry’s option to repurchase was valid but that in addition to the purchase price, appellant would have to reimburse appellee for the improvements made. From that part of thé decree Dora Berry appeals.
We cannot agree with the chancellor that appellant, who held the right to repurchase, is chargeable with the improvements. In the first place, the chancellor in effect held that there was no alteration of the deed. There was no appeal from the trial court’s denial of reformation. We therefore have no alternative but to accept the proposition that the word “after” was in the redemption clause at the time the deed was executed and delivered. Secondly, Bierman came into possession of the deed in 1957 (after he paid the full purchase price) and thereafter continuously possessed it. He surely was thenceforth chargeable with constructive notice of the contents of the instrument. From the time the deed was delivered to appellee until he made the improvements (some eight years later) he admittedly did not read his deed. In fact an additional four years transpired before he read it and then because his wife called it to his attention. His wife had known of the wording of the deed previous to the latter date but the record does not disclose when she first discovered it. There is no evidence that appellant said or did anything to lull appellee into believing that her option to purchase had expired.
We have explored the suggestion that appellee might recover the value of the improvements he made under our betterment statute, Ark. Stat. Ann. § 34-1423 (Repl. 1962). That statute allows recovery for improvements made on the lands of another when those improvements are made under color of title. The act is designed essentially to reimburse one who in good faith makes improvements on the strength of a written instrument which on its face professes to pass title but which does not do it. The deed in question does not fall in the category of a “color of title” instrument as that phrase is used in the betterment statute. See Thompson, The Law of Real Property, § 2650 (1940). On its face the deed from Berry to Bierman contains a right of redemption or repurchase which limits the fee simple conveyance.
We reverse and remand with directions that appellee be relieved of any liability for the improvements.
Byrd, J., dissents. | [
114,
126,
-103,
-50,
-120,
32,
34,
20,
96,
-95,
38,
95,
-85,
-62,
20,
13,
-70,
109,
100,
121,
-42,
-78,
87,
-128,
82,
-13,
81,
95,
-7,
92,
100,
70,
76,
48,
-62,
55,
98,
-64,
77,
28,
-114,
-121,
10,
69,
-35,
64,
48,
43,
4,
13,
81,
-49,
-77,
44,
17,
70,
72,
44,
-65,
57,
80,
-72,
-66,
-116,
127,
7,
0,
101,
-68,
-125,
120,
-22,
-108,
57,
0,
-24,
115,
-74,
-126,
116,
1,
-101,
12,
34,
102,
-80,
37,
127,
-104,
-120,
38,
-6,
-83,
-89,
-42,
88,
82,
96,
-67,
-97,
124,
20,
37,
-4,
102,
-108,
93,
-84,
12,
-22,
-106,
-78,
-113,
124,
-128,
2,
-1,
37,
58,
117,
-49,
-24,
93,
71,
83,
27,
-98,
-102
] |
Frank Holt, Justice.
The appellant was charged by information with the crime of first degree murder. Upon trial, the State waived the death penalty. A jury found appellant guilty of the alleged offense and assessed his punishment at life imprisonment in the State Penitentiary. From a judgment on that verdict comes this appeal.
The appellant first contends for reversal that the evidence is insubstantial to show a willful, deliberate, malicious, and premediated killing. The appellant was fourteen and one-half years of age at the time he admittedly shot and killed his stepfather. The State adduced evidence that when the police officials appeared at appellant’s home shortly after this tragedy occurred, the appellant admitted shooting his stepfather and said that he didn’t know the gun was loaded. The appellant was also interrogated by the prosecuting attorney and released in the custody of his mother. After further investigation, appellant was ques tioned a few days later at which time he claimed he did not know why he shot his stepfather. He stated that his stepfather had punished him on three occasions; however, he disclaimed any hatred for him. He admitted he had made a previous statement that he intended to kill his stepfather. A witness, who was a neighbor and about the same age as appellant, testified that the appellant was in his home twice on the day of the shooting. Appellant told this witness that he intended to shoot his stepfather that night and that he had “tried” to kill him about two days before and he couldn’t get a mechanism of the rifle to work as his stepfather drove up to the house. Appellant expressed a hatred for his stepfather because of alleged physical punishment administered by him. Another youthful member of this household testified that appellant told her on that same day that he intended to kill his stepfather and when she replied that he must be “kidding,” appellant said he could get by with it by making some excuse, running away or by putting a silencer on the gun. He expressed to her a hatred for his stepfather and had made similar statements of dislike previously. Another witness, about the age of appellant, testified that he came by this house as the appellant was leaving and he understood appellant to say that he was going to shoot his stepfather because of his dislike for him and that on other occasions he had heard appellant say that his stepfather beat him up once or twice.
The appellant did not testify. However, one of his narrations to the police was that when his stepfather came into the house late in the afternoon, the stepfather opened the gun cabinet and mentioned that he was going to trade off the rifle; that appellant asked to see the gun and that his stepfather handed it to him and went into an adjoining room; that appellant went to the gun cabinet, picked up a shell, loaded the gun, and then sat down on the divan; that his stepfather returned and was standing at a nearby table; “* # * I didn’t aim the rifle at him, I just held it with the barrel pointing towards him and I shot him. After I shot him he fell forward and caught himself against the chair and bent over then fell back on the floor. * * * After I shot him, I pulled the jack open and the shell fell out. I reached down and picked up the shell and looked at it and I laid it down on the table in front of the sofa. I then laid the rifle down and walked over to see about Ed. * * * It wasn’t long after that, maybe a couple of minutes before my mother came in. When she did I said, mama, mama I shot Ed. * * * I don’t know why I did it, there was something in me that just says kill, kill, kill.”
Appellant’s court appointed trial counsel ably and forcefully argues on appeal and in oral argument that: “* * * this is not premeditation from the standpoint of the individual taking a life, but rather the immature reactions of a child attempting to cope with a situation which he did not understand, i. e., the loss of his grandmother and the readjustment to life without her.”
Appellant’s defense was based only upon the plea of insanity. Appellant’s counsel asserts that this youthful offender was mentally disturbed because of his inability to reconcile differences, conflicts and crises he had experienced. Evidence was adduced from several lay witnesses in support of this contention, and especially with reference to the effect of the loss of his grandmother about two months previously. Also, a local psychiatrist testified that in his opinion the appellant was psychotic or mentally ill to the degree of not being responsible for the alleged act of murder. Previous to the trial the appellant was committed by a court order to the Arkansas State Hospital for a mental examination and was returned as being without psychosis. One of the doctors from the Arkansas State Hospital testified that it was the opinion of himself and the other members of the hospital psychiatric staff that appellant was not psychotic and that he was not mentally ill to the extent of being incapable of choosing between right and wrong and was, therefore, legally responsible for his acts.
The State’s theory of first degree murder and the appellant’s defense of insanity were both fully presented to the jury. The trial court instructed the jury on all degrees of homicide, the issue of insanity, and, further, told the jury that should it find the appellant insane, he would be committed to the. State Hospital until the superintendent had determined that appellant had regained his sanity. The jury’s anxiety and agonizing duty in resolving the conflicting theories and evidence, and in making its determination from the various verdict forms are apparent from questions propounded by it. It was within the province of the jury to determine the credibility of the witnesses and the weight to accord to their testimony in resolving these conflicting factual issues. It is firmly established that on appeal we must view the evidence in the light most favorable to the appellee and affirm the jury’s finding and verdict if there is any substantial evidence to support it. Harris v. State, 239 Ark. 771, 394 S. W. 2d 135 (1965); Stockton v. State, 239 Ark. 228, 388 S. W. 2d 382 (1965); Veatch v. State, 221 Ark. 44, 251 S. W. 2d 1015 (1952). Therefore, we must find no merit in appellant’s contention since we cannot say there was no substantial evidence to support the verdict of the jury.
Appellant next contends that the court erred in permitting the introduction of the State’s exhibits and allowing certain testimony. Appellant asserts that the introduction into evidence of the weapon, the expended cartridge, a photograph of the deceased, the bullet, a ballistics report, and fingerprints was prejudicial error. He argues that these items and the testimony accompanying their introduction were unnecessary since it was conceded that the appellant committed the act of shooting his stepfather. It is appellant’s position that the testimony and these exhibits were used to inflame and prejudice the minds of the jurors against the appellant. We cannot agree. The burden rested upon the State to prove beyond any reasonable doubt the allegation of first degree murder. The elements of malice, intent, deliberation, and premeditation are essential requisites in the proof of first degree murder. All of these exhibits and accompanying testimony were relevant and material to the issue as alleged in the information. Harris v. State, supra. Furthermore, the admission of the photograph of the deceased rests in the sound discretion of the trial court. Davis v. State, (May 5, 1969) 440 S. W. 2d 244; Stewart v. State, 233 Ark. 458, 345 S. W. 2d 472 (1961); Lee v. State, 229 Ark. 354, 315 S. W. 2d 916 (1958). The photograph of the deceased shows him fully clothed and in the position in which he was found at the scene of the alleged crime. We find no abuse of discretion by the trial court in the case at bar.
The appellant next asserts that the court erred in refusing to give a requested instruction which is based upon the Durham rule which pertains to the issue of insanity. This rule is predicated upon the theory that a defect or disease of the mind constitutes a valid defense. Durham v. United States, 214 F. 2d 862 (D. C. Cir. 1954), 45 A. L. R. 2d 1430. We have repeatedly rejected this theory. Stewart v. State, supra; Downs v. State, 231 Ark. 466, 330 S. W. 2d 281 (1959). We have held that the fact one has a mind which is below normal does not exempt one from punishment for his criminal behavior. Ezell v. State, 217 Ark. 94, 229 S. W. 2d 32 (1950). Our most recent rejection of the Durham rule and reaffirmance of our rule enunciated in Bell v. State, 120 Ark. 530, 180 S. W. 186 (1915) is found in Davis v. State, supra. This rule recognizes the defense of insanity which prevails when the defendant proves by a preponderance of the evidence, first, that at the time of the alleged crime, the defendant was under such a defect of reason from disease of the mind as not to know the nature and quality of the act he was doing, or, second, if he did know it, that he did not know that he was doing what was wrong, or, third, if he knew the nature and quality of the act and knew that it was wrong, that he was under such duress of mental disease as to be incapable of choosing right from wrong as to the act done and unable, because of the disease, to resist the doing of a wrong act which was the result solely of his mental disease.
The appellant next contends that the court erred in permitting the prosecution to refer to matters in his closing argument that were not in evidence and that were designed to inflame and prejudice the minds of the jurors. Appellant refers to that portion of the closing argument by the prosecuting attorney who stated: “Other people the age of the defendant, again are watching. It may well be that this defendant was watching events that occurred before this one did.” The trial court had previously admonished the jury during closing arguments that: “Any argument or statements or remarks of the attorneys having no basis in the evidence should be disregarded by you.” The trial court is accorded wide discretion in controlling and supervising the argument of counsel before a jury. Peters v. State, (Feb. 23, 1970) 450 S. W. 2d 276; Parrott v. State, (April 14, 1969) 439 S. W. 2d 924. No manifest abuse of discretion is demonstrated as a result of this argument to the jury.
The appellant next contends that the trial court erred in overruling the appellant’s motion to transfer the cause of action to the juvenile court. The alleged offense occurred on March 13, 1969. On March 17, 1969, after further investigation, the appellant was taken into custody for more questioning. On that date an information was filed by the prosecuting attorney, the appellant was then arraigned and preparations were made to transfer him to the State Hospital for á mental examination. After being found without psychosis by the State Hospital staff, appellant’s court appointed counsel petitioned the trial court, before trial, to transfer the case to the juvenile or county court. The motion was denied. Ark. Stat. Ann. § 45-241 (Repl. 1964) provides that it was within the discretion of the trial court to transfer the appellant’s case to the juvenile court. The argument advanced by appellant on this point was discussed in Monts v. State, 233 Ark. 816, 349 S. W. 2d 350 (1961), where we recognized that, under the provisions of our statutes, the matter of the transfer of a cause of action against a juvenile to the juvenile court is within the sound discretion of the trial court. See, also, Pritchard v. Downie, 216 F. Supp. 621 (D. D. C. 1963). Our legislature has also provided that following a conviction of a felony, the trial court is then authorized to send a juvenile under eighteen (18) to the penitentiary “if in the judgment of the trial judge such course may be expedient.” Ark. Stat. Ann. § 46-308 (Supp. 1969). The trial court was in a position much superior to ours to evaluate the extremely onerous problems presented by appellant’s motion. We cannot say that in the circumstances there was an abuse of discretion by the trial court in refusing to grant appellant’s pretrial motion.
Nor can we agree with appellant’s assertion that the entire proceedings of the appellant’s trial constitute a violation of his constitutional rights, both state and federal.
This case has given us much concern. However, finding no error, the judgment is affirmed.
Ark. Slat. Ann. § 41-112 (Repl. 1964) provides that: “An infant under twelve [12] years of age shall not be found guilty of any crime or misdemeanor.” Between the ages of 12 and 14 years the presumption is that one is incapable of discerning right from wrong until the contrary is affirmatively shown. Gilchrist v. State, 100 Ark. 330, 140 S. W. 260 (1911); Garner v. State, 97 Ark. 63, 132 S. W. 1010 (1910).
Section 41-111 states: “A person shall be considered of sound mind who is neither an idiot nor a lunatic, or affected with insanity, and hath arrived at the age of fourteen [14] years, or before that age, if such person know the distinction between good and evil.” | [
-79,
-22,
-36,
30,
43,
96,
106,
56,
-46,
-29,
-30,
115,
47,
-57,
69,
105,
127,
101,
84,
121,
0,
-77,
23,
97,
-16,
-13,
-80,
-41,
-77,
109,
-20,
-99,
8,
112,
74,
85,
98,
-120,
-25,
-48,
-126,
-123,
-87,
98,
-62,
18,
36,
111,
86,
15,
49,
-114,
-77,
42,
31,
-54,
8,
40,
74,
-65,
16,
49,
-86,
-99,
-51,
18,
-93,
-90,
-68,
6,
120,
46,
-103,
49,
0,
-8,
115,
-108,
-126,
84,
75,
-120,
-116,
102,
67,
33,
-51,
-28,
-88,
9,
-82,
126,
-83,
-89,
-103,
113,
1,
100,
-67,
-35,
98,
52,
62,
-12,
-17,
84,
89,
108,
0,
-41,
52,
-109,
-113,
44,
-42,
-6,
-29,
37,
32,
117,
-35,
34,
84,
69,
125,
-109,
-98,
-42
] |
John A. Fogleman, Justice.
Acting for Plantation Embers, appellant Carl Purnell entered into an oral contract sometime in 1966 with Atkinson-Torrence Incorporated. Plantation Embers is a corporation engaged in the restaurant business. Atkinson-Torrence was operating as an advertising agency. By the terms of this contract Atkinson-Torrence was to handle Plantation Embers’ advertising with KATV. This agreement was evidenced by a written authorization from Purnell to KATV, the content of which is not disclosed. A part of the advertising agency’s responsibility involved the preparation of materials necessary for advertising three “spots” per week. Appellee Atkinson testified that this oral contract “was a continuing type of thing subject to cancellation on 50 days notice” and that it “was renewed in December for another year, December 1968.” Because of this arrangement, which saved KATV time and expense, KATV discounted by 15% its charge for this advertising. The discount went to Atkinson-Torrence and was its compensation for services; hence, in effect, Purnell did not pay an additional charge for the services. Purnell was billed monthly for the preceding month by Atkinson-Torrence for all charges including the gross charge by the station.
Pursuant to the oral contract, a written contract was executed between KATV and Atkinson-Torrence. This contract ran from December 12, 1967, until December 12, 1968. Although Plantation Embers was not a formal party to this contract, it was made on appellant’s authorization through the oral contract. Prior to this arrangement, Purnell had contracted directly with the television station.
The corporation, Atkinson-Torrence, actually consisted of two people, Mr. Atkinson and Mr. Torrence. Mr. Torrence had done cartoon work used in KATV advertising for Plantation Embers previous to the oral contract with the advertising corporation and prior to the organization of the corporation. Mr. Atkinson, appellee, dealt with Mr. Purnell on copy changes for the advertising. On October 1, 1968, without the knowh edge of Mr. Purnell the corporation was dissolved and Mr. Purnell’s account assigned orallv to Atkinson & Associates which consists solely of Mr. Atkinson. Atkinson renewed the written contract with KATV, effective December 17, 1968, in the name of Atkinson 8c Associates. The parties disagree as to whether Purnell had notice of this renewal. According to Atkinson it was dated December 17, 1968, and a copy sent to Purnell. Purnell denies that he ever received or saw a copy of this contract.
Apparently the first knowledge Mr. Purnell had of the change in the agency came through a letter from Torrence dated December 9, 1968. Purnell was behind in his payments for August and September, and this letter asked that he make these payments in order that the affairs of the corporation could be completed. Purnell testified that he had become unhappy with the advertising because of alleged errors in the announcements and that he had asked to be notified of the time the “spots” were to be run so that he might watch them. When this was not done he withheld payment for August and September, contrary to his prior practice of paying these bills promptly. Upon receiving the letter of December 9, he paid these two bills. Each month thereafter he received a bill for the preceding month but paid none of them. Upon receipt of a bill in February, which set out the balance past due for the months of October, November, and December and the balance due for January, Mr. Purnell wrote on the bottom of the bill, “Jimmy This is in error as these were cancelled months ago” and then returned the bill. When Mr. Atkinson received the bill with the notation, he contacted KATV and arranged to have the advertising stopped as soon as he could. Appellee brought this suit when Mr. Purnell refused to pay the bill. Judgment was given to Atkinson for $870, the amount due prior to the time the cancellation was held to be effective, plus interest.
Appellant Purnell relies on two points: that there was no contract with Atkinson 8c Associates and, alternatively, that it had been cancelled. The first point turns on the validity of the alleged assignment. Appellant advances the theory that the contract was one for personal services and hence not assignable, relying on Roberts Cotton Oil Co. v. F. E. Morse & Co., 97 Ark. 513, 135 S. W. 334, and Leader Co. v. Little Rock Ry. & Elec. Co., 120 Ark. 221, 179 S. W. 358 and 6 Am. Jur. 2d, Assignment, p. 196, § 11. While appellee disputes this theory, it is not necessary to decide this question. An assignment which is invalid or ineffective, even where the contract is for personal services, may be validated by ratification which may relate back to the time of the assignment. 6 C. J. S. Assignments, p. 1133, § 78; 6 Am. Jur. 2d, Assignment, p. 196, § 11, p. 206, § 21; see Corning Roller Mills Co. v. William Kelly Milling Co., 159 Ark. 1, 250 S. W. 895.
On the issue of ratification, the evidence taken in the light most favorable to appellee shows that appellant Purnell had notice of the assignment on the 9 th or 10th of December, 1968. Subsequently he discussed the advertising with appellee, but made no objection to, or repudiation of, the assignment. In this discussion, Purnell again expressed his dissatisfaction with the way the “spots” were being run. The inference, then, is clear that he had knowledge that the spots were being run and would continue to be run. When appellant received bills for the advertising he made no objection until he received the January bill in February. Each statement that was sent him had an invoice from KATV showing the number of spots run during the preceding month. “Atkinson & Associates” was printed on the letterhead of each statement. These facts are sufficient to show that appellant knew the advertising was continuing and that Atkinson & Associates was handling the account. They also show that appellant made no objection and could be said to have ratified the assignment by his conduct. 6 C. J. S. Assignment, p. 1135, § 78; Petitt v. F. V. H. Collins Co., 112 Mont. 12, 113 P. 2d 340 (1941).
Appellant takes the position that by not paying the monthly statements, he evidenced an intention not to ratify the contract. However, he did not pay the October and November bills even though he testified that he did not have notice of the assignment until the 9th or 10th of December, 1968.
Appellee testified without contradiction that the oral contract could be cancelled by either party on 30 days’ notice. While there is some evidence tending to show that the contract was cancelled prior to December 12, 1968, appellant now urges only that the contract was cancelled as of that date. He relies on the conversation that took place shortly after the letter of December 9, 1968. He testified concerning that conversation as follows:
“And I told him that I was willing to pay for anything that I had agreed to buy and pay for, but that I was not happy with this situation, them showing spots that I couldn’t watch and to take the dangers and risk of them running spots for me that I hadn’t even seen, no way to proof copy or anything and that I didn’t want to continue paying for something that I felt was doing me meare harm than good. At no time during our conversation was any mention made of renewal of contract because I was very unhappy with this situation for a period. . .”
On the other hand, Atkinson testified that he first heard of cancellation of the contract around February 10) when he saw the notation on the statement then returned by Purnell. To be effective, notice of termination must be clear, unambiguous and unequivocal. Baker v. Missouri Nat. Life Ins. Co., 372 S. W. 2d 147 (Mo. Ct. App. 1963); Petitt v. F. V. H. Collins Co., 112 Mont. 12, 113 P. 2d 340 (1941); Warrick v. McKnab’s Estate, 164 Kan. 78, 187 P. 2d 502 (1947). We cannot say that appellant’s statement met this test.
Appellant also contends that the contract expired by its own terms on December 12, 1968. Apparently he has confused the written contract to which he was not a party with the oral contract with the agency. While the written contract between appellee and KATV expired on that date, the oral contract did not, as shown by the only evidence in the record, i. e., appellee’s testimony. The court below held the oral contract in existence until February 13, 1969, when it was can-celled, and the record before us supports that finding. The written contract between the agency and the station was renewed in the usual course of their business.
The judgment of the circuit court was based on a finding that the contract had not been cancelled. Since there is substantial evidence to support that view, the judgment is affirmed.
During a part of the time involved, the business was operated as a proprietorship. It is conceded by appellant that, for the purpose of this case, the change in status is immaterial.
Neither of these cases involves personal services.
Appellant’s testimony on this point bears more directly upon the issue of cancellation than it does upon this issue. | [
-104,
-20,
-40,
-115,
24,
98,
106,
-72,
-67,
-61,
-9,
83,
-19,
70,
29,
105,
-41,
93,
80,
106,
-34,
-77,
17,
32,
-62,
-101,
-39,
-35,
-79,
74,
-12,
-3,
8,
-72,
-62,
77,
-90,
74,
77,
28,
-58,
-113,
-24,
96,
-15,
-126,
48,
13,
48,
-55,
97,
-114,
-73,
40,
17,
-49,
-51,
56,
123,
9,
73,
48,
-70,
29,
127,
18,
-79,
36,
-104,
23,
-4,
44,
-112,
53,
9,
-24,
123,
-90,
-106,
-20,
35,
-55,
-116,
-78,
99,
32,
-47,
-17,
-36,
25,
6,
-34,
-99,
-28,
-108,
73,
43,
77,
-65,
29,
112,
24,
7,
-8,
-33,
-44,
-35,
-20,
11,
-122,
-4,
-125,
-113,
-24,
-98,
18,
-21,
2,
49,
84,
-51,
-66,
92,
103,
122,
11,
-123,
-107
] |
Frank Holt, Justice.
This is an appeal from a circuit court order, dated June 16, 1969, establishing a suburban improvement district under Act No. 41 of 1941, as amended [Ark. Stat. Ann. §§ 20-702, -703, -705— 715. -717-742 (Repl. 1968), §§ 20-701, -704, -716 (Supp. 1969).]
Numerous identical petitions were filed in the circuit court requesting the creation of a suburban improvement district to encompass certain described lands totaling 13,190.58 acres of which slightly more than one-half is located in Sharp County, -the remainder be-ing in Fulton County. The petitions were signed by owners of the land representing 62.98% of the total acreage and asked that John Cooper, Jr., Joe Basore and Jim Napper be named as the three commissioners for the district. Cooper and Basore are officers and stockholders of the John A. Cooper Company which is one of the petitioners and holder of record title to more than 50% of the land to be included in the proposed district, both as to area and assessed valuation. The establishment of the improvement district was opposed by the Cherokee Village Homeowners Protective Association,- appellant, which consists of 163 remonstrants who own property within the boundaries of this proposed district.
The trial court set a hearing, at which time the remonstrants challenged the constitutionality of the legislation authorizing the creation of the improvement district and contested the proposed appointment of Cooper and Basore as commissioners in that such an appointment would constitute a conflict of interests between their duties as commissioners of the district and their interest in the John A. Cooper Company, majority property owner of the lands to be included within the district.
The trial court found that there was no conflict of interests presented which would disqualify Cooper or Basore as commissioners and adjudged that the petition is proper and in accordance with the provisions of Act No. 41 and is, therefore, valid and not violative of- any rights of the remonstrants or other property owners within the boundaries of the district under either the State or Federal Constitution. The court adjudged that Act No. 41 does not constitute an unconstitutional delegation of legislative powers- or deprive remonstrants of any rights or property without due process of law. The court then denied the protests of the remonstrants, ordered the establishment of the Cherokee Village Road and Street, Recreational and Fire Department, Suburban District No. 1, and appointed John A. Cooper, Jr., Joe N. Basore, and Jim Napper as commissioners of the district.
For reversal appellant contends: (1) Act 41 of 1941 is an unconstitutional delegation of legislative authority; (2) the Act deprives appellant of property rights without due process of law; and (3) the trial court erred in appointing John Cooper, Jr. and Joe Basore as commissioners because of their patent conflict of interests.
The gist of appellant’s first argument is that the legislature can delegate the responsibility of designating the lands to be included in the district, the authority to select the improvements to be created, and the power to levy taxes and issue negotiable notes, bonds and other evidences of indebtedness only to sóme other subordinate governmental agency and not to private individuals. Appellants contends that under Act 41 of 1941, any individual landowner, or group of landowners, as in the case at bar, could select boundaries in such a manner that he or they would own a majority in area and assessed valuation and thus be able at will to establish ah improvement district. This argument overlooks the fact that the proposed purposes for such a district must be submitted to and approved by the county or circuit court. See § 20-701. Furthermore, the various improvements for which a district may be organized and the powers which it may exercise are succincdy set out by statute. Section 20-704. See, also, Page v. Highway No. 10, Water Pipe Line Imp. Dist. No. 1, 201 Ark. 512, 145 S. W. 2d 344 (1940). Once an improvement district is lawfully created, it assumes the status of a de jure governmental agency [see Sloan, Improvement Districts in Arkansas, § 17 (1928)], and the power of the district to then further designate property to be included does not constitute a delegation of legislative authority. Merritt v. No Fence Dist. No. 2, Jefferson County, 205 Ark. 1129, 172 S. W. 2d 684 (1943). As to the power of an improvement district to levy assessments, we have had occasion, in Board of Improvement v. Pollard, 98 Ark. 543, 136 S. W. 957 (1911), to note:
“It has been repeatedly held that special assessments for local improvements can be made and collected only on account of special and peculiar benefits which such improvements bestow upon the property which is assessed. * * * The principle upon which these assessments for local improvements are made is that by reason of the benefits received no pecuniary loss can be suffered by the owner of the property in paying therefor.
* * *
The power to form improvement districts and to levy assessments for the payment of improvements made therein belongs primarily to the Legislature; but the Legislature has the authority to exercise this power directly or through local agencies which it may establish. * * *”
See, also, Arkansas-Louisiana Imp. Dist. v. Pickens, 169 Ark. 603, 276 S. W. 355 (1925). We find no merit in appellant’s contention that Act 41 of 1941, as amended, is an unconstitutional delegation of legislative authority.
In regard to the second point for reversal, i. e., that the Act deprives appellant of property rights without due process of law, we likewise find no merit. We have previously upheld the validity of the taking of property by an improvement district for a public purpose. Cannon v. Felsenthal, 180 Ark. 1075, 24 S. W. 2d 856 (1930). See, also, Hale v. Southwest Ark. Water Dist., 244 Ark. 647, 427 S. W. 2d 14 (1968), where the acquisition of property was approved as being for public purposes, even though it was contended that it served primarily private ends or purposes. Appellant, however, insists that Act 41 of 1941, as amended, does not limit the right of eminent domain to public purposes, since provision is made for acquisition of recreational facilities. The acquisition and improvement of public parks are proper purposes for which improvement districts may be organized and assessments levied. Matthews v. Kimball, 70 Ark. 451, 66 S. W. 651 (1902). The ownership and operation of a swimming pool by a governmental agency, a city, is proper. Cabbiness v. City of North Little Rock, 228 Ark. 356, 307 S. W. 2d 529 (1957). See, also, Todd v. McCloy, 196 Ark. 832, 120 S. W. 2d 160 (1938). And municipal recreational facilities can be- supported by an appropriation from public funds. Ark. Stat. Ann § 19-3629 (Repl. 1968). However, the answer to appellant’s contention is that the district must act for the benefit of all the affected property owners; and if any property owner feels aggrieved, he has the right to have the decision of the improvement district judicially reviewed. Ark. Stat. Ann. §§ 20-708, -720, -721, -728, -734, -740 (Repl. 1968), and Act 16 of 1970 (First Extraordinary Session).
Constitutional attacks have previously been unsuccessfully leveled against the validity of Act 41 of 1941. See Murphy v. Cook, 202 Ark. 1069, 155 S. W. 2d 330 (1941).
Appellant next contends that the trial court erred in authorizing Cooper and Basore to serve as commissioners. It is asserted that they have a patent conflict of interests since they are officers and stockholders of the John A. Cooper Company which has as its objective the development and sale of lands with various improvements. The appellant observes that Act 41 (§ 20-703) requires that commissioners of a district “will not be interested directly or indirectly in any contract let by the board * * We do not reach this contention since the record before us does not demonstrate that the appointed commissioners have acted in violation of the statutory provisions.
Affirmed.
Byrd, J., not participating. | [
116,
-22,
-4,
126,
42,
-62,
16,
-89,
66,
-71,
-25,
83,
39,
-56,
17,
101,
-30,
127,
-43,
121,
-57,
-74,
83,
98,
-112,
-13,
-33,
-57,
-77,
77,
-26,
-106,
72,
21,
-54,
95,
-58,
32,
-49,
-116,
-18,
11,
-117,
100,
88,
64,
56,
111,
82,
15,
21,
45,
-14,
-83,
57,
-13,
73,
108,
-39,
-88,
89,
-6,
-102,
-57,
-39,
23,
33,
-28,
-118,
-127,
120,
58,
-80,
49,
4,
-20,
83,
-90,
-106,
116,
1,
-37,
8,
32,
98,
11,
-68,
-49,
-24,
-88,
6,
-66,
45,
-90,
-109,
120,
66,
10,
-74,
-106,
122,
48,
-58,
-12,
107,
5,
83,
44,
-124,
-82,
-108,
-77,
-123,
-72,
-45,
-117,
-13,
15,
48,
117,
-51,
-58,
95,
68,
19,
-101,
-98,
-112
] |
George Rose Smith, Justice.
By statute the Insurance Commissioner is required to make periodic examinations of the affairs, transactions, accounts, records and assets of domestic insurance companies. Ark. Stat. Ann. § 66-2115 (Repl. 1966). Pursuant to that statute the Commissioner conducted an examination of this appellee, Christian Foundation Life, for the period January 1, 1964, through December 31, 1967. A detailed report of the examination was duly filed by the examiners.
In connection with the examination of this insurer and of other insurers being examined at the time, the Commissioner imposed for the first time a requirement that the principal officers of each company execute what the Commissioner refers to as a Standard Certificate, having to do with information not disclosed by the records of the company. The officers of Christian Foundation Life refused to execute the Standard Certificate as prescribed by the Commissioner but offered to execute a similar certificate in a slightly amended form. After a hearing conducted by a departmental examiner the Commissioner refused to accept the proposed amendments and ordered that the original Standard Certificate be completed. On appeal, however, the circuit court set aside the Commissioner’s order and allowed Christian Foundation Life to use the amended form. For reversal the Commissioner contends that the circuit court exceeded its authority in modifying the Commissioner’s decision.
The facts are not in dispute. It is conceded that Christian Foundation Life, during the examination of its affairs, afforded the Commissioner’s representatives complete access to all the company’s books and records. At the departmental hearing the Commissioner’s chief examiner, Franklin Seford, repeatedly made it clear that the Standard Certificate was designed solely to elicit information known to an insurer’s principal officers but not reflected by its records. Here áre exerpts from Se-ford’s testimony: “This [the Standard Certificate] is to have the officers of the company commit themselves to definitive answers for any liabilities that are not reflected by the company’s books. . . . We want them to make a statement of fact over and above what the records show. . . . This is a disclosure that must be made independent of any of their records or examina the officers’ standpoint in the event something is in the mill, is pending, has been committed, but has not been reduced to the record-keeping status. . . . [T]he certificate is to supplement what is in the records to determine if there are in existence any liabilities or other contingent — or other liabilities — that are not reflected in the books and records of the company.”
In the order that was modified by the circuit court the Commissioner himself expressed precisely the same point of view, saying: “The certificate form in question is required by this Department to be completed as a disclosure in addition to any information disclosed by the books and records of the company being examined, the purpose of which is to have the officers of the company commit themselves to definitive answers for any liabilities that are not reflected by the company’s books and records.”
The appeal to this court actually brings up a point of minimum disagreement, for the amended certificate approved by the circuit court contains the exact information demanded by the Commissioner. To make that fact clear we are setting forth in composite form the original Standard Certificate and its form as amended. We have italicized the amendments and have enclosed in brackets the only two words in the original that were deleted in the revision:
In connection with examination of our records for the period from January 1, 1964, to December 31, 1967 we certify that to the best of our knowledge: (1) All borrowings have been recorded in the accounts of the Company.
(2) No liabilities or contingent liabilities in the form of endorsements or guarantees of the obligations of others existed at December 31, 1967 except as reflected in the Company’s records and except as noted below.
(3) No liabilities or contingent liabilities in the form of financial commitments not in the reguiar course of ordinary business existed at December 31, 1967, except as reflected in the Company’s records and except as noted below.
(4) No liabilities or contingent liabilities in the form of purchase commitments or repurchase commitments for investments or assets at prices in excess of current market quotations existed at December 31, 1967, except as reflected in the Company’s records and except as noted below.
(5) None of the Company’s assets were pledged or hypothecated as securities for liabilities of this Company or any other company, firm or person except as reflected in the Company’s records and except as noted below.
(6) Except as reflected in the records of the Company, and except as noted below, the Company holds (without claim of offset) valid and [unquestioned] legal title to all assets ■ listed on the books of the Company and the undersigned officers have no [knowledge] reasonable grounds for believing that any of the Company’s debtors lacked the legal capacity or authority to execute any of the notes or .contracts held by the Company.
A reading of subparagraph (2), for example, will make clear the appellee’s objections to the original Standard Certificate. That_ subparagraph would have required the officers signing the certificate to separately list all the designated liabilities and contingent liabilities of the company even though those obligations were fully disclosed by books that were open to the Commissioner’s examination. Yet the Commissioner from the outset has disclaimed any intention to obtain by means of the Standard Certificate any facts except those known to the officers but not disclosed by the company’s records. Hence the phrase inserted by amendment in sub-paragraph (2), “except as reflected in the Company’s records,” is completely in harmony with the Commissioner’s own position in the matter.
In its brief the Commissioner argues that the circuit court exceeded its reviewing authority when it undertook a rewriting of the certificate to be executed by Christian Foundation Life. That action, however, falls clearly within the circuit court’s authority to “modify” the Commissioner’s order. Ark. Stat. Ann. § 66-2127 (6). Moreover, the Commissioner is mistaken if he considers the circuit court’s action to be a permanent rewording of the Standard Certificate. All that a court does is to decide the controversy before it upon the proof adduced by the parties to the case. The circuit court’s judgment, and our affirmance thereof, settle the present controversy and will presumably serve as a controlling precedent in similar cases that may arise in the future. The courts, however, do not even purport to exercise any rule-making power in a case such as this one. Consequently the Commissioner is still free to make any regulations or to prescribe any certificates that he deems to be desirable, within the limits permitted by law.
Affirmed. | [
36,
-4,
-28,
-36,
-120,
-32,
-70,
34,
-37,
-24,
-25,
115,
-67,
-62,
4,
103,
-60,
61,
-47,
64,
-42,
-77,
51,
59,
-42,
-9,
49,
-57,
49,
95,
-18,
-68,
93,
58,
-86,
-43,
-30,
72,
-57,
26,
-58,
14,
-72,
-31,
-39,
-64,
32,
105,
-77,
79,
85,
-34,
-93,
60,
-103,
-49,
73,
44,
-40,
-87,
80,
113,
-118,
23,
127,
5,
-79,
68,
-104,
9,
-40,
46,
-104,
-79,
10,
-7,
51,
-74,
-34,
100,
63,
25,
9,
102,
-29,
16,
16,
-19,
-104,
-100,
63,
38,
15,
6,
-74,
73,
99,
11,
-65,
-107,
68,
80,
38,
-4,
-30,
-44,
91,
32,
5,
-117,
-78,
-93,
93,
-60,
-104,
11,
-50,
1,
48,
80,
-54,
-74,
93,
71,
57,
-37,
-58,
-90
] |
Frank Holt, Justice.
Appellant was charged by information with the crime of murder in the first degree. A jury returned a verdict of guilty of voluntary manslaughter and assessed tne appellant's punishment at seven years in the penitentiary. From the judgment upon that verdict comes this appeal. Although sixteen points of error are assigned for reversal, those that are argued can be grouped into three basic issues.
I
The name of the victim’s treating physician was not included among the witnesses endorsed on the information. The listing of the State’s witnesses was in response to appellant’s request. The attorney for the appellant was apprised, however, by the prosecuting attorney that the State intended to call this physician as a witness and that his identity had not as yet been determined. On the morning of the trial the State named the treating physician as a witness, in addition to those listed on the information. Appellant thereupon moved for a continuance based upon surprise. Appellant assigns as error the denial of this motion. We do not agree.
Appellant relies upon Ark. Stat. Ann. § 43-1004 (Repl. 1964) which requires upon an indictment the endorsement of the names of witnesses who appear before a grand jury. Assuming, without deciding, that this statute is applicable to an information, we have said that this requirement is merely directory and not mandatory. Baker v. State, 215 Ark. 851, 223 S. W. 2d 809 (1949); Thomas v. State, 161 Ark. 644, 257 S. W. 376 (1924); Taylor v. State, 186 Ark. 162, 52 S. W. 2d 961 (1932); Steel v. State, (Feb. 10, 1969) 436 S. W. 2d 800. The failure by the State to supply the defendant with the names of its witnesses “does not affect the validity of the trial unless the accused can show that he has been in some way misled to his prejudice and had no opportunity to meet the testimony given by the witness.” Thomas v. State, supra. In the case at bar, when appellant made a request for the names of the State’s witnesses prior to trial she was made aware by the prosecuting attorney that the treating physician, whose name was then unknown, would be called as a witness for the prosecution. Thus, the appellant had an equal “opportunity” with the State to determine prior to trial the identity of the treating physician and thereby “to meet [his] testimony” if necessary. It cannot be said therefore, that appellant was misled to her prejudice or surprise. Norton v. State, 237 Ark. 783, 376 S. W. 2d 267 (1964). Nor can we agree with appellant that the trial court abused its discretion in refusing to grant appellant’s motion for a continuance based upon the doctor being a surprise witness. Jackson v. State, 245 Ark. 331, 432 S. W. 2d 876 (1968). In fact, the trial court offered to continue the trial of the cáse for a reasonable time to permit appellant to secure and present evidence to contradict the doctor’s testimony. The offer was declined.
II
Appellant next argues that the trial court erred in instructing the jury to disregard a statement made by the decedent to his treating physician in which statement the victim admitted provoking the incident that led to his death. The appellant argues that this statement was a dying declaration and, therefore, admissible as an exception to the hearsay rule. The victim of the alleged offense lived about a month before he succumbed to a gunshot wound. The physician testified that the victim was not dying at the time the statement was made, nor did it appear that he was under the impression that his death was imminent. Apprehension of immediate death is, of course, a condition of the admissibility of a dying declaration. We agree that the trial court was warranted in telling the jury that the appellant had not demonstrated that the deceased’s statement was made in the belief of impending death and without hope of recovery. Comer v. State, 212 Ark. 66, 204 S. W. 2d 875 (1948); Wigmore, Vol. V, § 1451. Yet another answer to this contention is the absence of any objection to this ruling by the trial court. We have consistently required that an objection must be made, an exception saved and the point preserved or carried forward in a motion for a new trial. Keese and Pilgreen v. State, 223 Ark. 261, 265 S. W. 2d 542 (1954); Randall v. State, 239 Ark. 312, 389 S. W. 2d 229 (1965); Parrott v. State, (April 14, 1969) 439 S. W. 2d 924.
III
Finally, it is urged that error was committed when the trial courc ordered one of appellant’s witnesses to be removed to a hospital for a blood test and thereafter permitted the doctor who administered this test to testify as to the witness’s state of intoxication while she .was on the witness stand.
Appellant called Valdean Hamilton, who was present with appellant On the night of the shooting, as a witness. On cross-examination she was asked whether she had been drinking on the day of the trial. She answered that she had not. At that point the prosecuting attorney stated to the court: “Your honor, at this time, I would like for an officer to check this young lady.” The court then asked the jury to rest for a moment and removed the proceedings into chambers. After an in-chambers proceeding in which the witness repeated her denial of drinking during the day and two officers of the court testified that the odor of alcohol about the witness was noticeable to them during the trial, the court ordered that she be taken to the hospital for a blood test. Two reasons motivated this order: first as a matter of possible impeachment and, second, as a possible basis for contempt of court. It is undisputed that the witness had drunk rather heavily the night before. After the tests were made, the examining doctor was permitted to testify as a rebuttal witness for the State, On direct examination he stated that her blood alcohol content was .056 per cent per weight which would indicate imbibing of alcohol within the past few hours. He further testified that this percentage constituted “a sub-clinical intoxication. It can be detected by sensitive tests, and by chemical tests, but usually they do not show — most of them do not show very much obvious change.” On cross-examination he stated, with reference to this percentage, that: “It does reduce a person’s inhibitions, and an inhibition would be his conscience. A person might tell a lie with less com-' punction with this amount of alcohol than normal.”
If the extrinsic testimonial evidence by the doctor as to the witness’s state of intoxication would have been offered to impeach her statement that she had had nothing to drink on the day she testified, such evidence would have been inadmissible because the issue of her intoxication is clearly collateral to the issues of the case. On the other hand, the authorities are in agreement that extrinsic evidence may be introduced to show a witness’s state of intoxication in order to demonstrate a defect in capacity to observe or ,recollect and, thereby, to attack generally the witness’s credibility. McCormick, Law of Evidence, § 45; Wigmore, Vol. Ill, § 933; 98 C. J. S. Witnesses, § 461. Although there are no cases in this jurisdiction directly in point, the following is meaningfully analogous. In Thrash v. State, 146 Ark. 547, 226 S. W. 130 (1920), the court considered the admissibility of extrinsic evidence as to the witness’s mental state at the time of testifying. We said:
“If a party knows before the trial that a witness is incompetent on account of his mental condition, the objection must be made before the witness has given any testimony, and if the objection appears at the trial it must be interposed as soon as it becomes known. Mell v. State, 133 Ark. 197. It is admissible, however, in order to affect the credibility of the witness, to prove that he is subject to insane delusions or that his mind and memory have become impaired by disease or other causes.”
It is said in Wigmore, supra, that: “Intoxication, if it is of such a degree as to deserve the name, involves a numbing of the faculties so as to affect the capacity to observe, to recollect, or to communicate; and is therefore admissible to impeach.” Here, the doctor testified that the amount of alcohol found in the witness’s blood might cause a person to “* * * tell a lie with less compunction * * * than normal.” We are not here deciding that .056 per cent of alcohol per weight of blood is the demarcation point of permissible impeachment; we simply hold that the totality of the evidence presented as to this witness’s state of intoxication justified an attack on her capacity to testify and on her general credibility.
Nor do we agree with the appellant that the removal of the proceedings into chambers constituted a comment by the court upon the evidence or that the subsequent ordering of the blood test was prejudicial to her. Appellant directs us to Lile v. State, 186 Ark. 483, 54 S. W. 2d 293 (1932); Crosby v. State, 154 Ark. 20, 241 S. W. 380 (1922); and Martin v. State, 130 Ark. 442, 197 S. W. 861 (1917). In the first two cases, the respective trial judge ordered the arrest for perjury, in the presence of the jury, of a witness on the stand. This, in effect, was tantamount to a statement by the trial court to the jury that these witnesses were not to be believed. In the latter case, the trial judge ordered, again in the presence of the jury, the arrest of a witness based upon criminal admissions which he made during the course of his testimony. In the instant case, however, when the prosecuting attorney suggested that the witness be “checked,” the trial judge made no comment except to recess the trial and then removed the proceedings into chambers and out of the presence of the jury. He thereby carefully avoided any undue prejudice to the defendant. This action certainly does not amount to a comment upon the evidence and was, in fact, done for appellant’s benefit. Although the better procedure would have been to ask for an examination of the witness out of the hearing of the jury, we find no prejudicial result to the defendant inasmuch as it developed that the witness was properly subject to impeachment and the jury was admonished by the trial court to consider the doctor’s testimony only as affecting the competency and credibility of the witness.
Affirmed. | [
48,
-18,
-19,
-66,
74,
97,
58,
-118,
-32,
-93,
-90,
115,
-19,
-62,
17,
39,
-29,
41,
85,
105,
-58,
-73,
22,
97,
-13,
-13,
75,
-41,
-79,
78,
-26,
-99,
77,
48,
74,
85,
102,
10,
-57,
16,
-114,
-116,
-87,
98,
74,
-48,
48,
118,
86,
23,
49,
-98,
-85,
104,
62,
-50,
105,
40,
75,
-67,
64,
-80,
-120,
-123,
75,
6,
-77,
-74,
-72,
7,
88,
52,
-104,
49,
0,
-8,
51,
-106,
-126,
-44,
107,
-103,
4,
98,
102,
33,
21,
-91,
41,
-87,
126,
63,
-99,
-89,
-104,
33,
67,
13,
-74,
-99,
99,
52,
-105,
-4,
-3,
77,
93,
44,
9,
-49,
-106,
-79,
-49,
38,
-34,
-45,
-13,
7,
16,
113,
-52,
-30,
84,
71,
123,
-37,
-114,
-44
] |
George Rose Smith, Justice.
The questions on this appeal are whether the three individual appellees, Briggs, Robertson, and McAteer, had sufficient standing to appeal to the circuit court from a county court order annexing certain territory to the city of El Dorado, and if so, whether their appeal was taken in a timely manner. The circuit court sustained the validity of the appeal and modified the county court’s annexation order in a manner that is not questioned on the merits.
The city, after an election, filed a petition in the county court for the annexation of certain territory. On January 29, 1968, the county court granted the city’s petition. The county court attempted to insert in its description of the annexed territory a clause that would have excepted from the annexation a lot, 330 by 110 feet, on which the appellant Skinner has a grocery store and a filling station; but the court’s description of Skinner’s lot was void for indefiniteness.
On April 19, 1968, the county court entered a nunc pro tunc order correcting the description of Skinner’s property. On May 15, 1968, Briggs, Robertson, and McAteer filed their affidavit for appeal from the nunc pro tunc order. Later, on June 7, 1968, they also filed an affidavit for appeal from the county court’s original order of January 29. The circuit court, as we have said, entertained the appeal and modified the county court order by including the Skinner lot in the area being annexed to the city.
We consider first the standing of the three individual appellees to appeal from the county court orders. Those men — or at least two of them — had personally appeared in the county court and orally objected to the annexation, without success. Skinner now contends that the protestants’ failure to file a written pleading in the county court deprived them of any standing to appeal from the annexation orders. Skinner, in making that contention, relies upon this quotation from our opinion in Barnwell v. Gravette, 87 Ark. 430, 112 S. W. 973 (1908): “These remonstrants became parties to the proceedings in the way in which they were authorized by the statute to become so — that is, by filing a petition against the annexation within the time prescribed by the statute. Under the repeated decisions of this court in analogous cases, this made them parties and entitled them to take an .appeal.” Skinner argues that, as a corollary to the court’s reasoning in that case, these three appellees could not appeal from the county court orders because they did not file a petition against the annexation.
We do not agree. When the Barnwell opinion is read in its entirety, we think it sustains the circuit court’s decision in the case at bar. In Barnwell the protestants’ petition simply stated, as a conclusion, that they did “most positively protest and remonstrate against the granting of said petition” for annexation. This court went on to say: “No reasons, legal or otherwise, are alleged in the remonstrance against the petition. It is mere protest.” The court nevertheless held that the petition was sufficient to entitle the protestants to a hearing in the county court and to an appeal to the circuit court.
Our reasoning was simple. The statute, which has not been changed in this respect, provides that “any person interested may appear and contest the granting the prayer of said petition.” Ark. Stat. Ann. § 19-102 (Repl. 1968), which by reference is made the controlling statute by Section 19-507. In Barnwell the protestants did appear in the county court and contest the annexation, just as the appellees did in the case at bar. In Barnwell we pointed out that the protestants do not have to have reasons for attacking the annexation proposal, because the annexation is to be granted only if it be deemed right and proper in the judgment and discretion of the county court.
We think it plain that the Barnwell decision turned not upon the fact that the protestants filed a written petition, which actually said nothing, but upon the fact that they exercised their statutory right to appear and contest the annexation. That, indeed, was a sound approach to the issue, for in a matter of public interest the citizen’s right to be heard ought not to be fettered by technical rules of pleading unless the legislature has seen fit to impose such a requirement. We conclude that the appellees had the right to appeal from the county court orders.
There remains the timeliness of the appellees’ appeal to the circuit court. The original county court order was entered on January 29. The nunc pro tunc amendment was entered on April 19. The first affidavit for appeal was filed on May 15. If we assume, without deciding, that the time for appeal was thirty days (see § 19-307, supra; cf. Pike v. City of Stuttgart, 200 Ark. 1010, 142 S. W. 2d 233 [1940]), the question is whether the time runs from the date of the original order or from the date of the nunc pro tunc amendment.
Here we have no difficulty in sustaining the trial court’s conclusion that the time for appeal began to run anew from the date of the nunc pro tunc order. The facts demand that conclusion. The- appellee Robertson also owns a grocery store that was taken into the city by the annexation. The county court’s exemption of the Skinner property had the effect of allowing Skinner to operate his business on Sunday, while grocers within the city limits do not have that privilege. Robertson, however, had no reason to appeal from the original county court order, because the void description, which did not describe the excepted 330-by-110-foot tract with sufficient definiteness even to identify it as the Skinner lot, gave Robertson no notice that he was being adversely affected by the exception, in the order. It was not until the nunc pro tunc order was placed of record that Robertson had any basis for knowing of, and objecting to, the preferential treatment being given to Skinner. In fairness, his time for appeal should not be held to have already run before he was put on notice that the court’s order worked to his detriment. Hence, in such a situation, the time for appeal begins to run with the entry of the order that works the injury. Freeman, Judgments, § 139 (5th ed., 1925); Adamson v. Brockbank, 112 Utah 52, 185 P. 2d 264 (1947). In a parallel situation we have often held that an amended complaint which merely restates the original cause of action relates back to the filing of the initial complaint, as far as the statute of limitations is concerned; but an amendment that states a new and different cause of action serves as a new point for the tolling of the statute. Warmack v. Askew, 97 Ark. 19, 132 S. W. 1013 (1910).
Affirmed.
Fogleman, J., concurs. | [
-12,
-20,
-15,
45,
42,
-60,
54,
-115,
74,
-93,
-25,
83,
-19,
-38,
17,
121,
-37,
61,
117,
122,
-60,
-74,
71,
33,
-16,
-13,
-21,
87,
-16,
76,
-26,
-19,
76,
113,
-62,
85,
70,
-30,
-49,
-36,
-114,
-125,
-119,
77,
-55,
2,
52,
-29,
48,
15,
85,
-97,
-13,
44,
25,
-61,
73,
44,
73,
60,
65,
-8,
-98,
79,
127,
7,
1,
-25,
-102,
-127,
114,
62,
-112,
19,
-112,
-8,
51,
-90,
-122,
100,
77,
-103,
-120,
40,
98,
1,
-7,
-17,
-24,
-120,
14,
-69,
29,
-25,
-108,
89,
106,
68,
-66,
-103,
125,
20,
11,
126,
-28,
5,
93,
44,
-90,
-114,
-44,
-73,
-123,
48,
-116,
3,
-29,
3,
48,
113,
-52,
-30,
93,
71,
51,
-101,
-114,
-48
] |
George Rose Smith, Justice.
This case, like many earlier ones, involves a joint bank account that was not set up either in compliance with the statute or in a form precisely similar to any account that we have considered in a previous decision. Here the litigation is between the estate of Don-Washam, Jr., deceased, and his son, the appellant, now eleven years old. This appeal is from a probate court judgment- holding that the plaintiff-appellee First National Bank, as administrator of the elder Washam’s estate, is entitled to the entire account.
The facts are comparatively simple and wholly undisputed. On June 10, 1968, Don Washam, Jr., opened the savings account in question by-depositing $29,524.40 in the First National Bank of Newport. On the signature card the title of the-account was listed as “John A. Washam, a minor” (who was then nine years of age). However, the only authorized signature entered on the card was that of Don Washam, Jr., after which the bank typed the word “father.”
Ten months later, on April 9, 1969, Don, Jr., had the bank add his name to the title of the account, which thereafter appeared as “John A. Washam, a minor or Don Washam, Jr.,” Both before and after that change Don, Jr., made withdrawals freely — some by signing withdrawal slips and some by telephoning -instructions to the bank. Usually the withdrawal was simply transferred to Washam’s personal checking account, but in one instance he had $4,700 transferred to an account designated as “Buddy’s Used Cars,” explaining to the bank that “we are getting into the used car business.” At Washam’s death on July 18, 1969, the amount remaining in the account was $17,412.76. The bank then allowed the minor’s guardian to withdraw the whole account, but in this litigation the probate court awarded it to Washam’s estate.
We agree with the trial court’s decision. At the outset counsel for the appellant candidly concede that no right of survivorship was created pursuant to the controlling statute, because Washam failed to “designate in writing” that the account should be so held. Ark. Stat. Ann. § 67-552 (Repl. 1966), as construed in Cook v. Bevill, 246 Ark. 440 S. W. 2d 570. Nor did Washam attempt to designate in writing a tenancy in common, as contemplated by subsection (c) of that statute.
Absent survivorship, counsel perforce argue that their youthful client acquired title to the account during his father’s lifetime. One suggestion is that the older Washam completed a gift to his son either when he opened the account originally or when he added his own name to the title of the account. The fatal defect in that theory is that the father retained complete control over the account from- its inception until his own death. Hence there was lacking the essential requirement that a valid gift be unconditionally delivered to the donee. Umberger v. Westmoreland, 218 Ark. 632, 238 S. W. 2d 495 (1951); Bennett v. Miles, 212 Ark. 273, 205 S. W. 2d 451- (1947). In fact, we have rejected the notion of a gift where the depositor reserved the right to draw against the account and freely exercised that right. Peters v. Goodwin, 190 Ark. 24, 76 S. W. 2d 980 (1934).
Alternatively, it is suggested that Washam’s original deposit in his son’s name created a tentative trust under the doctrine announced in Matter of Totten, 179 N. Y. 112, 71 N. E. 748, 70 L. R. A. 711 (1904). That doctrine, however, recognizes the creation of a trust only as a result of a savings deposit made by one person in his name as trustee for another. The transaction in the case at bar did not meet the minimum requirements for such a trust. Restatement, Trusts (2d), § 58 (1959).
Affirmed. | [
50,
108,
-56,
60,
24,
-96,
59,
-102,
119,
-59,
101,
-109,
-21,
66,
21,
41,
-9,
45,
101,
97,
-11,
-109,
23,
-96,
-14,
-77,
-7,
69,
-16,
-35,
-92,
87,
76,
48,
-86,
-99,
106,
-126,
-61,
-15,
22,
0,
41,
101,
121,
85,
48,
-81,
22,
11,
69,
-65,
-9,
46,
59,
110,
72,
46,
73,
-71,
-48,
-71,
-114,
5,
127,
22,
51,
4,
-110,
6,
88,
8,
28,
27,
0,
-7,
51,
38,
-102,
-28,
107,
-99,
9,
98,
98,
-126,
-15,
-25,
-108,
-120,
-114,
-26,
-97,
-122,
-108,
113,
1,
61,
62,
-100,
122,
0,
10,
-4,
-22,
20,
28,
104,
17,
-49,
-42,
-93,
-115,
-68,
-114,
27,
-1,
27,
32,
113,
-54,
-62,
93,
-57,
124,
-109,
-122,
-15
] |
Carleton Harris, Chief Justice.
The issue in this case is the construction of a restrictive covenant contained in a subdivision plat limiting use to “residential purposes only.” Appellees, owners of various lots in Rockwood Terrace Addition, located within the city of Fort Smith, instituted suit against Jonathan P. Shermer, appellant herein, and owner of three lots in said addition, seeking an injunction prohibiting Shermer from making any use of the property he owned in Rockwood Terrace, other than a use for single family residential purposes. Appellant answered, setting out that he proposed to build an apartment building for residential use, and he asked that the court interpret the language of the restrictive covenants, and enter a declaratory judgment determining that he was entitled to build an apartment structure upon the property. In response to the prayer for declaratory judgment, appellees stated that such issue was moot for the reason that the court had already entered a declaratory judgment on the identical issue which Shermer sought to have relitigated; that the issue was res judicata.
On trial, the court stated that it was considering the record in Case No. 5551, styled J. P. Shermer, et al v. Billy Haynes, et al, the plat and Bill of Assurance of Rockwood Terrace subdivision, the zoning ordinances of the city of Fort Smith, the proposed plans for a 36-unit apartment project which Shermer proposed to construct on the three lots that he owned, and the testimony of the parties. The court held that the principal issue, i. e., the use to which Lots 10, 11 and 12 might be put by Shermer, had been decided in Case No. 5551 adversely to Shermer, and the issue was thus res judicata. The court further held that the plat and Bill of Assurance of Rockwood Terrace, when considered in the entirety, made manifest an intent to restrict the use of the lots in the said subdivision to a single residence per lot. The court further found that appellees would suffer irreparable harm and injury if Shermer were permitted to construct the 36-unit apartment project in Rockwood Terrace. Shermer was enjoined and restrained from constructing or attempting to construct the apartment, and his prayer for a declaratory judgment was dismissed. From the decree entered in accordance with these findings, appellant brings this appeal. For reversal, it is first urged that the court erred in holding that the restrictive covenants limited development to single family residences as distinguished from other residential uses. It is then asserted that the court erred in holding that appellant was barred by the plea of res judicata.
We first discuss the second contention, and in doing so, it will be necessary to review the earlier suit. In June of 1968, Shermer and wife filed a complaint (Case No. 5551) setting out their ownership of the previously mentioned lots in Rockwood Terrace, and reciting that the board of commissioners of the city of Fort Smith had passed an ordinance which zoned the property as C-4, a classification that would permit the use of the property for commercial purposes. The complaint then asserted:
“* * * Despite the property being zoned C-4, the above plat was filed of record on November 27, 1962, establishing a restriction to the effect that said property shall be used exclusively for residential purposes. Said restriction is therefore .null and void.”
Shermer prayed that the court issue its decree construing the restriction oh appellees’ property, declaring said restriction invalid and unenforceable. In the alternative, it was prayed for judgment declaring that “the erection of a C-4 (commercial) building” was not prohibited by any restriction as to the use of said premise. The lot owners in Rockwood Terrace answered, pleading that the restrictive convenants provided “all lots shall be used for residential purposes only,” and asking that the complaint be dismissed. The court found that the property had been zoned commercial, or C-4, before the plat for Rockwood Terrace, with its restrictive covenants, had been filed; however, the court stated:
“* * # In this instance, certainly residential is a higher standard than commercial and it must be assumed, from the action taken within its discretion, that the Board recognized the same in this instance by approving the plat with the restrictive covenants. * # #
"* # * The City Government was certainly empowered so to do and has acted within its discretion in this regard. Citizens, in reliance upon this action, have entered into contracts and undertakings between themselves and others, including lending institutions not parties to this action; so that now to say that it was a slip, or a mistake, and that the original C-4 commercial zoning applies, or takes precedence over the plat with restrictive covenants, under all of the circumstances of this case would be not only inequitable, but unjust and an abridgement of contracts, as well as undue hardship to those concerned, directly and indirectly, in this particular case.”
The court held that the restrictive covenants “are hereby declared to be valid and enforceable and declared valid and enforceable as to all of the 33 lots in said Rockwood Terrace Addition to the City of Fort Smith, Arkansas, and plaintiffs are directed to pay the cost of this action.”
We do not agree that the decree in Case No. 5551 barred appellant from seeking a construction of the term, “residential purposes only” in the instant litigation. What is the test in determining a plea of res judicata? In Hastings v. Rose Courts, Inc., 237 Ark. 426, 373 S. W. 2d 583, this court, quoting from an earlier case, said:
“ ‘The test in determining the plea of res judicata is not alone whether the matters presented in the subsequent suit were litigated in a former suij: between the same parties, but whether such matters were necessarily within the issue and might have been litigated in the former suit.’ The test is not whether the matters in the second suit were actually litigated in the former suit between the parties, but whether such matters were necessarily within the issues and might have been litigated in the former suit.”
We also quoted language from the United States Supreme Court decision in Russell v. Place, 94 U. S. 606, as follows:
“It is undoubtedly settled law that a judgment of a court of competent jurisdiction upon a question directly involved in one suit is conclusive as to that question in another suit between the same parties. But to give this operation to the judgment it must appear either upon the face of the record, or be shown by extrinsic evidence, that the precise question was raised and determined in the former suit. If there be any uncertainty on this head in the record — as, for example, if it appear that several distinct matters may have been litigated, upon one or more of which the judgment may have passed, without indicating which of them was thus litigated, and upon which the .judgment was rendered,— the whole subject-matter of the action will be at large, and open to a new contention, unless this uncertainty be removed by extrinsic evidence showing the precise point involved and determined. ***”
We agree with appellant that the issue in No. 5551 was whether the zoning ordinance or the restrictive covenants controlled permissible uses — not what residential use could be made of the property. It was not necessary to define “residential purposes only” — nor to determine whether the phrase meant single family residences or multiple residences. In fact, appellant was seeking to place a commercial building on the premises. The court simply held that the restrictive covenants were binding, rather than the zoning ordinance, and this was the only matter adjudicated.
Relative to the first contention, let it be remembered that courts do not favor restrictions upon the utilization of land, and if a particular mode of utilization is excluded, the exclusion must. clearly appear. Moore v. Adams, 200 Ark. 810, 141 S. W. 2d 46. In 14 A. L. R. 2d, there is an annotation upon the subject, “Multiple Residence as Violation of Restrictive Covenant.” At Page 1881, we find:
“Restrictions which, without more, merely limit the use of the property to ‘residence’ or ‘dwelling’ purposes have generally been held not to have the effect of forbidding the erection or maintenance of multiple dwellings, the courts taking the view that such terms were directed only at the type of use to be made of the property, and not at the number of families which might make such use. However, the Michigan courts have consistently given a narrower meaning to the word ‘dwelling,’ holding that it connoted a single-family residence.”
At Page 1403, we find:
“Another common group of restrictions frequently relied upon to exclude multiple dwellings are those built about the terms ‘residence’ or ‘residential purposes.’ It is the weight of authority that such a restriction, in and of itself, does not prohibit use of the land for the various types of multiple dwellings, the courts frequently remarking that the effect of the term is only to limit the use of the property to living as distinguished from business or commercial uses.”
Again, at Page 1404:
“The courts have consistently held that a restriction of property to ‘residence’ or ‘residential’ purposes does not, in the absence of some further qualification, ban the erection or maintenance of apartment houses upon the property, so long as the structures are not to be used for other than residential purposes.
It is evident that the exclusion language presently before us is rather general, the type which the courts have almost uniformly held does not restrict to single family residences. This too is commented on in the annotation at Page 1409, as follows:
“Although the courts are in substantial agreement that a restriction to ‘residence’ purposes, standing alone, does not prohibit multiple dwellings, this unanimity disappears when the modifying terms ‘a,’ ‘one,’ or ‘a sin gle’ is prefixed to the word 'residence.’
The intent to restrict the use of Rockwood Terrace to single family residences could have been clearly and unambiguously shown.
Appellees point out that one of the restrictive covenants in the present case requires that “all residences are to have a minimum of 1,200 square feet of living area, exclusive of carports, garages or porches.” This is the strongest circumstance, if it may be so classed, to support the argument of the appellees, since the plans for the apartment house only call for 520 square feet in a particular unit. Still, there will be considerably more than 1,200 square feet of living area in the apartment building, and there is nothing in the clause which calls for 1,200 square feet “in each unit,” or “each single residence.” We, of course, are not permitted to supply the missing words.
From what has been said, it is apparent that the trial court erred in its findings. The decree is reversed, and the cause remanded for the entry of a decree consistent with this opinion.
It is so ordered.
A plat of Rockwood Terrace was introduced into evidence, the reverse side containing the Bill of Assurance.
Under C-4, many uses were permitted, including multi-family apartments; however, Shermer was only seeking, in the litigation, the right to construct a commercial building.
Timmons v. Brannan, 225 Ark. 220, 280 S. W. 2d 393.
Even then, as pointed out in the annotation at Page 1381:
“There is a wide split of authority as to whether the restriction to ‘one,’ ‘a’ or ‘a single’ residence, dwelling, house, 01 building, will effectively exclude multiples, and considerable authority may be found for either view.”
It is then pointed out that, when the adjective, “private,” to the general terms, “dwelling” and "residence,” is added, it appears that the majority of the courts are agreed that an intent to restrict the use to single-family dwellings is sufficiently shown; also, “one-family” residences or dwellings have generally been held to exclude multiples. | [
-107,
-18,
-64,
78,
26,
96,
24,
-101,
120,
-80,
-27,
83,
-19,
-34,
-60,
113,
-17,
125,
112,
-23,
-11,
-78,
70,
114,
-46,
-45,
-109,
-43,
-72,
77,
-11,
-122,
93,
37,
-54,
-41,
6,
-118,
-115,
-100,
14,
-123,
10,
101,
-39,
66,
52,
58,
20,
15,
21,
-113,
-46,
40,
25,
-63,
12,
44,
-55,
100,
-15,
-38,
-102,
13,
-1,
5,
-79,
100,
-46,
67,
104,
76,
-48,
49,
0,
-24,
115,
34,
-106,
116,
79,
-69,
40,
34,
98,
2,
41,
-9,
-96,
-104,
15,
-34,
-67,
-92,
-78,
25,
34,
33,
-97,
-105,
125,
16,
69,
-2,
-26,
-107,
89,
104,
-113,
-114,
-42,
-79,
-121,
-8,
-125,
67,
-17,
65,
32,
116,
-49,
-94,
-2,
-45,
83,
-101,
-114,
-40
] |
Conley Byrd, Justice.
This appeal involves a colli sion at a railroad crossing. The jury returned a verdict for appellees Missouri Pacific Railroad Company and Roy R. Brown, the engineer, upon which judgment was entered. For reversal appellants Henry Koch, Administrator of the Estate of Phillip E. Haralson, deceased, and Marie Koch assert only that, “The trial court erred in the giving of an instruction which excused the railroad from the performance of its statutory duties.”
The instruction, to which only a general objection was made, provides:
“When the presence of a train approaching or occupying a crossing is readily discoverable by means other than lights, signals or flag men, then the failure to have crossing lights, crossing signals or a flag man at the crossing and the failure of the train men to ring the bell or blow the whistle are not relevant factors for your consideration.”
Our cases hold that a general objection is good only if the instruction is inherently erroneous — i. e., the instruction could not be correct under any circumstance.
The partial record here shows that decedent was driving a dump truck with a gross weight of 35 tons at a speed of approximately 30 miles per hour. The train was traveling at approximately 40 miles per hour. Decedent struck the first boxcar behind the engine. The witnesses testified that decedent’s view was unobstructed, that a person who wanted to see could see the train. Admittedly some witnesses testified that the train whistle was blowing and that the other statutory signals had been given. There was also evidence to the contrary. Other evidence indicated that the brakes were faulty on the truck decedent was driving.
Our cases hold that the purpose of requiring a railroad to give signals is to warn the traveler of the approach of a train but that when the traveler other wise has knowledge of the approach of a train, warning signals cease to be factors. Under those circumstances the failure to give the signals cannot be a proximate cause of the collision. See St. Louis & San Francisco Railroad Company v. Ferrell, 84 Ark. 270, 105 S. W. 263 (1907); Chicago, Rock Island & Pacific Railway Company v. Sullivan, 193 Ark. 491, 101 S. W. 2d 175 (1937); and Missouri Pacific Railroad Company v. Dennis, 205 Ark. 28, 166 S. W. 2d 886 (1942). Consequently an instruction is not inherently erroneous when it tells a jury under what circumstances the failure to give warning signals ceases to be a proximate cause of a collision at a railroad crossing.
It has been suggested, however, that the instruction here is inherently erroneous because it uses “readily discoverable” instead of “plainly discoverable” or some other such descriptive term. While we must admit that the instruction, above set out, is not a model instruction, it appears to us that any defect with respect to the phrase “readily discoverable” should be reached by a specific objection. If the court’s attention had been called thereto, the alleged defect could have been corrected merely by the substitution of a phrase or another adverb.
For the reasons herein stated the judgment is affirmed.
Fogleman, J., dissents. | [
-16,
106,
-43,
-114,
-86,
64,
59,
-118,
-11,
-95,
-90,
115,
-83,
-46,
-111,
63,
-1,
53,
113,
43,
68,
-69,
23,
115,
83,
-45,
-77,
-60,
31,
79,
102,
-41,
77,
80,
74,
85,
103,
74,
-59,
28,
-114,
22,
104,
-31,
25,
80,
32,
122,
20,
31,
17,
-98,
-29,
42,
24,
-62,
41,
44,
43,
-84,
-64,
48,
-94,
5,
115,
4,
51,
4,
-104,
39,
112,
19,
-104,
17,
1,
-72,
115,
-92,
-109,
-12,
105,
-103,
8,
-22,
98,
33,
13,
-81,
-84,
-104,
46,
118,
-113,
-25,
-2,
24,
73,
39,
-105,
-67,
53,
118,
6,
108,
108,
5,
27,
124,
-127,
-49,
-76,
-80,
-3,
36,
-110,
85,
-21,
-79,
19,
112,
-38,
-46,
95,
7,
51,
-101,
-113,
-68
] |
John A. Fogleman, Justice.
The question involved on this appeal is the propriety of allowance of attorney’s fees to a party seeking and obtaining partition of real estate.
Appellee Ruth Johnston Smith, the widow of A. J. Johnston, brought an action for partition of lands owned by him at the time of his death. Appellants, who were devisees and a widow and heirs of a deceased devisee under the will of A. J. Johnston, were named as defendants. The devise of the lands involved under which appellants claimed was made subject to the homestead and dower rights of appellee. In her complaint, appellee alleged that she was entitled to an undivided one-half interest in the lands as dower, because her late husband had no descendants, and to homestead rights in the remaining one-half. She alleged impossibility of partition in kind and prayed that the lands be sold for partition. She also asked payment of her counsel from the proceeds of sale.
Appellants filed answer denying that the devise of the lands was made subject to appellee’s rights of dower and homestead, that she was entitled to dower and homestead as claimed in her complaint and that partition in kind was impossible. They admitted that A. J. Johnston left no descendants. The answer of a guardian ad litem for one of the appellants, who was a minor, was a general denial.
A partition decree was rendered, in which the chancery court’s findings sustained the allegations of the complaint, but only one-half of the proceeds of sale were to be distributed to appellee and the remaining one-half to appellants. The court expressly reserved the matter of allowance of attorney’s fees.
After the sale, appellee filed her petition for allowance of attorney’s fees, alleging that after the filing of answers, she had elected to waive her homestead interest and that the partition decree entered was acceptable to all parties. In their response to this petition, appellants admitted that the devise was made subject to the dower and homestead rights of appellee (as the will clearly stated), but they alleged that no attorney’s fees were allowable because the proceedings were adversary to the extent that appellee’s interest in the land was disputed and the court’s decree fixed a lesser interest than she had claimed.
After a hearing the chancellor found that no controverted matter was submitted to the court for decision and that the decree was entered by consent of counsel. The court also found that all parties, after negotiations between them for private sale or purchase of divided interests, agreed to a public sale. The court held that appellants were benefitted by the proceeding, that Act 518 of 1963 applied, and that an attorney’s fee of $500 should be taxed as costs and paid pro rata by all parties.
For reversal of the decree allowing attorney’s fees, appellants argue that they were not chargeable with such fees for the reasons stated in their response, and because appellee’s claim of homestead was excessive making appellants’ employment of an attorney to resist the claim necessary.
Appellants rely upon Lewis v. Crawford, 175 Ark. 1012, 1 S. W. 2d 26, Ramey v. Bass, 210 Ark. 1097, 198 S. W. 2d 835, Warren v. Klappenbach, 213 Ark. 227, 209 S. W. 2d 468, Hendrickson v. Duncan, 236 Ark. 722, 370 S. W. 2d 131 and Guynn v. Guynn, 237 Ark. 668, 375 S. W. 2d 656, in all of which the proceedings were instituted at a time before Act 518 of 1963 was effective. For this reason their application in this case is limited. We recognized the possible effect of this later act now appearing as Ark. Stat. Ann. § 34-1825 (Supp. 1969) amending the act then digested as § 34-1825 (Repl. 1962) and applied in the above cases. In those cases, the earlier act’s language that “it shall be lawful” to allow such fees was held to vest the allowance of such fees in the discretion of the court, and that this discretion was abused by allowance of fees in proceedings which were actually, not just formally, adversary.
Appellee argues persuasively that the allowance in this case could be sustained, even under the old statute. This argument is based largely upon the holding in Guynn v. Guynn, 237 Ark. 668, 375 S. W. 2d 656, where the parties entered into a stipulation resolving an issue as to the respective interests of the parties after commencement of a trial upon the issue of susceptibility of the lands to partition in kind, and the latter issue was determined from a report of the court’s commissioners to- which no objection was made. The allowance there was sustained as a proper exercise of discretion upon the dual basis that the services rendered resulted in a benefit to the whole subject matter and that the objecting parties acquiesced in the proceedings, except as to the attorney’s fee.
We need not dwell upon the question whether the court’s action would have been proper under the statute treated in the cases cited by appellants, because the language of the act now makes the allowance of fees mandatory, taking the matter out of the trial court’s discretion. The statute now reads:
Hereafter in all suits in any of the courts of this State for partition of lands when a judgment is rendered for partition in kind, or a sale and a partition of the proceeds, the court rendering such judgment or decree shall allow a reasonable fee to the attorney bringing such suit, which attorney’s fee shall be taxed as part of the costs in said cause, and shall be paid pro rata as the other costs are paid according to the respective interests of the parties to said suit in said lands so partitioned.
It is generally recognized, in jurisdictions having statutes containing mandatory words similar to those in our present statute, that the adversary nature of the proceedings is no bar to the allowance of attorney’s fees for the services of the attorney bringing the suit, and that failure or refusal to allow such fees is error. Clement v. Ferguson, 287 P. 2d 207 (Okla. 1955); Sarbach v. Newell, 35 Kan. 180. 10 P. 529 (1886); Fibbe v. Poland, 240 Ohio App. 532, 157 N. E. 808 (1927); Foureman v. Foureman, 82 Ohio App. 380, 80 N. E. 2d 266 (1947); Donaldson v. Allen, 213 Mo. 293, 111 S. W. 1128 (1908); Jennings v. Jennings, 225 Mo. App. 1010, 33 S. W. 2d 165 (1930); Cappucio v. Caire, 207 Cal. 200, 277 P. 475 (1929), 215 Cal. 518, 11 P. 2d 1097 (1932); Randell v. Randell, 4 Cal. 2d 575, 50 P. 2d 806 (1935); Plant v. Fate, 114 Iowa 283, 86 N. W. 276 (1901); Murray v. Conlon, 19 Mont. 389, 48 P. 743 (1897). It is true that some jurisdictions have placed limitations upon the services for which compensation is to be allowed, usually because of variance in the wording of statutes. For example, some jurisdictions hold that fees are to be allowed only for those services which would have been rendered in a partition proper or in a non-contested suit. See Donaldson v. Allen, supra, and Jennings v. Jennings, supra. Others limit the services considered to those found to be for the common benefit of the parties in interest. See Watson v. Sutro, 103 Cal. 169, 37 P. 201 (1894); Cappucio v. Caire, supra; Randell v. Randell, supra; also Riley v. Turpin, 53 Cal. 2d 598, 349 P. 2d 63, 2 Cal. Rptr. 457 (1960), wherein it is indicated that services excepted by the statute apply only when controversial litigation arises between some but not all parties.
Justification for these statutes has been found in the importance of painstaking preparation before filing of the suit and the necessity for meticulous compliance with procedural requirements thereafter in order to assure that all parties in interest are before the court and that there are no unnecessary impediments to a proper conclusion of the proceeding. These measures obviously inure to the benefit of those owning any share of the property. To require the cotenant who institutes the action to bear more than his proportionate share of this burden is inequitable. The preamble to Act 518 of 1963 clearly indicates our General Assembly’s awareness of the inequitable burden risked by one initiating a partition suit and its intention to remedy the situation by amendment of the existing law. Dissatisfaction with the discretionary latitude of the trial courts in allowance of these expenses was expressed in the emergency clause. If there remains, after reading the text of the act, the slightest doubt of the legislative intention to make allowance of attorney’s fees in a partition suit mandatory, it is quickly dissipated by reading the introduction and conclusion of this legislative record.
In view of the finding of the chancellor as to common benefit and the reasonable amount of the allowance, we find it necessary to give a definitive answer only to the specific contention of appellants and do not reach the task of establishing the boundaries limiting such allowances in other cases.
The decree is affirmed.
Byrd, J., dissents. | [
81,
-19,
-20,
108,
-70,
112,
40,
-120,
113,
-29,
55,
83,
-21,
90,
80,
41,
-78,
57,
97,
106,
-57,
-77,
94,
-30,
122,
-5,
-71,
-43,
-76,
108,
-27,
-41,
76,
-96,
-54,
85,
98,
-118,
-91,
80,
14,
-124,
-120,
105,
-7,
98,
48,
-81,
86,
15,
85,
-114,
-13,
44,
53,
113,
72,
46,
59,
40,
-47,
-72,
-82,
-116,
95,
15,
48,
119,
-8,
-128,
-56,
10,
-112,
29,
-128,
-24,
115,
-90,
22,
116,
2,
-69,
-88,
98,
-26,
0,
-27,
-1,
112,
-40,
46,
-66,
29,
-90,
83,
88,
67,
-24,
-90,
-100,
-3,
80,
111,
126,
-2,
85,
28,
108,
13,
-53,
-42,
-79,
-97,
124,
-116,
3,
-18,
-123,
48,
113,
-55,
34,
92,
-25,
54,
-101,
-114,
-120
] |
Conley Byrd, Justice.
Appellant Sam R. Floyd was charged by appellee, the Arkansas State Board of Pharmacy, with a violation of Ark. Stat. Ann. § 82-1115(k) (Repl. 1960), and Ark. Stat. Ann. § 82-2107 (Supp. 1969), in that he sold to Mrs. Ethel Draper of Ferndale, Arkansas, thirty tablets of Equanil without a valid prescription and also Dexamyl, a drug covered by the terms of the Arkansas Drug Abuse Control Act, without a valid prescription. The Board found, “[T]hat Sam R. Floyd is guilty of the violation of the pharmacy laws of the State of Arkansas. ...” and suspended his license to practice pharmacy for sixty days.
A review of the suspension was sought in the circuit court pursuant to the Administrative Procedures Act, Ark. Stat. Ann. § 5-713 (Supp. 1969). The circuit court found that the order of the Board failed to separately set forth its findings of fact and conclusions of law, contrary to the provisions of Ark. Stat. Ann. § 5-710 (Supp. 1969), and remanded the matter to the Board to reduce to writing its findings of fact and of law, specifically stated.
For reversal appellant here contends that the circuit court erred in attempting to remand this cause to the Board to correct its void order. We do not reach the merits of appellant’s contention. As we pointed out in Nolan Lbr. Co. v. Manning, 241 Ark. 422, 407 S. W. 2d 937 (1966), the circuit court’s order of remand for further proceedings is not an appealable order— i. e., it is not a final disposition of the case for purposes of appeal.
The appeal is dismissed.
Jones, J., not participating.
FIarris, C. J., and Fogleman, J., dissent. | [
52,
-21,
-11,
28,
42,
-64,
18,
4,
82,
-85,
-89,
83,
-85,
114,
-123,
121,
-29,
111,
112,
105,
-12,
-73,
119,
106,
-62,
-41,
90,
-41,
-79,
79,
-28,
-2,
12,
48,
-22,
21,
68,
65,
-61,
88,
-86,
0,
8,
109,
88,
-64,
48,
34,
22,
15,
33,
31,
-29,
-82,
30,
-54,
105,
104,
73,
60,
88,
-48,
-102,
13,
111,
4,
-93,
37,
-103,
5,
120,
110,
-40,
49,
0,
-4,
115,
-92,
-126,
84,
75,
-104,
12,
100,
99,
-96,
29,
-25,
-72,
-84,
30,
46,
-99,
-90,
-102,
80,
75,
-123,
-74,
-100,
62,
30,
4,
124,
106,
-51,
89,
108,
4,
-49,
-108,
-79,
14,
32,
-122,
51,
-21,
67,
48,
85,
-51,
-26,
81,
93,
114,
27,
-34,
-44
] |
George Rose Smith, Justice.
The question in this case is priority of lien between two real estate deeds of trust, which we will refer to as mortgages, executed by Parsons Gin Company. The earlier mortgage was executed by the gin company on April 30, 1957, and is held by the appellee, Perkins Oil Company. The later mortgage was executed by the gin company on January 5. 1967, and is held by the appellant, Security Bank of Paragould. The chancellor upheld the oil company’s claim to priority under the earlier mortgage. We find the decree to be correct.
The controlling issue is really whether the oil company’s mortgage was saved by part payments from the bar of the five-year statute of limitations. Ark. Stat. Ann. § 37-209 (Repl. 1962). That mortgage was executed by the gin company to DeSoto Oil Company to secure five $6,000 notes due annually from December 15, 1957, to December 15, 1961. The first note was paid. Part payments were indorsed on the other four notes by DeSoto before it went out of business and sold those four notes to the appellee, Perkins Oil Company, on 'May 22, 1963. Perkins Oil Company continued to carry on business with the gin company.
The oil company set up two ledger accounts on its books with respect to the gin company. The first one, which accumulated only a half dozen entries, was entitled “Notes Receivable — Parsons Gin Company,” and reflected the gin company’s note indebtedness and the payments thereon. The second account, entitled “Parsons Gin Company,” was the general account in which day-to-day transactions between the parties were entered. On January 31 of two separate years the oil company struck a balance in the latter account and transferred the sum standing to the gin company’s credit as a payment on the note account. In that manner the oil company credited $5,165.17 to the note account on January 31, 1964, and $9,488.36 to the note account on January 31, 1966. Those are the part payments relied upon by the oil company to avoid the bar of limitations.
To continue the statement of facts, the gin company executed its second mortgage to the appellant, Security Bank, on January 5, 1967. That instrument contains this recital: “This lien on the above property is second and inferior to lien held by Perkins Oil Company.” Under our law that recital prevents the bank from taking advantage of the oil company’s failure to indorse the gin company’s part payments upon the margin of the recorded mortgage. Gunnels v. Farmers’ Bank of Emerson, 184 Ark. 149, 40 S. W. 2d 989 (1931). Thus the bank’s claim to priority narrows down to its insistence that the oil company’s transfer of credits to the Parsons note account in 1964 and 1966 did not cause the statute of limitations to begin running anew.
We cannot sustáin that argument. The important point is the fact of payment, not its indorsement upon the notes or upon the ledger. See Slagle v. Box, 124 Ark. 43, 186 S. W. 299 (1916); King v. Boles, 124 Ark. 112, 186 S. W. 607 (1916). And where thei;e are two or more obligations owed by the debtor, the creditor is entitled to apply a part payment as he chooses if the application has not been directed by the debtor. Hawkins v. Hawkins, 200 Ark. 38, 137 S. W. 2d 904 (1940).
Here T. C. Lee, the president of the oil company, testified that the applications of the payments were made with the debtor’s consent. “We consulted with Mr. Parsons and told him what the status of his account was, and he said to apply it on his Notes Payable.” There is no merit in the bank’s objection to Mr. Lee’s testimony under the hearsay rule. The gin company, a partnership, was the principal defendant in the case; so the quoted statements were properly received as admissions made by a party to the suit. Greer v. Davis, 177 Ark. 55, 5 S. W. 2d 742 (1928). They, together with the ledger entries, establish the part payments which kept the notes alive.
Affirmed. | [
-15,
-2,
88,
110,
10,
-16,
42,
-102,
72,
-64,
-27,
83,
-19,
-50,
-107,
121,
-57,
91,
101,
-24,
-43,
-77,
19,
96,
-46,
-13,
-7,
-35,
-75,
93,
-28,
87,
12,
48,
-54,
-43,
-26,
-118,
-57,
92,
14,
-123,
-71,
101,
-39,
16,
48,
107,
80,
14,
81,
-115,
-13,
45,
29,
74,
105,
46,
-7,
57,
-48,
-24,
-118,
-124,
111,
5,
-79,
85,
-108,
-62,
-56,
14,
-112,
-79,
32,
-24,
115,
-90,
-58,
116,
15,
59,
9,
34,
98,
0,
33,
-17,
-36,
-120,
14,
-34,
-99,
-89,
-110,
88,
35,
40,
-66,
-99,
126,
22,
-90,
126,
-18,
-123,
91,
108,
21,
-113,
-42,
-112,
5,
123,
-98,
3,
-17,
65,
32,
117,
-49,
-86,
92,
119,
119,
27,
-121,
-15
] |
Frank Holt, Justice.
This is a condemnation proceeding in which appellant acquired 12.77 acres from appellees’ tract of land containing approximately 195 acres. The land was needed for the purpose of constructing a controlled access highway facility. This acquisition severed the property, leaving one residual containing 118.83 acres and the other 64.04 acres. One of appellees’ two expert value witnesses testified that just compensation was $7,400 and the other estimated damages at $8,350. Mrs. Bessie Watson Coffelt, one of the landowners, testified that $24,200 was just compensation. One of appellant’s two expert value witnesses testified that the landowners’ just compensation was $2,000 and the other witness placed damages at $2,250. The jury awarded $16,000. From that judgment comes this appeal.
Appellant first contends the trial court erred in allowing Mrs. Coffelt to testify as an expert witness. We agree with the appellant’s contention. Mrs. Coffelt had been licensed for four years as a real estate broker plus two years additional experience as a real estate salesman, as well as experience in real estate transactions while working in her husband’s law office. When she was asked on direct examination for her opinion as to the before value of the land, appellant objected on the ground that she was not qualified as an expert to testify in this proceeding. The court held that: “[SJhe’s qualified as an expert in the field of condemnation of land to base an opinion as to value.” She testified on direct examination that “as an owner” the land was worth $200 an acre before the taking and as a real estate broker “I still say it’s $200 an acre.” At the conclusion of appellees’ case the appellant, in an in-chambers proceeding, moved to strike the testimony of the landowners’ expert witnesses, Barnes and Pearce, as well as Mrs. Coffelt’s, “[f]or the reason that there is no substantial testimony upon which they might base their opinions and the things testified to by them are speculative and highly conjectural.” The court denied the motion as to Barnes and Pearce. The court withheld passing upon the motion as to the testimony of Mrs. Coffelt “as an expert.”
The pertinent rule is well stated in 5 Nichols, Eminent Domain, § 18.42:
“While dealers in real estate, local officials and other witnesses who are supposed to have a special science and skill in appraising real estate are commonly spoken of as ‘real estate experts,’ they are not expert witnesses in the narrower meaning of the phrase. In other words, the general skill and knowledge of his subject which such a witness is supposed to possess is not in itself enough to qualify him to give an opinion of value in an eminent domain proceeding. He must, in addition to such general knowledge, be acquainted with values in the vicinity of the land in controversy, and he must be familiar with the property itself, or at least have examined it at or about the time of the taking.”
On direct examination Mrs. Coffelt stated that she had not “investigated any particular piece of real estate in Faulkner County.” She revealed a lack of familiarity with the value of farm property in the vicinity of the land in question. She testified that she had never sold any farm land. On cross-examination a lack of familiarity with the subject matter was further shown. In our view Mrs. Coffelt did not demonstrate the necessary general knowledge concerning the subject of farm values nor the prices of land in the area to justify a reasonable basis for her testifying as an expert. We must consider her testimony as being prejudicial. The jury awarded almost twice as much as the damages testified to by her two expert value witnesses. We have said many times that where an error is committed to which a proper objection is made, the error will be treated as prejudicial unless it be demonstrated that the appellant was not prejudiced. Arkansas State Highway Comm. v. Ptak, 236 Ark. 105, 364 S. W. 2d 794 (1963).
The appellant next asserts that the testimony of Mrs. Coffelt, as a landowner, is insubstantial. We have long recognized that an owner of property is competent to testify as to the value of his property even though he has no knowledge of property values if he has an intimate acquaintance with his property. Arkansas State Highway Comm. v. Duff, (May 12, 1969) 440 S. W. 2d 563. However, it does not mean that every landowner’s testimony constitutes substantial evidence and we review the testimony to determine whether there is a satisfactory explanation given for the conclusion reached. Arkansas State Highway Comm. v. Darr, (Feb. 24, 1969) 437 S. W. 2d 463.
Mrs. Coffelt testified that she considered the before value of the land at $200 per acre. She placed the uniform damage to one residual at $100 per acre because of reduction in size and distortion. She uniformly re duced the value of the other residual from $200 to $50 per acre due to the reduction in size and distortion and asserted that it was landlocked. It appears she was unaware, except by reference to the construction plans, of the existence of a direct access between the two residuals by the construction of a large culvert. She admitted that she had never sold farm property and it appears that she had no knowledge of the value of farm property in this vicinity. Mrs. Coffelt, one of several heirs to the lands, did not live upon nor utilize the property. Her mother had occupied and exercised complete control and management of the property for many years. Based upon the record before us, we are of the view that Mrs. Coffelt failed to demonstrate a sufficient intimate knowledge of the land, before and after the taking, to constitute a reasonable basis for her value opinion. Therefore, we hold her testimony as a nonresident landowner was insubstantial. Arkansas State Highway Comm. v. Darr, supra. See, also, Arkansas State Highway Comm. v. Stanley, 234 Ark. 428, 353 S. W. 2d 173 (1962).
The appellant also insists that the court erred in failing to strike the testimony of the landowners’ two expert value witnesses. After careful consideration we are of the view that any infirmities in their testimony bear upon the weight and do not render it inadmissible.
Reversed and remanded. | [
-15,
-2,
-75,
-67,
-104,
96,
58,
-72,
73,
-29,
-73,
83,
61,
-54,
25,
33,
-74,
105,
113,
106,
-41,
-77,
87,
-45,
-43,
-13,
91,
-59,
-79,
76,
-28,
-41,
76,
32,
-62,
85,
98,
-88,
69,
16,
-50,
-107,
-119,
73,
-37,
100,
60,
63,
82,
79,
49,
-114,
-77,
44,
21,
67,
73,
44,
107,
49,
0,
-8,
-118,
5,
95,
3,
49,
38,
-68,
67,
88,
74,
-112,
57,
8,
-24,
119,
-90,
-122,
116,
3,
-101,
12,
32,
103,
21,
93,
-25,
-8,
-104,
47,
122,
47,
-91,
-126,
88,
67,
64,
-100,
-106,
-4,
0,
39,
126,
-19,
-51,
29,
108,
71,
-121,
-42,
-79,
-113,
108,
-104,
3,
-49,
7,
16,
69,
-49,
-22,
92,
5,
118,
-101,
-113,
-105
] |
George Rose Smith, Justice.
The appellant, age 45, was charged with the larceny of a used Volkswagen automobile. He was found guilty and sentenced to four years imprisonment. The only point raised in his motion for a new trial is the sufficiency of the evidence to support the conviction. The argument is that the proof established embezzlement rather than larceny.
On February 19, 1969, Stewart went to a Fort Smith automobile dealer’s place of business and inquired about buying the car in question. A salesman first accompanied Stewart upon a trial ride in the vehicle. Then the salesman, satisfied with Stewart’s driving ability, allowed him to take the car out by himself. Stewart stated that he was just going to try the car out and would be back shortly.
Stewart actually drove off in the car and kept it for almost six weeks. He was apprehended with the vehicle in his possession at Clarksville on April 1. At that time Stewart was living in Russellville and working there. He testified that he intended to go back to Fort Smith and buy the car when he had raised enough money to do so.
Upon the facts as we have outlined them the jury could properly have found what is usually called larceny by trick, which the judge explained in his instructions to the jury. As we pointed out in Hall v. State, 161 Ark. 453, 257 S. W. 61 (1923), if one hires a horse with the present intention of stealing it, he is guilty of larceny. In the case at bar the jury could certainly have found that from the outset Stewart had the requisite intent to commit larceny.
Stewart’s court-appointed attorneys also argue two contentions not preserved in the motion for a new trial and therefore not available on appeal. Counsel insist in their reply brief that the requirement that each point be carried forward in the motion for a new trial is highly technical and should not be insisted upon, especially with respect to attorneys who customarily handle civil cases only.
We find no merit in that contention. We are not at liberty to disregard our statutes, which for more than a hundred years have required motions for new trial in criminal cases. Ark. Stat. Ann., Title 43, Ch. 22 (Repl. 1964). In fact, a - similar requirement was applicable to civil cases at law until the passage of Act 555 of 1953, only seventeen years ago. Our reports contain hundreds of cases, both civil and criminal, in which a contention has been rejected on appeal- because it was not included in the motion for -a new trial. In the case at hand counsel certainly knew that such a motion was required, for the-y promptly filed one on the very day that the verdict was returned. We are not prepared to say that counsel who appreciate the necessity for filing a motion should nevertheless be excused- for not knowing, or for not attempting to find out, what the motion should contain.
Affirmed. | [
112,
-6,
88,
60,
25,
-32,
42,
-40,
65,
-53,
37,
19,
-91,
70,
4,
51,
-29,
-9,
117,
97,
-34,
-77,
7,
-77,
-14,
-78,
91,
-43,
-3,
75,
-20,
-44,
12,
48,
-62,
21,
38,
72,
-123,
88,
-114,
0,
-70,
100,
122,
16,
32,
10,
6,
15,
101,
30,
-61,
42,
26,
-49,
41,
44,
11,
41,
-48,
-15,
-112,
15,
127,
20,
-93,
36,
-98,
1,
120,
12,
-100,
25,
24,
-8,
115,
-74,
-126,
-44,
109,
-101,
12,
34,
98,
1,
21,
-33,
120,
-120,
14,
-94,
-97,
-121,
88,
89,
75,
47,
-66,
-35,
119,
16,
12,
124,
-30,
21,
81,
100,
3,
-113,
-108,
-127,
47,
113,
-122,
89,
-21,
-125,
4,
113,
-52,
-26,
92,
87,
81,
-101,
-114,
-105
] |
John A. Fogleman, Justice.
Appellants Asher and Bradford bring this appeal from their conviction of violation of Section 21-15 of the Little Rock City Code, on trial de novo in the circuit court on their appeal from the Municipal Court of Little Rock. This section, introduced in evidence, declares that the operation of a business upon which a privilege tax has been levied without a license showing payment of the tax is a misdemeanor punishable by a fine not more than double the amount of tax due. They assert two points for reversal, viz: (1) their convictions were not sustained by sufficient evidence and (2) evidence obtained as the result of observations made by police officers inside the house in which the business activities were allegedly carried on was inadmissible as a result of an illegal search or seizure.
At least one of the bases for the city’s position on this appeal is its contention that the activities being conducted in this house constituted a business upon which a privilege tax had been levied. We are confronted with an insurmountable barrier in approaching both points because no ordinance of the city requiring the payment of a privilege tax was introduced in evidence. The courts cannot take judicial notice of city ordinances. Strickland v. City of Little Rock, 68 Ark. 483, 60 S. W. 26; Gardner v. State, 80 Ark. 264, 97 S. W. 48; Drifoos v. City of Jonesboro, 107 Ark. 99, 154 S. W. 196; Walthour v. Alexander, 243 Ark. 621, 421 S. W. 2d 613. The Strickland case is particularly significant precedent. There the appellant had been convicted of violation of an ordinance which made interference with a member of the police department in performance of his duty a misdemeanor. Evidence showed that appellant had prevented a sanitary policeman from entering his shop. The conviction was reversed for insufficiency of the evidence to show that appellant interfered with the policeman in the discharge of his duties, because of the failure of the city to prove the powers and duties of the sanitary policeman. We are unable to say from the record here that appellants were liable for a privilege tax, regardless of whether they were conducting a business on the premises, what ever their business may have been. For the same reason, we cannot say whether a misdemeanor was being committed by appellants in the presence of the officers or that the search and seizure was incident to a lawful arrest for a misdemeanor committed in the presence of the arresting officers. If, indeed, the activities conducted by appellants constituted a business for which the payment of a privilege tax was required, appellants were committing a misdemeanor in the presence of the officers on the basis of the testimony of the police officer hereinafter set out, as will presently be shown.
The city seeks to justify the warrantless search of the premises not only upon the assertion that it was made incident to a valid arrest for the alleged misdemeanor, but also as the search of a public place. Since the case must be remanded for a new trial, it is necessary that we evaluate these contentions. At the outset, we point out that where the validity of a warrantless search is questioned on the basis of compliance with constitutional standards the burden is on the party seeking exemption from the requirement of a search warrant. Chimel v. California, 395 U. S. 752, 89 S. Ct. 2034, 23 L. Ed. 2d 685 (1969); United States v. Jeffers, 342 U. S. 48, 72 S. Ct. 93, 96 L. Ed. 59 (1951); McDonald v. United States, 335 U. S. 451, 69 S. Ct. 191, 93 L. Ed. 153 (1948).
The offense was alleged to have been committed on March 22, 1969. As a result of complaints to the Little Rock Police Department concerning noisy disturbances at 1801 Gaines Street, the house there was placed under the surveillance of officer W. A. Gibson and three others on the date mentioned. Gibson’s version of ensuing developments follows:
He observed from a police car parked one block north of the above address. He heard loud music and noises and heard people talking loudly. He saw 10 or 15 people come to the front entrance of the house, who were met by someone and admitted after a pause for conversation. He saw these people clear ly and could see that they were carrying packages and whiskey. Activities inside the house could not be observed because blankets covered the windows. During the surveillance, the officers had indications that their radio communications were being monitored. After making these observations, the officers went upon, the premises they had been observing, where they were met by Earl Asher. Even though Asher asked if the officers had a warrant and made it clear to the officers that he preferred they not enter the house without a warrant, Gibson stated that he opened the door and went in without the use of force, having been admitted by Bradford. Bradford said that the house belonged to appellants and admitted that they were accepting money at the door for admission to the place, even though he contended that appellants were having a private party for which he thought no license was required. Inside the premises Gibson observed what he called a disturbance. He described the music and conversation as loud, characterizing it as what one normally would hear around “beer joints” or “clubs.” He found a commercial “jukebox” and 28 people. There were tables upon which drinks and beer were placed. He observed a lot of whiskey that had been “opened.”
Bradford admitted that he and Asher owned the house. His version follows:
He came to the door and found that Asher was refusing the police admittance. They had Asher backed up against the wall searching him for a key. He opened the door to the police in order to avoid injury to Asher, after having heard them tell Asher that they were going to use him for a battering ram to open the door. All of those present were his personal friends and acquaintances who had been invited by him or Asher and who were admitted, without any charge, upon their knocking on the front door or ringing the doorbell. He did not make any statement to the officers about charging admission. He did tell them that 12 or 15 of the people present had contributed to a “pot” for the purpose of having parties, which were attended by 25 to 30 invited guests, some of whom come from out-of-town on invitation for an entire weekend.
Asher testified that he was outside the house to check on information conveyed by a friend that a strange man was sitting in a car 'in front of the friend’s sister’s house. According to him, the officers claimed they had been invited to the party, but upon his denial of admission, one of them took his car keys from his pocket and tried to unlock the door. It was then, said Asher that the officers said they were going to use him for a battering ram, after which Bradford opened the door.
If the officers’ version of what happened is accepted, it would constitute substantial evidence that the entry into the premises and the search thereafter were not unreasonable. Assuming that upon retrial, a valid ordinance levying a privilege tax upon the activities which were being conducted by appellants on the date in question is introduced, it seems that there is substantial evidence that a misdemeanor was being committed in the presence of the officers. It is, of course, incumbent upon the city to show that a violation of a city ordinance was being committed in the presence of the officers. Arkansas Statutes Annotated § 43-403 (Repl. 1964) authorizes an arrest by a peace officer where a public offense is committed in his presence. We know of no definition of the terms of this statute in our cases. It is well established in other jurisdictions, however, that a crime is committed in the presence of an officer, whenever he is apprised by any or all of his senses that it is being committed. Giannini v. Garland, 296 Ky. 361, 177 S. W. 2d 133 (1944); State v. District Court, 72 Mont. 77, 231 P. 1107 (1924); State v. Blackwelder, 182 N. C. 899, 109 S. E. 644 (1921); McCanless v. Evans, 177 Tenn. 86, 146 S. W. 2d 354 (1941). It is only necessary that the one making the arrest have reasonable grounds for believing, in good faith, that the person arrested is guilty of the offense. State v. Blackwelder, supra; Giannini v. Garland, supra. Where the circumstances are such that an officer would be justified in making a complaint upon which a warrant would be issued, the officer may arrest without a warrant if the offense which the circumstances tend to establish was committed in his presence. State v. District Court, supra. If the officer, by his presence, becomes informed through any of his senses of material elements of the particular crime which would have a tendency to produce in the minds of a reasonably prudent person that it is morally certain that the principal fact occurred, the offense may be considered as having been committed in his presence, although he did not discover all of the elements necessary to the completion of the offense without admission of the other necessary elements by the arrested person to the officer. Giannini v. Garland, supra. See also Annot., 76 A. L. R. 2d 1432, 1441 (1961).
If, as a matter of fact, Gibson and the officers accompanying him heard loud music, noises and loud talking emanating from the building, observed persons entering carrying whiskey and had reasonable grounds to believe that a charge for admission to the premises were being collected, there would be substantial evidence from which it might be found that a public offense was being committed in his presence, if, as a matter of fact, the activities being conducted were subject to a privilege tax which had not been paid.
The city also seeks to justify the search upon the basis that appellants were actually operating a public place which the officers had a right to enter without a search warrant. In view of the uncontradicted testimony by appellants that no one was present who had not been specifically invited to the premises and the absence of any evidence to the contrary, it does not appear that the search of the premises made by the officers can be justi lied as having been conducted after their entry into a public place. The rule governing such a search and seizure is treated in Gerard v. State, 237 Ark. 287, 372 S. W. 2d 635. Before a finding that this rule is applicable could be justified, it would be necessary that there be some evidence from which it could be said that the general public, or a substantial part thereof, were admitted or expressly or impliedly invited. Charging admission to a closely restricted group would not necessarily convert the premises into a public place, even though it may be a place of business.
The remaining basis upon which the city seeks to justify the search is that it was made with the consent of one of the owners or occupants of the premises. It is well to remember that the burden of proving the existence and voluntariness of consent to a warrantless search is upon the party seeking to establish its legal sufficiency. Maxwell v. Stephens, 348 F. 2d 325 (8th Cir. 1965), cert. den. 382 U. S. 944, 86 S. Ct. 387, 15 L. Ed. 2d 353 (1965); United States v. Page, 302 F. 2d 81 (9th Cir. 1962). There can be no doubt that an occupant who has a proprietary interest in a building can consent to entry by police officers and a search of the premises and seizure of whatever may be found there as evidentiary material. Maxwell v. Stephens, supra. One having joint possession or equal authority with another over the premises may authorize a warrantless search thereof. Drummond v. United States, 350 F. 2d 983 (8th Cir. (1965), cert. den. 384 U. S. 944, 86 S. Ct. 1968, 16 L. Ed. 2d 1031 (1966). We have held that the search of an apartment occupied by a husband and wife without a warrant, after the officers were invited in by the wife, was not a violation of constitutional protection against unreasonable search as to either the husband or the wife. Dokes v. State, 241 Ark. 720, 409 S. W. 2d 827, cert. den. 389 U. S. 901, 88 S. Ct. 212, 19 L. Ed. 2d 218 (1967).
Reversed and remanded for further proceedings con sistent with this opinion.
Hearsay would not be a proper basis for an arrest for commission of a misdemeanor in the presence of an officer, even though it might be sufficient basis for a reasonable belief that one had committed a felony. | [
116,
-18,
-36,
124,
59,
64,
50,
-68,
83,
-87,
117,
115,
-25,
-64,
12,
49,
-5,
125,
117,
123,
-55,
-74,
7,
98,
-94,
-33,
-103,
-43,
-80,
79,
-28,
-11,
76,
49,
-54,
-107,
70,
74,
-75,
24,
-54,
32,
48,
77,
121,
0,
36,
42,
16,
15,
113,
-98,
-29,
40,
18,
-53,
105,
44,
73,
53,
121,
-13,
-104,
-99,
111,
2,
-79,
52,
-71,
7,
-16,
60,
-100,
113,
1,
-24,
115,
-90,
-106,
-12,
47,
-39,
-115,
96,
98,
3,
-107,
-25,
-72,
-91,
46,
-6,
-99,
-90,
-112,
120,
11,
-51,
-106,
-107,
102,
0,
46,
-6,
-26,
-43,
25,
108,
11,
-50,
-44,
-79,
-87,
56,
-122,
83,
-21,
97,
80,
116,
-58,
-26,
-36,
71,
18,
-101,
-58,
-43
] |
Carleton Harris, Chief Justice.
This is-a workmen’s compensation case, and the only issue is whether there was any substantial evidence to support-an award made by the commission to Mrs. James M. Kearby, appellant herein, and widow of James M. Kearby-, an employee of Yarbrough Brothers Gin Company, who died from a coronary thrombosis, as a consequence of coronary artery disease, on November VJ, 1968. Subsequent to the death of Mr. Kearby, the widow filed a claim for benefits, this claim being heard by a referee on April 7, 1969. In an Opinion filed on June 24, 1969, the referee held that Kearby sustained an accidental injury within the meaning of the compensation act which arose out of, and during the course of, his employment with Yarbrough Brothers Gin Company. An award of $58.50 per week commencing on November 18, 1968, and continuing until the sum-of $14,500 had been paid, was made, and this award was appealed to the full commission. The commission affirmed the order of- the referee, except that the amount of $58.50 per week was reduced to $55.00 per week. Thereupon, the ruling of the commission was appealed to the Lonoke Circuit Court, and on hearing, the holding of the commission was reversed, the court finding that there was no substantial evidence to support the award. From the judgment so entered, Mrs. Kearby brings this appeal.
The proof reflects that Kearby had been employed by Yarbrough Brothers Gin Company, which together with Southern Farm Bureau Insurance Company, -constitute the appellees herein, for approximately twelve years, and it was his responsibility to oversee the entire operation of the gin and to maintain the mechanical years, and it was his responsibility to oversee the entire system.
According to Mrs. Kearby, for more than three weeks before his death, Kearby, 61 years of age, would arise -at 4 a.m., leave the house for work by 5:50 a.m., and would never return from wor-k earlier than 7 p-.m. This was a heavier schedule than was normally followed because the busy season for cotton ginning was in progress. The witness said that on Sunday -morning, November 17, 1968, the two arose, had breakfast, and Kearby remarked that he had to go to the gin to perform a repair job. Mrs. Kearby went to church, and when she returned, her husband had arrived back at the home. After lunch, Mr. Kearby went to the living room where he watched television until about 1:50 P. M. At that time he began coughing, took a dose of couch syrup, but very shortly began coughing again and getting short of breath. He told his wife that he had gone by to see a doctor that morning and had gotten a shot; she added that he had been taking shots for some time due to chronic bronchitis. Mrs. Kearby thought that perhaps he was having a reaction from the shot and she suggested calling the doctor; however, Kearby objected,, but he continued to get worse, very short of breath, and a neighbor took them to the hospital at England, Kearby being admitted about 3 p.m. He died some forty minutes later.
Grover Cleveland Arnold, an employee at the gin, testified that Kearby was the “ginner” and had the duty and responsibility of operating the gin, and repairing breakdowns. He said that it was dusty around the gin, that there were ladders, one rather steep, that had to be climbed; that Kearby repaired the belts and pulleys at the gin, sometimes carrying these belts and oulleys when he climbed the ladders. According to the witness, the belts weighed from twenty-five to approximately fifty pounds. Arnold said he had heard Kearby complain of a shortness of breath on several occasions. The witness stated that he saw Kearby’s truck parked at the gin on the morning of Sunday, November 17th, but did not know whether Kearby actually performed any work while there.
Emmett Arnold, likewise an employee of the gin company, testified to approximately the same facts. Additionally, he said that he worked twelve hours per day, and that Kearby “usually stayed around a little more”. He also said that frequently no lunch break was taken, but one man would eat while another worked in his place; that Kearby always brought his lunch and the job “just kept rolling”.
Dr. Thomas Owen Woods, a practicing physician in England, testified that he treated Kearby on the day that he died.
“I first saw Mr. Kearby about nine-thirty on Sunday morning, with a complaint of shortness of breath. I had never seen this patient before, and I went to the office and got his file and found he had similar complaints previously, and I advised him he should have a more thorough evaluation, and he said he didn’t have time, that he would come back, and he wanted something that he usually got for his shortness of breath, which was his main complaint, and so, I gave him Neothylline, and he left. Then, about three o’clock in the afternoon, he was brought into the emergency room having severe difficulty with breathing, cold and clammy, perspiring profusely, and had hypertension. It was my opinion that he was in cardogenic shock, and I admitted him to the hospital.”
The doctor said that an electrocardiogram was taken, and that he was suspicious of a myocardial, infarction, and it also appeared that he had secondary congestive heart failure. Woods had examined Kearby’s reports, and one was read into evidence as follows:
“This sixty-year-old white male, who expired on November seventeen, Nineteen Sixty-eight, had had a chronic cough for several years, with a diagnosis of chronic bronchitis with pneumoconiosis, which was probably partially related to his chronic irritation related to his working environment. In June, Nineteen Sixty-eight, he was seen by the Little Rock Diagnostic Clinic, Doctor Sexton Lewis, for complete evaluation, They confirmed the diagnosis of chronic bronchitis and pneumoconiosis.”
The doctor testified that this was a respiratory condition, and it was his opinion that conditions in a cotton gin would tend to aggravate the ailments with which Kearby was afflicted. He further testified that this irritation of a chronic condition could tend to place a stress on the heart. The witness stated that the purpose of the Neothylline, a bronchial dilator and a diuretic, was to improve Kearby’s breathing, and to remove fluid from the lungs. He also said that in cases of congestive heart failure, fluid accumulates in the lungs. Dr. Woods also said that, based on the information in Kearby’s record, the latter did have a history of a heart condi don. Though observing that coronary artery disease is a process that occurs over a period of many years, and an attack is more influenced by physiological conditions rather than activities, stress could precipitate an attack. The doctor would not state a conclusion on the causal relationship between the work and the heart attack, stronger than that there could be a connection.
It is this lack of positive statements on the part of the doctor that appellees point out as supporting their contention that his testimony did not constitute substantial evidence, and appellees- mention that the referee stated that, in making the award, he was not relying upon expert medical opinion “simply because there isn’t any”.
We have stated on many occasions 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. We might also add that a statement was made by the referee that he had taken into consideration personal knowledge to the following effect:
“Cotton ginning is hard work; that conditions surrounding the work are extremely dusty; that dust and lint during the ginning season are constantly in the air, covers the machinery, employees and the entire vicinity of the gin as well as the adjoining neighborhood; and, gas dryers generate a sufficient amount of heat and to the point of creating uncomfortable working conditions.”
Under the facts of this case, there was no proper basis for this statement concerning personal knowledge, but it does not appear, from the order entered, that the commission paid any attention to it, that body making reference to the evidence, and then finding that there was a causal connection between the decedent’s employment and his death.
This is a rather close case, and we, no doubt, would affirm if the finding had been against Mrs. Kearby. On the ottier hand, the commission having decided in favor of her contentions, we do not feel that we can say that there was no substantial evidence to support the award. This court has said on more than one occasion that the strongest rule in - compensation cases, and the one carrying the greatest weight, is that if there is any substantial evidence to support the findings of the commission, we will not disturb those findings. Reynolds Metal Co. v. Robbins, 231 Ark. 158, 328 S. W. 2d 489.
Here, the evidence clearly establishes that Kearby had been working long hours for several weeks preceding his death; that working conditions were extremely difficult for one who was afflicted with chronic bronchitis with pneumoconiosis; that this chronic condition was related to his working environment; that he was suffering on the morning of November 17 th prior to going to the gin, and received medical attention.
Appellees refer to the indefinite answers given by Dr. Woods, and assert that his testimony is of no aid to appellant. From reading the transcript, it appears that this physician was very conscientious, and was endeavoring to avoid making any statement that he could not completely substantiate. Though he refused to say that the heart attack was occasioned by the employment, he did say that conditions in the gin would tend to aggravate the chronic ailments with which Kearby was afflicted, and that the irritation of a chronic condition could tend to place a stress on the heart. He also said that the purpose of the medicine given Kearby on Sunday morning was to improve the latter’s breathing, and to remove fluid from the lungs. As already set out, he stated that in cases of congestive heart failure, fluid accumulates in the lungs.
We have pointed out in our cases that mathematical certainty is not necessary in stating the cause of death. United States Fidelity & Guaranty Co. v. Dorman, 232 Ark. 749, 340 S. W. 2d 266. In Atkinson v. United States Fidelity & Guaranty Co. (Texas) 235 S. W. 2d 509, the trial court, in a workmen’s compensa tion case, held a claim of appellant not compensable because- there was no evidence of an accidental injury, and no evidence of a causal connection between the work and the death of appellant’s husband. In reversing, the Court of Civil Appeals of Texas (San Antonio) said:
“It is urged that because Dr. Longoria at one point testified that, ‘it is a possibility that the origin (of the disease) was incited through strain and stress and exposure,’ this case comes within the rule that something more than a showing of mere ‘possibility’ is necessary to establish a finding of causal connection, [citing cases] In determining whether or not a showing of mere possibility and no more has been made, all of the pertinent evidence on the point must be considered. The fact that an expert medical witness, in speaking of cause and effect uses such expressions as ‘might cause’, ‘could cause’, ‘could possibly cause’, or phrases similar thereto does not preclude a jury finding of causal connection, provided there be other supplementary evidence supporting the conclusion. Causal connection is generally a matter of inference, and possibilities may often play a proper and important part in the argument which establishes the existence of such relationship.”
We think the above language is pertinent to the cause at hand, and our views might well be summed up by the language used in Hall v. Pittman Construction Co. 235 Ark. 104, 357 S. W. 2d 263. There, wé said:
“Under the substantial evidence rule that prevails in a case of this kind the appellant shoulders a heavy burden in seeking a reversal of the commission’s decision upon an issue of fact. In order to succeed the appellant must show that the proof is so nearly undisputed that fair-minded men could not reach the conclusion arrived at by the commission. After studying the record we are unable to say that the appellant is entitled to a reversal; that is, that there is no substantial evidence to support the commission’s findings.”
The judgment of the Lonoke Circuit Court is reversed, and the cause is remanded with directions to reinstate the award made by the commissipn.
It is so ordered.
Brown and Fogleman, JJ., dissent. | [
112,
106,
-8,
-113,
24,
32,
51,
-70,
82,
-91,
103,
83,
-21,
119,
93,
117,
-13,
109,
-48,
40,
-27,
-93,
51,
-32,
-62,
-9,
-15,
-59,
-79,
91,
-12,
-42,
77,
56,
-118,
-43,
-26,
74,
-63,
30,
-50,
-124,
107,
-19,
89,
16,
56,
126,
-10,
95,
81,
-114,
-21,
40,
28,
-49,
76,
44,
91,
40,
-48,
-15,
-118,
13,
125,
16,
48,
6,
-100,
-91,
-40,
14,
-104,
-79,
0,
-8,
114,
-74,
-58,
20,
35,
-119,
76,
102,
98,
32,
29,
-17,
-120,
-72,
31,
-42,
-99,
-90,
-68,
48,
107,
0,
-108,
-99,
122,
20,
58,
124,
-76,
85,
84,
36,
-63,
-113,
-76,
-80,
30,
-2,
-98,
-114,
-49,
-121,
-80,
117,
-113,
-86,
77,
85,
55,
27,
-57,
-112
] |
George Rose Smith, Justice.
The question is whether a claim for personal injuries is assignable in Arkansas. This appeal is from a judgment upholding such an assignment.
In 1967 Mr. and Mrs. Robert O. Hickson owed Wright Oil Company, the appellee, $1,206.24 upon an open account. The Hicksons also had unliquidated personal injury claims, arising from a traffic collision, against Howard Cox and his liability insurer, the appellant. The Hicksons, to secure their debt to Wright, assigned to it $1,206.24 of their tort claims against Cox and Southern Farm. Wright notified Southern Farm of the assignment and asked that it be honored in any settlement of the Hickson-Cox dispute. Southern Farms, however, ignored that request and settled with the Hicksons for more than the amount of their debt to Wright. Wright then brought this action against all three defendants for $1,206.24. Southern Farm alone has appealed.
At common law the courts did not recognize either the assignment or the survival of tort claims, whether for personal injury or for property damage. Laying aside survivability for the moment, the principal justi fication for the rule against assignability was the avoidance of maintenance — the fomenting of litigation between others. If causes of action for personal injuries could be assigned, then speculators could buy up such claims, perhaps at necessitous discounts, and conduct a profitable traffic in human pain and suffering. See Rice v. Stone, 1 Allen (Mass.) 566 (1861). It has also been said that the considerations urged to a jury in a personal injury case are of such a personal nature that an assignee cannot urge them with equal force. Bethlehem Fabricators v. H. D. Watts Co., 286 Mass. 556, 190 N. E. 828 (1934).
Common law judges often mentioned assignability and survivability in the same breath, even though the policies underlying the two interdictions were far from being identical. Thus a linkage of thought grew up. Consider, for example, our opinion in Ark. Life Ins. Co. v. American Nat. Ins. Co., 110 Ark. 130, 161 S. W. 136 (1913). There we held that an action in tort for the destruction of a business did not survive under our statute, because the cause of action did not involve physical damage to tangible personal property. But we enunciated, as dictum, the rule of thumb that had already come into being: “The causes of action that survive are assignable; those that do not survive are not assignable.” Thus what began as an association of ideas is being stated in terms of cause and effect.
The fusion of assignability with survivability occurred in several jurisdictions without the courts seeming to realize what was taking place. Over a period of many years statutes providing for the survival of tort claims have been widely adopted in America. In a few states, such as Virginia and West Virginia, the legislature has taken pains to declare that survivability does not give the right to assign a tort claim not otherwise assignable. Under such statutes assignability and survivability have been kept separate. Ruebush v. Funk, 4th Cir., 63 F. 2d 170 (1933); Hereford v. Meek, 132 W. Va. 373, 52 S. E. 2d 740 (1949).
Usually, however, the survival statute does not mention assignments. The wording of our own statute is fairly typical: “For wrongs done to the person or property of another, an action may be maintained against the wrongdoers, and such action may be brought by the person injured, or, after his death, by his executor or administrator against such wrongdoer, or, after his death, against his executor or administrator, in the same manner and with like effect in all respects as actions founded on contracts.” Ark. Stat. Ann. § 27-901 (Repl. 1962).
A factor contributing to the merger of survivability with assignability was the absence of any good reason for denying assignability when property damage only was involved. The reasons of policy that militate against the assignment of personal injury claims have little relevancy with respect to property damage claims. That distinction was recognized by the Supreme Court of Tennessee in 1925, when it observed that “actions ex delicto for injuries to property, as distinguished from actions ex delicto for injuries to person, are assignable.” Haymes v. Halliday, 151 Tenn. 115, 268 S. W. 130 (1925).
There is a clear division of authority upon the assignability of personal injury claims under survival statutes like ours. In some states the courts have routinely applied the rule of thumb by which survivability and assignability go hand in hand. In Mississippi, for example, the court first applied that rule, without discussion of policy considerations, in a property damage case. Chicago, St. L. & N. O. R. R. v. Packwood, 59 Miss. 280 (1881). When the issue later arose in a personal injury case, the court merely followed its earlier holding, without comment. Wells v. Edwards Hotel & City Ry., 96 Miss. 191, 50 So. 628 (1909). Other cases upholding the assignability of personal injury claims, as a consequence of their survivability, include Vimont v. Chicago & N. W. R. R., 64 Iowa 513, 21 N. W. 9 (1884); Grand Rapids & I. Ry. v. Cheboygan, 161 Mich. 181, 126 N. W. 56, 137 Am. St. Rep. 495 (1910); Daven port v. State Farm Mut. Auto. Ins. Co., 81 Nev. 361, 404 P. 2d 10 (1965); Galveston, H. & S. A. Ry. v. Ginther, 96 Tex. 295, 72 S. W. 166 (1903); and Lehmann v. Deuster, 95 Wis. 185, 70 N. W. 170, 37 L. R. A. 333, 60 Am. St. Rep. 111 (1897).
When the cases are studied it is strikingly noticeable that in no instance, as far as we have found, has any court discussed the basic issue of public policy in the course of holding that survivability carries with it assignability with respect to personal injury claims. The opinions follow a set pattern in declaring that inasmuch as the claim would survive the injured person’s death, it is therefore assignable during his lifetime.
By contrast, whenever courts have explored the policy considerations pertinent to the issue, they have held —without exception, we think — that survivability of personal injury claims does not attract assignability in its wake. The leading case is North Chicago St. Ry. v. Ackley, 171 Ill. 100, 49 N. E. 222, 44 L. R. A. 177 (1897). There the court first recognized the basis for the common-law rule: “On grounds of public policy, the sale or assignment of actions for injuries to the person is void. The law will not consider the injuries of a citizen whereby he is injured in his person to be, as a cause of action, a commodity of sale.” The court then went on to point out that survival statutes are passed not for the benefit of the injured person but for that of his widow and next of kin. Yet if the cause of action is held to be assignable by the injured person, the very purpose of the survival statute is defeated. Moreover, as the court observed: “If such actions are held assignable, on the sole ground of survivor, then an assignee in bankruptcy or under the benefit of creditors would take the cause of action.”
Similarly, in an Arizona case the court first reviewed the policy argument against assignability and then concluded that the assignment of personal injury claims should be authorized by legislation more explicit than a mere survival statute. Harleysville Mut. Ins. Co. v. Lea, 2 Ariz. App. 538, 410 P. 2d 495 (1966). From the opinion:
At common law, a chose in action for personal injuries could not be assigned and would not survive. Most writers objected to the assignability because they felt that unscrupulous people would purchase causes of action and thereby traffic in law suits for pain and suffering. . . . While there may have been other reasons for frowning upon the assignability of personal injury claims, a vast majority of the early rulings based the non-assignability upon the grounds that at common law such claims did not survive the death of the injured person. It is not then surprising to note that when statutory provisions providing for the survival of a cause of action for personal injuries have been enacted, the courts have generally followed the rule that the claim is also assignable.
* * * * *
Although the historical reasons given for the non-assignment of a personal injury claim have been based mostly on the non-survivability of the cause of action, we believe that the non-assignability rule standing alone has much support in public policy. Although we are not called upon to discuss the absence of legislation which would authorize the control of policy provisions in medical benefit insurance, allowing the subrogation or assignment of a cause of action for personal injuries is so fraught with possibilities, that the rule in Arizona against assignment should remain the same until changed by the legislature.
The entire subject was treated in the same way in Missouri, where the court, after reviewing the arguments at some length, reached this conclusion: “We reject the rule . . . that whether a cause of action for personal injury is assignable depends solely upon whether it survives and adopt the rule that such causes of action may not be assigned prior to judgment for reasons of public policy.” Forsthove v. Hardware Dealers Mut. Fire Ins. Co., Mo. App., 416 S. W. 2d 208 (1967).
We have no hesitancy in joining those courts which hold that a survival statute does not confer the power of assignment upon the holder of an unliquidated tort claim for personal injuries. It follows, of course, that we also reject the appellee’s secondary argument that the proceeds of such a claim should be assignable before judgment, even though the cause of action itself is not. The only value of a cause of action is its possible conversion into a collectible money judgment; so there is no sound basis for distinguishing between the cause of action and its proceeds as far as assignability is concerned.
Reversed. | [
-14,
108,
-8,
-68,
88,
96,
56,
24,
115,
-95,
101,
83,
-17,
-49,
21,
109,
101,
75,
71,
75,
-73,
-89,
83,
114,
-62,
-77,
-37,
69,
-66,
-53,
-28,
-108,
76,
48,
-54,
-43,
-26,
-126,
-51,
-100,
78,
0,
10,
109,
-7,
64,
48,
95,
20,
3,
113,
-97,
-22,
44,
24,
67,
109,
40,
89,
45,
-47,
-15,
-102,
13,
110,
6,
-95,
100,
-100,
39,
82,
12,
-108,
49,
8,
-88,
50,
38,
-126,
84,
77,
-103,
-116,
-30,
99,
24,
32,
-49,
-8,
-104,
39,
-2,
15,
-122,
-110,
48,
3,
2,
-81,
-108,
126,
20,
7,
-4,
-9,
13,
92,
41,
5,
-113,
-106,
-77,
-57,
-64,
-100,
11,
-17,
11,
52,
101,
-49,
-86,
93,
69,
118,
-109,
-106,
-34
] |
Carleton Harris, Chief Justice.
Appellant, Charles C. Tucker, was charged under four separate Informations with the crime of Grand Larceny and the charges were-consolidated for purposes of trial. The jury found Tucker guilty on all four counts and set his sentence at one and one-half years on each count. After the jury was discharged, and on waiver by the -appellant, the court entered sentence in accordance with the jury verdict, the court ordering that said sentences run consecutively for the total of six years. In due time, Tucker filed a motion for a new trial alleging several grounds, and the court conducted a hearing, at which time evidence was heard that one of the jurors had been found guilty of burglary and grand larceny in 1955, and had never been pardoned; it was contended that this fact entitled appellant to a new trial. At the conclusion of the hearing, the court overruled the motion and granted appellant sixty days in which to perfect his appeal. From the jury verdict, Tucker brings this appeal. For reversal, two points are asserted. It is first contended that-the court erred in not granting-a new trial when it was discovered-after the verdict was entered that one of the jurors was disqualified by statute from acting as a juror, in that he was a convicted felon who had not been pardoned. It is also asserted that the court erred in refusing to answer a question from the jury foreman as-to whether the sentences on the several counts charged would run concurrently or consecutively, and further, error was committed in informing the foreman of the jury that any recommendation for a suspended sentence would have to be unanimous. We proceed to discuss these contentions.
We do not agree that the court committed error in not granting a new trial on the basis of the first contention. Actually, there are several answers that could be made to this assertion under the particular facts in the case before us, though Sub-Section (e) of Ark. Stat. Ann. § 39-102 (Supp. 1969), provides that a person who has been convicted of a felony, and has not been pardoned, is disqualified to act as a grand or petit juror.
However, it is sufficient to point out that under the facts, the juror involved, John Woddard, was not a convicted felon. The record reflects that Woodard entered a plea of guilty to burglary in 1955, at which time he was thirteen or fourteen years of age, and was sentenced to the Arkansas Boys’ Industrial School, the sentence however being suspended by the circuit court. In the case of State Medical Board v. Rodgers, 190 Ark. 266, 79 S. W. 2d 83, Rodgers was convicted of a crime involving moral turpitude and was sentenced to serve three years in a federal reformatory. His license to practice medicine was suspended by the State Medical Board upon ,the premise that he had been convicted of a crime involving moral turpitude. The Pulaski Circuit Court vacated, set aside, and held for naught, the order of the board revoking the license, and from that judgment, the board appealed to this court. In upholding the circuit court, we said:
“In view of the fact that appellee has not been required to suffer the punishment prescribed in the judgment and sentence above-mentioned, the question naturally arises as to whether he has- been convicted within the meaning of § 8242, Crawford & Moses’ Digest. It is true that he pleaded guilty to a crime involving moral turpitude, and that he was sentenced to serve three years in the reformatory, but the court before whom that case was tried saw proper to set aside the sentence and put him on probation for a period of five years. On November- 21, 1933, the execution of the sentence, imposed was suspended until March 1, 1934, and on the latter date it was-further suspended for five years; therefore at the time appellant held its meeting and revoked appellee’s license, January 10, 1934,- the sentence theretofore imposed had been suspended and something still remained to be- done before he could be said to have been convicted within the meaning of the statute.” [citing case]
We said that notwithstanding a conviction, either by the verdict of a jury or a plea of guilty, “the accused does not become a convict until there has been a judgment and sentence by the court.” We then stated:
“We think this case very much in point and decisive of the question here presented. There has been no conviction within the meaning of the statute. There has been no final judgment entered because the sentence has been suspended, and the appellee has not been required to surrender himself in execution of such judgment.”
It follows that since Woodard had not been convicted of a felony, appellant’s contention is without merit, and there is no need to further extend the discussion.
The record reflects that the jury, after retiring to consider a verdict, returned to the courtroom where the foreman asked the court whether the sentence reached by the jury would be concurrent or consecutive. They were informed, “That is in the province of the Court”. Subsequently, the jury again returned, the foreman stating that a decision had been unanimously reached concerning the guilt or innocence of the defendant, but he added:
“However, we are unable to come to a consensus on the number of years to be recommended or whether to recommend a suspended sentence or not. Do we have a consensus on those two questions?”
The court advised that there would have to be unanimity also on the recommendation for a suspended sentence. Thereafter, the jury again returned, finding Tucker guilty on all four counts, the foreman stating that they were unable to arrive at a unanimous decision concerning the penalty to be given, and adding that they were also unable to reach a unanimous decision with reference to recommending a suspended sentence. The jury was -then told that the court has the authority under the law to assess the sentence itself, provided that a defendant has been found guilty, and the jury “leaves it” to the court to assess the punishment; “Then you may retire and bring such a finding back into court and your orders will be carried out”. After retiring, the jury returned and the verdicts were read. Counsel for appellant then requested permission to poll the jury on two points, viz, whether the verdict should run concurrently or consecutively, and further, how many members of the jury favored a suspension of the sentences given. The court refused to grant permission and counsel duly noted objections and exceptions to the Court’s ruling. It is now contended that the court erred in rendering this ruling, and as previously mentioned, it is asserted that error was committed when the court refused to say whether sentences would run concurrently or consecutively; also, appellant suggests error on account of the court’s telling the jury a recommendation for a suspended sentence would have to be unanimous.
We do not agree with these contentions. As far ns the question of successive sentences is concerned, we have held that the matter of determining whether the sentences given a- defendant shall run concurrently or consecutively, is within the discretion of the trial court. Hayes v. State, 169 Ark. 883 S. W. 36, this case also cites the statute, passed in - 1923, presently Ark. Stat. Ann. 43-2312 (1964 Repl.), which clearly provides that it is the business of the court to determine if a sentence shall run concurrently or consecutively. In Higgins v. State, 235 Ark. 153, 357 S. W. 2d 400, we said,
“The jury, in fixing the punishment, found that the sentences should be served consecutively. We take this occasion to point out that this finding can only be considered advisory, much in the same nature as when a jury recommends a suspended sentence, inasmuch as the question of whether sentences shall be served concurrently or consecutively lies solely within the province of the court.”
Of course, there can be no error in failing to-convey this information to the jury since they were without power to act.
The second part of appellant’s contention is likewise without merit for the same reason, vizT that the granting of a suspended sentence 4s entirely within the discretion of the trial court. Ark. Stat.- Ann. 43-2324 (1964 Repl.). Our decisions support the wording of the statute. See Higgins v. State, Supra, specifically the section just quoted. Of course, if the recommendation by a jury of a suspended sentence is only advisory, even where it is the recommendation of the full jury, there can be-no error in refusing a poll of the jury on -this point where admittedly, the members of the jury were divided on the question.
Finding no reversible error, the judgment is affirmed.
It is so ordered.
The court had already, on September 15,1969, entered its judgment, and had ordered Tucker committed before the motion for a new trial was heard; however, the court set aside this judgment of conviction and order for commitment.
Actually, the court simply reinstated the judgment which had previously been rendered on September 15, 1969. | [
112,
-8,
-3,
62,
26,
-63,
58,
-68,
64,
-96,
-78,
82,
45,
-41,
4,
113,
51,
127,
85,
121,
-58,
-77,
23,
97,
-93,
-45,
-37,
-43,
49,
73,
-12,
-12,
12,
112,
-46,
-11,
102,
10,
-57,
92,
-114,
-122,
-104,
71,
72,
16,
32,
110,
28,
31,
49,
-98,
-29,
42,
23,
-53,
73,
40,
90,
61,
80,
-71,
-69,
-113,
-17,
20,
-77,
-90,
-102,
7,
-8,
124,
-40,
49,
0,
-8,
115,
-106,
-126,
84,
109,
-101,
44,
102,
98,
1,
29,
111,
-72,
-87,
22,
62,
-91,
-89,
-104,
1,
73,
68,
-106,
-35,
98,
22,
46,
126,
-27,
-124,
81,
108,
37,
-98,
-44,
-79,
72,
126,
-116,
-110,
-5,
33,
-110,
113,
-52,
-26,
92,
23,
121,
-101,
-122,
-107
] |
Conley Byrd, Justice.
Appellant Rodney Herring as the surety on an appearance bond in a child custody proceeding appeals from an order of the court forfeiting the bond and directing its payment to appellee Nye Morton, Jr. For reversal of the trial court’s order he contends that the trial court erred in continuing the bond and in ordering a forfeiture and that if the bond should be upheld the proceeds should be paid to Hempstead County and not to the appellee Nye Morton, Jr.
The record shows that appellant’s daughter, Linda Herring Morton, now Linda Morton Dillion was divorced from appellee on April 19, 1968. While not exactly clear it appears that subsequent to that time and before July 3, 1968, appellant’s daughter and her present husband Jim Dillion were going back to Houston to live. When appellee filed a petition for modification of child custody, some apprehension arose as to whether Linda Morton Dillion and the minor child would appear on the date set. To secure this appearance the following bond was executed:
“Linda Herring Morton, having been awarded custody of Gregory Morton by Decree of this Court on April 19, 19.68, hereby enters into bond assuring her presence and the presence of said child before this Court upon the date to be set by said Court for hearing the Petition for Modification of Child Custody, filed herein by Nye Morton, Jr.
Now, we, Linda Herring Morton, James A. Dillion and Rodney Herring, hereby undertake that the above named Linda Herring Morton and Gregory Morton shall appear in the Chancery Court of Hempstead County, Arkansas, Second Division, on the date and the time set by said Court for the hearing of the Petition fqr Modification of Child Custody, filed herein by Nye Morton, Jr., to answer same, and shall, at all times render herself amenable to the order and process of said Court and if convenient, shall render herself in execution thereof, or if she fails to perform either of these conditions, that we will pay Hempstead County, Arkansas, the sum of FIVE HUNDRED DOLLARS ($500.00.)”
Appellant testified that he together with his daughter and minor child attended the hearing on July 3, 1968. While he was in the courtroom the trial court stated that he would leave the bond in effect. At this time appellant remonstrated to his daughter and her counsel but made no objections to the trial court.
On July 8, 1969, appellee filed a modon to hold Linda Herring Dillion in contempt of court and to modify the existing custody provisions. When the matter came on for trial on Sept. 5, 1969, appellant’s daughter did not appear either in person or by counsel. The court thereafter communicated with her counsel of record and reset the matter for Sept. 19, 1969. Before that date counsel of record for appellant’s daughter notified the court that he had been instructed not to appear and requested permission to withdraw as counsel.
The right of courts to require security for the production of children in court, in domestic relations cases, has been recognized by this court, Thompson v. Thompson, 213 Ark. 595, 212 S. W. 2d 8 (1948), and the courts of a number of other jurisdictions. See 24 Am. Jur. 2d, Divorce & Separation, § 782.
As we construe the bond entered into here it guaranteed not only the appearance of Linda Herring Morton before the court upon the date set for hearing the petition for modification but it also held her amenable to the order and processes of the court at all times. Consequently we find no merit in appellant’s contention that he had discharged his obligation when he assured their appearance on the date set for the petition of the modification.
Appellant’s second point that the bond proceeds should be paid to Hempstead County rather than to the appellee Nye Morton, Jr., seems to be a case of first impression. Neither party has cited any authority nor has the court been able to find any authority relative to the disposition of the proceeds of such bonds upon a forfeiture. However, since the purpose of such bonds is to insure compliance with the orders of the court and to give some security to the parties litigant, it appears to us that perhaps a better procedure would be to require the proceeds of the forfeited bond to be paid into the registry of the court for the use and benefit of the parties litigant in enforcing the decree of the court in any jurisdiction where the minor child may be found. While this procedure may cause additional work on the part of the trial court and tis clerks in policing withdrawals from the funds, it has the salutary affect of permitting the surety to protect himself to some extent by encouraging the principal to purge herself of the contempt and thus obtain a refund or partial refund of the amount of the bond. To this extent the order of the trial court should be modified.
Affirmed as modified. | [
80,
108,
52,
44,
26,
-32,
10,
-104,
-29,
-21,
69,
81,
-93,
102,
17,
57,
59,
61,
113,
105,
-41,
-77,
87,
97,
-39,
-13,
29,
87,
-77,
93,
-20,
94,
72,
112,
-126,
83,
64,
-117,
-89,
24,
14,
-125,
43,
101,
89,
-110,
48,
41,
18,
15,
65,
-97,
-93,
42,
92,
102,
-52,
46,
89,
49,
-40,
-7,
-69,
15,
127,
6,
-109,
84,
-80,
-105,
88,
12,
-104,
57,
0,
-24,
115,
-106,
-122,
116,
66,
9,
12,
84,
98,
-128,
-51,
-11,
56,
-116,
38,
62,
29,
-89,
-101,
88,
75,
69,
-74,
-4,
124,
20,
15,
124,
98,
5,
20,
108,
0,
-50,
86,
-95,
12,
57,
-108,
19,
-14,
48,
48,
117,
-49,
-24,
124,
70,
49,
-45,
-58,
-69
] |
Conley Byrd, Justice.
The sole issue on this appeal by Billy Reeder is whether the trial court could suspend for three years a one year sentence assessed by the jury.
The record shows that the jury found Reeder guilty of operating a gambling house contrary to Ark. Stat. Ann. § 41-2001 (Repl. 1964) and fixed his punishment at one year with a recommendation that it be suspended. The trial court suspended the one year sentence for a period of three years.
The action of the trial court is authorized by Ark. Stat. Ann. § 43-2331 (Supp. 1969). That statute, being a part of Acts 1965, No. 438, § 1, provides:
“Upon entering a judgment of conviction of any offense not punishable by death or life imprisonment, the circuit court in which such judgment is entered, when satisfied that the ends of justice and the best interest of the public, as well as the defendant, will be served thereby, in addition to procedure set out in Act 76 of 1923, as amended, and Act 158 of 1945 (Ark. Stats. (1947) 43-2324 — 43-2326), the court may suspend the imposition or execution of sentence and place the defendant on probation for such period and upon such terms and conditions as the court deems best.
Probation may be granted whether the offense is punishable by fine or imprisonment or both. If any offense is punishable by both fine and imprisonment, the court may impose a fine and place the defendant on probation as to imprisonment. Probation may be limited to one or more counts or indictments or information, but in the absence of express limitation, shall extend to the entire sentence and judgment.
The court may revoke or modify any condition or probation, or may change the period of probation.
The period of probation, together with any extension thereof, shall not exceed five (5) years. . .
We upheld the validity of Ark. Stat. Ann. § 43-2306 (Repl. 1964), permitting the trial court to assess punishment under certain circumstances, in Froman v. State, 232 Ark. 697, 339 S. W. 2d 601 (1960). Appellant has cited no authority holding the statute here involved invalid, which is similar to that customarily used by the federal courts. See Driver v. United States, (4 Cir. 1956) 232 F. 2d 418.
Finding no error, the judgment is affirmed. | [
116,
-22,
-107,
-66,
11,
64,
18,
-112,
74,
-15,
-30,
18,
-87,
-46,
4,
57,
-93,
107,
117,
97,
-48,
-73,
55,
97,
99,
-13,
-104,
-45,
59,
79,
-4,
-108,
12,
48,
-54,
-107,
102,
73,
81,
88,
-126,
6,
11,
100,
88,
66,
56,
63,
4,
15,
33,
-97,
-53,
47,
30,
-50,
-23,
76,
73,
47,
88,
-79,
-110,
13,
-21,
21,
-77,
-123,
-100,
3,
112,
60,
-100,
57,
16,
-8,
115,
-110,
-126,
84,
107,
-103,
36,
102,
98,
-31,
5,
-51,
-68,
-120,
30,
-65,
-123,
-121,
-104,
89,
75,
-49,
-98,
-105,
114,
20,
12,
-2,
100,
21,
81,
44,
35,
-114,
-80,
-77,
-81,
53,
-42,
-6,
-29,
33,
48,
101,
-52,
-26,
86,
95,
123,
-101,
-117,
-43
] |
John A. Fogleman, Justice.
Both appellant and appellee Anderson-Tully Company claim to be the owners of a tract of land usually referred to as Luna Bar. Appellant is the owner of Sections 9 and 16 in T 15 S, R 1 W and accretions in Chicot County, Arkansas. It claims that Luna Bar is within the boundaries of the tract owned by it, even though separated from appellant’s other lands by a chute of the Mississippi River. It is appellant’s contention that Luna Bar was separated from the Arkansas mainland by an avulsion, so that this land remained within the boundaries of the State of Arkansas,, and, with any accretions thereto, the property of the appellant On the other hand, Anderson-Tully Company claims ownership of these lands as accretions to its lands in Washington County, Mississippi, known as Carter Point or Woodstock, acquired by deed from C. W. Hunter Company in October 1962. It is the contention of appellees that portions of the lands within the original boundaries of appellant’s lands were eroded away by the action of the Mississippi River so that the boundary between the States of Arkansas and Mississippi and appellant’s boundaries shifted with the erosion. They also contended that Luna Bar actually consists of accretions to Carter Point in Mississippi.
Appellant instituted this action seeking to quiet its title and to enioin appellees from interference with appellant in the use and enjoyment of this land. Appellees moved to dismiss the complaint for want of jurisdiction over the lands, contending that they were in the State of Mississippi. The chancery court proceeded with extensive hearings upon the question of jurisdiction. This appeal was taken from the chancery court’s dismissal of appellant’s action for want of jurisdiction.
We agree with the chancellor that the burden lay upon appellees to show want of jurisdiction over the lands by a preponderance of the evidence. The allegations of the complaint indicate that the land was in Chicot County, Arkansas, and that the court had jurisdiction. Where, as here, a motion to dismiss depends upon the introduction of testimony, the burden of producing evidence to show the lack of jurisdiction is upon the moving party. Running v. Southwest Freight Lines, Inc., 227 Ark. 839, 303 S. W. 2d 578.
In order to meet their burden, it was incumbent upon appellees to show that the lands were formed as accretions to Carter Point. We do not agree that appellees met this burden.
The chancellor studiously recorded his findings in detail. These findings included the following:
1. The area occupied by Luna Bar was within the boundaries of Sections 9 and 16 owned by appellant when the United States Government Survey dated January 13, 1825, and certified June 18, 1823, was made.
2. Luna Bar appeared in the river sometime between the year 1862 and the years 1872 — 1874.
3. The thalweg, or sailing channel, of the Mississippi River lay west of Luna Bar for more than 40 years prior to 1961.
4. That the proof is insufficient to show that the Mississippi River “land jumped” and left Luna Bar isolated from appellant’s lands re maining in Sections 9 and 16 on the mainland.
5. That the thalweg or sailing channel west of Luna Bar existing from 1872/74-1935 came into existence by reason of erosion and accretion.
Appellant raises four points for reversal. Three of them have to do with the burden of proof and the conclusions to be drawn from the evidence. The first point is based upon the contention that the testimony of Austin B. Smith, an expert called by appellees, was erroneously admitted. It is argued that the witness lacked the necessary education, training and other qualifications to make his opinion evidence on the issues in the case admissible. Determination whether an expert witness is sufficiently qualified lies within the sound judicial discretion of the trial judge. Ratton v. Busby, 230 Ark. 667, 326 S. W. 2d 889. This court will only reverse the decision of a trial judge on this determination in extreme cases where there is manifest error or a clear abuse of this discretion. Keeton v. Bozark, 232 Ark. 588, 339 S. W. 2d 123; Arkansas-Louisiana Gas Co. v. Maxey, 245 Ark. 15, 430 S. W. 2d 866. We find no such abuse of discretion here.
Smith was a graduate in civil engineering from the University of Arkansas in 1930. He had 20 hours credit in geology. He is an employee of the United States Corps of Engineers, having been employed on a full-time basis by the Mississippi River Commission since 1935. His duties with the river commission have been connected with navigation and construction problems on the Mississippi River and its tributaries. He was responsible for navigation of the river during World War II. His present duties are in supervision of construction of dikes, abutments, dams and locks and of dredging in controlling the flow of the river. He is a member of the American Society of Civil Engineers, Mississippi Society of Professional Engineers, International Association of Navigation, Vicksburg Engineers Club, and a registered engineer in Louisiana and Mississippi. Although he had never made a geological study for the Mississippi River Commission, he classified himself as “one of the foremost” potamologists. He stated that he had been engaged in studying land formations along the Mississippi River and its tributaries for the purpose of examining the genesis of these lands in private employment for 30 years. He had been employed in three court cases and worked privately in twelve without litigation. His private employment included 12 or 15 matters wherein the state boundary was a factor. He claimed to have written several papers dealing with the actions of the Mississippi River and to have been concerned with about 100 accretions in boundary problems dealing with the Mississippi, Arkansas and Red Rivers. He had been concerned with this particular reach of the river on three other occasions between 1954 and 1965. As a part of his duties connected with navigation, he had experience in determining the deepest part of the river for safe navigation. Although the witness admitted that his duties in his regular employment had never included the determination of the genesis of any channel of the Mississippi River or any geological studies, we cannot say that the education, training and experience of the witness were so deficient that permitting him to testify was manifest error or an abuse of discretion. If expert testimony is required, long familiarity with the river and knowledge from observation and experience as to river action on banks and formation of islands and bars may be sufficient to qualify a witness. Mallory v. Brademyer, 76 Ark. 538, 89 S. W. 551
We find ample testimonial support for the first two of the chancellor’s findings listed above. As a matter of fact there seems to be little controversy on these points. Insofar as the other findings are concerned the critical question depends upon location of the river channel between 1861 and 1872/74 and the means by which any change of location was accomplished.
Appellees offered in addition to the testimony of Austin Smith that of Walter Guyer, chief forester for Anderson-Tully Company, J. S. McKnight, a forester with the United States Forest Service, Captain Henry C. Muirhead, a river pilot, and J. C. Smith, caretaker for C. W. Hunter Company, predecessor in title to appellee. On the other hand, appellant offered the testimony of John W. Thompson, a forester in charge of Johns Manville - Mississippi Timber Lands near Natchez, Mississippi, James Spillers, a geologist and T. S. Dabney, a licensed engineer.
Appellees contend that they have clearly shown that the tract involved was formed by accretion to Carter Point. They argue that the physical location of the river and the peninsula called Carter Point in 1962 as compared with their appearance in 1841 gives rise to a presumption that the Arkansas bank gradually eroded and the land formed by accretion to the Carter Point peninsula. In the case relied upon by them, however, it is pointed out that this presumption operates only in the absence of countervailing evidence. See United States Gypsum Company v. Reynolds, 196 Miss. 644, 18 So. 2d 448 (1944). It also depends upon other factors such as the relationship between the intervening time. lapse and the distance of movement, and the comparative general correspondence of locations and directions of the river. Under the evidence here, we do not deem this presumption to be controlling.
Our attention is called to the decision in Anderson-Tully Company v. Dr. J. M. Walls, 266 F. Supp. 804 (N. D. Miss. 1967), termed a companion case. We have not given any consideration to the decision in this case, principally because it appears obvious to us that there was considerable testimony before the Arkansas court, particularly the testimony of Spillers, that was not before the federal court.
An important element of the result reached by the trial court is its finding that until 1861 the thalweg or sailing channel of the Mississippi River was hard against the Arkansas mainland without regard to any land mass in the river. The river in the area in question is referred to as Spanish Moss Bend. An 1841 edition of the Western Pilot, containing charts of the Mississippi River with directions for navigation, described the upstream entry of Spanish Moss Bend as being just south of Island 82. The preferred sailing channel around this island was to the left or east. The navigational directions suggested an incline toward the right shore after this island was passed coming downstream. Map No. 12 depicting this area shows the channel as being in the center of the stream between the Arkansas mainland and Carter Point after the suggested turn. At this time, at least, the thalweg was not hard against, the Arkansas shore. The correctness of this finding may well depend on what is determined to constitute the Arkansas shoreline.
Lloyd’s Map of the Lower Mississippi River published in 1862 shows that the sailing channel is hard against the Arkansas shore at the extreme south end of the Arkansas point opposite Island 82, but shows the channel in the center of the stream through Spanish Moss Bend. E. A. Douglas’ 1872 Map of the Line of Levee from Gaines Landing to Luna designates this land formation as Luna Bar and does not show a connection with either shore. Luna Landing is shown by this map as being perhaps a mile south of the southernmost tip of the formation. The 1823 meander line was superimposed upon this Douglas map. The 1872 Arkansas bank is shown to be some 2,000 feet west of this meander line. A “state levee” running along the Arkansas shore from the north is shown as having terminated at the 1872 river bank opposite the north end of Luna Bar. A levee with a northern termination at the river bank virtually opposite the southernmost tip of the formation is also shown. The primary purpose of the Douglas survey was to determine the effect of floods upon levees.
Major Charles R. Suter, of the United States Corps of Engineers, mapped his reconnaissance of the Mississippi River in accordance with an Act of Congress of June 23, 1874. His map shows a land mass between Carter Point and the Arkansas mainland. He shows this as a land mass virtually equidistant from the Arkansas and Mississippi banks. The designation of Spanish Moss Bend is placed between this formation and Carter Point. A town or landing called Luna is shown on the Arkansas mainland near the southernmost tip of this land mass. The composition of the surface of the land mass appears to have been shown as sand.
Testimony concerning cypress stumps found in the water on the west of the island is of some significance. Thompson counted 205 annual rings on one sound stump. He described the stump next to it as being larger, but rotted out and fragmented. He testified that the stump from which he took the cross section grew in the spot where he found it and that appellees’ theory that these stumps were from cypress trees which floated to the point they now are found where they were separated from the stumps which then sank into their present location was clearly erroneous. The appearance of at least two of these stumps in photographs introduced tends to lend support to Thompson’s testimony rather than appellees’ theory. Support for the statement of this witness is the appearance of a designation of “cypress knees” or other designation of “cypress stumps” or trees along the Arkansas shore near the mainland on several Mississippi River Commission charts exhibited. One of these shows cypress stumps along the Arkansas shore in 1894. These charts indicate that there were evidences of cypress stumps many years before 1940, when appellees claim they were left there. It is their theory that there was a custom of floating cypress trees downriver to a point where logs were cut and hauled away and stumps left standing upright at the river bank. J. C. Smith told of this practice and said that he first saw these stumps in 1940. Austin Smith testified that if his theory that the river channel moved by gradual migration, rather than by avulsion, is correct, these stumps could not have remained in their present posi tion. Captain Muirhead, a retired pilot of steam tugs and tenders on the Mississippi River, traced the sailing channel around Luna Bar or Towhead in 1933 and before the construction of Tarpley Cut-Off in 1935. He pláced it between the Bar and the Arkansas mainland. While tracing the line on an exhibit, he commented as follows:
“Now you will note as you got down to the foot of the towhead there, right in there was extremely deep water on both sides, but there was a lot of stumps in there and we always ran near the main shore to avoid those snags in there around the island or towhead.”
Although Captain Muirhead said that the channel east of Luna Bar was too shallow to be used by steamboats except during excessively high water at any time from 1920 on, he said that there was never dry land between Luna Bar and Carter Point until the construction of Tarpley Cut-Off. The significance of this witness’ saying that the channel west of Luna Bar had been called Linwood Bend, rather than Spanish Moss Bend, as it is now designated, is not to be overlooked, in view of Suter’s location of Spanish Moss Bend east of the bar.
The testimony of James Spillérs is impressive. He is a geologist with bachelor’s and master’s degrees, who has done some work toward a doctorate. He has many years of experience as a geologist, during which he has served as a part-time associate professor of geology at Mississippi Southern University. His major employment prior to 1963 was with an oil company. Since that time he has served as Chief Geologist in charge of the Engineering and Geological Division of the Louisiana State Mineral Board. He has worked in his profession in North Carolina, Texas, California, Louisiana, Mississippi and Alabama. Two-thirds of his career has been spent in evaluation of deep strata and geological structure, and the remainder in surface geology. He made a study of the origin and evolution of the land mass in question. Spillers took borings by digging post holes in four different places. In one of them on the face of the eastern escarpment of an area he called province 1, he found permanent bench mark 168 H C of the United States Corps of Engineers, covered by four feet of colluvium, which he said had crept over the face of the cliff. In at least one sample from a boring on the mesa, Spillers found a lithology at corresponding elevations similar to that of a sample on the mainland in proximity to the community of Luna.
Spillers divided the island into five physiographical areas, which he designated as “provinces.” One of these was a high mesa-like area of about 200 acres, ranging from 135 feet elevation at the northern extremity to 120 feet at the south. This area lies wholly within the original lines of Sections 9 and 16, T 15 S, R 1 W of the original government survey in Arkansas. Significantly, the 1823 meander line of the river runs along the eastern escarpment. He found a distinct drainage pattern on this part of the island. His province 2 sloped gradually downward from No. 1 to the north and east. Province 3 lying north, east and west of province 2 was described by him as accretionary to No. 2. His province 4 lay east and west of Nos. 1, 2 and 3, and he characterized it as a series of accretionary materials. Province 5 consisted of the abandoned river channels east and west of the island. He found water running through the channel between the island and Carter Point.
By a study of survey maps and charts, Spillers demonstrated a relationship between the elevation of his physiographic province 1 and both the Arkansas and’ Mississippi mainland. From elevations shown on the various survey maps and charts exhibited he concluded that the formation had never been a low-lying island but was always a high mass. It appeared to him that the channel east of Luna Bar had remained in essentially the same location since 1874. By a study of Mississippi River Commission charts showing the location of early river channels and a geological survey of ancient courses, he established that channel migration moved the point of the bar in a southwesterly direction prior to 1891-95 at the rate of 50 feet a year. By the same method, he noted that all channels had remained in relatively the same position after 1872-74. He referred to a monumental study of the river made for the Mississippi River Commission by a Dr. Fisk, whom he considered to be an eminent authority on Mississippi River geology and history. This study was based in part upon 16,000 borings. It was made in 1944. Plate 22, Sheet 9, accompanying Dr. Fisk’s report is a chart of historic and prehistoric river courses. A study of the legend accompanying this chart shows that the river channel never occupied the position now occupied by a part of the mesa area of Luna Bar for nearly 800 years. A map of early stream channels prepared in the office of the President of the Mississippi River Commission also indicates that the river channel never occupied this area, at least since 1765, which is the beginning point of the study. The indicated “indeterminate bank line” thereon places it east of this mass. According to Spillers, if Luna Bar had been accretions to the Carter Point peninsula, it should have had some slope in a westerly direction.
Spillers calculated that the changes that took place between 1861 and 1872-4 would require a dramatic migration of approximately 550 feet per year, more than five times the average migration of other bends in that reach of the river.
Spillers also recounted the history of flood intensity from 1862 to 1874. He found that the flood of 1862 exceeded all previous gauge heights at Cairo, except during the year 1815 and that there was great de struction of levees at all points below Cairo. The 1865 flood was noted for duration but was of less intensity than the one of 1868, which was classified as an extreme flood. An 1867 flood was characterized by almost unprecedented rapidity and height in rises, and by two crests two weeks apart. There were also floods in 1871 and 1874, the former having been classified as a great flood. Either of these floods, individually or coupled, according to Spillers, offered an opportunity for the river to have formed a new or alternate channel. He concluded that when topographic, physiographic and lithological conditions, the 100-year minimum age of the mesa land mass, the comparison of migration of channels in other bendways, and the relative stability of the channels, both before 1861 and after 1874 are considered, the formation of Luna Island could only have been the result of an avulsion of the Mississippi River between 1862 and 1874 rather than of the gradual process of erosion and accretion, and that the island is a remnant of the Arkansas mainland to which there have been accretions.
The theory of Austin Smith is directly contrary to that of Spillers. He placed considerable emphasis upon the failure of any map or chart to indicate the presence of vegetation on the island prior to a 1925 hydro-graphic survey made for the Mississippi River Commission. The same witness stated that this vegetation was destroyed in 1933. Spillers testified that vegetation in certain instances is sometimes removed by sand migration, by the effect of dunes and by the action of water and winds. The constant floods may have been an element in denuding all or a portion of this tract of vegetation. Spillers testified that scouring action of the river during floods tended to remove soil and trees from lands which were then submerged.
Another cardinal point in Smith’s testimony is that the river could never have accommodated itself to the narrow distance between the 1833 meander line on Carter Point and edge of Luna Bar. Yet the 1939 Arkansas-Mississippi Quadrangle Map published by the United States Corps of Engineers and introduced through him shows the 1825 and 1833 meander lines of the river. These seem to place the river between these two points. It also appears that the width of the two channels is depicted as about the same by the Suter map, the 1894 Mississippi River hydrographic survey, and other maps and charts introduced.
Smith’s lack of experience in determining genesis of land formations tends to detract from the weight to be given his testimony regardless of his expertise in river action. Smith’s physical reconnaissance of the island also seems to have been rather cursory. On the other hand, Spillers spent six days on the island.
Considerable significance is accorded by both parties to findings of foresters as to vegetation, its age and history. We agree with the chancellor that no weight can be accorded to this testimony because it and the interpretations given it are in such conflict that it is inconclusive. It would not be possible to say, on the present record, that a chancellor’s finding on this important factor was against the preponderance of the evidence. If the trial court’s findings had rested on this factor, we could only affirm its decree.
At any rate, we find appellees did not meet their burden of proof and that the evidence on the question of jurisdiction preponderates in favor of appellant. The cause is remanded for further proceedings.
Appellees’ motion to tax the cost of its supplemental abstract against appellant is granted.
Appellee Chicot Land Company asserts rights in the tract by virtue of an exclusive license for hunting and fishing dated August 18, 1964. Other parties are in the same position as Anderson-Tully so far as issues involved on this appeal are concerned.
The propriety of questioning subject matter jurisdiction by preliminary motion to dismiss rather than by answer, when a question of fact is involved, was not questioned in the lower court, even though it seems that substantially the same questions will be involved on trial on the merits.
Other maps show both a landing and a community called “Luna” in proximity to each other.
The weight of this testimony is diminished somewhat by the fact that Spillers only dug down a few feet in taking this sample and never returned for further borings. Austin Smith pointed out that others had made studies which would tend to contradict Spillers’ conclusions.
Austin Smith obtained geological data from Dr. Fisk’s report.
Austin Smith testified that Luna Bar first appeared on a government survey in 1870.
The general rule is that the1 boundary follows the channel when the change is not sudden and violent. But there is a recognized exception. The boundary remains in the same place whenever a river changes its main channel, not by excavating, passing over and then filling the intervening place between the old and new channel, but by flowing around intervening land, which never becomes the main channel in the meantime, and the change from the old to the new channel is wrought over a period of years by the gradual or occasional increase of the propouion of the waters passing over the course which eventually becomes the new channel and a corresponding decrease in the waters flowing through the old channel until the greater part of the waters flow through the new channel. Commissioners v. United States, 270 F. 110 (8th Cir. 1920), dismissed for want of prosecution, 260 U. S. 753, 43 S. Ct. 14, 62 L. Ed. 497 (1922). See also Uhlhorn v. United States Gypsum Co., 366 F. 2d 211 (8th Cir. 1966), cert. denied, 385 U. S. 1026, 87 S. Ct. 753, 17 L. Ed. 2d 674 (1967) wherein it is demonstrated that the “thalweg rule,” governing state boundaries, requires that the boundary remain fixed, unless changed by the gradual and imperceptible process of erosion and accretion, even though the process by which the river seeks a new channel is not a true avulsion. ’ | [
113,
-10,
-32,
60,
58,
100,
48,
-68,
75,
-127,
103,
83,
-21,
74,
1,
113,
-21,
125,
-15,
123,
-58,
-77,
3,
98,
-45,
-77,
-7,
69,
-80,
78,
100,
-41,
12,
96,
74,
85,
-58,
106,
-55,
-98,
78,
33,
-101,
72,
121,
-62,
48,
41,
64,
-49,
117,
-113,
-5,
44,
91,
79,
73,
47,
-51,
45,
80,
120,
8,
12,
31,
0,
49,
103,
-103,
-127,
-24,
24,
-112,
48,
1,
-24,
115,
-90,
-122,
-12,
75,
-71,
-120,
32,
-25,
41,
-35,
-81,
-82,
9,
15,
126,
-99,
-90,
-60,
0,
75,
73,
-97,
-107,
90,
4,
-123,
126,
-18,
-107,
85,
108,
99,
-26,
-106,
-95,
15,
41,
22,
23,
-21,
-105,
48,
116,
-51,
-17,
84,
68,
54,
27,
10,
-112
] |
Lyle Brown, Justice.
Appellant Charles Eugene Henson was convicted of burglary and grand larceny. He was also found guilty of violation of the habitual criminal statute. The jury fixed his punishment at six years for burglary and at four years for grand larceny. On appeal it is urged (1) that Instruction No. 10 was prejudicial; (2) that the State’s evidence of a previous conviction was insufficient; and (3) that Henson was entitled to a directed verdict for insufficiency of the evidence.
Because of the attack on the sufficiency of the evidence we shall summarize somewhat in detail the State’s proof. (The defense offered no testimony.) On the night of September 3, 1969, Ike Hall parked and locked his car and walked two blocks to the sports arena in Fort Smith to attend the night’s program of wrestling. Russell Howell, a funeral home employee, left the wrestling matches about nine o’clock and walked near the parking lot. At that point he observed three white boys acting suspiciously. When he approached and asked them to stop they ran away. At the trial he was unable to identify either them or the object one of them was carrying, but said he did observe that the object resembled a tape recorder.
Mr. Howell returned to the arena and reported the incident. An announcement was made to the audience and that was how the prosecuting witness learned his car has been burglarized. Officer John Etter was on patrol and observed a car driving in a reckless manner. That was about nine-thirty o’clock. The officer caused the vehicle to be stopped. While checking the driver’s license Officer Elkins observed appellant lean over and try to cover a stereo tape player located on the floor of the back seat. The officer contacted headquarters and ascertained that such a player had been reported stolen, whereupon the boys were taken to the police station. The prosecuting witness had already arrived at the station and he witnessed the officer bring the three young men into the station and also identified the tape player as being his property. (Mr. Hall had recorded the model and serial number of his player.) At the trial Officer Elkins identified Charles Eugene Henson, David Selman, and Carl Ray Elkins, as being the persons he apprehended in possession of Howell’s tape recorder. Selman and Elkins, having entered pleas of guilty, testified for the State and implicated appellant.
In attacking the sufficiency of the evidence to support the verdict, appellant says that absent the testimony of the accomplices there is nothing more than a suspicion that appellant was guilty. In felony cases a defendant cannot be convicted upon the testimony of an accomplice "unless corroborated by other evidence tending to connect the defendant with the commission of the offense.” Ark. Stat. Ann. § 43-2116 (Repl. 1964); Froman v. State, 232 Ark. 697, 339 S. W. 2d 601 (1960). When we eliminate the testimony of the accomplices in order to test the remainder, of the evidence, we find no difficulty in concluding that the other evidence established the commission of the crime and standing alone made a jury question of this appellant’s connection therewith.
We now consider Instruction No. 10, which appellant urges was prejudicial. That instruction first advised the jury of the forms of verdicts, both as to a finding of guilty or not guilty; of course the forms contained no provisions for punishment because that phase of the case would be considered separately in the event a verdict of guilty was returned. Then the instruction concluded with this sentence: "When you return either of those verdicts into court, then you may or may not have another verdict to consider.” Appellant complains that the quoted language "told the jury that the defendant had heretofore been convicted of a previous, offense.” That interpretation is clearly without any reasonable basis. Apparently the court was trying to explain to the jury, in an impartial manner, the absence of any provision in the form of verdict for the fixing of punishment, which only recently had been changed. Ark. Stat. Ann. § 43-2330.1 (Supp. 1969). Of course the explanation was really not necessary and was of dubious value; however, we in nowise interpret it as telling the jury that appellant had been previously convicted. Additionally there was no objection by appellant’s trial attorney to the wording of the instruction.
Appellant’s final point concerns his conviction as an habitual criminal. The State introduced a certified copy of a judgment and sentence from the circuit court of Pope County, Arkansas. It was styled “State of Arkansas vs. Charles Haggard a/k/a Charles Henson.” The text of the judgment carried the same designation. Appellant contends that the recited evidence of prior conviction was insufficient to show that he is one and the same person as the defendant who was convicted in Pope County.
It is provided by statute that the certified copy of a record of former conviction and judgment against the person indicted may be. introduced in a subsequent trial of that party; and that it shall be prima facie evidence of a prior conviction and judgment of imprisonment. Ark. Stat. Ann. § 43-2330 (Repl. 1964). It is true that Pope County records showed that the defendant there was known by two names; however, that fact did not destroy the efficacy of the document for the jury’s consideration. It recited that a person known as Charles Henson had lately been convicted of a felony in a neighboring county. We have previously pointed out that “there is nothing to prevent a defendant from tendering proof to the effect that he is not the person referred to in the record.” Higgins v. State, 235 Ark. 153, 357 S. W. 2d 499 (1962). As a practical matter appellant could have easily rebutted the evidence, if it was . incorrect, without personally taking the witness stand. We are unable to say that the jury’s finding of a previous conviction is not supported by substantial evidence.
Affirmed. | [
48,
-4,
-8,
30,
25,
-32,
10,
60,
19,
-95,
-32,
83,
-83,
86,
68,
99,
115,
125,
84,
97,
-36,
-105,
7,
83,
-126,
-77,
121,
-43,
-69,
75,
-84,
-68,
79,
48,
-62,
-111,
34,
12,
-57,
92,
-114,
-128,
-88,
-42,
113,
16,
44,
46,
22,
15,
-15,
31,
-25,
42,
16,
79,
73,
44,
75,
-88,
120,
-15,
-72,
7,
-19,
22,
-93,
-123,
-70,
5,
-8,
62,
93,
17,
0,
-8,
51,
-90,
-126,
116,
13,
-119,
-116,
96,
98,
33,
25,
-17,
36,
-119,
15,
-74,
-107,
-89,
24,
105,
1,
-19,
-66,
-99,
110,
16,
22,
-6,
-25,
84,
121,
100,
-113,
-50,
-44,
-79,
77,
-88,
-106,
90,
-5,
-93,
32,
113,
-51,
-30,
88,
103,
114,
-69,
-122,
-47
] |
Lyle Brown, Justice.
This is an appeal by R. C. Smith from a robbery conviction. No brief was filed by appellant. The motion for new trial alleges that the verdict is contrary to the law and the evidence, that the conviction is in violation of the equal protection and due process clauses of the State and Federal Constitutions, and that he was convicted without positive identification, and without corroborative testimony. In accordance with our Rule 11, the Attorney General has abstracted the record and properly briefed those assignments of error which may appear to be beneficial to appellant.
The prosecuting witness and the accused were the only witnesses. Waydeen Cochran testified that in January 1968 she operated a grocery store in Little Rock; that R. C. Smith forced her at gunpoint to open her cash register, from which Smith took between seven hundred and eight hundred dollars; and that within approximately one hour the police confronted her with Smith and she made positive identification.
R. C. Smith testified on direct examination that he was acquainted by sight with the prosecuting witness; that he knew the location of her store; and that he positively did not rob her. On cross-examination it was brought out that he did, on the day in question, enter the store to make a purchase; that he parked his car in front of the store and left the motor running; that as he left by way of the front door a policeman stopped him and after brief questioning apparently took him to the station. Further investigation revealed that he had on his person some $200 in cash and a pistol. Appellant asserted that the. money consisted of salary he had just drawn and that he had recently bought the pistol for his own protection because "I had been robbed two or three times.”
In our summary of the testimony we have not omitted any evidence which would shed light on the* points listed by appellant in his motion for new trial. The evidence is sufficient to support the verdict and to meet the test of our robbery statute. No evidence was offered which would even imply that any constitutional rights were violated. From the summarized evidence it is apparent that the assertion that the accused was not properly identified is without merit. The defense of lack of corroboration is likewise of no benefit to appellant because Waydeen Cochran was not an accomplice.
Affirmed. | [
113,
-22,
-24,
-68,
56,
-32,
50,
58,
82,
-93,
-92,
-13,
-83,
70,
84,
123,
-17,
127,
85,
105,
-58,
-93,
71,
97,
-6,
-69,
-69,
-57,
-73,
-53,
-84,
-12,
76,
112,
-22,
-47,
102,
-54,
-25,
84,
-82,
-127,
-87,
84,
80,
64,
96,
43,
68,
15,
-79,
-100,
-29,
42,
24,
-64,
41,
44,
75,
-65,
112,
-7,
-126,
-115,
-115,
21,
-95,
52,
-65,
1,
-6,
28,
-36,
49,
16,
-8,
114,
-90,
-126,
84,
109,
-101,
12,
104,
98,
0,
117,
79,
40,
-128,
-89,
126,
-97,
-89,
-112,
72,
75,
109,
-106,
-35,
111,
5,
10,
-4,
-15,
84,
123,
108,
15,
-50,
-12,
-79,
-115,
120,
2,
75,
-17,
3,
16,
117,
-49,
-22,
92,
87,
114,
-101,
-50,
-108
] |
Carleton Harris, Chief Justice.
On November 14, 1967, the Pulaski County Chancery Court, First Division, entered a decree granting an absolute divorce to Mary Nelle Armstrong, appellee herein, from appellant, Howard M. Armstrong. Incorporated into the decree and made a part thereof was a written agreement between the parties entered into on November 13, 1967, whereby appellant and appellee agreed in full upon a property settlement. Thereafter, Mrs. Armstrong filed a motion asserting that appellant was delinquent in child support and alimony payments and subsequently she sought judgment for the arrearage and asked that appellant be cited for contempt. Subsequently, Dr. Armstrong filed a petition seeking a reduction in the payment “of any and all sums” to appellee, alleging that he had been ill, unable to perform surgical operations, and accordingly his income had been drastically reduced and he was entitled to a reduction in the pay ment of alimony, support, and maintenance to appellee. On July 2, 1969, the court found that Armstrong was in arrears in his alimony in the sum of $3,843.82, and judgment in that amount was given Mrs. Armstrong, as well as an attorney’s fee for her attorney. Notice of appeal of this judgment was given by appellant. On August 29, 1969, a Special Chancellor entered a decree finding that in addition to previous judgments, Armstrong was in arrears in payments of alimony due Mrs. Armstrong in the sum of $2,085.00, and judgment was given her for that amount as well as an additional judgment for $500.00 due Mrs. Armstrong for repayment of a debt, together with attorney’s fee. The court also found that:
“The agreement between the parties incorporated in the decree is contractual and the payments thereunder due the plaintiff are not subject to reduction by the court.”
In accordance with this finding, appellant's petition for reduction in alimony payments was denied. From this decree, appellant appeals and the two decrees have been consolidated for appeal purposes. For reversal, it is simply asserted that the chancery court erred in denying reductions in alimony payments, and that its finding that the chancery court lacks power to alter alimony amounts agreed upon by parties in a decree of divorce, is erroneous.
We do not agree that the Court committed error, and it might be said that if appellant’s position were upheld, there would hardly be any use in parties entering into an independent settlement contract in contemplation of divorce. Both parties agree that if the contract merged with the decree, the court has authority to alter alimony payments, and they likewise agree that if the contract constitutes a separate and independent agreement, the court does not have the authority to change it. Appellant argues that the language in paragraph “1” of the court’s order sustains his position. The language referred to is as follows:
“That the agreement made and entered into on the 13th day of November, 1967 which instrument is fully set forth above, constitutes a fair, equitable and binding agreement upon the parties, and that the same should be, and it hereby is, approved and confirmed and is made a part of the decree of this Court and is hereby given the same force and effect as if its set forth herein. The terms and provisions of said contract may be enforced by the further orders of the court in the same manner and to like effect as are the judgments and decrees of the Court.”
We do not agree that the fact the agreement is “made a part of the decree of this Court” adds any weight to appellant’s position, nor does the fact that the agreement recites that the terms and provisions of the contract may be enforced by orders of the court in the same manner and to like effect as are the judgments and decrees of the court, strengthen the argument.
In Bachus v. Bachus, 216 Ark. 802, 227 S. W. 2d, 439, the parties had entered into a written agreement by which they settled all property rights and agreed that the wife would receive $200.00 per month as alimony, and support for the couple’s four children. The Chancellor approved the contract and it was incorporated into the divorce decree. Subsequently, the court entered an order changing the amount Mrs. Bachus would receive as set out by the contract, from $200.00 per month to $150.00 per month. She appealed. In reversing the trial court, we said:
“The court erred in reducing the amount of the monthly payments. The parties to a divorce action may agree upon the alimony or maintenance to be paid. Although the court is not bound by the litigants’ contract, nevertheless if the court approves the settlement and awards support money upon that basis there is then no power to modify the decree at a later date. * * * If changed circumstances should subsequently render the payments inequitable the court may decline to enforce by contempt proceedings the payment of a greater sum than the circumstances warrant, thereby remitting the plaintiff to her remedy at law to collect the balance due under the contract.”
Here too, the court might well have punished appellant for contempt if it had found that he was in willful violation of its decree, but as stated in Backus, the court does not- have to enforce the provisions of a decree through contempt proceedings. Of course, one of the purposes, of incorporating an agreement that is independently entered into, is to be able to enforce its provisions through contempt proceedings.
In Seaton v. Seaton, 221 Ark. 778, 255 S. W. 2d, 954, this Court said:
Our decisions have recognized two different types of agreement for the payment of alimony. One is an independent contract, usually in writing, by which the husband, in contemplation of the divorce, binds himself to pay a fixed amount or fixed installments for his wife’s support. Even though such a contract is approved by the chancellor and incorporated in the decree, as in the Backus case, it does not merge into the court’s award of alimony, and consequently, as we pointed out in that opinion, the wife has a remedy at law on the contract in the event the chancellor has reason not to enforce his decretal award by contempt proceedings.
“The second type of agreement is that by which the parties, without making a contract that is meant to confer upon the wife an independent cause of action, merely agree upon ‘the amount the court by its decree should fix as alimony.’ * * * A contract of the latter character is usually less formal than an independent property settlement; it may be intended merely as a means of dispensing with the proof upon an issue not in dispute, and by its nature it merges in the divorce decree.”
The fact that Dr. Armstrong entered into an im provident agreement is not grounds for relief, and we think the provisions of the agreement make clear that it was a separate and independent contract entered into between the parties, and independently enforceable in a court of law. There are nine different matters agreed upon by Doctor and Mrs. Armstrong. In item number “5”, Dr. Armstrong agrees to pay Mrs. Armstrong, commencing on the date of the divorce “the sum of $160.00 per week as alimony for life (our emphasis) or until she remarries”. Still further in the same paragraph, “In addition the defendant agrees to pay the annual real estate taxes on the plaintiff’s present home for so long as alimony is due and payable and for so long as she owns the home”.
Paragraph “5”, we think, clearly shows an independent agreement for it will be noted, that unless she remarries, appellee is due to receive alimony for life. This is not normally a provision that would become merged in a decree. Let us suppose that a clerk who earns $300.00 per month is required to pay his ex-wife $125.00 per month as alimony. Suppose that the ex-wife inherits a quarter of a million dollars from an uncle, but the ex-husband continues at his same position and at the same salary. Very likely, under an alimony order entered by the chancellor, the amount would be drastically reduced, — or completely disallowed. In fact, the provision of alimony for life would be most unusual in a divorce decree, such a decree frequently reciting that an award is made “until further orders of the court”. Even where there is no such provision, that meaning is generally accepted.
Paragraph “6”, providing for support of the daughter “for so long as she is enrolled in school and not gainfully employed” also indicates an independent agreement, for in a great many instances a chancellor will hold that the father’s duty to support normal children ends when they have attained their majority. Under the agreement reached between these parties, the daughter could acquire her A.B. degree, her Master’s degree, and her Doctor’s degree, perhaps attending school until thirty years of age, and the father would be legally obligated to pay the cost.
Paragraph “8” recites that Dr. Armstrong is indebted to Mrs. Armstrong for a personal cash loan in the amount of $2,700.00 which he agrees to repay at the rate of $100.00 per month. Certainly, it could not have been contemplated that the court would have the right to relieve appellant of this obligation. These provisions are referred to as a matter of showing that the parties, when entering into their agreement, desired an independent contract that could be enforced in a court of law as well as in chancery.
Without reciting further from the instrument we think the next-to-last paragraph fully resolves the question before us. That paragraph reads as follows:
“This agreement is made with full knowledge on the part of both parties hereto, that the promises, averments, and covenants herein under are mutually irrevocable * * *."
Affirmed.
Our emphasis. | [
-76,
108,
-8,
108,
-118,
16,
10,
-127,
104,
33,
55,
-45,
43,
-62,
16,
105,
50,
75,
96,
123,
85,
-77,
22,
65,
-29,
-13,
-55,
-43,
-79,
-3,
-27,
86,
76,
32,
-78,
-43,
102,
-117,
-59,
92,
-114,
-110,
-53,
76,
-39,
-122,
52,
111,
-48,
15,
17,
-113,
-109,
44,
61,
74,
-24,
8,
-39,
107,
-48,
-80,
-118,
5,
127,
83,
-79,
36,
-110,
5,
88,
110,
-100,
49,
14,
-7,
51,
-90,
-122,
116,
73,
-69,
13,
112,
102,
7,
69,
-1,
-104,
-100,
2,
-34,
-97,
-90,
-101,
112,
33,
1,
-74,
52,
100,
17,
15,
-10,
110,
5,
28,
32,
9,
-118,
-106,
-95,
-114,
124,
-98,
2,
-21,
-57,
48,
113,
-51,
-94,
88,
-58,
51,
-101,
-82,
-106
] |
Lyle Brown, Justice.
Plaintiff below and appellant here, Mrs. Cornell R. Walker, instituted an action for separate maintenance against George Harris Walker. The husband answered with a prayer for absolute divorce and it was granted. The wife here alleges insufficiency of proof, failure to award alimony, and, alternatively, an incorrect division of property.
The parties were intermarried in 1965 and lived together for four years, excepting several periods of separation caused by matrimonial difficulties. The final separation, which climaxed several months of quarreling and fighting, occurred in March 1969. Each party gave evidence which would place the blame on the other. A recounting of the testimony of these spouses would serve no useful purpose and is really not nec essary to a determination of the issues on appeal. The allegation here argued with respect to sufficiency of proof is directed at the corroboration, which appellant contends is wholly insufficient. We will therefore evaluate the corroboration. With respect to the husband’s testimony it is sufficient to say that the incidents of unwarranted indignities related by him, if true and if corroborated, were abundantly sufficient to warrant granting him a divorce.
The quantum of required corroboration in contested divorce cases has long been settled. It is plain to us that in this heatedly contested case there was no collusion. In that situation the corroboration may be comparatively slight and yet be sufficient. Goodlett v. Goodlett, 206 Ark. 1048, 178 S. W. 2d 666 (1944). The same citation is authority for the rule that the litigant does not have to be corroborated on each asserted act of indignity. Among the many acts of indignities related by the husband, he asserted that his wife wrongfully accused him of improper conduct with another woman; in that connection he was corroborated by Jo Ann Weaver. Appellee testified that appellant’s telephone calls to his office were so frequent as to disrupt his business; Janice Hughes testified to the same general effect and specifically recounted tabulating the calls on two different days and they totalled fifteen and seventeen calls. Appellee’s daughter by his first wife lived with this couple and she supported her father’s testimony that the child had been abused by her stepmother. Appellee’s testimony relative to both him and his daughter being called vile names by appellant was supported by other witnesses.
The trial court denied alimony and appellant takes exception to that ruling. We agree with the assertion that the trial court has the inherent power, acting in sound discretion, to award alimony to a wife even if her faults entitle the husband to a divorce. Conner v. Conner, 192 Ark. 289, 91 S. W. 2d 260 (1936). We must examine the particular facts and circumstances in the case to determine whether the chancellor abused his discretion. The principal circumstance favoring alimony is the fact that the husband was not without some fault; on the other hand the chancellor found that appellant was guilty of such conduct as to provoke ill behavior by appellee. Appellant testified as to acts of severe cruelty, most of which were categorically denied. It is clear to us that the chancellor had to conclude that some of her charges were made out of whole cloth. This second marriage by both parties was of comparatively short duration; they were separated many times and on a single occasion as long as three months; no children were born to the union; both conceded that there was no possibility of reconciliation; she is an experienced bookkeeper and was earning $460 a month at the time of this marriage; she is far from being an elderly person and there is no substantial evidence that she will not be able to resume full-time employment; and appellee must, on a rather modest income, maintain a home for himself and his teenage daughter. We are unable to say that the chancellor abused his discretion in refusing alimony.
Finally appellant objects to the division of the property made by the chancellor. The home, held by the entirety, was ordered sold, and any net divided between the parties. The household furnishings were ordered handled in the same manner as the home; that was because the evidence showed appellant paid one-half of the cost of the furnishings. The wife also furnished eighty per cent of the trade-in value on a new car, plus a five hundred dollar cash payment, and the husband was ordered to refund her those amounts. Appellant had for some time owned a share of stock in appellee’s business and she was permitted to retain title thereto. Appellee was also directed to pay appellant’s attorney for his services. The statute, Ark. Stat. Ann. § 34-1214 (Repl. 1962), provides that when the husband is granted a divorce the parties shall be restored to all property then possessed by them which either obtained from the other during the marriage “and in consideration or by reason thereof.” If it is the theory of appellant that the trial court did not adhere to § 34-1214, we are not afforded the citation of specific instances of nonconformance. We perceive appellant’s contention to be that the court should have, under its inherent power, granted her, as a part of alimony, an interest in her husband’s real property. Cook v. Cook, 233 Ark. 961, 349 S. W. 2nd 809 (1961). As in the case of a money award of álimony to the defaulting wife, such an allotment would be in the sound discretion of the chancellor. We repeat that we are unable to say the chancellor abused his discretion in refusing to award alimony in any form.
Affirmed. | [
48,
104,
-23,
77,
-117,
-91,
42,
-22,
-14,
-115,
39,
83,
-9,
-54,
80,
109,
2,
59,
85,
107,
-59,
-77,
54,
65,
-30,
-13,
-8,
-43,
-75,
-51,
-27,
124,
76,
50,
-126,
-43,
98,
-118,
-57,
20,
-58,
18,
-88,
108,
-39,
-122,
36,
107,
66,
15,
113,
-113,
-13,
46,
24,
71,
40,
46,
78,
116,
80,
52,
-98,
13,
109,
2,
-77,
102,
-98,
37,
80,
10,
16,
-71,
0,
40,
115,
-106,
-110,
116,
111,
-103,
8,
96,
98,
3,
-127,
-27,
8,
-104,
111,
54,
-97,
-90,
-112,
104,
65,
105,
-66,
-99,
100,
80,
42,
-10,
121,
69,
58,
100,
-69,
-113,
-42,
-79,
13,
126,
-100,
17,
-29,
-95,
16,
113,
-49,
-32,
92,
119,
91,
-101,
-122,
-74
] |
J. Fred Jones, Justice.
This is an appeal by a number of citizens of the City of Caraway, Arkansas, from, a judgment of the Pulaski County Circuit Court reversing the findings and order of the Arkansas Commerce Commission and directing the Commission to issue an order granting the railroad the authority to discontinue its agency station at Caraway, Arkansas. The original petitioners have appealed under the style of City of Caraway, and the Arkansas Commerce Commission has joined in the notice of appeal and designation of record. The appellant relies on the following point for reversal:
“The judgment of the Pulaski Court in reversing the Arkansas Commerce Commission’s order is contrary to the law, contrary to the evidence and contrary to the law and evidence in finding that the station should be closed at Caraway, Arkansas.”
The facts appear as follows: On March 20, 1968, the appellee railroad company filed notice with the Arkansas Commerce Commission of its intention to discontinue its agency station at Caraway, Arkansas, such discontinuance to become effective June 24, 1968. The notice was filed under authority of Ark. Stat. Ann. § 73-809 b (Supp. 1969), which reads as follows:
“Any railroad operating in this State may file with the Arkansas Commerce Commission a notice of discontinuance, dualization or modification of any of its agency stations together with a statement certified by a proper officer of the railroad to the effect that such agency station had been operating at a financial loss according to standard accounting procedures for not less than one [1] year immediately preceding, or that operating economies would result consistent with public convenience and necessity; and such agency station may thereupon be closed or modified ninety [90] days after date of filing of such notice unless a petition for the re-establishment of such discontinued, dualized or modified agency station, signed by at least twenty-five [25] qualified electors residing in the city, town or political subdivision where the same is located, is filed with the Arkansas Commerce Commission within sixty [60] days after date of filing of the notice aforesaid. The Arkansas Commerce Commission is authorized, empowered and required to hear and consider all petitions for the re-establishment of any agency station discontinued, dualized or modified by the railroad under authority of this Act [section], which hearing shall be held within sixty [60] days following filing of petition for re-establishment and following thirty [30] days written notice of such hearing to the railroad and petitioners. In determining whether an agency station should be discontinued, dualized or modified, the standard to be employed is whether the railroad has operated the agency station at a financial loss according to standard accounting procedures for not less than one [1] year immediately preceding the filing of the notice of discontinuance, dualization or modification, or whether operating economies would result therefrom.”
The question before the Commission was whether or not the agency station at Caraway had been operating at a financial loss, according to standard accounting procedures, for more than one year preceding the filing of the notice of discontinuance, or that operating economies would result, consistent with public convenience and necessity.
The evidence pertaining to the “financial loss according to standard accounting procedures” is not as clear in the record as it might have been, but Mr. Wade Ellis, assistant special accountant for the appellee railroad company, testified that according to standard accounting procedures used by all the railroads and accepted and approved by the Interstate Commerce Commission as well as other agencies, including the Commerce Commission and courts of Arkansas, the railroad company had sustained a loss on the Caraway station for a twelve month period in the amount of $1,585.99.
Considerable testimony was directed to the specific figures of income and expenses chargable to the Caraway station. Mr. Ellis testified that in arriving at whether or not a particular station is operating at a financial gain or loss, under the standard accounting procedure adopted by the railroads and used by the appellee, the revenues chargable to the particular station include 50% of the local business and also 100% of the particular station’s proportionate share of the revenues on interline shipments received and forwarded. Mr. Ellis attempted to explain that in the case at bar, local business is defined as business or freight shipments originating at one point on the Cotton Belt and terminating at another point on the Cotton Belt. This means, as we interpret it, that when a carload of freight is shipped from Caraway to another station on the appellee’s line, or from another station on the appellee’s line to Caraway, 50% of the revenue received for that shipment is allocated to the Caraway station and 50% to the other station on the line from which the shipment originated or at which it terminated.
Mr. Ellis testified that “interline business” means what the phrase implies, i. <?., shipments originating at a station on the appellee’s line and terminating at a station on some other railroad company’s line; or, originating at a station on the line of another carrier and terminating at a station on the appellee’s line. As we interpret Mr. Ellis’ testimony in this connection, the Caraway station would receive, in addition to the 50% of the local business, 100% of the revenue received by the appellee on shipments originating on some other railroad system and terminating at the Caraway station, and would likewise receive 100% of the revenue received by the appellee for shipments from Caraway to a station on some other railroad system. Mr. Ellis testified that from these two sources for the twelvemonth period involved, there was $18,417.49 in the railroad revenues assigned to the Caraway station. He says that there was also a total of $107.58 in miscellaneous revenues credited to the Caraway station for the same period.
It thus appears that the standard accounting procedure used for the allocation of the revenues or income between the stations is a fairly simple one. The difficulty arises in the allocation of the railroad expenses between the stations in arriving at the profit or loss to be credited or charged to a particular station, and it is in this area that the accounting procedure is questioned. According to Mr. Ellis the cost item, in arriving at financial profit or loss, is figured on two bases. One is the cost of handling exclusive of station operations, and the other is the actual cost of station operations. Mr. Ellis’ testimony is not perfectly clear on this point, but it appears that the company’s cost of handling exclusive of station operations, includes such items as the cost of locomotive and rolling stock maintenance and operation, as well as such items as roadbed and track maintenance. He testified that under the standard accounting procedures used by the appellee railroad, the amount of this cost to be charged to a given station is determined by the use of a so-called transportation ratio which is 60.42%. According to Mr. Ellis the transportation ratio of 60.42% is simply the ratio of the operating expenses, exclusive of expenses peculiar to the individual stations such as utilities and station agent and employee wages, to the revenue received over the entire transportation system.
Mr. Ellis says that under the accepted standard accounting procedures, in order to ascertain the profit or loss chargable to a single given station, the total earnings for that station ($18,525.07 in the case at bar) are multiplied by the transportation ratio to obtain the amount chargable to that station as its proportionate share of the operating cost exclusive of station operations. C$11,192.83 in the case at bar). Mr. Ellis testified that in determining the entire expenses chargable to a given station, the cost of handling, exclusive of station operations, is simply added to the cost of station operations. According to Mr. Ellis’ testimony the total cost of operating the Caraway station, including actual cost of the Caraway station operations in the amount of $8,918.23, and including Caraway’s portion of the cost of handling exclusive of station operations in the amount of $11,192.83, and as ascertained through use of the transportation ratio as above set out, amounts to $20,111.06, and results in a net loss of $1,585.99 over the twelve month period of time involved.
The question of whether the method accounting used by the appellee railroad company, in this case, is the best and most accurate method available for fairly and accurately determining the amount of profit or loss attributable to a given station on a railroad transportation system, was not the question before the Commerce Commission at its hearing in this case, and is not the question before us in this appeal. There is considerable competent evidence in the record before us, that the accounting procedures used by the appellee railroad company, and the financial loss shown thereby, were arrived at “according to standard accounting procedures” as required by the statute, and there is no evidence at all in this record to the contrary.
Commissioner Harkey apparently devised his own, and to him a more simplified accounting method, through which he concluded that the Caraway station had shown a profit of $7,971.36 rather than a loss of $1,585.99 as testified to by Mr. Ellis. Mr. Harkey explains the manner in which he arrived at his results in the following words:
“I arrived at it by taking the figures on Proponent’s Exhibit No. 5, Column 1, the total system railway operating revenues freight service, and dividing that into column No. 3, the total system station expenses, which gives me a ratio of 3.45% and I then took that 3.45 percentile and multiplied it times the amount in column 1 of Proponent’s Exhibit No. 1 which gave me a figure of $639.12 to go in column 7, Proponent’s Exhibit No. 1, which added gives a figure of $10,553.71 and subtracted from the figure in column 5, Proponent’s Exhibit No. 1 gives a net profit of $7,971.36 for the station at Caraway.”
We had difficulty in following Mr. Ellis’ testimony, but we find it difficult indeed to follow and understand Mr. Harkey’s. How Mr. Harkey arrived at his 3.45% ratio he makes fairly clear. This ratio represents the percentage of profit over loss throughout appellee’s entire railroad system. Mr. Harkey says that he then multiplied that ratio times the amount in column 1 of proponent’s exhibit No. 1 and obtains a figure of $639.12, which he considers at cost of station operations chargable to the Caraway station. Column 1, in proponent’s exhibit 1, contains a list of the particular months involved and the total earnings of $18,525.07 for the Caraway station, as shown in column 5 of exhibit 1, is the only column in exhibit 1 which gives the $639.12 figure obtained by Mr. Harkey when multiplied by 3.45%
So apparently Mr. Harkey multiplied the percentage of income over appellee’s entire system by the total earnings credited by the Caraway station and obtained the amount of $639.12 as the cost of station operations chargable to the Caraway station. He apparently then added this cost of station operations to the cost of handling, exclusive of station operations, and arrived at a figure of $10,553.71 apparently as the total cost of station operations. He apparently then subtracted this $10,553.71, the total cost of station operations, from $18,525.07, total earnings for the Caraway station, and thereby arrived at a net profit for the Caraway station of $7,971.36.
Commissioner Panich apparently also arrived at the conclusion that the appellee railroad had operated its Caraway station at a financial profit of $400 more or less than the $7,971.36 found by Mr. Harkey, but Mr. Panich did not attempt to explain the accounting procedures he used in arriving at his conclusion. Mr. Harkey and Mr. Panich did not derive their methods of accounting from the evidence before them and there is no evidence at all that the accounting procedures they did use were standard accounting procedures as required by the statute. Apparently Commissioners Harkey and Panich used their own separate and private accounting procedures in arriving at their conclusion. All we know of the procedure used by Mr. Panich is stated by him as follows:
“Well I don’t know, of course, how Mr. Harkey arrived at his figure of $7,971.00 but I do know how I arrived at my figure and we are not but $400.00 apart and we are not accountants but we have calculated within a few hundred dollars by entirely different systems of calculation but we have come to approximately the same figure of profit for that station up there.”
Of course, neither Mr. Harkey nor Mr. Panich were witnesses in this case but they were two of the three members of the Commerce Commission who were charged with the duties and responsibility of hearing testimony from sworn witnesses, and were charged with the responsibility of applying the law to the facts as presented in this case. We do not say that the Commerce Commission does not have the authority to set up and establish a standard accounting procedure for the determination of whether a railroad has operated a given agency station at a financial loss or profit during a given period of time, but we do say that this has not been done. The members of the Commerce Commission have no more authority than the railroad companies have, to employ “entirely different systems of calculation” or such system of accounting procedures as to the member or company may seem right, just and convenient in connection with a petition for establishment or discontinuance of railroad service. This was the exact point we had before us in the case of CRI&P R. R. Co. v. Ark. Commerce Comm., 243 Ark. 661, 420 S. W. 2d 917. In that case there was no evidence that the accounting procedures used were standard accounting procedures and we, like the Commissioners in the case at bar, had no authority to adopt our own nonstandard accounting procedures in determining profit or loss in the operation of a given station. We felt compelled in that case to affirm the judgment of the trial court which affirmed the action of the Commerce Commission in denying the authority to discontinue the operation of the station at Mansfield, and in that case we said:
“Appellant’s case as to financial loss must fail for two reasons. First, there is no evidence to show whether there was financial loss for one year immediately preceding the notice of discontinuance, i. e., from September 27, 1965, to September 26, 1966. Secondly, there is nothing to show that the accounting procedures used in this case are ‘standard accounting procedures’ in the sense of the Act.”
In the later case of Ark. Commerce Comm. v. K C S Ry. Co., 244 Ark. 912, 428 S. W. 2d 83, the Commerce Commission denied the Kansas City Southern Railway Company authority to close its station located at Winthrop in Little River County, and the circuit court reversed the Commission. On appeal to this court, the issues were almost identical to those in the case at bar. The appellant contended for reversal that the trial court erred in finding that the station was operated at a loss for one year, and that the trial court erred in finding that operating economies would result to the appellee consistent with public convenience and public necessity if the station was closed. As to the first point, this court said:
“The decisive issue here is whether appellee showed, by ‘standard accounting procedures,’ that the station operated at a loss (as required by the statute).
It is undisputed that the exhibits introduced by appellee before the Commission showed the station did operate at a loss for the required time. The only question then is, was the showing arrived at ‘according to standard accounting procedures’? This was one of the decisive issues in the case of CRI&P RLD. Co. v. Ark. Commerce Comm., 243 Ark. 661, 420 S. W. 2d 917. There the Commission and the trial court held against appellant because no such showing was made. There we said: ‘There was no testimony to show that the method used by appellant . . . was according to standard accounting procedures required’ ... by the statute. That is not the situation in the case here under consideration, as is shown by the undisputed testimony of appellee’s witness, Mr. Johnson.
Q. Is this allocation of 50% to origin and destination stations standard railway accounting procedure?
A. Yes, sir, it is.
Q. Is the allocation of system expenses which you have described in Exhibits No. 1 and No. 2 standard railway accounting procedure?
A. Yes, sir.
No evidence was offered by appellant to contradict Johnson’s testimony, and none to show he was not competent and qualified to testify.”
It is obvious that the railroad companies have attempted to work out an accounting procedure for the determination and allocation of profit and loss to a specific station as related to the entire system of the particular railroad, on a basis whereby each individual station is charged and credited with the actual profit and loss peculiar to that particular station; and at the same time, is required to bear its own proportionate share of the expenses or cost incident to the entire system, such as the maintenance of the rolling stock and the track facilities between stations. The standard accounting procedures used by the appellee railroad company in this case must be accepted by the Commission and this court as being in compliance with the statute so long as the accounting procedure is standard and until some better procedure is devised and standardized.
As to the operating economies consistent with public convenience and necessity in the case at bar, the record reveals that the car shipments from and to Caraway for the period under consideration, amounted to 98 cars and that only eight individual shippers were involved. Eight individuals or corporations received 59 cars and four individuals made shipments out of Caraway during this one year period. By far the largest shipment of commodities received at the Caraway station, was tank carloads of Thermo gas used for domestic home heating and cooking purposes. By far the greatest number of carload shipments from Caraway consisted of wheat during the month of June. The wheat shipment in June involved 42 cars out of the total of 98 cars for the year. It was shown by the evidence that, although Caraway is in a prime cotton producing area, cotton is no longer shipped over the spur railroad from Caraway, but is shipped by motor truck directly from the gins at Caraway to the compresses on the main line at Blytheville. The record further reveals that by far the largest shipper, as well as receiver of the appellee’s railroad service at the Caraway station, is the Degelow Cooperative located approximately three miles from Caraway.
It is apparent from the testimony adduced that practically all business conducted at the Caraway station between the appellee and its customers is carried on by telephone. The usual procedure followed in obtaining cars and checking on shipments to and from the Caraway station, is that an interested customer calls the local agent at Caraway, who in turn calls the agent on the main line at Blytheville, who in turn obtains the information from the proper' source and transmits it back by telephone to the agent at Caraway, who in turn transmits it to the interested person. The uncontradicted testimony indicates that the station agent at Caraway is required on the average, to spend approximately 45 minutes of his eight hour workday in the business of the appellee in connection with transportation of commodities in and out of the Caraway station.
The judgment of the circuit court is affirmed. | [
116,
-28,
-11,
124,
42,
-61,
48,
-84,
82,
-117,
-25,
-45,
-83,
-62,
17,
59,
-29,
111,
116,
-87,
-28,
-78,
87,
43,
3,
-13,
97,
-49,
122,
77,
100,
-57,
76,
48,
-22,
-43,
68,
76,
-57,
30,
-114,
47,
-117,
109,
81,
-55,
48,
104,
18,
15,
53,
-82,
-22,
46,
16,
-61,
-56,
44,
111,
-119,
89,
27,
-117,
-57,
125,
6,
49,
36,
-101,
5,
-16,
30,
-104,
49,
16,
-84,
115,
38,
-122,
116,
11,
-39,
76,
40,
99,
11,
5,
-17,
-84,
-120,
6,
-8,
-99,
-90,
-96,
13,
75,
3,
-106,
-108,
-39,
-112,
11,
-2,
62,
5,
87,
44,
-127,
-50,
-106,
-95,
82,
105,
-102,
19,
-21,
-89,
-80,
116,
-49,
-26,
93,
22,
49,
-101,
-50,
-42
] |
John A. Fogleman, Justice.
Appellant’s petition for the appointment of a special administrator for the estate of Leavell Smith was denied by the probate court. Smith died on June 18, 1966, as a result of injuries received in an automobile collision. Appellant alleged that he was a passenger in a vehicle being driven by Smith on that date, and that he suffered personal injuries as a result of Smith’s wilful, wanton and reckless operation of that motor vehicle. Smith’s will was admitted to probate. Notice to creditors was duly published on June 28 and July 5, 1966. No claim against Smith’s estate was filed by appellant within the period allowed by Ark. Stat. Ann. § 62-2602 (Supp. 1969), or before the administration on the estate had been closed and the executor discharged. Appellant prayed that a special administrator be appointed for the purpose of receiving service of process in a personal injury action contemplated by him, but not for the purpose of receiving service of a claim against Smith’s estate.
Appellant alleged that his failure to file a claim was due to representations made by an agent of Smith’s liability insurance carrier with the deceitful intent that appellant and his attorneys rely thereon to appellant’s detriment. The misrepresentation alleged was that appellant’s claim would be settled whenever his injuries were subject to final evaluation. According to appellant’s petition, settlement negotiations were abruptly terminated by this insurance carrier upon lapse of the time allowed by Ark. Stat. Ann. § 62-2602 for filing claims. Appellant stated in his petition that he had no intention to circumvent the statute of non-claim, but only desired to assert such rights as he may have against the insurance carrier. There is no suggestion that the executor of Smith’s estate participated in any conduct or made any representations contributing in any way to delay in filing a claim.
Appellant admits that he is barred from filing any claim against Smith’s estate upon the authority of Turner v. Meek, Executor, 225 Ark. 744, 284 S. W. 2d 848; and Wolfe v. Herndon, Executor, 234 Ark. 543, 353 S. W. 2d 540. He states that he does not seek, directly or indirectly, an overruling of those decisions.
We know of no authority for the action sought by appellant. Appellant was unable to cite any direct statutory or decisional authority for the action sought by him. Arkansas Statutes Annotated § 62-2210 (Supp. 1969) governs appointment of special administrators by the probate court. It authorizes the appointment of such an administrator pending the appointment of an executor or personal representative, or to perform duties pertaining to specific property or to perform specific acts.
We have previously held that a special administrator could not be appointed solely for the service of process. Nickles v. Wood, 221 Ark. 630, 255 S. W. 2d 433. In that case the purpose of the service was to fix venue in an action to recover damages for personal injuries alleged to have resulted from an automobile collision. Appellant’s professed purpose here is to obtain service on a special administrator in order to assert such rights as he may have against the decedent’s insurance carrier. We do not perceive any sound distinction that would justify our establishing a different rule because of this difference in purpose. In Nickles, a claim was actually being asserted against the estate.
It may well be that appellant could maintain his action against the insurance carrier without making Smith’s estate or representative a party to the action, if he can sustain allegations contained in his petition. He alleged that the carrier’s agents, by means of deceitful conduct designed and intended to avoid the filing of a suit by appellant until the statute could be plead as a bar, lulled petitioner into a false sense of confidence and assurance that the carrier sought, in good faith, an opportunity to settle appellant’s claim when his injuries could be evaluated, disregarding the statute of non-claim. He also alleged that the negotiations were abruptly halted when the period for filing claims expired. See Fireman’s Insurance Co. v. Jones, 245 Ark. 179, 431 S. W. 2d 728, where a judgment against an automobile liability insurance carrier was sustained in spite of the fact that there was no judgment against the insured.
Cases from other jurisdictions relied upon by appellant are not authority for the action he seeks. In none of them was a special administrator appointed, or administration of an estate reopened. They deny' application of the statute of non-claim, because of exceptions stated in the applicable statutes. See Meinberg v. Glaser, 14 Ohio St. 2d 193, 237 N. E. 2d 605 (1968); Collins v. Yanity, 14 Ohio St. 2d 202, 237 N. E. 2d 611 (1968); Sessions v. Jelks, (Dist. Ct. App., Fla., 1967), 194 So. 2d 307. One of them involves a situation where the personal representative’s attorney made statements and engaged in conduct which led the claimant to believe that the statute would not be applied. Sessions v. Jelks, supra. As a matter of fact, one of them tends to refute appellant’s argument here. It was therein stated that power to extend the time for filing claims against an estate, conferred upon the court by statute, could not be exercised where a claimant withheld commencement of his action because of negotiations with an insurance carrier when there was no evidence that any personal representative, agent or attorney of the estate, either by design or inadvertence, had taken any action which had the effect of lulling the claimant into a false sense of security or inducing him to ignore the clear statutory limitation. In re Kemp’s Estate, (Dist. Ct. App., Fla., 1965), 177 So. 2d 757; see also, comments on this decision in Sessions v. Jelks, supra.
If appellant’s petition be considered as a petition for reopening the estate, as it is treated by appellee, appellant has no standing to ask such relief. It is available only upon petition of a person interested in the estate. Ark. Stat. Ann. § 62-2913 (Supp. 1969). The estate is defined as the real and personal property of the decedent. Ark. Stat. Ann. § 62-2003 (Supp. 1969). Appellant professes that he has no interest in this. Interested persons include an heir, devisee, spouse, creditor or any other having a property right or an interest in, or claim against, the estate being administered and a fiduciary. Appellant is neither. Ark. Stat. Ann. § 62-2003 (Supp. 1969).
The judgment of the probate court is affirmed. | [
52,
-19,
-64,
12,
27,
96,
56,
42,
83,
-45,
101,
83,
-19,
-58,
68,
55,
-1,
25,
81,
123,
-43,
-77,
87,
114,
114,
59,
91,
-43,
-94,
-55,
-3,
-66,
76,
32,
42,
-43,
-58,
-114,
-123,
88,
78,
0,
-119,
-20,
-71,
-46,
48,
111,
22,
95,
85,
-98,
-13,
43,
57,
99,
73,
46,
91,
-95,
-55,
-72,
-106,
5,
-1,
20,
49,
68,
-102,
13,
80,
10,
-128,
49,
-112,
-4,
49,
-74,
-110,
-12,
46,
25,
12,
98,
99,
43,
-127,
-19,
-112,
-70,
14,
-70,
29,
-122,
-62,
121,
107,
45,
-74,
31,
121,
16,
71,
-4,
-18,
5,
92,
40,
11,
-114,
-42,
-95,
-59,
-16,
-100,
11,
-21,
-122,
36,
113,
-34,
-30,
92,
69,
53,
-37,
70,
-112
] |
Frank Holt, Justice.
Appellant is the sole heir of his father. He brought this action to have his father’s testamentary trust declared invalid and to have the estate distributed as intestate property, contending that the trust violates the rule against perpetuities and unduly restrains the alienation of property. The probate court found that the trust does neither and ordered the executor of the testator’s estate to deliver to the trustee, the appellee Mcllroy Bank, the estate’s assets. From that order appellant brings this appeal, and for reversal, reasserts his contentions.
The pertinent provisions of the testator’s will are:
“* # # the income is to be paid to my son, Thomas Walton Carroll, in monthly installments, during his lifetime, provided however that said monthly installments shall not exceed the sum of $500 per month; * * *.
4. If at the time of my son’s death, he has married and has a child or children under the age of twenty-one, then the income of the trust is to be paid to said child or children or their guardian in monthly installments, to be used for support, maintenance and education, until the youngest child shall have reached his or her twenty-first birthday.
b. When the youngest child, as set out in sub-paragraph 4 preceding, shall have reached his or her twenty-first birthday, or if the youngest child is already twenty-one years of age at the time of my son’s death, then the trust hereby created shall be terminated, and the Trustee shall convey, transfer and assign over to such child or children, share and share alike if there be more than one, all the properties, moneys or other things of value then remaining in my said trust estate.
c. If at the time of my son’s death he has not married and has no children, then the trust hereby created shall be terminated, and the Trustee shall convey” the remainder of the trust estate to certain named charities.
Subsequent to his father’s death, appellant married; and from that union a daughter was born. Appellant contends that the trust corpus vests in interest at the birth of any children he may have, subject to complete divestment if the youngest of his children fails to reach the age of twenty-one. As we understand his position, appellant argues that “youngest” child means “last born” child and from this concludes that if the youngest child should in fact die prior to attaining majority, the rules against perpetuities and the suspension of the power of alienation are both violated since the vesting of the trust corpus could thereby be delayed until the death of all his (appellant’s) surviving children. In other words, the right to the future possession of the trust corpus in this instance would revert to the testator’s estate and there remain in abeyance until the death of all of appellant’s children (an event which may occur far beyond the limit prescribed by the rule against perpetuities), at which time the trust corpus would then descend by way of intestate distribution.
We do not agree with appellant’s reasoning. It is well settled that a will should be given that construction which accomplishes the purposes and objectives of the testator and, further, that consideration must be given to every Dart of the will in ascertaining the testator’s intentions. Walt v. Bevis, 242 Ark. 644, 414 S. W. 2d 863 (1967). In Cross v. Manning, 211 Ark. 803, 202 S. W. 2d 584 (1947), we enumerated certain rules to be followed in construing a will, among which are the following:
“1. The paramount principle in the construction of wills is that the general intention of the testator, if not in contravention of public policy or some rule of law, shall govern.
2. That intent must be ascertained from the whole will taken together; and no part thereof to which meaning and operation can be given, consistent with the general intention of the testator, shall be rejected. Where the words of one part of a will are capable of a two-fold construction, that should be adopted which is most consistent with the intention of the testator, as ascertained by other portions of the will. * * *
* * *
8. When the expression which a testator uses is really ambiguous, and is fairly capable of two constructions, one of which would produce a legal result, and the other a result which would be bad for remoteness, it is a fair presumption that the testator meant to create a legal rather than an illegal interest . . . and therefore the fact that a provision would be too remote, if construed in a certain way, is a reason for supposing that it was not intended to be construed in that way, which, although it cannot avail against a clear form of wording, may well be held to govern when the expression is ambiguous.”
The testator began subsection (b) of his will with the qualifying clause: “When the youngest child * * * shall have reached his or her twenty-first birthday * * * [emphasis added] Use of the definite term “when” rather than a conditional “if” indicates to us that the testator intended this provision to be effective in the event that appellant should have any child or children attaining majority. This is made perfectly clear by subsection (c) which provides that if the appellant dies and “has no children,” then the remainder vests in certain named charities. This dispels any ambiguity, if any exists, as to the testator’s intent.
Manifestly, the latest time the future interest created by the trust will vest is when the youngest living child of appellant reaches twenty-one years of age. This period of time does not violate the rule against perpetuities and does not unduly restrain the alienation of property.
Affirmed. | [
-78,
124,
-36,
28,
26,
112,
42,
-102,
-15,
-29,
35,
83,
41,
-58,
84,
107,
-9,
-23,
65,
98,
-105,
-13,
7,
113,
-48,
-13,
-35,
-51,
-75,
93,
-17,
-34,
72,
48,
-54,
-43,
110,
-117,
-25,
-48,
14,
-119,
43,
39,
89,
-124,
52,
-9,
22,
15,
97,
-34,
-77,
42,
61,
-22,
8,
44,
89,
-71,
80,
-80,
-86,
-124,
95,
23,
-79,
7,
-76,
79,
72,
34,
88,
113,
-120,
-24,
114,
-74,
-126,
68,
43,
-101,
9,
114,
99,
-128,
37,
-27,
-72,
-120,
46,
-82,
47,
-25,
-46,
120,
33,
9,
-74,
-34,
120,
20,
-82,
-12,
-62,
-123,
20,
108,
0,
-113,
-58,
-95,
-116,
-4,
-100,
11,
-5,
43,
48,
113,
-38,
-128,
76,
67,
127,
-101,
-98,
-6
] |
Carleton Harris, Chief Justice.
This is a highway condemnation case. The commission, appellant herein, brought an action against Hansel Highfill and wife for the acquisition of 48.77 acres needed for the construction of Interstate No. 40 in Johnson County. The tracts taken in fee simple were designated as 607 and 609, and construction easements were designated 607E and 609E. On trial, Mr. Highfill testified that total damages to his property amounted to $30,000.00. Hobert C. Yarbrough; a witness on behalf of appellees, testified that damages were $25,925.00. Two appraisers on behalf of the commission testified respectively to damages of $10,000.00 and $9,000.00. The jury returned verdict for the Highfills in the amount of $22,000.00 and from the judgment so entered, appellant brings this appeal. For reversal, it is first asserted that the court erred in overruling the commission’s motion to strike the value testimony of Hansel Highfill on the grounds that his figures represented the value of the property to him, rather than the fair market value thereof. It is also contended that the trial court erred in refusing to strike the value testimony of the landowner as to one-half of the difference in the before and after value of the property for the reason that this portion of the landowner’s testimony was predicated on the destruction of or the loss of a dairy business.
We choose to first discuss the second point. Appellant quotes from the testimony on cross-examination asserting that it makes clear that appellees were basing half of the damage testified about on the fact that they had been deprived of operating a dairy business; that this is not an element of damage that can be considered in estimating the damage to the land. The testimony is as follows:
“Q. Let me • ask you this: Is a portion of the damages — And by damages you understand I mean the difference in value — I’m not talking about physical damage to the property. I’m talking about the difference in $60,000.00 and $30,000.00. Is a portion of this because you are not in the dairy business, or because you cannot operate this as a dairy farm?
A. Well, you just can’t operate the thing as it is, with the highway like it is. It has cut that plum out.
Q. What I’m asking is, is a portion of this $30,000.00 that you say you are entitled to, because you can’t operate that as a dairy farm any more?
A. Well, a portion of it would be.
Q. And how much would that be?
A. I don’t know hardly how you would arrive at that.
Q. You don’t know what portion of that $30,-000.00 would be because you can’t operate it as a dairy farm any more?
A. I’d say the biggest portion of it would be because I can’t operate it as a dairy farm.
Q. It would be at least half of that, wouldn’t it?
A. I suppose so.”
Appellant’s attorney moved to strike half the damage testified to by the landowner on the grounds that appellee attributed this percentage of damages to a non-compensable element, which motion was overruled.
We think the court committed error in denying the motion. In a very recent case, Arkansas Highway Commission v. Wallace, September 22, 1969, 444 S. W. 2d 685, we stated:
“Her testimony which formed the basis of the reversal point under discussion occurred on cross-examination. After having testified that the taking had closed down the dairy business, there was this question and answer:
“Q. Are you counting the fact as an element of damages that he is no longer in the dairy business?
“A. That’s right. He is no longer in the dairy business, and the equipment is just there.
“Thereupon the condemnor moved that Mrs. Wallace’s testimony on just compensation be stricken because her figures included an improper element being loss of the dairy business. The request was denied. That element of damage is not proper in ascertaining, in these cases, damages to lands and improvements.”
In City of El Dorado v. Scruggs, 113 Ark. 239, 168 S. W. 846, this court said:
“The evidence of the plaintiff also shows that he operated a dairy on his farm at the time the stream was taken as an outlet for the sewer. His dairy business was not a part of the realty, and if the sewer district had instituted condemnation proceedings against the plaintiff it could not have condemned either the cows used by the plaintiff or his dairy business.
“The evidence of"the plaintiff also tended to show that he was unable to sell his milk because his customers believed that it was impure by reason of his cows drinking from the polluted stream. He was allowed to recover damages on ' this account. This was error. The injury to his dairy business was not an element to be considered in estimating the damage to his land. If his land was more profitable to be used in running a dairy than for any other use, its adaptability for that use might be considered by the jury in estimating the damages to his land by reason of the pollution of the stream, but, the court could not allow as an element of damages to his land the loss he suffered in the business of operating a dairy. [Emphasis supplied.] The jury could only consider the injury that resulted to his land, and, as above stated, in determining that fact, the plaintiff should be allowed to show any use to which his property was best adapted, and its depreciation in value by reason of the fact that the stream which ran through his land had been used as a permanent outlet for the sewer.”
The italicized language sets out the proper showing that can be made. For instance, Mr. Highfill could have testified that, prior to the taking, the highest and best use of his property was for a dairy farm, and that the fair market .value was $60,000.00. He could have further testified that, after the taking, the highest and best use of his land was for a small cattle, operation, the value of which was $30,000.00 — but this was not the type of testimony offered. To the contrary, Highfill’s testimony clearly indicates that he was basing his damage -on the loss of the dairy business. In addition to the testimony already quoted, the record reveals:
“Q. Well, then tell me how you arrived at your figure of $225.00 an acre for that land?
A. Because I figured it was worth that to me, the way I was set up with me milking the cows and dairy farming and milk at a good price, I figured that land was worth that much to me.”
Again:
”Q. Describe the property to the jury.
A. Well, I run a dairy on it. There’s 267 acres of it in all; and I milk a bunch of cows, the most part of it for hay, and run the rest of it in pasture, and I have farmed some of it.”
Further:
“Q. Then, your improvements have been damaged, haven’t they?
A. Well, of course. You can’t operate any more like I did before the highway came through there. The barn is not worth anything to me any more, since that went through. The dairy barn is setting out there. It’s not worth anything — it ain’t worth a dime. The way it’s built, I can’t even use it for a storage room or nothing, because it’s built on a ramp style, and you couldn’t use it for nothing any more than just a milk barn. * * *
Q. What other improvements did you have out there, other than your house?
A. My milk and my hay barns and wells, and—
Q. All right, sir. How much of that $15,000.00 represents your milk barn? So far, you’ve said the house is $10,000.00. How much of the other $5,000.00 is represented by the milk barn?
A. The milk barn?
Q. Yes, sir.
A. Well, that milk barn cost me about $1,-200.00 and some odd dollars to build. But the value of it would be — in the way of milking, I don’t know how you figure that.
Q. I’m asking you what part of that other $5,000.00 represents the value of the milk barn?
A. $2,000.00.
Q. And what did the other $3,000.00 represent?
A. It would represent the other barn and other outbuildings.
Q. You had another barn. I believe you referred to that as the hay barn?
A. The barn there at home was used for shelter barn and a hay barn.
Q. Yes, sir. I see.
A. Together. And then' the milk barn is separate from that.
Q. How much would the other barn be worth? What portion of the other $3,000.00 represents the other barn?
A. I’d say $2,000.00.
Q. What’s the other $1,000.00?
A. Well, it’s when I built it I built it for a —Back several years ago when I was selling cream we sold sour cream, and I built this building for a milk house for separators and coolers and so on and so forth back several years ago before I built the milk barn.”
Still further:
“Q. Why is the value of your home reduced?
A. Because I can’t operate my dairy any more, and I’ve got to come to town to work to make a living from now on. The value of my home is out there eighteen miles out of town. ”
We think the court erred in denying the motion.
As to point one, we also agree that the figures given by Mr. Highfill represented the value of the property to him rather than the fair market value thereof. Here, again, the record is replete with testi mony reflecting that appellee’s values were reached on this premise. Mr. Highfill gave the before value of his property as $175.00 per acre, using this as an average. He said that some (the cleared land) would be worth $225.00 per acre, and that the woodland south of the homesite was worth (before the taking) $100.00 an acre. He did not know of any open pasture land immediately before March 1, 1968, which had been sold for $225.00 an acre, but replied that there was “none sold. I can’t tell you of any that sold for that because there’s none sold. It is fronted by five gas wells around there, and there’s none for sale there. You can’t buy any.” Nor could the witness name pasture land anywhere that sold for $225.00 an acre. When asked how he arrived at his figure, he replied with the answer heretofore quoted, “because I figured it was worth that to me, the way I was set up with my milking the cows and dairy farming and milk at a good price, I figured that land was worth that much to me.” It is true that Mr. Highfill made the statement that he was “judging by other property around, people has asked about selling and so on, and so forth, is the way I done it. I figured mine would be worth, judging by theirs — .” Despite that statement, he was unable to give any figure of sales of $175.00 per acre as of March, 1968, nor could he tell of any sales of woodland for $100.00 per acre.
The two appraisers for the state, H. K. McMurrough and Robert Shockley, were unable to find sales of comparable properties in the area, i. e., farms with as much acreage as the Highfill farm. McMurrough mentioned an 80-acre sale, and Shockley mentioned a 100-acre sale; both men estimated the before value of appellees’ farm as $50,000.00; McMurrough testified to damages of $10,000.00, and Shockley estimated damages at $9,000.00.
Though there were but very few sales in the area, and none that seem exactly comparable, the fact remains that it clearly appears that Highfill’s estimate on before and after values was based on the value of the property to him, rather than the market value of same, and the court should have stricken this testimony, since these values had an erroneous base.
Reversed and remanded.
Fogleman, Byrd and Holt, JJ., dissent.
The testimony of the witness is somewhat confusing, since he subsequently stated that he had worked in town for 16 yeais; he also said that he had gotten rid of his cows, and had not sold any milk for two years "because they [Highway Department] kept saying they was coming through, and I had to get rid of them.” | [
-13,
-24,
-79,
-19,
11,
-96,
10,
-104,
73,
-93,
-73,
87,
-17,
-34,
4,
39,
-25,
125,
-44,
56,
-41,
-77,
67,
-13,
-110,
-13,
-45,
-51,
-72,
73,
-12,
85,
78,
48,
-54,
21,
98,
-96,
-51,
92,
-50,
-124,
-103,
80,
-23,
2,
52,
59,
20,
11,
53,
-113,
119,
44,
57,
-61,
73,
44,
-21,
44,
65,
-8,
-82,
23,
95,
23,
48,
38,
-98,
-125,
-56,
42,
-112,
-71,
8,
-104,
119,
-74,
-126,
116,
11,
-101,
-116,
34,
103,
21,
89,
-49,
-28,
-115,
15,
-45,
-83,
-92,
-109,
24,
27,
0,
-65,
-99,
112,
82,
-122,
126,
-4,
69,
91,
108,
-105,
-17,
-106,
-79,
15,
60,
-104,
1,
-61,
-123,
18,
113,
-49,
-30,
92,
103,
58,
-101,
11,
-30
] |
Conley Byrd, Justice.
The sole issue in this eminent domain action is whether the trial court abused its discretion in refusing appellant Arkansas State Highway Commission a continuance when it discovered during trial that the landowners, appellees Ralph D. and Marie Montgomery, had by interlineation amended their answer to claim $14,000 instead of $8,000 as just compensation.
The record shows that the landowners owned lands in Blocks 1, 3 and 5 of McDowell’s Subdivision, that the blocks were separated by platted but unopened streets, and that the landowners had their ownership in the three blocks under one fence without regard to the platted streets.
The taking here touched only Block 1 of McDowell’s Subdivision. When the landowners first answered, they claimed damages of $8,000, but when the appraisers viewed the property and notified counsel for landowners that the property in the three blocks constituted a unit and that all three were damaged, counsel for landowners by interlineation on the original answer, and without service of notice on the Highway Department, changed the $8,000 to $14,000.
The matter of the claimed damages to the three blocks as a unit was discussed with the court at a pretrial conference. The trial judge decided that he was unable to rule on the issue until all of the landowners’ proof was heard. As a result the testimony on behalf of the landowners was presented both on damages to the three blocks as a unit and on damages to the Block 1 land, in case the court ultimately ruled that the evidence as to the unit was insufficient to go to the jury.
While witnesses were testifying to damages sustained to the three blocks as a unit, the Highway Department moved for a continuance because the landowners had only claimed in their answer damages of $8,000 and that they were now testifying to damages in a greater amount to the surprise of the Department. At the conclusion of the landowners’ proof, the trial court sustained the Highway Department’s objection to the damage testimony based upon the three blocks as a unit. This left the testimony on damages to Block 1 at $8,475 by Mr. Charles Wilburn and $10,275 by Mr. P. M. Brown.
A continuance is usually a matter of discretion with the trial court and a party has no reason to complain of a refusal of a continuance in the absence of a showing of surprise. We find no abuse of discretion in this instance since the issues presented to the jury were confined to the Highway Department’s theory of the damages sustained.
Affirmed. | [
112,
-18,
-16,
62,
73,
-64,
24,
-116,
65,
-85,
-26,
83,
-81,
-46,
20,
107,
-30,
95,
69,
105,
-57,
-78,
71,
67,
-102,
-13,
123,
69,
-1,
77,
-27,
-42,
76,
32,
-54,
85,
68,
-26,
-49,
-40,
-50,
11,
-119,
108,
-55,
68,
60,
105,
16,
79,
113,
-113,
-13,
36,
49,
-61,
104,
44,
75,
45,
-127,
-72,
-72,
13,
95,
7,
33,
36,
-72,
3,
-40,
10,
-112,
49,
0,
-40,
115,
-90,
-106,
100,
77,
-101,
12,
36,
102,
0,
77,
-33,
-24,
-116,
6,
-66,
-115,
-90,
-126,
80,
74,
71,
-98,
-107,
120,
86,
71,
126,
-28,
13,
89,
-84,
39,
-113,
-106,
-95,
-121,
44,
-104,
2,
-21,
7,
48,
113,
-49,
-30,
93,
83,
113,
-101,
14,
-111
] |
John A. Fogleman, Justice.
We reverse appellant’s conviction of the crime of possession of marijuana alleged to have been committed on September 26, 1968, because of the refusal of the circuit judge to give appellant’s requested instruction on the defense of entrapment. The state does not contend that the proffered instruction was incorrect. It only contends that there was no evidence to warrant the giving of the instruction. We disagree with this argument.
The evidence showed that on September 25, 1968, Special Agent Bramwell of the Federal Bureau of Narcotics Control went to the commercial art studio on Scott Street in Little Rock, occupied by appellant, at the invitation of Lucy Brown, who had been invited, along with Michael Gruiner, to spend the night at Peters’ studio. The agent was using an assumed name and, of course, did not disclose his capacity as an officer. His purported purpose in going there was to try to help repair an automobile belonging to Lucy Brown and Michael Gruiner. They introduced him to Peters. Bramwell left the Scott Street address with Gruiner and went to look at the automobile. When they returned a few minutes later, those present were discussing the drug situation in Little Rock. Bramwell made some inquiry of those present whether they knew where he could obtain some marijuana. There Was evidence tending to show that a marijuana cigarette was smoked by some of those present. It was produced by Lucy Brown at Gruiner’s request.
On the next day, Bramwell returned to Peters’ place in the afternoon, and discussed the repair of the automobile with Gruiner, after which they went to a parking lot across the street and spent about 30 minutes purportedly checking the vehicle. They then returned to Peters’ residence, where Bramwell went upstairs. Peters then gave the agent three cigarettes wrapped in dark brown paper, which were revealed by chemical analysis to contain marijuana or cannabis sativa.
Peters testified that he had repeatedly responded to inquiries by the agent (whom he knew as Don Weather-ford) that he did not know of any marijuana or where it might be obtained, that he had no dealings, or plans to deal, with marijuana, that he did not know where it could be obtained and had no means of obtaining it and that things were too “hot” in Little Rock to be fooling with it. Peters also testified that Weatherford persisted in talking about the drug, claiming that he wanted some for a girl friend. According to Peters, after four or five requests, he finally told Weatherford to quit bugging him about marijuana, because he could do nothing about it.
According to appellant, he found the cigarettes given to Bramwell next to some bags left behind by Brown and Gruiner. Although he said he was suspicious of them and had started to flush them down the toilet, he gave them to Bramwell, after the agent appeared and again asked for marijuana. His version is that he told Bramwell that he had just found these cigarettes, the contents of which he claimed not to know, and related his plans for disposing of them, but stated that he would let the agent have them if he would just get them out of the studio. It is undisputed that he refused to accept pay for these cigarettes.
While Bramwell’s testimony. conflicts with that of Peters in many respects, we find that if the jury accepted Peters’ testimony, there would be sufficient evidence upon which it might find that there was an entrapment.
Our cases on this defense are rather sparse. Whittington v. State, 160 Ark. 257, 254 S. W. 532, and United States v. Hughey, 116 F. Supp. 649, aff’d, 212 F. 2d 896 (8th Cir. 1953), relied upon by the state, are easily distinguished from the facts in this case. In neither of these cases where the defendants were prosecuted for illegally selling whiskey was there any evidence to indicate that the officer did more than purchase or offer to purchase whiskey. As Judge Lemley said in the Hughey case, affording one the means and opportunity of doing that which he is otherwise ready, willing and able to do does not constitute entrapment. Entrapment does exist where the criminal designs originate not with the accused, but with the officers of the law, and the accused is lured into the commission of an unlawful act by persuasion, deceitful representation or inducement by the officers. Sorrells v. United States, 287 U. S. 435, 53 S. Ct. 210, 77 L. Ed. 413, 86 A.L.R. 249 (1932) [cited with approval in Osborn v. United States, 385 U. S. 323, 87 S. Ct. 429, 17 L. Ed. 2d 394 (1966); followed in Sherman v. United States, 356 U. S. 369, 78 S. Ct. 819, 2 L. Ed. 2d 848 (1958)]. In Sorrells, Chief Justice Hughes spoke for the majority in saying that in the absence of evidence that the accused had previously possessed or sold intoxicating liquor, there was sufficient evidence to present a question of fact whether the illegal sale of whiskey was instigated by a prohibition agent who prevailed upon the accused to obtain whiskey for him. This was accomplished by persistent solicitation after two refusals, while the agent reminisced with the accused about experiences as members of the same division in the AEF during World War I. It was there pointed out that the accused was regularly and continuously employed.
Perhaps, neither the persistent solicitation, the use of an alias, the misrepresentation of the purposes for which Bramwell wanted to acquire the marijuana nor the use of friends of appellant for an entree, standing alone, would have been sufficient to raise a fact question as to entrapment, but when taken together along with the total lack of evidence that Peters had possessed or sold marijuana before, there was such an issue.
Other alleged errors which are likely to again present questions on a retrial include the refusal of the circuit judge to require the production of notes from which Agents Bramwell and Melancon refreshed their memories before testifying, the giving of instructions relating to possession of cannabis without a requested modification and failure to correct certain statements made by the prosecuting attorney in the closing argument.
On cross-examination, Bramwell and Melancon both admitted having referred to notes or reports about the events relating to the charges against appellant prior to testifying. Neither had his notes or reports with him. ‘The court refused appellant’s attorney’s request that he be permitted to see these. The matter of requiring a witness who has refreshed his memory before testifying by an out-of-court inspection of memoranda or records but who does not use or have the writings in court to produce them for inspection lies in the sound judicial discretion of the trial judge. Goldman v. United States, 316 U. S. 129, 62 S. Ct. 993, 86 L. Ed. 1322 (1940) [overruled on another point, Katz v. United States, 389 U. S. 347, 88 S. Ct. 507, 19 L. Ed. 2d 576 (1967)]; Reizenstein v. State, 165 Neb. 865, 87 N. W. 2d 560 (1958). See also Annot., 82 A. L. R. 2d 473, 562 (1962). Where, as here, no reason for, or purpose of, the inspection was given when the request was made, we cannot say that the court abused its discretion.
Appellant requested that the instruction advising the jury that cannabis is classified as a narcotic drug should have been modified by adding the following statement: “Only portions of the plant cannabis sativa are classified as a narcotic drug.” Appellant relies upon Ark. Stat. Ann. § 82-1001(13) (Repl. 1960) in which there is a statement that the mature stalk and fiber produced from such stalks are not included in the term cannabis. Appellant is in no position to assert error on this ground because the court gave his requested instruction advising the jury that the state was required to prove beyond a reasonable doubt that appellant possessed parts of the plant other than mature stalks, fiber produced from the stalks or oil and cake made from the seeds.
We see no conflict in the instructions given. Instructions are to be read together to ascertain whether the whole law of the case is correctly declared, and are to be reasonably interpreted. Webb v. State, 150 Ark. 75, 233 S. W. 806; Arnott v. State, 109 Ark. 378, 159 S. W. 1105. Since these instructions do not conflict and neither of them purports to declare the whole law of the case, there is no error. Webb v. State, supra; Arnott v. State, supra; Zinn v. State, 135 Ark. 342, 205 S. W. 704.
In the closing argument, appellant objected to a statement by the prosecuting attorney that “the court has instructed you as to presumption of innocence, reasonable doubt, preponderance of evidence . . . .” Appellant’s attorney asked that the prosecuting attorney be required to withdraw the statement as to the pre ponderance of the evidence as confusing to the jury, since the court’s instructions did not submit any question as to the preponderance of the evidence. The court merely told the prosecuting attorney to proceed. Appellant’s contention is that the court’s action amounted to an approval of the argument in conflict with the requirement that the jury must be satisfied of appellant’s guilt beyond a reasonable doubt. We will not reverse the action of the trial judge in the exercise of his wide discretion in the control of the argument of counsel, in the absence of abuse. Head v. State, 221 Ark. 213, 252 S. W. 2d 617; Fisher v. State, 241 Ark. 545, 408 S. W. 2d 894, cert. denied, 389 U. S. 821, 88 S. Ct. 43, 19 L. Ed. 2d 73. The trial judge’s superior opportunity of knowing the context in which this statement was made, the occasion for its having been made and whether the jury may have been misled thereby prevents us from saying that there was a manifest abuse of discretion.
It seems unlikely that the other remark complained of will be repeated since it had to do with the effect of a verdict having been directed in favor of appellant in a case consolidated with this for trial.
Reversed and remanded for a new trial.
Three members of that court would have held that there was entrapment as a matter of law, and ordered the charges dismissed. One would have affirmed the conviction. In Sherman the court held that there was entrapment as a matter of law and directed dismissal of the charges.
Excellent discussions on the defense will be found in annotations at 33 A. L. R. 2d 883 (1954) and 55 A. L. R. 2d 1322 (1957). | [
17,
-17,
-3,
30,
26,
64,
62,
-72,
87,
-67,
101,
115,
-83,
-57,
12,
57,
-71,
61,
84,
105,
-43,
-73,
19,
112,
114,
-13,
72,
-43,
-75,
75,
-3,
92,
13,
112,
-126,
21,
38,
72,
-11,
90,
-54,
4,
-101,
-30,
91,
-110,
32,
47,
114,
11,
33,
-106,
-29,
43,
16,
-50,
73,
60,
107,
61,
72,
-7,
-104,
-43,
-17,
20,
-95,
117,
-103,
-91,
-8,
92,
-104,
49,
1,
-8,
-13,
-76,
-126,
-12,
109,
25,
-116,
96,
98,
33,
117,
-83,
-68,
-56,
54,
-85,
-67,
-90,
24,
73,
73,
13,
-66,
-97,
63,
16,
14,
-24,
112,
101,
85,
108,
5,
-50,
-76,
-73,
73,
104,
14,
19,
-21,
5,
84,
96,
-51,
-18,
93,
117,
112,
-101,
-114,
-111
] |
George Rose Smith, Justice.
This case, now a three-party controversy, began as a simple action at law brought by one of the appellees, Farmers Bank & Trust Company of Blytheville, upon a $13,000 promissory note executed in 1963 by the sole defendant, the appellant Clyde M. Young, and co-signed by Clyde’s brother Johnny as an accommodation maker. The bank, upon filing the suit, attached Clyde’s interest in certain land. The validity of the attachment depends upon whether Clyde is still liable on the note, which is the main issue in this court.
Clyde defends the suit on the theory that the bank released him from liability on the original note by accepting in its place a substitute note for $13,000, plus $850 interest, executed solely by Clyde’s brother Johnny. Before this action was filed Johnny Young went bankrupt. His trustee in bankruptcy, the appellee Frye, intervened in the case, asserting that Johnny paid Clyde’s debt to the plaintiff bank and that Frye as trustee is therefore entitled to judgment against Clyde. Such a judgment would presumably become a prior lien against Clyde’s land if the bank’s attachment fails.
The circuit judge heard the case without jury. The court sustained the Youngs’ theory of the case, holding that Johnny’s trustee is entitled to judgment against Clyde for the amount of the debt and that the bank no longer has any claim against Clyde. The court dismissed the bank’s writ of attachment, but the court denied Clyde’s claim for damages resulting from the assertédly wrongful attachment. Clyde appeals from the latter ruling, and the bank brings up the main issue by cross appeal.
We take up the cross appeal first. The bank contends that there is no substantial evidence to support the trial court’s finding that the bank effectively discharged Clyde from liability to the bank by accepting Johnny as its sole debtor. In making that argument the bank insists that there was no consideration for its asserted release of Clyde’s liability.
Upon the proof the trial court’s judgment must be sustained. We need not go into nice distinctions about payment, accord and satisfaction, and novation. It is enough to say that as a matter of substantive law a creditor is at liberty to accept one debtor in place of another if the creditor chooses to do so. As Corbin puts it: “When two persons are jointly indebted to a third, the creditor may accept the note of one of them either as a mere collateral security or as a substituted contract and satisfaction. If the latter is found to be the fact, the co-obligor is at once discharged by novation. ... If a promissory note is given and accepted as immediate discharge of a prior claim and in substitution for it, there is no revival of the original right even though the note is never paid.” Corbin on Contracts, § 1293 (1962).
The basic question is one of intention. “There seems to be no doubt that an accord agreement may itself operate as a satisfaction of or substitute for the original obligation if it can clearly be shown that it was intended and accepted as such.” Davis, “The Executory Accord: Effect of New Agreement on Original Obligation,” 12 Ark: L. Rev. 160, 165 (1958). That was the effect of our holding in Mama v. Rout, 144 Ark. 641 (mem.), 215 S. W. 610 (1919). See also Restatement, Contracts, §§ 418, 419, and 428 (1932).
There is ample proof to show that the bank accepted Johnny Young as its sole debtor. This suit was brought upon a $13,000 note dated June 27, 1963, signed by Clyde and Johnny. On July 29, 1961, the bank, having reason to regard Johnny as the sounder financial risk, accepted Johnny’s note for $13,850 as evidence of the debt plus interest. On the following day the bank entered that $13,850 payment as a credit to Clyde’s ledger account, reducing that account to exactly zero. Clyde is not shown to have been carried ever again on the bank’s ledgers as a debtor of the bank.
The bank put the original $13,000 note in a file along with Johnny’s $13,850 note and now insists that the former stood as collateral for the latter. Even so, the bank’s action in allowing Johnny to pledge the older note as collateral indicates the bank’s recognition of Johnny as the owner of the older instrument. Moreover, when Clyde later sold some equipment in 1966 and sent the bank a cashier’s check for $3,000, payable jointly to the bank and to Johnny, the bank credited the payment to Johnny’s account only and made no notation of a part payment upon the old $13,000 note.
We cannot accept the bank’s insistence that Johnny’s series of renewal notes were mere paper transactions, having no substantive effect. When the bank accepted Johnny’s note for $13,850, it reported the $850 in interest as income on its federal tax return. When that note was in turn superseded by the acceptance of a check for $14,378.60, the bank again reported the difference of $528.60 as taxable income. Finally, the entire accumulated debt was included by the bank in 1965 in a consolidated note executed by Johnny for $190,000, to secure which Johnny gave a real estate mortgage in which his wife joined. In a case of this kind the presence of a valuable consideration is a factor tending to stiow that the transactions had substantive effect rather than being mere exchanges of pieces of paper. Our narration of the events is sufficient to show an abundance of substantial evidence to support the trial judge’s finding that the bank released Clyde from liability. On cross appeal the judgment is affirmed.
By direct appeal Clyde questions the trial court’s denial of his claim for damages for wrongful attachment, He does not, however, ask for compensatory damages. Instead, he seeks to recover his travel expenses in attending the trial and, primarily, an attorney’s fee. Counsel candidly concede that our prior decisions disallow such costs of litigation in suits involving a wrongful attachment. Romer v. Leyner, 224 Ark. 884, 277 S. W. 2d 66 (1955); Ark. Nat. Bank v. Stuckey, 121 Ark. 302, 181 S. W. 913 (1915); Patton v. Garrett, 37 Ark. 605 (1881). We are asked to overrule those decisions.
There is much to be said in favor of the allowance of attorneys’ fees incurred in the defense of attachments that prove to have been wrongful. The states are divided about thirty to four .in favor of the allowance. See annotations, 25 A. L. R. 579 (1923) and 65 A. L. R. 2d 1426 (1959), where the cases are cited. We are not averse to re-examining the question should it be raised in a case involving an attachment issued after this opinion becomes final.
This, however, is not an appropriate occasion for such a re-examination of the law. From the outset of this litigation it has been clear that Clyde is liable either to the bank or to the trustee in bankruptcy. As a nonresident of this state Clyde has been subject from the beginning to having his property attached by one claimant or the other. Hence Clyde was destined all along to suffer the loss of his property to one of the claimants, so that the employment of an attorney was never likely to bring the case to a successful conclusion from Clyde’s point of view. Consequently we do not regard this case as one calling for a reconsideration of our prior decisions upon the point at issue.
We should add that we have not considered certain matter in the appellant’s reply brief, to which the bank has objected by a motion to strike. The inclusion of the objectionable matter was contrary to our rules, not only because it is not in the record but also because, even if it were, a deficiency in the appellant’s abstract cannot be corrected in his reply brief. Reeves v. Miles, 236 Ark. 261, 365 S. W. 2d 460 (1963).
Affirmed. | [
114,
120,
-24,
30,
26,
96,
40,
-70,
-53,
80,
-9,
83,
-23,
-58,
5,
109,
-28,
59,
85,
72,
-25,
-109,
23,
96,
-45,
-13,
-7,
-43,
-79,
77,
-92,
-43,
13,
60,
74,
-35,
-26,
-64,
-59,
-106,
-114,
-128,
41,
101,
-39,
-128,
48,
-17,
20,
76,
85,
-81,
-94,
46,
61,
82,
73,
45,
121,
41,
112,
-15,
-114,
68,
125,
4,
49,
101,
-102,
1,
-54,
12,
-112,
51,
-119,
-24,
114,
-90,
-122,
116,
109,
-101,
-116,
-30,
98,
0,
53,
-49,
-104,
-104,
47,
-26,
-99,
-122,
-46,
72,
3,
43,
-68,
-99,
126,
81,
-122,
-2,
-2,
5,
20,
44,
5,
-49,
-106,
-77,
-83,
56,
-98,
-101,
-13,
3,
32,
113,
-49,
-118,
93,
103,
120,
27,
15,
-8
] |
Carleton Harris, Chief Justice.
This is a highway condemnation case. The Arkansas State Highway Commission acquired .06 acres from a total ownership of 1.6 acres, the property belonging to William C. Bowers, and imposed a control of access between the acquisition area and the remainder. On trial, Mr. Lynn S. Van Natta, a real estate appraiser, testified on behalf of Bowers and wife, appellees herein, that the before value of the property was $62,000.00, the after value, $51,-560.00, and that the property had thus been damaged in the amount of $10,440.00. The jury returned a verdict of $5,000.00, and from the judgment so entered, appellant brings this appeal. Only one point is alleged for reversal, viz:
“The court erred in refusing to strike the testimony of Lynn S. Van Natta, witness for appellee, as to damages, or a decrease in market value, equal to 10% of the value the witness placed on a house before the taking, which damages, or decrease in market value, was based on an increase in the flow of traffic.”
We do not agree with this contention. Van Natta, in reaching his conclusions, testified that he considered the loss of access as an element of damage. This, of course, is permissible. Arkansas State Highway Commission v. Kesner, 239 Ark. 276, 388 S. W. 2d 905. Though admittedly, Bowers can still enter his property at the northernmost driveway, it was contended that the southernmost driveway would be difficult to enter, because of a divider which would be placed in that vicinity. Van Natta testified that he understood the divider would extend down to the southernmost driveway. The record then reflects the following testimony:
“Q. Allright, now, then, will that in your opinion be a detriment or hazard to traffic attempting to use that southernmost driveway?”
Counsel for Hwy. Dept.: “Your honor, this is clearly not a proper question. The Highway Department is certainly not under the duty to keep traffic flowing by to increase or decrease traffic.”
Court: “The objection will be sustained.”
* * *
“Q. Start over. Assuming this island is built in Highway 39, which is a traffic divider beginning somewhere at the south end and coming up in Highway 39 toward the north to a point about equal to — about even with their controlled access area here on the right of way, which is roughly the south side of the south driveway; assuming that, will that affect the resale value of this residential area property?
“A. I would consider it would, yes.
“Q. Now, then, we have already gone over — may I assume it would also very definitely affect access to this development area you have already testified about?
“A. Very much so.
“Q. All right. These, of course, are matters you have taken into consideration in arriving at your after values?
“A. Correct.”
On cross-examination, the record reveals the following:
“Q. Mr. Van Natta, I want the jury to understand this. I ask you the third time, I guess, before the Highway Department acquired the .06 of an acre, Dr. and Mrs. Bowers had developed access to that house, didn’t they?
“A. Yes.
“Q. All right. After the taking considering the construction in place, do they not still have that same developed access to the property?
“A. The actual physical pavement is there.
“Q. It is access, isn’t it? The driveway is still there, isn’t it?
“A. That’s right.
“Q. There is no fence in front of the driveway?
"A. No fence in front of the driveway, that’s right, but you have other considerations to take into consideration.
“Q. Just a minute. This is where we took off the land at the south end?
“A. You have the south one bringing in an additional amount of traffic, going to go north past that house and coming around there. There is a rather sharp curve. Therefore, you are going to have a difficult situation.
“Q. How much damage—
“A. Will you let me finish my answer?
“Q. Go ahead.
“A. With the additional traffic, and coming from the direction it will be coming, it makes it much more hazardous to attempt to turn in or out of the south lane of that particular driveway.
“Q. How much damage did you attribute to this?
“A. To that particular lane, most of the ten per cent to that.”
Counsel for Hwy. Dept.: “I move to strike that testimony, your honor. That is not proper.”
Court: “Motion denied.”
Counsel for Hwy. Dept.: “Save our exception.”
It will be noted that, on direct examination, the court sustained the objection relative to increased traffic. Appellee Bowers, who had a dental office in the same building that constituted the home, was endeavoring to show damages that had been suffered, peculiar to appellees, because of the location of the divider, a loss of access being contended. The merits of such a contention are discussed fully in Arkansas State Highway Commission v. Kesner, supra. But, if we should find that a portion of Van Natta’s damage testimony was based on an erroneous premise or noncompensable item, we could not sustain appellant’s motion. Without question, some of the witness’ testimony was pertinent, admissible, and proper for jury consideration.
The motion to strike was ambiguous. “I move to stike that testimony, your honor. That is not proper.” To what testimony do the italicized words apply? There are seven questions and answers (not counting one interruption); as stated, some answers were admissible; some possibly were not. Did the objection refer to the last four answers, the last two, the final answer, or the entire seven?
We have said that a motion to exclude all of the testimony of a witness is properly overruled if a part of it is competent. Arkansas Highway Commission v. Wilmans, 236 Ark. 945, 370 S. W. 2d 802. Since it is not at all clear to which testimony counsel was referring when he moved to strike, and since at least some of the evidence was admissible, the trial court did not err in its refusal to grant the motion.
Affirmed. | [
113,
-4,
-48,
126,
11,
-64,
90,
-8,
65,
-91,
-92,
91,
-89,
-54,
16,
35,
-81,
31,
-48,
41,
87,
-94,
71,
-13,
-110,
-13,
-5,
-51,
-8,
-51,
-28,
87,
76,
97,
-62,
-107,
100,
74,
-49,
92,
78,
-114,
-102,
109,
-55,
66,
48,
43,
82,
15,
53,
-113,
-29,
44,
25,
-63,
108,
44,
-53,
-83,
17,
-72,
-118,
29,
127,
4,
-80,
38,
-104,
3,
-40,
44,
-108,
49,
0,
-104,
119,
-90,
-106,
116,
73,
-101,
12,
32,
-26,
3,
73,
-49,
-72,
-119,
6,
-36,
-83,
-90,
-110,
24,
75,
65,
-97,
-35,
120,
0,
6,
126,
-2,
-44,
91,
108,
7,
-114,
-14,
-79,
-123,
-72,
-108,
65,
-21,
5,
50,
113,
-53,
-30,
95,
85,
114,
-101,
15,
-48
] |
Lyle Brown, Justice.
Appellee James Ray Preddy was awarded judgment against appellant, National Investors Fire and Casualty Company, based on a homeowner’s policy insuring against physical damage to Preddy’s house. National Investors defended on the theory that the damage was due to a mechanical breakdown in the circulating heater’s duct work and that it came under one of the exclusions from coverage. The sole issue on appeal is whether the described failure constituted a “mechanical breakdown” within the meaning of that term in the exclusionary clause.
In 1965 appellee purchased a new home in Briar-wood Addition in Little Rock and procured a homeowner’s policy from appellant. In the winter of 1969, appellee detected trouble with his heating system. He discovered that the unit was not pushing fresh air through the ventilation system. The duct work, which came into the house under the floor and was imbedded in concrete, had apparently collapsed under the floor. It was determined to be less expensive to abandon the floor ventilation system and install an overhead heating unit in the attic. Appellee sought to recover the expense of the change-over. The cost of the project is not questioned.
Each side offered the testimony of an experienced heating and air conditioning contractor. Their testimony was not essentially in conflict. They explained that the duct work under the floor is made of fiber board, as opposed to metal; that it is in common usage; that in reality it constitutes a form which holds the concrete in place and “actually the concrete becomes the shape and form of the duct work to a great extent.” Both witnesses concluded that the trouble was caused by a collapse of the duct system under the slab floor; however, they could not determine the specific cause of the collapse because that would require destruction of the floor. Neither witness observed any ground-settling around the house. The mechanism of the heating unit was in good order.
Interpretation of the phrase “mechanical breakdown” is determinative of the only issue on appeal. In Washington Fire & Marine Ins. Co. v. Ryburn, 228 Ark. 930, 311 S. W. 2d 302 (1958), two basic rules of interpretation were stated thusly:
It is a settled rule in this state (and appears to be the general rule elsewhere) that policies of insurance will be interpreted and construed liberally in favor of the insured and strictly against the insurer, who wrote the insurance contract, and any doubt as to the meaning of language used, should be resolved in favor of the insured. It is also well settled that exceptions and words of limitations will be strictly construed against the insurer.
Construing the phrase “mechanical breakdown” in accordance with the recited rules, we have no hesitancy in holding that the air duct, permanently imbedded in concrete, is not included within the phrase. We interpret a mechanical breakdown here to have reference to a failure in the working mechanism of the machinery— a functional defect in the moving parts of the equipment which causes the latter to cease functioning or to function improperly. Actually, that is the very common usage of the term. For example, when the thermostat on a motor vehicle sticks we refer to it as mechanical trouble; but when a tire goes flat we simply refer to it as tire trouble. In considering the phraseology of an insurance policy the common usage of terms should prevail when interpretation is required.
We are also mindful that National Investors selected the phraseology and if it were intended to include all the attachments to the heater in the exclusions it would have been the fairer procedure to have put the insured on notice by using clear-cut terminology to that effect.
An additional attorney’s fee of $250 is awarded appellee.
Affirmed. | [
-12,
-8,
-44,
-116,
8,
-31,
42,
-56,
87,
-96,
103,
87,
-19,
-12,
-99,
101,
-74,
123,
-31,
35,
-111,
-77,
19,
66,
-42,
-45,
-15,
-43,
57,
111,
116,
-1,
72,
96,
66,
-43,
-90,
-128,
-51,
92,
-118,
15,
56,
-28,
29,
-64,
62,
122,
-42,
79,
33,
-113,
-77,
46,
25,
-49,
109,
46,
-21,
-88,
64,
-79,
-118,
13,
107,
5,
-77,
103,
-110,
71,
-16,
14,
-108,
25,
0,
-24,
115,
-90,
-106,
108,
103,
-117,
9,
103,
98,
25,
13,
-25,
-88,
-104,
7,
13,
-67,
-122,
-94,
56,
27,
107,
-73,
-99,
124,
12,
12,
126,
102,
-43,
95,
108,
21,
-113,
-108,
-15,
77,
108,
-100,
-117,
-26,
-109,
34,
116,
-50,
-78,
92,
7,
127,
95,
14,
-22
] |
John A. Fogleman, Justice.
Appellant was convicted of assisting in assault of officer Harold Vines in violation of Act 123 of 1967 [Ark. Stat. Ann. § 41-2802.1 (Supp. 1969)]. His points for reversal are:
1. While the testimony was sufficient to support a misdemeanor conviction for assault upon an officer in violation of § 41-2802, it was insufficient to connect assaults by others on the officer with that by appellant or to show that appellant had knowledge of assistance by others or community of intent and purpose with them, or that any such intent and purpose were communicated and thus insufficient to prove that two or more persons assisted him or that he assisted two or more persons in assaulting the officer.
2. The circuit judge neglected to instruct the jury that the testimony would not sustain a conviction on the charge made. (Under this point appellant argues that the statute is void for vagueness in that it fails to state that assistance in the assault must be given with “knowledge and communication of the intent and purpose of two or more other persons involved in such an assault.”)
3. The court’s instructions no. 3 and no. 8 failed to charge the jury that the prohibited assistance must be with “knowledge and communication of the intent and purpose of two or more other persons aiding in the assault upon the officer.”
Evidence upon behalf of the State was as follows:
Appellant’s automobile overturned in a ditch. The police were called. Officers Harold Vines and David Ederington arrived at the scene, and saw a crowd of people gathered there. The officers got out of the police car and Vines asked if anyone was hurt. Upon receiving a negative response from an unidentified person, Vines then asked who was driving the vehicle. Appellant, who was standing beside his vehicle, stepped forward, said “I was. I’m not scared, I’ve been in the war. I wasn’t killed over there. I’m not going to be killed here. Take me, G . . . d . . . you, if you can,” and started toward Vines with his fists. Vines attempted to halt Griffin by use of chemical mace, to no avail. Griffin started hitting the officer, who then attempted to defend himself by striking appellant twice with a “slapper.” A group of young colored males then “swarmed” him. Vines observed that some of the crowd had Ederington down in the street. Griffin was immediately in front of Vines, swinging at and striking him, while the others came up behind the officer and to his side. They knocked Vines down in the ditch, with all of the participants on top of him. Griffin was then on top of Vines, and the others at his. side. Griffin was beating the officer with his fists and kicking him and “hollering” all the while. At the same time, the other participants were kicking the policeman about his arms and legs, and striking him about his face, nose and side. They were also “hollering.” Vines, feeling that he and his companion were about to be killed, drew his pistol and fired at appellant, who was still kicking and beating the officer. Griffin was struck about his chest and backed away, as did the others. Vines said, however, that they were all still “hollering” at the police officers, cursing them and saying “that they were going to get us.”
As Ederington went to assist Vines, after having heard Griffin’s statement to the officer when that officer and Griffin started “scuffling,” he was “jumped” by two or three persons from the crowd, and knocked to. the street. After he had “scuffed around” with them for three or four seconds he heard the report of a gun and saw everyone start backing away. From his position on the ground, he then saw Vines leaning against a fence over in the ditch with his nose bleeding. Ederington saw Griffin standing about five feet from Vines. He heard Vines “holler” at the people standing around that if they didn’t want Griffin shot again they had better come get him. At that time Griffin was still trying to advance toward officer Vines. Appellant’s father then came and tried to hold him back.
Griffin’s version was quite contradictory to the testimony of the officers. He said that Vines was striking him on the head and back while he and Vines were on the ground.
Appellant raised the first point listed above by his motion for a directed verdict of acquittal at the conclusion of all the evidence. The point was asserted in the motion for new trial. The gist of his argument is that he had no knowledge of any assistance in the assault and that- the unlawful purpose of the aiders and abettors was not communicated so as to enable concert of action by appellant and two or more other persons. He cites authorities holding that: (1) where a particular intent is essential to constitute a crime, a person charged with aiding and abetting in the commission of the offense must be shown to have known of the criminal intent on the part of the person aided and abetted; and (2) that one is not criminally liable for the acts of his associates done without his knowledge or consent, because, in order for him to be held responsible for the acts of another, the act must be done in furtherance of a common design or purpose for which the parties combined.
Appellant seems to take the position that there must be direct evidence of a conspiracy, common design or purpose, and of the intent of the conspirators or joint actors to engage therein. In this he is mistaken. We have long recognized in Arkansas that it is not necessary that an unlawful combination, conspiracy or concert of action to commit an unlawful act be shown by direct evidence, and that it may be proved by circumstances. Parker v. State, 98 Ark. 575, 137 S. W. 253; Dickerson v. State, 105 Ark. 72, 150 S. W. 119; Venable v. State, 156 Ark. 564, 246 S. W. 860; Mondier v. State, 210 Ark. 933, 198 S. W. 2d 177; Housley v. State, 143 Ark. 315, 220 S. W. 40. It may be inferred, even though no actual meeting among the parties is proved, if it be shown that two or more persons pursued by their acts the same unlawful object, each doing a part, so that their acts, though apparently independent, were in fact connected. Chapline v. State, 77 Ark. 444, 95 S. W. 477; Parker v. State, supra; Dickerson v. State, supra; Mondier v. State, supra. Where the testimony shows a concert of action, between the persons alleged to have jointly committed a crime, or the person charged and another, it has been held sufficient to establish the necessary common unlawful object and intent. Parker v. State, supra; Doghead Glory v. State, 13 Ark. 236. Where the combination of persons to do an unlawful thing is shown, each of them is liable for the act of one proceeding according to the common plan, if it terminates in a criminal result, even though it is not the particular result intended. Mondier v. State, supra; Dorsey v. State, 219 Ark. 101, 240 S. W. 2d 30.
In Dickerson v. State, supra, we approved a jury instruction that if the jury found that three persons, charged with an assault, acted with a common and unlawful purpose, and that during the progress of the assault they were all present and participating, and aided and abetted each other, all persons so participating would be guilty of the same offense and each responsible for the other’s acts. The basis of objection to the instruction was that there was no evidence of any conspiracy formed between the three. We held that the facts and circumstances connected with the assault and the presence and participation of those charged was sufficient to show an unlawful combination among the parties to make the assault, and the instruction, a correct statement of law.
We find the case of Childs v. State, 98 Ark. 430, 136 S. W. 285, peculiarly applicable here. Dave Childs was convicted of the murder of one Franklin Williams. The crime was committed at a public speaking. There was bad blood between Childs and Williams because Williams’ wife, who was Childs’ sister, was seeking a divorce and custody of their children, alleging that Williams had cruelly beaten her. There were brief ex changes of words between the two. During the last such exchange Scott Childs, Dave’s brother, began cursing Williams, who first threatened trouble, then withdrew, when Dave Childs commenced firing a pistol at Williams, hitting him four times. There was testimony that Scott Childs had a knife in his hands and that a justice of the peace had restrained Williams from advancing on Scott before the attempted withdrawal. It was shown that Scott grabbed the breast yoke of a wagon and struck Williams over the head with it immediately after Dave quit firing. We said that the evidence was sufficient to justify the conclusion that Dave and Scott were acting together in making the assault on Williams.
Another case closely parallel to the one before us is Mondier v. State, supra, where we found the evidence sufficient to sustain the conviction of Mondier of voluntary manslaughter of Gerald Bradley, on a charge of murder in which it was alleged that he, Orville Wayne Sloan and Jerry McCabe, by common agreement, assaulted Gerald, Vernon and James Bradley, and while so engaged, Mondier aided Jerry McCabe in the slaying by attacking Vernon Bradley. The evidence only showed that: Mondier, McCabe and Sloan were denied admittance to a tavern, after which the son of the proprietor went outside and became engaged in a fight with someone; the Bradley brothers then went outside and were attacked by Mondier, Sloan and McCabe, in a fight which lasted about two minutes; Sloan stabbed James Bradley and McCabe cut Gerald, while Mondier engaged Vernon. We said that the jury was justified in finding that the fights were part of a mutual plan on the part of Mondier, Sloan and McCabe and that Mondier’s engaging Vernon Bradley to prevent his going to the aid of Gerald McCabe was a part of the mutual effort.
We have also held that simultaneous and concerted action by two prisoners in disarming and assaulting two officers having them in custody, sometime after the officers had left them alone in an automobile, was sufficient evidence to sustain a first degree murder conviction of one of them, as an aider or abettor, even though he did not assault the officer who was killed. Dorsey v. State, supra. In a murder prosecution, the mere fact that two persons separately approached a third, within a few hours for the purpose of prevailing upon him to kill a foúrth person, was held sufficient evidence from which to infer a conspiracy among the three to take the life of the victim. Decker v. State, 185 Ark. 1085, 51 S. W. 2d 521. The fact that each of two parties was found to possess portions of stolen goods taken in the same larceny was itself held competent to establish a conspiracy to take the goods and implicate both in the commission of the crime. Wiley v. State, 92 Ark. 586, 124 S. W. 249.
We,find that the circumstances shown by the testimony presented by the state were sufficient to pose a jury question as to whether the parties involved in the assault on the officers did so with a common intent and object pursuant to a common plan. It would be extremely difficult, if not impossible, to ever produce direct evidence of a conversation or meeting among the assaulters during the period intervening between the call of' the officers and the alleged challenge given them by Griffin, unless one of the participants elected to tell of it. This very problem, arising from the secrecy usually surrounding such understandings, gave rise to the rule, stated by Underhill and often cited by this court, that the existence of the necessary assent of minds may be, and usually must be, inferred from proof of facts and circumstances which, taken together, apparently indicate that they are mere parts of some complete whole. See Chapline v. State, supra.
We do not consider appellant’s other points, insofar as they are based upon the court’s neglect to give certain instructions to the jury, or the giving of in structions which did not advise the jury that it would be necessary that it find that a common intent and purpose existed among the alleged assaulters, which was known and communicated to appellant and resulted in a concert of action. We find no request for any such instruction in the record. If appellant desired that the jury be instructed on any issue, or point not covered by any instruction given, it was his duty to request an instruction correctly declaring the law on that subject. Lowmack v. State, 178 Ark. 928, 12 S. W. 2d 909; Cellars v. State, 214 Ark. 326, 216 S. W. 2d 47; Cooley v. State, 213 Ark. 503, 211 S. W. 2d 114; Pate v. State, 206 Ark. 693, 177 S. W. 2d 933. We find no such objection, as that now made, raised in the trial court, as required before we can review an instruction for error in this respect. Bailey v. State, 238 Ark. 210, 381 S. W. 2d 467; Lewis v. State, 155 Ark. 205, 244 S. W. 458; Guerin v. State, 150 Ark. 295, 234 S. W. 26; Banks v. State, 133 Ark. 169, 202 S. W. 43; Burnett v. State, 80 Ark. 225, 96 S. W. 1007. Furthermore, neither this argument, nor the appended argument that the statute was void for vagueness, appears to have been included in the motion for new trial or otherwise raised in the circuit court, so they are not preserved for review. Lomax v. State, 248 Ark. 534, 452 S. W. 2d 646; Nash v. State, 248 Ark. 323, 451 S. W. 2d 869.
We might add, however, that we do not find any basis for declaring the statute void for vagueness, or for failure to state explicitly the requirement of a specific intent on the part of the accused. The stated purpose of the act is to protect law enforcement officers from assaults while in the performance of their duties. The language is perfectly clear, and the intent to do the prohibited act is a criminal intent. Briggs v. State, 236 Ark. 596, 367 S. W. 2d 750, vacated on other grounds sub nom., Hamm v. City of Rock Hill, 379 U. S. 306, 85 S. Ct. 384, 13 L. Ed. 2d 300 (1964), rehearing denied sub nom., Lupper v. Arkansas, 379 U. S. 995, 85 S. Ct. 698, 13 L. Ed. 2d 614 (1965). Under our law, there must be in every assault an intention to injure, the ability to commit a battery and at least the beginning of an attempt to injure. Ark. Stat. Ann. § 41-601 (Repl. 1964); Anderson v. State, 77 Ark. 37, 90 S. W. 846; Pratt v. State, 49 Ark. 179, 4 S. W. 785. The statute then is not void for failure to state the requirement of intent. Neither is it void for failure to state the requirement of common intent. The words “assists or assisted by” are indicative of the same meaning as the words “aids, abets or assists,” which have a well-defined meaning in our law, as indicated in many of the cases cited hereinabove.
., We do not find persuasive appellant’s argument that we should abandon the requirement that specific objections be made to instructions in a trial court. The purpose of requiring objections is to give the trial court an opportunity to correct any error on its part. Fields v. State, 235 Ark. 986, 363 S. W. 2d 905; Rutledge v. State, 222 Ark. 504, 262 S. W. 2d 650.
In this respect, we must remember the role of this court as an appellate court, i. e., to correct prejudicial errors of a trial court in acting upon matters called to its attention. No judge has ever reached, or ever will reach, such state of perfection that a retrospective search of a record of trial will not usually reveal some erroneous action that might have been obvious to him and easily corrected if called to his attention. Our system of jurisprudence has never contemplated that kind of appellate review and it should not. To permit this type of review would permit a litigant to gamble on the outcome of a trial and engage the appellate court in a retrospective search for error when he loses.
The judgment is affirmed.
Griffin said that he instructed someone to make this call.
Appellant testified that this crowd consisted of 100 people or more.
For other cases in which the conduct of the parties has been held sufficient to show a conspiracy, or combination between two or more persons to do something unlawful, see McGlosson v. State, 171 Ark. 1188, 286 S. W. 931; Davis v. State, 161 Ark. 665, 256 S. W. 866. | [
16,
-21,
-23,
-2,
9,
96,
30,
44,
-48,
-109,
119,
115,
105,
-55,
1,
59,
-24,
125,
84,
9,
-36,
-73,
22,
97,
114,
-45,
-6,
-43,
-73,
-49,
-28,
-15,
29,
48,
-30,
-43,
-26,
74,
-83,
92,
-114,
4,
-85,
88,
48,
-128,
48,
38,
16,
15,
53,
30,
-29,
42,
16,
-53,
73,
108,
75,
41,
99,
57,
-98,
-123,
-53,
16,
-77,
54,
-99,
1,
-12,
56,
24,
49,
65,
104,
123,
-94,
-126,
116,
79,
-103,
-116,
-32,
99,
1,
-3,
-24,
-108,
-23,
46,
111,
-99,
38,
92,
105,
75,
45,
-105,
-105,
107,
16,
6,
120,
113,
93,
87,
108,
35,
-114,
-16,
-77,
-55,
124,
-110,
-62,
-21,
37,
20,
113,
-52,
-18,
85,
69,
82,
-101,
-126,
-108
] |
George Rose Smith, Justice.
The decedent, R. W. Pigue, died testate on January 28, 1969, owning 431 acres of farm land. Pigue’s will divided the land into five parcels, varying in size from 71 to 120 acres, which were left as separate devises to four of the decedent’s surviving children and to the issue of a deceased child. A sixth child received a gift of urban property only.
Before his death Pigue had rented all the farm lands to Carlton Smith for $6,000, evidenced by a promissory note due in November. The appellant, as executor of the will, filed a petition in the probate proceeding asking that he be directed to collect, the rent note when it came due and to distribute its proceeds among the devisees of the farm land in proportion to the assessed valuation of the various tracts. That proposal was approved by all the devisees except the appellee, a daughter of the testator, who questioned the probate court’s jurisdiction in the matter and also resisted the petition on its merits. After a hearing the probate court found that the granting of the petition would actually be for the best interest of the estate and the devisees, but the court concluded that it had no jurisdiction in the matter. This appeal by the executor is from the ensuing order of dismissal.
Preliminarily, the appellee has filed a motion to dismiss the appeal as being moot, because during the pendency of the appeal the probate court entered an order partly closing the estate and directing the executor to release the lands to the various devisees. That order, however, expressly recited that it was without prejudice to the present appeal; so we find no merit in the suggestion that the case is moot.
We turn first to the jurisdictional question. At common law rent which did not become payable until after the death of the lessor did not pass to his personal representative. Instead, such rent was treated as real estate and descended at once to the heirs or devisees. Dean v. Stuckey, 234 Ark. 1103, 356 S. W. 2d 622 (1962). Hence, before the passage of our Probate Code the rental note now in question would not have been an asset in the hands of the executor, for it is conceded that neither the real estate nor the note is needed for the payment of debts.
The Probate Code, however, enlarged the probate court’s jurisdiction over the decedent’s real property. The Code, as amended in 1961, provides that “when and as long as the court finds it . . . for the benefit of the estate, the personal representative may collect rents and earnings” from the decedent’s real property. Ark. Stat. Ann. § 62-2401 (Supp. 1969). Thus the probate court had jurisdiction to direct the executor to collect and distribute the proceeds of the rental note if that course would be for the benefit of the estate. See Doss v. Taylor, 244 Ark. 252, 424 S. W. 2d 541 (1968).
We think that the executor’s request that the probate court take jurisdiction over the note was demonstrably for the benefit of the estate. The various devisees of the farm lands were scattered geographically within and without the state of Arkansas. Smith, the tenant, would naturally demand the surrender of the note when he paid it. But if the executor had turned the note over to one or more of the devisees, as the appellee insists he should have done, their inability to agree among themselves upon the distribution of its proceeds would have led to difficulties both in the collection of the debt and in the division of the money. Eventually a bill of interpleader or other litigation would probably have been necessary. The pertinent language in the Probate Code was evidently intended to enable the probate court to settle such questions, at minimum expense, in the pending administration proceeding, to which all the interested devisees are* already parties. We therefore hold that the probate court erred in refusing to take jurisdiction of the appellant’s petition.
On the merits we agree with the probate court’s conclusion that, in view of the proof adduced at the hearing, a distribution of the rent in proportion to the assessed valuation of the several parcels is proper in this instance. The annual rent was payable for the use of the 431 acres as a whole, without allocation to the five separate parcels, which differ in acreage, in percentage of cultivation, and in their improvements. The executor testified that he and his attorney worked out the apportionment by assessed values as an equitable solution to the problem. The devisees were notified by letter of the proposal; all except the appellee were satisfied with it.
At the hearing the appellee testified that she wanted to let Smith, the tenant, suggest the allocation of the rent, because he was familiar with the crops grown on the various tracts. Smith, .however, was not called as a witness, nor was any attempt made to show what his allocation would have been. It is obviously possible that he might have awarded the appellee a smaller amount than she would receive under the executor’s proposal, in which case the appellee has. not been prejudiced. At the hearing both sides had an opportunity to develop their contentions as they saw fit. Upon the proof adduced, we cannot say that the trial court’s announced approval of the executor’s method of distribution is against the weight of the evidence.
At the trial there were also two minor controversies about the payment of taxes on the farm lands and about the collection of a small insurance claim arising from windstorm damage to the improvements on the tract devised to the appellee. Both those matters appear to have been resolved to the satisfaction of the litigants and need not be discussed.
The trial court’s dismissal of the executor’s petition for want of jurisdiction is- reversed, and the cause is remanded for further proceedings consistent with this opinion. | [
-13,
104,
-44,
92,
-120,
32,
26,
-72,
67,
99,
32,
83,
109,
27,
16,
41,
115,
13,
65,
105,
-25,
-77,
86,
-16,
115,
-13,
-47,
-35,
-3,
-51,
-28,
87,
76,
100,
-54,
-107,
-62,
-90,
-63,
88,
78,
64,
-118,
109,
93,
80,
48,
107,
82,
29,
85,
-113,
-1,
-83,
57,
97,
76,
44,
89,
-83,
72,
-8,
-65,
13,
127,
23,
-112,
84,
-46,
-127,
74,
12,
-112,
57,
8,
-24,
51,
-74,
22,
84,
15,
-101,
40,
66,
103,
16,
-19,
-17,
-80,
-120,
46,
-46,
-115,
-89,
-36,
88,
99,
1,
-66,
-101,
127,
80,
103,
118,
-25,
-107,
94,
104,
5,
-113,
-42,
-93,
35,
40,
-118,
2,
-21,
7,
112,
113,
-52,
-54,
92,
103,
113,
-101,
-122,
-48
] |
Frank Holt, Justice.
The appellee was insured under a comprehensive liability insurance policy issued by the appellant. During this coverage the appellee was made a defendant in a lawsuit which was defended by appellee’s own attorney who sent his bill directly to the appellant. When the appellant offered to pay only two-thirds of the bill, this action was instituted by the ap pellee to enforce full payment. The trial court, sitting as a jury, rendered judgment for the full amount which was $2,940 for legal services and $257.70 for expenses. Also awarded was a 12% statutory penalty and attorney's fees. From that judgment comes this appeal.
For reversal the appellant first contends that the trial court erred in rendering judgment against the appellant for the reason that the evidence reflects that the notice given to the appellant as to the alleged incident, as well as the notice of the suit were both insufficient and that appellant’s agent was not an official of the appellant company upon whom such notice could be given. We find no merit in this contention.
Appellee’s employee allegedly assaulted and severely injured another person. Shortly after this occurrence appellee Smith orally notified appellant’s local agent, Harold Hodge, from whom he had procured the policy of insurance issued by appellant. Smith was advised by the local agent that the policy provided no coverage for such an incident. When a complaint was filed by the injured person against appellee Smith and his employee, appellee then hand delivered the complaint and summons to appellant’s local agent. Again he was advised that the policy provided no coverage for assault and battery. Thereupon the appellee employed Mr. Boyd Tackett to defend the lawsuit. The trial of the case resulted in a nonsuit by the plaintiff. A few months later the action was refiled against the appellee and his employee. Three days before the second trial of the case Mr. Tackett, upon reading the policy, called the appellant’s home office and made inquiry as to the extent of the coverage. It appears this was the first knowledge the home office had of the occurrence. According to Mr. Tackett, appellant’s claim manager acknowledged coverage and also stated: “Go ahead and take care of the matter, and when you get through send us a bill and we’ll take care of you.” Immediately following the telephone conversation, Mr. Tackett wrote a letter to the claim manager detailing the history and status of the pending litigation and briefly reviewing the applicable law. As indicated, three days later Mr. Tackett again defended the $174,000 lawsuit. A jury verdict absolved the appellee completely.
The policy provides that: “When an accident occurs written notice shall be given by or on behalf of the insured * * * or any of its authorized agents as soon as practicable” and “[i]f claim is made or suit brought against the insured” such notice given shall be immediately forwarded “to the company.” Appellant invokes the policy provision that full compliance with “all the terms of this policy” is “a condition precedent” to any liability on the part of appellant. The appellant states that the purpose of such notice provisions as conditions precedent in an insurance policy is to provide the insurer with an opportunity to fully investigate the facts surrounding the claim as well as to control any litigation and interpose available defenses. National Cas. Co. v. Bryl Johnson, 226 Ark. 737, 293 S. W. 2d 703 (1956); Benefit Assn. of Ry. Employees v. Otis France, 228 Ark. 765, 310 S. W. 2d 225 (1958).
Appellee contends, however, that appellant’s local agent, Mr. Hodge, who twice repudiated any liability, is more than a mere soliciting agent. He is, in fact, appellant’s authorized representative. With this we agree. According to the evidence, appellant’s agent (Hodge) did more than solicit and deliver the policy and accept the premium. The policy reflects that the local agent countersigned it as appellant’s “Authorized Representative.” As such he was notified by appellee when the incident occurred. Later the agent was handed the original complaint and summons when appellee was sued. In each instance appellant’s authorized representative advised the insured the policy provided no coverage. It is well settled that in an action on a liability insurance policy the insurer is precluded from defending its liability upon the ground of a violation by the insured of the policy provisions as to notice and forwarding of suit papers where the insurer has denied liability on some other ground. Dixie Auto Ins. Co. v. Goudy, 238 Ark. 432, 382 S. W. 2d 380 (1964). See, also, 18 ALR 2d, § 31, p. 491; Appleman, Insurance, Vol. 8, § 4747; and 44 Am. Jur. 2d, § 1514, p. 389. The reasoning is that a denial of all possible liability, as in the case at bar by appellant’s authorized representative, is equivalent to a declaration that the insurer will not pay the claim even though notice is given .in strict accordance with the policy and the law will not require the doing of a vain and useless act. Further, in 44 Am. Jur. 2d, supra, it is said:
“* * * It is not necessary, under such a policy, to notify the insurer of a second action brought for the same cause after the voluntary dismissal of the first action, where the insurer was notified of the first action, but denied liability, and refused to defend such action.”
There is yet another answer to appellant’s contention that insufficient notice was given. In the case at bar there was a clear waiver of any notice provisions when appellant’s claim manager acknowledged to appellee’s attorney three' days before the second trial that coverage for assault and battery was provided in the policy and then asked appellee’s attorney to proceed and take care of the matter and send his. bill to the appellant. The general rule is well stated in 18 ALR 2d 443, at p. 487:
“It appears to be well settléd by all the later cases on this point that the insurer may, by waiver or estoppel, lose its right to defeat a recovery under a liability policy because of the insured’s failure to comply with the policy provisions as to notice of accident or claim or as to the forwarding of suit papers. The rationale of this holding obviously is that provisions in respect of notice and forwarding suit papers are inserted for the benefit of the insurer only and that it therefore must be deemed to have the right to waive compliance therewith.” Citing American Fidelity & Cas. Co., Inc. v. North east Ark. Bus Lines, Inc., 201 Ark. 622, 146 S. W. 2d 165 (1941).
In the case at bar certainly it must be said that appellant has demonstrated no prejudice to its rights.
The appellant next asserts that the court erred in granting the statutory penalty and attorney’s fees because Árk. Stat. Ann. § 66-3258 (Repl. 1966) is inapplicable in this type of action. The reasonableness of the fee is not questioned. The appellant contends that no loss occurred to the appellee within the meaning of the statute and that the appellant issued no type of policy enumerated in this statute. We cannot agree. We recently had occasion to construe this statute as to its applicability where a penalty and attorney’s fees were sought in the enforcement of the compensable rights of a Mexican laborer pursuant to certain treaty provisions between the United States and Mexico. That situation is not enumerated in § 66-3238. However, we allowed the statutory penalty and attorney’s fees. Empire Life & Hospital Ins. Co. v. Armorel Planting Co., Inc., 247 Ark. 994, 449 S. W. 2d 200. We consider that case and the authority cited applicable to the case at bar. We hold that the definitions in our Insurance Code are intended to apply in the circumstances and that the trial court correctly required appellant to pay the statutory penalty and an attorney’s fee. An additional fee of $500 is allowed appellee’s attorney for his services on this appeal.
Affirmed. | [
-80,
-2,
-124,
-115,
9,
32,
50,
-126,
107,
-31,
-89,
83,
-3,
-57,
9,
103,
-25,
41,
69,
104,
87,
-93,
55,
98,
-10,
-69,
51,
-59,
-111,
79,
-17,
-4,
68,
48,
66,
87,
102,
3,
-59,
-112,
-126,
-128,
-87,
-20,
-39,
70,
104,
127,
68,
71,
53,
-97,
-5,
42,
29,
-53,
12,
44,
123,
-71,
-46,
-15,
-62,
5,
127,
2,
-79,
-90,
-100,
103,
88,
30,
-112,
49,
8,
-40,
114,
-74,
-126,
84,
101,
-71,
8,
98,
97,
32,
49,
-31,
108,
-104,
46,
124,
31,
-84,
-109,
120,
27,
13,
-74,
-99,
102,
4,
-105,
-2,
-16,
93,
28,
32,
3,
-114,
-112,
-77,
-49,
100,
-100,
11,
-17,
23,
52,
85,
-55,
-88,
93,
-59,
119,
95,
30,
-114
] |
John A. Fogleman, Justice.
Appellant asserts that the circuit court committed reversible error in its judgment revoking a previous suspension of sentence on a felony charge. The particular point upon which appel lant relies is that no minimum. sentence was fixed in: the original judgment of the court suspending sentence entered on November 19, 1968,, so that- the court had, no authority to fix a minimum'sentence in its later! judgment revoking the suspension and ordering appellant committed to the Department‘ of Corrections. Ap-' pellant argues that Section 28 of Act No. 50 of 1.968, which became effective on February' 21,' 1968, governs this situation rather than Act’48, Section 28(2), or Act, 94, Section 1(2) of 1969. ' , ’
The record reflects no objection tó the judgment of the court fixing the minimrim , parole time at ohe:~ third of the sentence. The motion for new trial simply alleges that the court’s order revoking the' suspension of sentence previously imposed by the court arid the. finding that appellant had not been of good cóndüct and behavior are contrary to both the law and the evidence introduced pertaining to this issue and case. No mention whatever is made of the fixing of a minimum parole time.
We held in Petty v. State, 245 Ark. 808, 434 S. W. 2d 602, that we could not consider alleged error in fixing the minimum time to be served in the Department of Corrections when no objection was made to the entry of the judgment or the penitentiary commitment thereon or when the point was not presented to the trial court in a motion for new trial. Upon that authority, the judgment is affirmed, ,, | [
48,
-24,
-43,
-97,
43,
97,
26,
-118,
-61,
-111,
103,
-46,
-89,
-57,
1,
49,
-1,
107,
84,
120,
84,
-9,
39,
97,
-94,
-45,
-39,
85,
-78,
109,
-18,
-39,
24,
-8,
-62,
85,
70,
75,
-47,
86,
-50,
-114,
-55,
-30,
89,
-60,
48,
29,
28,
-113,
53,
-98,
-29,
42,
16,
-54,
105,
104,
75,
57,
72,
-72,
-110,
-115,
107,
4,
-79,
23,
-99,
-122,
116,
50,
-100,
57,
11,
-6,
115,
-106,
-126,
84,
45,
-101,
-116,
98,
98,
-95,
121,
-49,
-68,
-87,
30,
126,
-115,
-89,
-101,
88,
75,
68,
-74,
-35,
52,
22,
46,
126,
103,
-124,
85,
44,
0,
-113,
-80,
-77,
-116,
124,
-106,
-125,
-21,
37,
16,
112,
-49,
-17,
93,
23,
114,
-101,
-98,
-107
] |
WAYMOND M. BROWN, Judge.
| ¶ This case arises out of an automobile accident that occurred on May 5, 2008, between the appellant, Scott Blake, and appellees Jonathan Shellstrom and Robin Whitten. Blake argues on appeal that the circuit court should have granted his motion for a new trial because of jury miscon duct and an insufficient award of damages. We affirm on both points.
Factual Background
On May 5, 2008, Blake and the appellees were involved in a motor-vehicle accident that occurred when appellee Shellstrom pulled into the road while appellee Whitten was attempting to pass Blake. Blake suffered an injury to his neck and filed a complaint seeking damages from both ap-pellees. A jury trial was held on January 18 and 14, 2011. One of Blake’s physicians, Dr. John Irvin, testified that Blake would experience permanent problems Ras a result of his injury and would need epidural steroid injections for the rest of his life, every year or every two to three years, at a cost of $2400 per treatment. Blake also introduced evidence of past medical expenses in the amount of $8284.85 and lost wages in the amount of $2089.98. The jury was instructed that Blake had a life expectancy of 31.08 more years.
Prior to trial, Blake filed a motion in limine seeking to prevent any mention of his medical-insurance coverage, and it is undisputed that insurance was not mentioned at trial. It is also undisputed that Blake did not request or proffer a collateral-source instruction to be given to the jury. The ease was submitted to the jury with interrogatories on the issue of negligence, but a general-verdict form with regard to damages. The jury returned a judgment on liability in favor of appellee Whitten but against appellee Shellstrom, and awarded Blake damages in the amount of $10,400.
Following the verdict, Blake obtained affidavits from two of the jurors stating that two other jurors, who were unnamed, said during jury deliberations that they had been federal employees and “knew as a matter of fact” that Blake would have health insurance through his employment with the U.S. Postal Service. The affidavits also stated that, during deliberations, one of the affiants asked to send a note to the judge asking if the jury could consider insurance, but the jury “all agreed” that the note did not need to be delivered to the court. One of the affiants further stated that the verdict would have been much larger if the jury had not believed that Blake had insurance. Blake filed a motion for a new trial on February 4, 2011, attaching the two juror affidavits and alleging juror misconduct and an insufficient 1 -¡award of damages. The circuit court denied the motion, and Blake filed a timely notice of appeal.
Discussion
I. Jury Misconduct
Rule 606 of the Arkansas Rules of Evidence provides that a juror may not testify as to any matter or statement occurring during the course of the jury’s deliberations, or to the effect of anything upon his or any other juror’s mind or emotions as influencing him to assent to or dissent from the verdict or indictment, or concerning his mental processes in connection therewith. Nor may a juror’s affidavit or evidence of any statement by him be received on such matters. A juror may, however, testify as to whether “extraneous prejudicial information” was improperly brought to the jury’s attention or whether any “outside influence” was improperly brought to bear upon any juror. This rule embodies the public interest in preserving the confidentiality of jury deliberations and ensures that jury deliberations remain secret, unless it becomes clear that the jury’s verdict was tainted by a showing of extraneous prejudicial information or some improper outside influence. The decision whether to grant a new trial for jury misconduct will not be reversed absent an abuse |4of discretion. The moving party has the burden of proving misconduct and must demonstrate a reasonable possibility of prejudice resulting from the alleged misconduct.
The issue of extraneous prejudicial information has arisen most often when jurors have visited an accident scene during trial and reported their observations to other jury members. This case, however, does not involve a juror traveling outside the courthouse to gather extrinsic information. Rather, Blake argues that the jury was exposed to extraneous prejudicial information in the form of two unnamed jurors’ statements, allegedly made during jury deliberations, that they had been federal employees and knew Blake would have health insurance through his job at the U.S. Postal Service. We disagree. This court has previously held that knowledge obtained by a juror and brought into the jury room from the ordinary scope of her life experiences, including knowledge obtained through her profession or vocation, does not qualify as “extraneous prejudicial information” as contemplated by Rule 606. In fact, the jury in this case was given the following instruction: “In considering the evidence in this case you are not required to set aside your common knowledge, but you have |sa right to consider all of the evidence in light of your own observations and experiences in the affairs of life.” Because the statements alleged by Blake’s affiants clearly fit into this category, Rule 606 prohibited the circuit court from considering Blake’s affidavits, and there was no evidence of juror misconduct upon which to grant a new trial.
The propriety of the circuit court’s ruling is further demonstrated when the circumstances of this case are applied to the factors considered by our supreme court in Diemer v. Dischler: (1) whether the jury acted against an instruction from the court; (2) whether the offending jurors simply voiced an opinion or engaged in an experiment relating to a crucial issue; (3) whether the offending juror’s observations impugned a fact presented by a party; and (4) whether the affiants described the alleged juror misconduct with sufficient specificity, which would include identifying the names of the jurors who engaged in the acts complained of.
It is undisputed that no jury instruction on collateral sources was given in this case. More significantly, Blake did not request or proffer such an instruction. Blake contends that the jury “had every right to be told by the Court that they should in no way consider health insurance in their deliberations.” However, it was the duty of the appellant to prepare any instructions he thought should be given to the jury, and Rule 51 of the Arkansas Rules of | BCivil Procedure provides that “no party may assign as error the failure to instruct on any issue unless such party has submitted a proposed instruction on that issue.” If the unnamed jurors referred to in Blake’s affidavits did make the statements attributed to them, they did not violate any court instruction in doing so, and in fact could be seen as following the court’s instruction to consider all of the evidence in light of their own observations and life experiences. In the absence of a collateral-source instruction, we cannot say that this was juror misconduct. If the jury was to be instructed to omit some part of them personal observations and experience from deliberations, the duty was on Blake to request such an instruction.
We note also that the alleged statements about insurance cannot, without speculation as to the thoughts or intent of the unnamed jurors, be firmly categorized as statements of fact. The affidavits state that the two unnamed jurors said they “knew as a matter of fact” that Blake would be insured by his employer. However, it seems just as readily apparent that this is not a statement of fact so much as an opinion based on the jurors’ personal life and work experiences. The mere voicing of an opinion is not juror misconduct.
It is undisputed that the issue of health insurance was never introduced at trial by testimony or other evidence; therefore, the alleged juror statements about insurance cannot be said to have impugned a fact presented by any party concerning insurance coverage. |7Whether the statements affected the amount of damages Blake was awarded is, at best, speculation because that was just as likely to have been the result of the jury determining that Blake did not need or want the epidural injections. In fact, one of the juror affidavits relied on by Blake makes just that assertion: “Further, the jury felt that the reason Mr. Blake had not received the epidural injections was that he did not want or need to get them and not because he could not afford them.”
Finally, even if the alleged juror statements concerning health insurance were assumed to be true and considered to be extraneous, they are insufficient to show a reasonable possibility of prejudice. The affidavits presented by Blake do not name the offending jurors or provide details identifying the context of their alleged statements, and contain only speculative opinions about the effect of the statements upon the rest of the jury during deliberations. Under the circumstances, we find no abuse of discretion in the circuit court’s denial of Blake’s motion for a new trial on the issue of jury misconduct.
II. Insufficient Award
Rule 59(a) (5)of the Arkansas Rules of Civil Procedure provides that a new trial may be granted on the ground of error in the assessment of the amount of recovery, whether too large or too small. When the primary issue is the alleged inadequacy of the damage award, we will affirm the denial of a motion for a new trial unless there is a clear and manifest abuse of discre tion. An important consideration is whether a fair-minded jury could have ^reasonably fixed the award at the challenged amount. When a motion for a new trial is made on the ground that the verdict is clearly contrary to the preponderance of the evidence, we will likewise affirm the denial of the motion if the jury’s verdict is supported by substantial evidence. The facts are viewed in a light most advantageous to the appellee.
Blake presented evidence at trial that he had incurred past medical expenses in the amount of $8284.85 and lost wages in the amount of $2089.93, for a total of $10,374.78. In addition, Dr. Irvin testified that Blake’s condition was permanent and that he would need epidural steroid injections for the rest of his life, at $2,400 per treatment. The jury awarded Blake $10,400, and he argues on appeal that the award was clearly and obviously insufficient on the grounds that it would leave only $25.32 for future medical pain and suffering.
First, the basis of the jury’s award is not known because, although special interrogatories were presented to the jury on the issue of negligence, the jury was given only a general-verdict form for damages. When special interrogatories are not requested, this court will not question or theorize about the basis of the jury’s findings. The amount awarded by the jury is close to the amount claimed by Blake for past medical expenses and lost wages, but there is no way of knowing how the jury intended to distribute the amount across different categories of damages. However, even if the jury did decline to award damages for future |9pain and suffering, as Blake contends, that does not automatically require the verdict to be set aside. Even in cases where a defendant admits fault, the plaintiff is not automatically entitled to recover damages equal or greater to the expenses incurred. The jury is the sole judge of the credibility of the witnesses and of the weight and value of the evidence, and it may believe or disbelieve the testimony of one or all of the plaintiffs witnesses, even if that evidence is uncontradicted and unimpeached.
In this case, there'was substantial evidence to support the jury’s verdict. Blake testified that on some days his pain level is zero out of ten, and on other days it is one out of ten; that he missed work for a week immediately following the accident but thereafter only missed work to attend a doctor’s appointment; that he rarely took any pain medication, even over-the-counter medications like Advil; and that he had no difficulty performing his job duties. The jury could have chosen not to believe Blake’s conflicting testimony about continuing pain or Dr. Irvin’s testimony about Blake’s need for lifelong epidural injections. As previously noted, the juror who executed one of the affidavits relied on by Blake in this appeal plainly stated that the jury believed Blake had not received the epidural injections because he did not want or need them, not because he could not afford them.
Based on the evidence, we believe the jury could reasonably fix Blake’s award at the amount it did. We find no abuse of discretion with regard to the claim of jury misconduct, nor can we say that the jury’s verdict is not supported by substantial evidence. Accordingly, we affirm the circuit court’s denial of Blake’s motion for a new trial.
linAffirmed.
VAUGHT, G.J., and GLADWIN, J., agree.
. Ark. R. Evid. 606(b) (2010).
. Id.
. Waste Mgmt. of Ark., Inc. v. Roll Off Serv., Inc., 88 Ark.App. 343, 199 S.W.3d 91 (2004).
. Milner v. Luttrell, 2011 Ark. App. 297, 384 S.W.3d 1 (citing D.B. & J. Holden Farms Ltd. P'ship v. Ark. State Highway Comm'n, 93 Ark. App. 202, 218 S.W.3d 355 (2005)).
. Id.
. See St. Louis Sw. Ry. Co. v. White, 302 Ark. 193, 788 S.W.2d 483 (1990); Borden v. St. Louis Sw. Ry. Co., 287 Ark. 316, 698 S.W.2d 795 (1985); B. & J. Byers Trucking, Inc. v. Robinson, 281 Ark. 442, 665 S.W.2d 258 (1984); Campbell v. Hankins, 2009 Ark. App. 479, 324 S.W.3d 358.
. Milner, supra (citing Waterfield v. Quimby, 277 Ark. 472, 644 S.W.2d 241 (1982)).
. AMI Civ. 104(2011).
. 313 Ark. 154, 852 S.W.2d 793 (1993).
. See Dodson Creek, Inc. v. Fred Walton Realty Co., 2 Ark.App. 128, 620 S.W.2d 947 (1981); Jones v. Seymour, 95 Ark. 593, 130 S.W. 560 (1910).
. See also Peoples Bank and Trust Co. of Van Buren v. Wallace, 290 Ark. 589, 721 S.W.2d 659 (1986); State Life Ins. Co. v. Ford, 101 Ark. 513, 142 S.W. 863 (1912).
. B. & J. Byers Trucking, Inc. v. Robinson, supra.
. Fritz v. Baptist Memorial Health Care Corp., 92 Ark.App. 181, 211 S.W.3d 593 (2005).
. Depew v. Jackson, 330 Ark. 733, 957 S.W.2d 177 (1997).
. Barringer v. Hall, 89 Ark.App. 293, 202 S.W.3d 568 (2005).
. Luedemann v. Wade, 323 Ark. 161, 913 S.W.2d 773 (1996).
. Esry v. Carden, 328 Ark. 153, 942 S.W.2d 846 (1997).
. See Depew v. Jackson, 330 Ark. 733, 957 S.W.2d 177 (1997); see also Kempner v. Schulte, 318 Ark. 433, 885 S.W.2d 892 (1994); Warner v. Liebhaber, 281 Ark. 118, 661 S.W.2d 399 (1983).
. Potlatch Corp. v. Missouri Pacific Railroad Co., 321 Ark. 314, 902 S.W.2d 217 (1995). | [
-48,
-24,
-7,
-66,
8,
97,
74,
106,
92,
-30,
38,
27,
-19,
79,
-123,
47,
-93,
61,
117,
111,
-34,
-77,
7,
-29,
-5,
-77,
123,
-57,
-73,
75,
-28,
-3,
29,
56,
-126,
-43,
102,
11,
-59,
84,
-58,
-122,
-71,
-4,
-103,
-125,
32,
110,
68,
7,
48,
-97,
-61,
46,
49,
-57,
105,
40,
91,
43,
-64,
-80,
-120,
5,
-23,
17,
-79,
36,
28,
74,
-38,
8,
-104,
49,
24,
-6,
58,
-74,
2,
116,
99,
-71,
12,
36,
103,
32,
1,
-51,
-24,
-8,
15,
14,
15,
-123,
-102,
113,
91,
15,
-74,
-99,
112,
28,
-98,
92,
-4,
92,
29,
-92,
3,
-113,
84,
-109,
-17,
114,
-100,
-126,
-26,
-117,
20,
71,
-50,
-14,
86,
87,
125,
-73,
67,
-73
] |
RAYMOND R. ABRAMSON, Judge.
1,Appellant David Brent Morris, the father of B.M., brings this appeal from an order of the Polk County Circuit Court establishing visitation between B.M. and his maternal grandmother, appellee Paula Dickerson. Morris argues that there was insufficient evidence to support the circuit court’s award of grandparent visitation. We agree and reverse.
B.M. was born on October 24, 2002. His mother Amber died of a stroke in November 2007. After Amber’s death, Dickerson helped Morris care for B.M. It is disputed how much time B.M. stayed with Dickerson, but both parties agreed it was substantial and that Dickerson spent a significant amount of time with B.M., both before and after Amber’s death. In fact, although Dickerson lived and worked in Van Burén, she also maintained a second home closer to B.M.
12H owe ver, in 2009, Morris moved away and began dating his current wife, Ashlyn. He also began to limit the amount and extent of Dickerson’s visits. Morris claimed that the visitation lessened because he had gained more stability and his need to rely on others to help care for B.M. decreased. There was also testimony that Dickerson had overstepped her bounds in her relationship with B.M. and Morris and that the visits had become stressful for B.M.
In September 2009, Dickerson filed a petition for grandparent visitation rights in Sevier County, and the parties subsequently agreed to a temporary order of visitation. In March 2010, Dickerson non-suited her petition for visitation.
In June 2010, Dickerson once again filed a petition to establish grandparent visitation, this time in Polk County. In her petition, she alleged that Morris had, without justification, begun to severely limit her visitation with B.M. She alleged that she had previously filled the role of mother to B.M. and requested visitation commensurate with that of a non-custodial parent. Morris moved to dismiss the petition, stating that there was no allegation that he was an unfit parent or that he had completely denied Dickerson visitation with B.M.
Several hearings were held, and temporary orders of visitation were entered. On February 17, 2011, the circuit court issued a letter opinion granting permanent visitation rights to Dickerson. In doing so, the trial court stated the following:
| ⅞As a grandparent visitation case there is a rebuttable presumption that the parent’s decision to deny or limit visitation is in the best interest of the child. To rebut this presumption the petitioner-grandparent must establish that the petitioner has established a significant and viable relationship with the child and that visitation is in the best interest of the child.
The first of these is conceded by Respondent. The grandmother had, and continues to have, a significant and viable relationship with the child. Thus, the issue for the court is whether the visitation is in the best interest of the child. The statute sets forth the three elements relating to this requirement. Again, the Respondent concedes the first of these elements (capacity to give the child love, affection and guidance) except with regard to “guidance” only making some vague allegation of the grandmother’s “questionable” guidance. The petitioner is a well educated, firmly established educator with strong values and an intense devotion to this child. She certainly has the capacity to give the child love, affection and guidance and, in fact, does so in a commendable fashion.
The second element is that the loss of relationship is likely to harm the child. Here the basis of the Respondent’s argument is that there will be no loss of relationship in the absence of a court order. In fact, the Respondent assures the court and the petitioner that some visitation will continue. While this is a commendable position the statute focuses on both “denying or limiting visitation” The petitioner’s argument is that without a court order, the Respondent will place severe limits on the visitation and this would be a “loss” in the relationship. There was evidence which indicated that the Respondent had in absence of court orders, drastically reduced the visitation permitted between the child and grandmother. Given the close relationship between the child and grandmother, this loss can only be harmful.
The last element relates to the willingness of the petitioner to cooperate if visitation is allowed. Here the petitioner’s evidence is strongest. Not only has the petitioner totally cooperated in the past she indicated her willingness to fully cooperate in the future. Respondent’s only argument is that she “wants to control.” However, it is clear that petitioner will follow whatever orders the court might enter. She has, in fact, gone overboard to work with the Respondent in all aspects of visitation. This will, no doubt, continue.
The court then found that visitation is in the child’s best interest and provided a detailed visitation schedule. In doing so, the court specifically discounted Morris’s claims that Dickerson was responsible for B.M.’s “stomach aches” and that she was overusing prescription medication. |4A formal order granting visitation was filed on April 21, 2011, reflecting the court’s ruling. Morris filed a timely notice of appeal.
Morris argues that the circuit court erred in granting Dickerson’s petition for grandparent visitation. He contends that Dickerson failed to establish by a preponderance of the evidence that (1) she had the capacity to give B.M. love, affection, and guidance, given her bizarre behavior and the alarming number of prescription medications she had been prescribed; (2) there was a loss of relationship, given that Morris had not precluded visitation altogether, or evidence that limiting visitation had caused B.M. harm; or (3) she was willing to cooperate with Morris if visitation were allowed.
The fixing of visitation rights is a matter that lies within the sound discretion of the circuit court. See Hudson v. Kyle, 365 Ark. 341, 229 S.W.3d 890 (2006). The main consideration in making judicial determinations concerning visitation is the best interest of the child. See id. Further, our appellate courts have traditionally reviewed matters that sounded in equity de novo on the record with respect to factual questions and legal questions. See id. We have stated repeatedly that we would not reverse a finding by a circuit court in an equity case unless it was clearly erroneous. See id. We have also stated that a finding of fact by a circuit court sitting in an equity case is clearly erroneous when, despite supporting evidence in the record, the appellate court viewing all of the evidence is left with a definite and firm conviction that a mistake has been committed. See id. In resolving the clearly erroneous question, we must give due regard to the opportunity of the court to judge the credibility of witnesses. See id. We give due deference to the superior position of the circuit court to view and judge the credibility of the witnesses. See Bethany v. Jones, 2011 Ark. 67, 378 S.W.3d 731. This deference to the circuit court is even greater in cases involving child custody or visitation, as a heavier burden is placed on the circuit court to utilize to the fullest extent its powers of perception in evaluating the witnesses, their testimony, and the best interest of the children. See id.
Dickerson sought grandparent-visitation rights under Arkansas Code Annotated section 9 — 13—103(b)—(e) (Repl.2009), which provides in pertinent part:
(b) A grandparent or great-grandparent may petition a circuit court of this state for reasonable visitation rights with respect to his or her grandchild or grandchildren or great-grandchild or great-grandchildren under this section if:
(1) The marital relationship between the parents of the child has been severed by death, divorce, or legal separation;
(c)(1) There is a rebuttable presumption that a custodian’s decision denying or limiting visitation to the petitioner is in the best interest of the child.
(2) To rebut the presumption, the petitioner must prove by a preponderance of the evidence the following:
(A) The petitioner has established a significant and viable relationship with the child for whom he or she is requesting visitation; and
(B) Visitation with the petitioner is in the best interest of the child.
(d) To establish a significant and viable relationship with the child, the petitioner must prove by a preponderance of the evidence the following:
(1)(A) The child resided with the petitioner for at least six (6) consecutive months with or without the current custodian present;
(B) The petitioner was the caregiver to the child on a regular basis for at least six (6) consecutive months; or
k(C) The petitioner had frequent or regular contact with the child for at least' twelve (12) consecutive months; or
(2) Any other facts that establish that the loss of the relationship between the petitioner and the child is likely to harm the child.
(e) To establish that visitation with the petitioner is in the best interest of the child, the petitioner must prove by a preponderance of the evidence the following:
(1) The petitioner has the capacity to give the child love, affection, and guidance;
(2) The loss of the relationship between the petitioner and the child is likely to harm the child; and
(3) The petitioner is willing- to cooperate with the custodian if visitation with the child is allowed.
In In re Adoption of J.P., 2011 Ark. 535, 385 S.W.3d 266, the Arkansas Supreme Court reviewed the history of Arkansas’s grandparent-visitation statute and observed that our statute “gives the parent’s decision presumptive or special weight in deciding whether grandparent visitation is in the best interest of the child.” See Ark.Code Ann. § 9-13-103(c)(1). In order to rebut that presumption, the grandparents were required to prove, by a preponderance of the evidence, both a significant and viable relationship with the child and that visitation with him was in his best interest. See Ark.Code Ann. § 9-13-103(c)(2). To prove visitation was in the child’s best interest; the grandparents were required to prove, by a preponderance of the evidence, that (1) they had the capacity to give the child love, affection, and guidance; (2) the loss of the relationship between them and the child was likely to harm him; and (3) they were willing to cooperate with the parent if visitation with the child was allowed. See Ark.Code Ann. § 9-13-103(e).
|7In that case, the court upheld the circuit court’s findings that the grandparents had proved by a preponderance of the evidence that they had the capacity to give the child love, affection, and guidance, and that they were willing to cooperate with the parent if visitation with the child was allowed. However, the court held that the circuit court’s finding that the grandparents had proved by a preponderance of the evidence that the loss of the relationship between them and the child was likely to harm the child was clearly erroneous.
The court found that, in order to establish the loss of a relationship, evidence must be presented demonstrating that the relationship between the grandparents and grandchild “had been lost or would be lost.” However, because there was indeed a relationship in existence that, while limit ed, had not been lost, and as there was no evidence presented that the relationship would be lost, the grandparents’ petition for visitation was premature. In re Adoption of J.P., supra at 17, 385 S.W.3d 266 (citing Hollingsworth v. Hollingsworth, 2010 Ark. App. 101, 377 S.W.3d 313 (holding that where the relationship between a grandfather and grandson had not been lost because visitation had only been curbed and not denied, the circuit court did not abuse its discretion in denying the grandfather’s petition for grandparent visitation)). Simply put, visitation was not denied to the grandparents, and their relationship with the child had not been lost. Id. Thus, the supreme court reversed and remanded, holding that the circuit court clearly erred in finding that the grandparents rebutted the statutory presumption and abused its discretion in granting them grandparent and great-grandparent visitation under section 9-13-103
This case is factually similar. Here, as in In re J.P., Dickerson failed to prove that her relationship "with B.M. had been or would be lost — visitation had only been limited, not | saltogether denied. Both parties agreed that Dickerson had not been denied visitation and that neither believed that Morris would deny her visitation in the future. Rather, Dickerson believed that she was entitled to more visitation than she was currently being allowed. However, because Dickerson has not proved that she had been denied visitation, she failed to prove the loss' in relationship necessary to overcome the statutory presumption. Her petition is premature. Thus, we reverse the circuit court’s order granting appellee visitation.
Finally, because Dickerson failed to prove a loss in relationship, we need not address Morris’s other claims regarding Dickerson’s capacity to give B.M. love, affection, and .guidance or her ability to be cooperative with Morris if visitation is allowed.
Reversed.
VAUGHT, C.J., and HOOFMAN, J., agree.
. There was evidence that Dickerson believed that B.M. suffered from asthma, had taken him to the doctor without Morris’s permission, and had obtained asthma medication for B.M. and provided it to the school. There was also evidence that she repeatedly called and texted Morris and Ashlyn and became upset if they did not immediately return her calls.
. There was evidence that B.M. would become stressed and withdrawn prior to his visits with Dickerson and that he began to have stomach problems that Morris associated with his visits. | [
48,
104,
-20,
92,
27,
97,
-118,
50,
122,
-13,
115,
-45,
-17,
-46,
85,
45,
-78,
109,
117,
-23,
-63,
55,
-57,
-32,
80,
-13,
-79,
-45,
-77,
73,
101,
-41,
76,
104,
-38,
-47,
70,
104,
-25,
80,
-124,
1,
61,
37,
-111,
-62,
-80,
-81,
90,
15,
53,
-114,
-74,
46,
57,
111,
12,
76,
93,
-67,
-104,
-80,
-21,
4,
108,
16,
-79,
-92,
-102,
-89,
88,
42,
-111,
49,
-96,
-23,
115,
-106,
-122,
100,
75,
-67,
9,
112,
114,
2,
-52,
-11,
-83,
-120,
15,
122,
-99,
-89,
-6,
57,
73,
37,
-73,
-75,
124,
80,
72,
-6,
-58,
12,
60,
100,
2,
-116,
-106,
-111,
-123,
25,
-124,
-117,
-29,
-41,
112,
117,
-49,
-94,
85,
-122,
51,
-101,
-38,
-80
] |
DAVID M. GLOVER, Judge
| iBobby Caldwell’s parental rights to his son, C.C., born April 28, 2006, were terminated by the White County Circuit Court. Caldwell appeals the termination, arguing that the trial court erred in finding that termination of his parental rights was in C.C.’s best interest due to a complete lack of credible evidence demonstrating the likelihood of adoptability and potential harm. We affirm.
Facts,
The Department of Human ' Services (DHS) was contacted in August 2014 to assist in an interview of C.C. regarding allegations of sexual abuse. Although Caldwell had legal custody, O.C. had been in the custody of Mary Beck (C.C.’s paternal grandmother) since February 2014. In July 20Í4, it was reported that C.C. was being sexually abused by Beck, [¿who had allegedly placed drill bits into his anal area. C.C. disclosed that Caldwell had previously sexually abused him in the same manner; he was also verbalizing suicidal ■ and homicidal ideations and was physically aggressive toward Beck. Beck appeared to be under the influence during C.C.’s interview, and when given a drug- and-alcohol screen, she tested positive for methamphetamine, THC, benzodiazepines, and alcohol. Due to Beck’s positive drug- and-alcohol screen and C.C.’s suicidal and homicidal ideations, DHS took a seventy-two-hour- hold on C.C. on August 20, 2014. DHS filed a petition for emergency custo dy and dependency neglect on August 25, 2014; an ex parte order of emergency custody was entered on August .26. An order filed September 17, 2014, found probable cause to continue custody of C.C. with DHS; C.C. was then adjudicated dependent-neglected in an order filed October 6, 2014... In the adjudication order, the circuit court found Caldwell had not fulfilled his parental responsibility to provide proper care and housing for C.C. by allowing C.C. to live with Beck, noting Beck’s use of drugs, the sexual-abuse allegations, and C.C.’s homicidal and suicidal ideations.
On January 22, 2015, DHS filed a motion to terminate reunification services with Caldwell, arguing C.C. had been subjected to aggravated circumstances and asking for a determination that there was little likelihood services to the family would result in successful reunification. In support of this request, DHS alleged C.C.’s mother had already consented to termination of her parental rights; Caldwell’s address was unknown despite repeated requests by DHS; Caldwell, by his own report, was now unemployed; Caldwell had visited C.C. only once in five months; and Caldwell was doing nothing to try to have C.C. returned 13to his custody. In a review order filed February 5, 2015, the circuit court continued custody with DHS; the order noted the filing of the motion for a no-reunification finding but continued the goal of the case as reunification. In the order, the circuit court noted the parents were not present for the hearing, they had not complied with the case plan, Caldwell’s whereabouts were unknown, he was unemployed, and he had seen C.C. only one time during the five-month case.
Another review order was filed April 27, 2015. In the order, the circuit court changed the goal of the case from reunification to termination of parental rights with a goal of adoption. The circuit court also found by clear and convincing, evidence there was little likelihood services to the-family would result in successful reunification; specifically, the circuit court found Caldwell’s whereabouts were unknown, he would not provide DHS with his address, he was not visiting C.C., and he had demonstrated a total> lack of participation and cooperation in the case.
DHS filed a petition to terminate parental rights on April 29, 2015.' After a hearing on August 3, 2015,' the circuit court filed an order terminating parental rights on August 11, 2015. In that order, thé trial court found DHS had proved by'clear and convincing evidence it was in C.C.’s best'' interest that Caldwell’s parental rights be terminated; thé'circuit court also found two statutory bases for terminating Caldwell’s parental rights — that Caldwell had subjected C.C. to aggravated circumstances, Ark.Code Ann. § 9-27-341(b)(l)(B)(ix)(a) (Repl. 2015), and that other factors arose subsequent to the filing of the originar petition for dependency-neglect that demonstrated that return of the juvenile to the custody of the parent [¿was contrary to' the juvenile’s health, safety, or welfare, and that, despite the offer of appropriate family services, the parent has manifested the incapacity or indifference to remedy the subsequent issues or factors or rehabilitate the parent’s circumstances that prevent return of the juvenile to the custody of the parent. Ark. Code Ann. § 9-27-341(b)(l)(B)(vii)(a).
Standard of Review
Termination-of-parental rights cases are reviewed de' novo. Schaible v. Arkansas Dep’t of Human Servs., 2014 Ark.App. 541, 444 S.W.3d 366. To terminate parental rights, at least one statutory ground must exist, as well as a finding that it is in the child’s best interest for parental rights to be terminated; these must be proved by clear and convincing evidence. Id. In making a “best interest” determination, the circuit court is required to consider two factors: (1) the likelihood the child will be adopted, and (2) the potential harm to the child if custody is returned to a parent. Ford v. Arkansas Dep’t of Human Servs., 2014 Ark. App. 226, 434 S.W.3d 378. Clear and convincing evidence is that degree of proof that will produce in the fact finder a firm conviction as to the allegation sought to be established; the appellate inquiry is whether the circuit court’s finding that the disputed fact was proved by clear and convincing evidence is clearly erroneous. Id. In resolving the clearly erroneous question, we must give due regard to the opportunity of the circuit court to judge the credibility of witnesses. McFarland v. Arkansas Dep’t of Human Servs., 91 Ark. App. 323, 210 S.W.3d 143 (2005).
¡¡Adoptability'
Caldwell first argues there is no evidence C.C. would be adopted, given his uncontrollable behavior and his caseworker’s testimony that finding an adoptive home would be a challenge. While the likelihood of adoption must be considered by the circuit court, that factor is not required to be established by clear and convincing evidence. Hammam, v. Arkansas Dep’t of Human Servs., 2014 Ark. App. 295, 435 S.W.3d 495. A caseworker’s testimony that a child is adoptable is sufficient to support an adoptability finding. Id.
In support of his argument, Caldwell cites Grant v. Arkansas Department of Human Services, 2010 Ark. App. 636, 378 S.W.3d 227, and Lively v. Arkansas Department of Human Services, 2015 Ark. App. 131, 456 S.W.3d 383. These cases are distinguishable from the facts of the present case. In Grant, the child in question was autistic, and the only evidence regarding his adoptability was from the adoption specialist, who was of the opinion the child was adoptable because she believed that all children were adoptable. In Lively, there was no evidence of adoptability presented at trial for the trial court to consider.
In the present case, Monica Pryor, C.C.’s caseworker, testified that, while C.C.’s adoptability was challenging, it was her opinion he was adoptable. She expounded upon her answer by explaining that C.C. was currently undergoing IQ and adaptive testing to specifically diagnose his behavioral issues, and once diagnosed and able to be treated with proper medications, he would be “good” for adoption. The circuit court found that while C.C. had some issues, it was likely he would be adopted, specifically relying on Pryor’s testimony and determining that it was credible. Unlike Lively, in the present case there was | (¡evidence presented to the trial court to .consider in determining C.C.’s adoptability, and unlike Grant, the caseworker did not make a blanket statement that all children were adoptable, instead concentrating on C.C.’s specific circumstances and needs in giving her opinion that C.C. was adoptable.
Potential Harm
Caldwell also argues there was no proof of potential harm if C.C. was returned to his custody. In considering potential harm caused by returning the child to the parent, the trial court is not required to find that actual harm would result or affirmatively identify a potential harm. Welch v. Arkansas Dep’t of Human Servs., 2010 Ark. App. 798, 378 S.W.3d 290. Potential harm must be viewed in a forward-looking manner and in broad terns, including the harm the child suffers from the lack of stability of a permanent home. Collins v. Arkansas Dep’t of Human Servs., 2013 Ark. App. 90, 2013 WL 546940.
Caldwell points to the fact that' the caseworker testified the potential harm in this case was the fact that C.C. had no diagnosis with regard to his behavioral issues and contends this reasoning is faulty because any adoptive parents would also not' have the benefit of a diagnosis. Caldwell' argues the same resources that would be “poured into” C.C. and a potential adoptive family could be used to help him with C.C. and possibly save C.C. from further harm.
This argument ignores the fact that the caseworker testified' that C.C. would be at great risk for potential harm because Caldwell was not aware of what was happening with C.C. While Caldwell takes this statement to mean no one yet had a diagnosis for C.C.’s behavioral | ^issues, the evidence indicates that Caldwell was unaware of what was happening in C.C.’s life sinde DHS intervened and removed C.C. from Mary Beck’s physical custody due to alleged sexual abuse and her drug and alcohol issues. It is notable that since the inception of the case, Caldwell visited C.C. only once; he had riot completed any of the requirements set forth for him under the case plan; Caldwell had been living with his father for two months in Joplin, Missouri, at the time of the termination hearing; he was currently uneriiployed; he had no approved home for C.C. and no way to support C.C.; and Caldwell had taken no interest in C.C.’s medical diagnoses and treatment.
The circuit court’s decision that it was in C.C.’s best interest for Caldwell’s parental rights to be terminated was not clearly errorieous.
Affirmed.
Abramson and Harrison, JJ., agree.
. The parental rights of Ashlie Wood, C.C.'s mother,- were also terminated in this order on the basis that Wood had signed a consent to terminate her parental rights. Wood is not a party to this appeal.
. Caldwell does not challenge the statutory grounds for termination on appeal. | [
-80,
104,
-3,
-20,
26,
-95,
26,
48,
78,
-93,
119,
-45,
-85,
-30,
20,
107,
-24,
79,
81,
117,
97,
-73,
87,
65,
82,
-13,
48,
-41,
-77,
79,
-27,
-44,
28,
112,
-118,
-7,
98,
-64,
-57,
-38,
-122,
3,
-40,
-28,
16,
14,
44,
59,
26,
14,
21,
31,
-41,
46,
-69,
-21,
8,
72,
-39,
-71,
-40,
32,
-53,
5,
-113,
34,
-93,
36,
-104,
-113,
114,
59,
-119,
49,
1,
-4,
51,
-74,
-122,
116,
67,
-119,
-83,
113,
-30,
0,
72,
-11,
-11,
-119,
-81,
-82,
-99,
-90,
-102,
105,
80,
39,
-65,
-67,
124,
84,
62,
-8,
107,
100,
36,
-28,
-116,
-113,
28,
-111,
76,
-56,
-40,
-77,
-41,
-91,
0,
81,
-49,
-12,
84,
3,
59,
-37,
-82,
-14
] |
BRANDON J. HARRISON, Judge
h Nathan Inskeep appeals his conviction for aggravated residential burglary and argues that the circuit court erred in denying his motion for directed verdict because the State presented no substantial evidence that he inflicted or attempted to inflict death or serious physical injury on another person. We agree that the circuit court erred in denying the directed-verdict motion because the evidence failed to show that Inskeep attempted to inflict death or serious physical injury as required by Ark. Code Ann. § 5-39-204(a)(2) (Repl. 2013). We therefore modify Inskeep’s sentence from forty years’ imprisonment to twenty years’ imprisonment, the maximum sentence for residential burglary.
In a criminal information filed 29 May 2014, Inskeep was charged with aggravated residential burglary, breaking or entering, indecent exposure, and third-degree battery. At a jury trial, Leana Wright testified that on 17 April 2014, she took her son to school and |athen went grocery shopping at Dollar General with her fifteen-month-old daughter. At the store, she saw a white extended-cab truck parked close to her vehicle and saw a man (In-skeep) inside the truck. She drove home and took the groceries and her daughter inside; at that time, she heard a horn honking and saw the same white truck parked in her driveway. She looked out to the driveway from the doorway, holding the screen door open with her foot and with her daughter on her left arm. She saw Inskeep waving for her to approach his truck, and she shook her head “no.” At that point, Inskeep exited his truck, and Wright saw that he was not wearing any clothes from the waist down and was masturbating. She tried to run inside and shut the door, but she heard the screen door open behind her, and Inskeep grabbed her left shoulder. She kicked behind her and ran, screaming for her husband, Corey, who was asleep. She explained that she ran through her living room, dining room, and laundry room, past the play room, and into her bedroom. She said that Corey saw Inskeep in the dining room and then chased Inskeep out of the house. Wright then noticed a scratch on her daughter’s cheek that had not been there before.
On cross-examination, she confirmed that Inskeep stopped chasing her “midway through [the] dining room.” She also stated that the baby’s cheek was scratched when Inskeep grabbed her shoulder but admitted that she did not see the injury happen. She also discussed her statement given to the police immediately after the incident and said that she did not allege any injury to herself and did not allege that Inskeep attempted to rape her. She stated that Inskeep did not verbally threaten her; they never exchanged | ¡¡words. On redirect, she agreed that she was scared when she saw Inskeep masturbating in her front yard and when he grabbed her.
Corey Adams, Wright’s husband, testified that he awoke on the morning of 17 April 2014 to his wife yelling for him. When he got to her and asked what was wrong, she said, “He tried to f--rape me.” Adams ran toward the kitchen and saw a man in a red sweatshirt with no pants “just standing there with a kind of weird look on his face.” The man (identi- fled as Inskeep) ran out the door toward his truck, and Adams chased him to the door. Inskeep got in his truck, and Adams ran toward the truck. After returning to the house to get clothes and tell his wife to get the gun and call the police, Adams pursued Inskeep in his vehicle but did not find him.
Jessica Thorpe, the girlfriend' of Adams’s brother, was staying with Wright and Adams along with her two children. She testified that on 17 April 2014, she was sleeping in the play room and woke up to Wright screaming and yelling. Thorpe saw Wright Collapsed on the floor outside of her bedroom with her daughter in her arms and then saw a man in the dining room wearing a red sweatshirt and nothing else. She identified Inskeep as that man.
Police Chief Steve Franks, with the Marmaduke Police Department, testified that he was called to Wright’s residence on the morning of the incident and took Wright’s statement. From her description of the suspect and the truck, Franks developed Inskeep as a suspect and showed a photo line-up to Wright and Adams separately. They both identified Inskeep as the perpetrator. Franks confirmed that there was no physical evidence that put Inskeep in Wright’s home.
DThe State rested, and the defense moved for directed verdict. On the aggravated-burglary charge, Inskeep argued that there was no proof that he attempted to commit rape or that he attempted to inflict serious physical injury. . The State, responded that there was “more than enough evidence ... to show that he entered the house with the purpose of committing sexual assault” and that “rape or a sexual assault is a serious physical injury.” The court found that
the fact that he had followed her from a location some distance from her home, had forced his way into her house, had grabbed hér and only stopped his physical assault of her after she kicked him and gained some degree of separation and screaming for other occupants in the house to come to her áid, that under those circumstances ... it certainly is a jury question as to whether his acts as he entered the house, grabbed her, the acts which are alleged to have caused injury to the baby, and as under the • circumstances in all of these events leading up to it, that the jury could determine from that evidence that those constituted an attempt to inflict serious physical injury or death upon another person.
The defense rested and renewed its motion, which was denied. The jury was instructed that to sustain- the charge' of aggravated residential burglary, the State must prove the following things beyond a reasonable doubt:
First: That Nathan L. Inskeep entered or remained unlawfully in [Wright’s residence]; and
Second: That he did so with the purpose of committing therein the offense of Rape; or Sexual Assault, or Indecent Exposure, or Battery in the Third Degree; and
Third: That [Wright’s residence] was occupied by a person; and
^Fourth: That Nathan L. Inskeep inflicted or attempted to inflict death or serious physical, injury upon another person.
The jury found Inskeep guilty, and he was sentenced to forty years’ imprisonment for aggravated residential burglary, one year in the county jail for indecent exposure, and one year in the county jail for battery, all to run concurrently. (The breaking-or-entering charge was nolle prossed.) In-skeep filed a timely notice of appeal from his conviction.
This court treats a motion for a directed verdict as a challenge to the sufficiency of the evidence. Gwathney v. State, 2009 Ark. 544, 381 S.W.3d 744. In reviewing a challenge to the sufficiency of- the evidence, we view the evidence in a light most favorable to the. State, consider only the evidence that supports the verdict, and we affirm if substantial evidence exists to support the verdict. Id. Substantial evidence has sufficient force and character such that it will, with reasonable certainty, compel a conclusion one way or the other, without resorting to speculation or conjecture. Campbell v. State, 2009 Ark. 540, 354 S.W.3d 41.
A person commits residential burglary if he or she enters or remains unlawfully in a residential occupiable structure of another person with the purpose of committing in the structure any offense punishable by imprisonment.. Ark.Code Ann. § 5 — 39—201(a)(1) (Repl. 2013). A person commits aggravated residential burglary if he or she commits residential burglary as defined in § 5-39-201 of a residential occu-piable structure occupied by any person, and he or she: (1) is armed with a deadly weapon or represents by word or conduct that he or she is armed with a deadly weapon; or (2) inflicts or attempts to inflict death or serious physical injury upon another person. Ark.Code Ann. § 5-39-204(a). Serious physical injury is defined as a physical injury that creates a substantial risk of death 16or that causes protracted disfigurement, protracted impairment of health, or loss or protracted impairment of the function of any bodily member or organ. Ark.Code Ann. .§ 5-1-102(21) (Repl. 2013).
Inskeep does not argue that the elements of residential burglary were not met; instead, as he did below, he argues that the State failed to prove that he inflicted or attempted to inflict death or serious physical injury upon another person, nor was there, any evidence that he was armed, with a deadly weapon or that he represented that he was so armed. On the contrary, Inskeep argues, the evidence showed that he was unarmed, that he never spoke to the victim, and that he only “grabbed her shoulder so as to get her attention.” He admits an intention to draw attention to himself for some type of sexual gratification but denies any infliction or attempt to infliet a serious physical injury.
In response, the State contends that the jury could infer that Inskeep intended to inflict serious physical injury on Wright or her child and that he attempted to inflict it. The State argues that “silently pursuing a woman (who, to all appearances, is alone except for the baby in her arms) into her house after she refuses to come to you, attempting to grab hei\ and continuing to pursue her as she flees screaming through her home — all done while naked below the waist — is inherently threatening.”
It is undisputed that Inskeep was not armed and did not represent that he was armed; so the question is whether the State presented substantial evidence that Inskeep inflicted or attempted to inflict serious physical. injury upon the victim. The State -argued below (but not on appeal) that “rape or sexual assault is a serious physical injury.” While it is true that rape is, by definition, a serious and violent offense, see, e.g., Ring v. State, 320 Ark. 128, 894 S.W.2d 944 (1995), no case law holds that ah attempted rape or attempted sexual assault equates' to' an attempt to inflict “serious physical injury” as that term has been defined by the General Assembly. See Dillon v. State', 311 Ark. 529, 844 S.W.2d 944 (1993) (holding that “serious physical injury” is not ah element of the crime' of rape); Strawhacker v. State, 304 Ark. 726, 804 S.W.2d 720 (1991) (distinguishing as totally separate the “serious physical injury” for purposes of first-degree battery from the “forcible compulsion” required in a rape case). There is ho doubt that a serious physical injury could be inflicted during a sexual assault. But under current Arkansas law,- a sexual assault does not necessarily constitute a serious physical injury.
On the attempt element, a person attempts to commit an offense if he “purposefully engages in conduct that ... [constitutes a substantial step in a course of conduct intended to culminate in the commission of an offense[.]” Ark.'Code Ann. § 5-3-201(a)(2). Even assuming that Inskeep did intend to sexually assault Wright, we hold that his intention, combined with his pursuing Wright into her home, grabbing her shoulder, and causing a minor scratch to the baby’s face, does not constitute a substantial step toward inflicting a serious physical injury. We do not downplay the trauma that Wright and her family experienced at Inskeep’s criminal hand. But Arkansas law, as it currently stands, does not support the jury’s verdict of guilty on the aggravated residential-burglary charge. As the case law shows, more is required to sustain a conviction when an element of the crime requires an attempt to commit a serious physical injury. See, e.g., Tarentino v. State, 302 Ark. 55, 786 S.W.2d 584 (1990) (hitting victim in the head ■ three times with a baseball bat constituted serious physical injury); Lum v. State, 281 Ark. 495, 8665 S.W.2d 265 (1984) (serious physical injury inflicted when victim was struck three times with a fist causing face fractures . and temporary impairment of vision); Britt v. State, 83 Ark. App. 117, 118 S.W.3d 140 (2003) (serious physical injury inflicted when child victim sustained extensive scalding bums primarily on her feet that required debriding and physical therapy to prevent permanent loss of mobility). Because there is insufficient evidence that- Inskeep attempted to inflict a serious physical injury, and the jury would have had to resort to speculation and conjecture-to decide that such an attempt was made on this record, we. reverse the conviction for aggravated residential burglary.
That is not the end of it. When the proof offered supports a conviction, on a lésser-included offense but not the offense the accused was convicted of, this court may reduce the punishment to the maximum for the lesser-included offense, or reduce it to the minimum for the lesser offense or something in .between, depending on the circumstances. Smith v. State, 352 Ark. 92, 98 S.W.3d 433 (2003). Here, Inskeep does not dispute that the elements of residential burglary were proven, so we modify his sentence to the maximum allowed for residential burglary, a Class B felony, which is twenty years’ imprisonment. See Ark.Code Ann. § 5-4-401(a)(3).
Affirmed as modified.
Virden, Kinard, Glover, and Hixson, JJ., agree.
Vaught, J., dissents.
. During the directed-verdict discussion, the . court stated that "the State originally indicated in the information that the offense, that the Aggravated Residential Burglary, the entry into the house was with the intent to commit rape- The State, as a corollary to the argument this morning moving to amend básed on the proof, the charge or instruction to the jury that it include not only Rape, but Sexual Assault!.]” The criminal information and amended criminal information included in the record do not contain a reference to rape or sexual assault. | [
80,
-22,
-35,
-82,
27,
97,
10,
-72,
98,
-105,
96,
-77,
-25,
-58,
4,
106,
23,
103,
85,
113,
-47,
51,
39,
97,
-78,
-5,
-77,
-43,
-78,
75,
-4,
-99,
24,
96,
-50,
69,
98,
26,
-25,
-40,
-114,
-121,
-117,
-44,
-111,
66,
110,
58,
76,
15,
-75,
-98,
-77,
43,
20,
-50,
9,
106,
75,
-67,
-8,
127,
-30,
23,
-5,
22,
-125,
39,
-103,
6,
-16,
114,
-100,
49,
32,
-23,
115,
-122,
-126,
116,
77,
-102,
13,
34,
98,
32,
-119,
-57,
-84,
41,
-122,
126,
28,
39,
-103,
97,
67,
44,
-114,
-100,
36,
18,
12,
120,
107,
78,
41,
108,
-90,
-121,
-112,
-111,
-115,
32,
-108,
-71,
-29,
37,
96,
113,
-49,
-26,
92,
85,
121,
-97,
-114,
-109
] |
PER CURIAM
jyln 2010, in a bench trial, appellant Robert J. Moten was found guilty of first- and second-degree battery and sentenced to an aggregate term of 264 months’ imprisonment. Moten’s sole point on direct appeal was that he was denied the right to a trial by jury. The Arkansas Court of Appeals held that Moten had knowingly, intelligently, and voluntarily waived that right and affirmed the judgment. Moten v. State, 2011 Ark. 417, 2011 WL 4635029.
Moten, who is incarcerated at a unit of the Arkansas Department of Correction in Lincoln County, filed a petition for a writ of habeas corpus and for declaratory judgment in the Lincoln County Circuit Court on March 31, 2015. The petition was dismissed with respect to the claims for declaratory judgment and denied as to the claims for a writ of habeas corpus. Moten brings this appeal.
12Moten does not raise any argument on appeal pertaining to the dismissal of his petition for declaratory judgment. Issues raised.in the petition below, but not raised in this appeal, are considered abandoned. Sims v. State, 2015 Ark. 363, 472 S.W.3d 107.
A circuit court’s grant or denial of habeas relief will not be reversed unless the court’s findings are clearly erroneous. Hobbs v. Gordon, 2014 Ark. 225, 434 S.W.3d 364. A finding is clearly erroneous when, although there is evidence to support it, the appellate court is left, after reviewing the entire evidence, with- the definite and firm conviction that a mistake has been committed. Id.
Under our statute, a petitioner for the'writ who .does not allege his actual innocence and proceed under Act 1780 of 2001 Acts of Arkansas must plead either the facial invalidity of the judgment or the lack of jurisdiction by the trial court and make a showing by affidavit or other evidence of probable cause to believe that he is illegally detained. Ark.Code Ann. § 16-112 — 103(a)(1) (Repl. 2006). The burden is on the petitioner in proceedings for a writ of habeas corpus to establish that the trial court lacked jurisdiction or that the commitment was invalid on its face; otherwise, there is no basis for a finding that a writ of habeas corpus should issue. Fields v. Hobbs, 2013 Ark. 416, 2013 WL 5775566.
Moten argued in his habeas petition that the trial court lacked jurisdiction in his case because he was not afforded a trial by jury. In this appeal, his sole contention for reversal of the circuit court’s order is that the circuit court erred in its decision that he did not establish that the trial court was without jurisdiction.
Article 2, Section 10 of the Arkansas Constitution recognizes the right to trial by jury provided by the Sixth Amendment to the United States Constitution, but it also directs that[3a jury trial may be waived by the parties in the manner prescribed by law. Johnson v. State, 314 Ark. 471, 868 S.W.2d 42 (1993). Here, the court of appeals noted in its decision on direct appeal that Moten had waived his right to a jury trial under Arkansas Rule of Criminal Procedure 31.2 (2015), both in writing and through defense counsel on the record in open court. The prosecutor assented to the waiver in accordance with Arkansas Rule of Criminal Procedure 31.1 (2015), and the trial court assented to it. Moten, 2011 Ark. 417, at 6, 2011 WL 4635029. The provisions allowing Moten to waive trial by jury did not deprive the trial court of jurisdiction over the person or the subject matter of the criminal proceeding; See id. ‘ ■
As Moten failed to establish that the judgment was invalid on its face or that the trial court lacked jurisdiction in his case, he did not state a ground for a writ of habeas corpus. Accordingly, we affirm the circuit court order.
Affirmed.
. As of the date of this opinion, Moten remains incarcerated in Lincoln County. | [
112,
-24,
-11,
60,
10,
-63,
112,
-68,
67,
-93,
103,
83,
-27,
-98,
0,
61,
98,
107,
69,
121,
-49,
-77,
7,
65,
115,
-13,
-103,
-43,
49,
-53,
-28,
-108,
76,
96,
-54,
85,
102,
106,
-17,
92,
-50,
7,
-101,
85,
113,
2,
56,
34,
88,
-117,
49,
-66,
-21,
42,
19,
-53,
73,
108,
90,
-67,
8,
-39,
-97,
13,
-17,
2,
-95,
38,
-102,
3,
112,
62,
-48,
48,
1,
-38,
-77,
-106,
-126,
84,
99,
-69,
44,
102,
98,
1,
93,
-33,
-71,
-88,
46,
126,
45,
-89,
-102,
113,
75,
109,
-106,
-35,
114,
-108,
44,
-4,
116,
-116,
80,
108,
-126,
-34,
-108,
-111,
-81,
109,
-116,
-13,
-53,
-75,
84,
117,
-60,
-26,
92,
-42,
57,
-69,
-116,
-106
] |
JOSEPHINE LINKER HART, Associate Justice
_JjA jury found appellant, Alan Ray Edwards, guilty of first-degree murder, attempted first-degree murder, and a firearm enhancement, and he was sentenced to a total of sixty-five years’ imprisonment. The Arkansas Court of Appeals affirmed his convictions. Edwards v. State, 2015 Ark. App. 340, 464 S.W.3d 473. Edwards then petitioned this court for review, and we granted the petition. When we grant a petition for review, we consider the appeal ás‘ though it had been originally filed in this court, See, e.g., Bohannon v. Robinson, 2014 Ark. 458, at 4, 447 S.W.3d 585, 587. On appeal, Edwards argues that the circuit court abused its discretion in excluding expert-witness testimony concerning his lack of capacity to form intent. The decision to admit or exclude evidence is within the sound discretion of the circuit court, and we will not reverse that decision absent a manifest abuse of discretion or absent a showing of prejudice. Bruner v. State, 2013 Ark. 68, at 11-12, 426 S.W.3d 386, 393. We affirm the circuit | {.court.
The shootings occurred at Pop-A-Top Club in Hot Springs, Arkansas. A number of patrons and employees testified at the trial. To summarize, on August 28, 2012, Edwards offered a $200 tip to Eliza Beth McDaniel, a bartender, which she refused. Edwards nevertheless slipped the money into her unattended purse. The next day, Edwards returned to the bar and asked the bartehder if she had received the “surprise.” She unsuccessfully tried to return the money to Edwards. On August 31, 2012, he returned to the bar and asked if she would go out with him. Because- Edwards was married, she declined. Edwards then demanded the money back and threatened to kill her. She returned $62, which was all the money she had on her, and offered to return the remainder.in a few days. Edwards told her that she had better return the rest of the money or he would kill her and everyone in the bar. The bartender reported the incident to the owner and the manager, but rather than reporting it to the police, the owner and the manager decided that Edwards would no longer be allowed in bar.
On September 3, 2012, at 3:00 p.m., Edwards entered the bar and was told by the acting manager, Teresa Williams, that he could not enter the bar until he spoke with the owner. Edwards began arguing, and a customer, Toby Fowlks, told Edwards that he needed to leave. Edwards told Fowlks that he was not scared and that Fowlks could not-“kick” his “ass.” Fowlks chased Edwards out of the bar. Outside, Fowlks struck Edwards in the face, and Edwards left in his vehicle.
Less than ah hour later, Edwards Returned to the bar with a shotgun in his hands, and asked, ‘Where’s that son of a bitch that hit me?” After seeing Fowlks, Edwards said, “Oh, |sthere you are,” and shot Fowlks twice, killing him. Edwards then‘turned to the bartender and said, “Fuck you too.” He shot twice at her but she ducked behind a gaming machine, thus avoiding injury. When Edwards left the bar, other patrons at the bar'followed him, and after a struggle, the patrons were able to disarm Edwards.
Prior to trial, Edwards obtained the services of Dr. Albert Kittrell, an expert in the field of psychiatry and forensic psychiatry. Doctor Kittrell conducted an evaluation of Edwards in which he opined in his report that Edwards suffered from a mental disease — a psychotic disorder not otherwise specified — at the time of the offenses. Doctor Kittrell noted that, at the time of the offenses, “several factors impacted Mr. Edwards’s capacity for purposeful conduct” and that he was “experiencing considerable emotional upheaval.” Doctor Kittrell, however, opined that, even though Edwards was diagnosed with a mental disease and was psychotic at the time of the offenses, Edwards nonetheless did not lack the capacity to appreciate the criminality of his conduct and did not lack the capacity to conform his conduct to the requirements of the law at the time of the offenses. -In his summary, Dr. Kittrell noted that “Edwards had impairment, in his capacity to have culpable mental state required to establish an element of the offenses charged.”
At an in-camerá hearing on Edwards’s fitness to proceed, with the circuit court presiding, Dr. Kittrell was asked on what he “b'ase[d] the fact that [Edwards] had the impairment of the :.. culpable mental state?” Dr. Kittrell noted the diagnosis of a psychotic disorder not otherwise specified, meaning that “at some point he had lost contact with reality and when I saw him lie continued to' have ongoing impairment.” Doctor Kittrell noted that pEdwards told him that he hallucinated and heard voices and was suspicious and paranoid. Doctor Kittrell noted that Edwards had not received treatment for these conditions.
On the day of the trial, the State argued that Dr. Kittrell should not be allowed to testify that he did not believe that Edwards “had the ability to do a purposeful mental state.” In response, Edwards’s attorney asserted that Edwards was entitled to a defense and that the jury should determine whether he had a culpable mental state. The court took the motion under advisement, arid during the trial, the court ruled that “Dr. Kittrell cannot testify to his opinion as to whether [Edwards] had the capacity to form a purposeful intent.” The court instructed Dr. Kittrell that he could render an opinion on Edwards’s “ability to conform his conduct to the requirements of the law” but could not opine “as to his ability to form the requisite mental intent for this crime.”
During his testimony, Dr. Kittrell again opined that Edwards suffered from a mental disease, a psychotic disorder not otherwise specified. He noted that Edwards suffered from auditory hallucinations. The doctor further noted that Edwards was limited in his ability to handle stressful situations. On cross-examination, Dr. Kittrell testified that in his report he had opined that Edwards’s psychotic disorder did not render Edwards unable to appreciate the criminality of his conduct and did not render him unable to conform his conduct to the requirements of the law.
On appeal, Edwards asserts that Dr. Kittrell concluded that he lacked the capacity to form intent and that the circuit court erred in excluding that testimony. He argues that under Stewart v. State, 316 Ark. 153, 870 S.W.2d 752 (1994), while Dr. Kittrell could not testify as|Bto whether he actually formed the requisite intent during the commission of the offense, Dr. Kittrell was permitted to testify that he lacked the capacity to form intent. He asserts that the jury could have accepted Dr. Kittrell’s testimony on the presence of a merital disease and lack of capacity to form intent, while rejecting the notion that a person could simultaneously appreciate the criminality of his conduct and conform that conduct to the requirements of the law, and thus find him not guilty by reason of mental disease or defect. He concludes that he was prejudiced by the circuit court’s ruling because his .entire, defense was that he lacked the capacity to form intent. He argues that, had the jury heard the testimony, there was a reasonable probability that the jury would have acquitted on the first-degree charges and given him a lesser sentence, or have acquitted on the lesser charges as Well. He further asserts that the circuit court denied him due process by depriving him of his only defense.
A person commits murder in the first degree if, with the purpose of causing the death of another person, the person causes the death of another person. Ark. Code Ann. § 5 — 10—102(a)(2) (Repl. 2013). A person acts purposely with respect to his conduct or as a result of his conduct when it is his conscious object to engage in conduct of that nature or to cause the result. Ark. Code Ann. § 5-2-202(1) (Repl. 2013).
It is an affirmative defense to a prosecution that at the time the defendant engaged in the conduct charged he lacked capacity as a result of mental disease or defect to conform his conduct to the requirements of law or appreciate the criminality of his conduct. Ark. Code Ann. 5-2-312(a)(l) (Repl. 2013). We note that a report of a criminal-responsibility examination shall include an opinion as to whether, as the result of a mental disease or defect, lathe defendant, at the time of the alleged criminal conduct, lacked the capacity to appreciate the criminality of his conduct or to conform his conduct to the requirements of law. Ark. Code Ann. § 5-2-305(d)(3)(A) (Repl. 2013). Further, when directed by the court, the report also is to contain “an opinion as to the capacity of the defendant to have the culpable mental state that is required to establish an element of thé offense charged.” Ark. Code Ann. § 5-2-305(d)(3)(B). “Capacity of the defendant to have the culpable mental state” means a defendant’s ability to have the culpable mental state necessary to establish an element of the offense charged. Ark. Code Ann. § 5-2-301(2) (Repl. 2013). Further, our statutes provide that “[e]vidence that the defendant suffered from a mental disease or defect is admissible to prove whether the defendant had the kind of culpable mental state required for commission of the offense charged.” Ark. Code Ann. § 5-2-303 (Repl. 2013).
In Stewart, 316 Ark. 153, 870 S.W.2d 752, the State moved in limine to prevent expert-witness testimony as to whether the defendant “acted with the purpose to cause” the victim’s death or whether the defendant “lacked the specific intent to do so at the time of the murder.” The circuit court granted the motion. At trial, an expert witness testified that the defendant’s mental defect prevented him from being able to conform his conduct and formulate the requisite intent at the time he shot the victim. In rebuttal, the State presented expert-witness testimony that the defendant appreciated the nature of his conduct and was able to conform his conduct on the day he shot the victim. The court, however, would not allow the defendant to have the State’s witness read the part of her report that indicated that the defendant’s behavior did not appear to be premeditated. On appeal, the defendant argued that the circuit |7court erred in granting the State’s motion. This court held that expert testimony could be elicited with respect to the question of whether a.defendant could conform his conduct to the requirements of the law as part of the insanity defense but that the expert witnesses could not testify regarding whether the defendant formed the required specific intent to murder at the time the murder was committed. The court noted that expert testimony on whether a defendant lacked the capacity to form intent is probative, but questioned whether opinion evidence on whether the defendant actually formed the necessary intent at the time of the murder is. This court held that whether the defendant killed the victim purposely on a specific day at least had the potential for being misleading and confusing to the jury. Stewart, 316 Ark. at 159, 870 S.W.2d at 755-756.
Stewart precludes an expert witness from testifying whether the defendant formed the required specific intent at the time the murder was committed. Here, however, Dr. Kittrell never opined regarding whether Edwards formed the purpose of causing the death of another person when he caused the death of Fowlks or attempted to cause the death of Williams. Thus, the limitation on expert testimony set out in Stewart has no application to this case.
Edwards bases his arguments on the • assumption that Dr. Kittrell opined that he lacked the capacity to form intent. Doctor Kittrell’s report, however, only stated that, at the time of the offenses, “several factors impacted Mr. Edwards’s capacity for purposeful conduct.” In his Issummary, Dr. Kittrell noted that Edwards “had impairment in his capacity to have culpable mental state required to establish an element of the offenses charged.” Thus, Dr. Kittrell never stated that Edwards' lacked the capacity to form intent, only that it was impacted or impaired. ■ The circuit court instructed Dr. Kittrell that he could not opine “as to his ability to form the requisite mental intent for this crime.” The circuit court’s instruction can be read to mean that Dr. Kittrell could not testify regarding whether Edwards formed the required specific intent to purposely cause death at the time the murder was committed. As expressed in Stewart, expert-witness testimony on whether a defendant generally lacked the capacity to form intent is probative. Edwards, however, did not present testimony that he lacked the capacity to form intent.
Furthermore, Dr. Kittrell did. opine that Edwards’s psychotic disorder did not render him unable to appreciate the criminality of his conduct and did not render him unable to conform his conduct to the requirements of the law. Thus, despite Edwards’s claim that the jury could have still found him not guilty by reason of mental disease or defect, there was no testimony to support these two elements of the affirmative defense. In this sense, Stewart is even farther afield from the case at bar because in Stewart, the expert witness testified that the defendant’s mental defect prevented him from being able to conform his conduct and formulate the requisite intent at the time he shot the victim.
Edwards further contends that was prejudiced because there was a reasonable probability that the jury might have found him guilty of a lesser offense or given him a lesser sentence. We again note that Dr. Kittrell never stated that Edwards lacked the capacity to |9form intent. Also, there was ample evidence of purposeful conduct. Edwards left the bar, returned with a shotgun, sought out and addressed Fowlks prior to shooting him, and then shot him twice. Edwards also addressed Williams and then fired twice in her direction. See Fink v. State, 2015 Ark. 331, 469 S.W.3d 785 (holding, though not in, the context of determining prejudice, that evidence was sufficient to establish purposeful conduct).
In conclusion, (1) Dr. Kittrell did not testify regarding whether Edwards formed the specific intent to purposely cause death when he fired his shots at Fowlks and Williams; (2) Dr. Kittrell did not opine that Edwards lacked the ability to form the requisite intent; (3) Dr. Kitt-rell did testify that Edwards did not meet the elements of the affirmative defense; and (4) there was ample evidence of purposeful conduct. Accordingly, we conclude that, contrary to Edwards’s argument on appeal, Stewart does not compel this court to hold that the circuit court abused its discretion or to hold- that Edwards suffered prejudice. While Edwards further asserts that the circuit court denied him due process by depriving him of his only defense, he did not raise the argument to the circuit court, so it was not preserved for appellate review. Hinkston v. State, 340 Ark. 530, 534-35, 10 S.W.3d 906, 909 (2000). Accordingly, we affirm the circuit court.
Affirmed; court of appeals opinion vacated.
Danielson and Wynne, JJ., dissent.
. We have discussed the holding in Stewart in other cases, but in those cases the defendants did not raise the affirmative defense of mental • disease or defect that was raised in Stewart and in the case at bar. See Bruner v. State, 2013 Ark. 68, 426 S.W.3d 386; Laswell v. State, 2012 Ark. 201, 404 S.W.3d 818; Bankston v. State, 361 Ark. 123, 205 S.W.3d 138 (2005); Hinkston v. State, 340 Ark. 530, 10 S.W.3d 906 (2000); DeGracia v. State, 321 Ark. 530, 906 S.W.2d 278 (1995). | [
49,
-21,
-56,
-68,
-71,
-32,
26,
-68,
66,
-62,
-29,
-45,
43,
112,
17,
107,
-32,
-49,
85,
105,
-38,
-73,
7,
96,
-14,
-77,
81,
83,
-80,
-21,
-28,
-44,
74,
112,
-18,
-47,
102,
74,
-31,
88,
-118,
1,
-87,
64,
115,
-62,
48,
43,
68,
7,
33,
-98,
-77,
44,
22,
-53,
-23,
108,
91,
63,
80,
120,
-118,
13,
-33,
16,
-77,
55,
-65,
1,
-40,
60,
-104,
49,
9,
-8,
115,
-92,
-126,
84,
109,
-103,
-116,
106,
35,
20,
25,
-53,
-88,
-88,
63,
110,
-115,
-89,
-40,
73,
75,
13,
-100,
-105,
122,
-108,
14,
-12,
121,
93,
88,
108,
37,
-36,
-108,
-111,
-83,
60,
84,
90,
-21,
39,
48,
117,
-50,
102,
84,
84,
118,
-109,
-114,
-107
] |
DAVID M. GLOVER, Judge
liRoy McMahan appeals from the termination of his parental rights to his son, J.M., who was born on April 4, 2011. McMahan does not challenge the grounds the trial court employed to terminate his parental rights. Rather, he challenges the sufficiency of the evidence supporting the trial court’s finding that termination was in J.M.’s best interest. McMahan further contends that the trial court erred in terminating his parental rights because the trial court denied his motion for change of venue (which he now characterizes as one for recusal) and because he claims he should have been provided with additional reunification services after his ease was reversed for noncompliance with service requirements in the original appeal. J.M.’s mother consented to the termination of her parental rights and is not 12a party to this appeal. We affirm.
The facts involved in this case are not in serious dispute, and a brief history helps to put them in context. J.M. was removed from his home in January 2012 when he was nine months old. At that point, McMahan’s paternity had not been established, but the family had been under a protective-services case since November 2011. J.M. was adjudicated dependent-neglected in January 2012. Among other problems within the family, McMahan and the mother were using methamphetamine; McMahan also tested positive for THC. McMahan and the mother both acknowledged that there had been domestic violence between them, with the children present.
In February 2012, temporary custody of J.M. was returned to the mother, and in April 2012, McMahan was found to be J.M.’s biological father. In May 2012, J.M. and his siblings returned to DHS custody because the mother failed to-complete her .program at Arkansas Cares. J.M. was not placed with McMahan, even though by that time McMahan had been determined to be J.M.’s biological father. During this same period of time, McMahan was ordered to pay child support and was found to owe back support of a little over a thousand dollars.
McMahan and the mother moved from Boone County to Washington County, and the children were transferred from their Boone County foster placements to foster homes in |,-Washington County. In late January 2013, J.M. and his siblings returned to McMahan’s and the mother’s custody after their completion of drug treatment. McMahan and the mother told the trial court that things were going well, but McMahan later acknowledged to the trial court that he had lied in representing that the mother had faltered only once with her abstinence from drug usage. In February 2013, J.M. and his siblings were once again returned for placement because the mother -had attempted suicide, and McMahan had been arrested for committing battery against the mother.
McMahan was incarcerated from February 15, 2013, until he was released from prison in February 2014. Though his parental rights were originally terminated by order entered on February 14, 2014, the termination was overturned on appeal to this court on October 29, 2014, based upon improper -service. See supra n.l. The mandate was issued on November 13, 2014. On December 15, 2014, a joint petition for termination of McMahan’s parental rights was filed by the Department of Human Services (DHS) and the attorney ad litem, and, following a hearing on the petition, McMahan’s rights were again terminated by order filed February 18, 2015, with this appeal following. '
We first address McMahan’s challenge to the trial court’s best-interest finding. Arkansas Code Annotated section 9-27-841(b)(3) provides in pertinent party that
(3) An order forever terminating parental rights shall be based upon a finding by clear and convincing evidence:
(Á) That it is in the best interest of the juvenile, including consideration of the following factors:
U(i) The likelihood that the juvenile will be adopted if the termination petition is granted; and
(ii) The potential harm, specifically addressing the effect on the-health and safety of the child, caused by returning the child to the custody of the parent, parents, or putative parent or parents; and
(B) Of one (1) or more of the following grounds....
As noted previously, McMahan does not challenge-the trial court’s findings regarding the statutory grounds for termination, so we have omitted that portion of the statute above. He challenges only the best-interest determination. And even with respect to that determination, he acknowledges' that the trial court’s finding that J.M. is very likely to be adopted is supported by sufficient evidence. That leaves the- “potential1 harm” prong of the trial court’s best-interest finding, and we find no clear error.
Arkansas Code Annotated sections 9-27-341(a)(3) and (4) provide as follows:
(3) The intent of this section is to provide permanency in a juvenile’s life in all instances in which the return of a juvenile to the family home is contrary , to the juvenile’s health, safety, or welfare and it appears from the evidence that a return to the family home cannot be accomplished in a reasonable period of time as viewed from the juvenile’s perspective.
(4)(A) A parent’s resumption of contact or overtures toward participating in the case plan or following the orders of the court following the permanency planning hearing and preceding the termination of parental rights hearing is an insufficient reason to not terminate parental rights.
(B) The court shall rely upon the record of the parent’s compliance in the entire dependency-neglect case and evidence presented at the termination hearing in making its decision whether it is in the juvenile’s best interest to terminate parental rights.
The statutory scheme for termination of parental rights makes it clear that the trial court is 15to consider the entire history of a dependency-neglect, case in evaluating whether it is in the child’s best interest to terminate parental rights. The trial court reviewed the entire history of this case, in addition to the evidence presented at the second termination hearing.
J.M. was born on April 4, 2011, and has lived outside McMahan’s home for more than thirty-two months — a majority of J.M.’s life. J.M. was only nine months old when he first entered foster care. Since the protective-services case was opened in November 2011, McMahan has tested positive for methamphetamine and marijuana. Since the January 6, 2012 petition for dependency-neglect, J.M. and his siblings had to be removed from a trial home placement when McMahan left them in the mother’s care, knowing she was still abusing illegal drugs and having lied to the court about her well-being when she attempted suicide. After the children entered DHS custody for the third time in February 2013, McMahan was arrested for domestic battery against the mother and was subsequently incarcerated for a year.
McMahan acknowledged at the February 18, 2015 termination hearing that he had not visited J.M. since February 2013. Even though his incarceration for a year explains much of his absence from the child’s life in that period, the fact remains that, for a majority of J.M.’s life, McMa-han has not been a part of it. In contrast, there was testimony that J.M. is thriving in his foster placement. In addition, the trial court had before it evidence that McMahan owed a significant amount of back child support; had stopped taking his prescribed medications for posttraumatic stress syndrome (PTSD); and had tested positive for |fioxycodone, admitting that he had taken a Mend’s medication.
Having reviewed the evidence that the trial court had before it in assessing the potential harm of returning J.M. to McMa-han’s custody, we are not left with a definite and firm conviction that the trial court made a mistake in concluding that continued contact with McMahan could cause the child to suffer potential harm.
We next address McMahan’s contention that the trial court erred in denying his motion “to recuse.” The problem with his argument is that the motion he filed below was for change of venue, not recusal. In addition, to the extent that he mentioned in his testimony that he did not think he could get a fair trial in Washington County and that he thought the trial court judge might be “a little biased” in light of the first termination order being reversed for improper service, those comments do not rise to the level of requesting recusal. McMahan’s counsel made it clear that what he was really arguing was that he thought he could get more adequate services in the county where he lived, which at that time was Searcy County. Because his recusal arguments are being raised for the first time on appeal, they are not properly preserved, and we will not address them. Anderson v. Douglas, 310 Ark. 633, 839 S.W.2d 196 (1992).
Finally, McMahan contends that the trial court erred in denying him appropriate reunification services. The foundation for this argument is his contention that when the original termination order was reversed for defective service, his parental rights were reinstated, and he was automatically entitled to services, even without a court order. He | ?asserts DHS should have reassessed his circumstances after the reversal of termination and provided him with additional reunification services. We find no basis for reversal with this argument.
First, as we previously noted, McMahan does not challenge the statutory grounds for termination that were found to exist in the instant case. McMahan does not challenge adoptability under “best interest,” and we have found no clear error in the trial court’s “potential harm” finding that he does challenge. The statutory requirements for termination of McMahan’s parental rights have been satisfied. McMa-han acknowledges that, even when this court reversed the earlier termination order, a no-contact order remained in place, prohibiting contact between him and J.M. That would be the second permanency-planning order, as the last standing order, and it governed after the termination order was reversed on appeal. Under the second permanency-planning order, adoption was the case goal and no contact between J.M. and McMahan was ordered, with the trial court specifically finding that McMahan had not complied with any of the court orders or the case plan.
Finally, once McMahan was paroled, a case plan was created by his secondary caseworker in Searcy County. McMahan was not ignored by DHS following his release from prison and the reversal of the first termination order; neither could DHS be expected to ignore the entire history of the case up to that point either. Over the entire time that J.M. was in foster care, several reunification services were provided, including home visits, medical and dental services, foster homes, transportation, PACE evaluations, developmental therapies, | splay therapies, counseling, daycare assistance, supervised visitations, case-management services, case plan, and staffings. McMahan did not get to wipe his slate clean after the reversal of the original termination order (based on noncompliance with the service requirements). There is a long, troubled history in this case; it remained in place after the reversal. We are in no way convinced that the level of services provided to McMahan provides any basis for overturning the termination of his parental rights.
Affirmed.
Virden and Vaught, JJ., agree.
. This case was before us once before, and we reversed and dismissed based on noncompliance with service requirements. McMahan v. Arkansas Dep’t of Human Servs., 2014 Ark. App. 590, 446 S.W.3d 640.
. Ray McMahan is the biological father of only one of the children, J.M., who is the only child involved in this case. | [
16,
-24,
-19,
44,
10,
97,
74,
28,
70,
-125,
-9,
115,
-17,
-122,
5,
105,
-54,
123,
64,
109,
-63,
-73,
71,
-32,
81,
-14,
-71,
-44,
-78,
79,
101,
-35,
76,
112,
-118,
-11,
70,
72,
-17,
66,
-122,
3,
-86,
109,
88,
-125,
36,
35,
26,
14,
53,
-97,
-121,
46,
25,
-54,
76,
-82,
83,
-71,
-104,
-8,
-37,
7,
79,
16,
-79,
52,
-110,
4,
112,
58,
-48,
57,
0,
-24,
114,
-76,
-122,
36,
67,
-67,
-87,
112,
98,
-127,
93,
-9,
-4,
-88,
111,
10,
25,
-90,
-37,
41,
11,
15,
-65,
-75,
108,
20,
14,
-4,
102,
5,
52,
108,
72,
-113,
86,
-127,
-52,
24,
20,
-101,
-13,
-121,
-92,
113,
-51,
-78,
84,
70,
126,
-39,
-82,
-6
] |
RITA W. GRUBER, Judge
11 This is a second appeal regarding the amount of the attorney’s fee that William L. Bateman was' awarded on his small-claims judgment for property damage in a motor-vehicle accident. See Bateman v. Heird, 2013 Ark. App. 671, 2013 WL 6002057 (Bateman I) (remanding for consideration of the factors of Chrisco v. Sun Industries, Inc., 304 Ark. 227, 800 S.W.2d 717 (1990)). Mr. Bateman brings'the present appeal from the order that the trial court entered on remand. He contends, as he did in the first appeal, that the trial court abused its discretion in awarding only $750 as his attorney’s fee. We affirm.
While the decision to award an attorney’s fee and the amount, awarded are reviewed under an abuse-of-discretion standard, we review factual findings by a circuit court under a clearly erroneous standard. Carter v. Cline, 2013 Ark. 398, at 5, 430 S.W.3d 22, 26. Although there is no fixed formula for determining a reasonable attorney’s fee, a court should be guided by these long-recognized factors:
| ¾(1) the experience and ability of the attorney; (2) the time and labor required to perform the service properly; (3) the amount in controversy and the result obtained in the case; (4) the novelty and difficulty of the issues involved; (5) the fee customarily charged for similar services in the local area; (6) whether the fee is fixed or contingent;- (7) the time limitations imposed upon the client in the circumstances; and (8) the likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the attorney.
Id. at 9-10, 430 S.W.3d 22, 28 (citing Chrisco v. Sun Indus., Inc., 304 Ark. 227, 800 S.W.2d 717 (1990)). Because of the trial court’s intimate acquaintance with the record and the quality of service rendered, the appellate court will usually recognize the judge’s superior perspective in assessing the applicable factors. Id.
The following-facts concerning the motor-vehicle accident are pertinent to the present appeal. Mr. Bateman’s daughter was driving his car and, while stopped at a red light, was hit from behind by a car that Lillian C. Heird was driving. The Batemans filed a lawsuit against Ms. Heird in September 2011. Ms; Bateman sought damages for personal injury, and Mr. Bateman sought $622.98 of property damage and $50 costs for renting a car while his was being repaired. As allowed by statute, Mr. Bateman requested double damages, an attorney’s fee,- and court costs for failure to pay damages:
In all cases wherein loss or damage occurs to property resulting from motor vehicle collision amounting to one thousand dollars ($1,000) or less, and the defendant liable, without meritorious defense, shall fail to pay the loss or damage within sixty (60) days after written notice of the .claim has been received, then the defendant shall be liable to pay the person entitled thereto double the amount of the loss or damage, together with a reasonable attorney’s fee, which shall not be less than two hundred fifty dollars ($250), and court costs.
Ark. Code Ann. § 27-53-402(a) (Repl. 2010) (emphasis added).
In November 2012, upon motion of Ms. Bateman, the trial' court dismissed her 1 ¡¡personal-injury claim without prejudice, and a bench trial' was held eight days later on Mr. Bateman’s claim for property damage. At the conclusion of the trial and in a subsequent written judgment, the court fixed property damage at $622.98, doubled the damages pursuant to statute, awarded $50 for car rental at $25 dollars for each of two. days, and awarded a $750 attorney’s fee and $215 in fees for filing and service. In Bateman I, Mr. Bateman appealed the trial court’s award of his attorney’s fee as not being a reasonable amount. Because we were unable to determine the basis of the trial court’s decision, we remanded for consideration of the Chrisco factors.
After remand, Mr. Bateman filed a supplemental motion for attorney’s fee in the trial court. He renewed his previous motion for fees and services provided by his own attorney, Winfred A. Trafford; for $1600 to Terry F. Wynne, who had tried the previous case; and $2432 to Bridges, Young, Matthews & Drake, PLC, for work on appeal. Attached to the motion were three exhibits: the Trafford Law Firm’s time sheets for pertinent dates from August 2009 through December 2012; Mr. Wynne’s invoice for services from April through November 2012;' and billings from the Bridges law firm from February through July 2013. Additionally, Mr. Bateman asked that “the award be enhanced by' a multiple1 of five (5) to $87,347.50 plus the fees to the conclusion of this proceeding.” He asserted that — in light of a stipulation of Ms. Heird’s liability for the accident and of her expert’s agreement with the amount of property damages — her defense arid her insurer’s failure to pay the claim were “clearly frivolous and acts of bad faith.”
|40n September 19, 2014, the trial court conducted a hearing on whether Mr. Bate-man’s request was reasonable. Mr. Traf-ford testified regarding his work on the case. Gene McKissic, an attorney in the community, testified that both Mr. Traf-ford’s services in the case and his “below market” hourly rate of $175 were reasonable. The court accepted a stipulation that testimony by Zack Taylor would duplicate that of Mr. McKissic.
By written order of October 22, 2014, the trial court again awarded $750 as a reasonable attorney’s fee. The court rejected Mr. Bateman’s request to increase the fee he claimed by an enhancement multiplier, finding that he had provided no legal basis or authority for the enhancement. The court’s analysis of the Chrisco factors in this case included the following findings.-
1. Experience and Ability of the Attorney
Mr. Trafford, a member of the Arkansas bar for more than forty years, had a good reputation within the Jefferson County Bar.
2.- Time and Labor Required to Perform the Service Properly
The lawsuit sought damages for personal injury and property damage. Mr. Traf-ford requested 6.84 hours at $175 an hour as his own attorney’s fee, 8 hours at $200 an hour for Terry Wynne, 17 hours at $143 an hour for Jack Talbot, and an enhancement of five times those amounts. Furthermore,
[bjeeause this was filed as a personal injury and property damage case, the Court cannot separate the fee for the time spent exclusively on the property damage aspect of the trial. Although Trafford testified that all of the .time requested was. exclusively for the property damage aspect of the case, the Court finds- that his testimony lacks credibility.
|fi3. Amount in Controversy and the Result Obtained in the Case
The Batemans’ complaint sought unspecified personal-injury damages up to $75,000 and sought property damage of $622.98 plus statutory penalty and an attorney’s fee. After the bench trial, • the court awarded $622.98 for property damage, $622.98 for the statutory penalty, $50 for a rental car, and $750 for thé attorney’s fee and costs. The personal injury case was non-suited eight days before the scheduled jury trial. At the hearing after remand, Mr. Trafford testified that “the personal injury claim was not worth pursuing because his client had very small damages of approximately $500, for three chiropractor visits,” an amount that Mr. Trafford did not believe a jury would award.
4.Novelty and Difficulty of the Issues Involved .
. “Both sides and the Courfyagree that this is a simple personal injury and property damage case.” ,
5.Fee Customarily Charged for Similar Services in the Local Area
The court “is unaware of any attorney who charges an hourly rate” in personal injury and property damage cases, 'where the fee is customarily.contingent.
6.Whether the Fee is Fixed or Contingent '
Mr. Trafford presented no evidence of whether his fee arrangement with the Batemans was fixed or contingent. Although he introduced his “statement” for services, there was no evidence of a contract for his services to the Batemans or any billing for his work.
7.Time Limitations Imposed upon the Client in the Circumstances
|r,Two days were required for the repair of Mr. Bateman’s vehicle, and he was awarded reimbursement to cover the expense of renting a car. The circumstances of the case did not impose time limitations on anyone, nor were time limitations involved. Moreover, the first trial was continued at Mr. Bateman’s request so that he could conduct further discovery.
8.Likelihood,-if Apparent to the Client, that the Acceptance of the ' Particular Employment unit Preclude Other Employment by the Attorney
Again, the parties-agreed that this was a simple personal injury and property damage case. Further, there was “no evidence” that Mr: Trafford was precluded from any other employment or was precluded from accepting any new cases.- Despite testifying that- he was precluded from accepting other cases, he could not recall any specific case that he turned down because of this one.
The trial court concluded that the attorney’s fee claimed in this case was “grossly excessive.” In 'arriving at its conclusion, the court.revisited its findings under the Chrisco factors. It noted that, in.its own experience, it was not uncommon for a defendant to admit liability for an accident but to dispute proximate cause and damages; that the complaint sought up to $75,000 for personal injuries; and that the defendant here had no choice but to prepare for trial and to utilize discovery methods allowed by our. rules of civil procedure. It also noted that Mr. Bateman never sought the court’s relief for abusive or offensive discovery methods and that his attorney testified that the.personal injury claim was not worth.pursuing because he did not think a jury would award the $500 in damages for chiropractic visits. The court found that this was a simple personal-injury and property-damage case with no difficult or novel issues, and that nothing about it should have required excessive time or labor by his 17attorney, who waited until- eight days before the scheduled jury trial to nonsuit the personal injury claims.
On October 30,'2014, Mr. Bateman filed a motion for new trial arid for reconsideration. Because there was no ruling on the motion, it'was deemed denied thirty days later. Mr. Bateman brings the present appeal from the trial court’s October 22,-2014 order awarding an attorney’s fee of $750 and the denial of his motion for new trial and for reconsideration.
Mr. Bateman contends, as he did in Bateman I, that the- trial court abused its discretion in again awarding an attorney’s fee of only $750. He requests that the- case be remanded with orders that the trial court more realistically consider -the value of the time his attorney, Mr. Traf-ford, had to spend on it. Mr. Bateman notes Ms. Heird’s response to his supplemental motion, in which she admitted causing the accident but denied causing any personal injury or property damage and conceded that some ’ inefficiency was to be expected when inexperienced counsel such as hers were involved. He relies on various parts of Mr. Trafford’s testimony: he had handled more than a thousand lawsuits; he had never had to spend as much time on a case as this one, which he was forced to do because of defense motions and discovery requests; the jury trial was requested by the defense; his agreement with Mr. Bateman — a client of forty years — was that he would owe nothing if there was no recovery from the insurance company. Pointing to the defense’s lengthy depositions of the Batemans, along with its interrogatories and production requests, Mr. Bateman asserts that the trial court abused its discretion by ignoring the time that a lawyer must spend on motions |sand discovery requests even if a case is factually simple. He argues that his failure to object to discovery as being oppressive misses the point: Arkansas Code Annotated § 27-53-402 is meant to discourage time-consuming and unnecessary discovery devices. He argues that the absence of billing Mr. Bate-man is of no significance; that his [Traf-ford’s] fee was contingent; that his $175 hourly fee was accepted as reasonable; and that, whether the tiny nonsuited personal injury claim could be separated from the property damage claim or not, $750 was laughable for the time required in this case and was contrary to the purpose of the statute.
We find no merit to Mr. Bateman’s arguments. Significantly, the trial court found a lack of credibility to Mr. Trafford’s testimony that all of the claimed time for the attorney’s fee was exclusively for the property damage aspect of the case. The court stated its inability, because the complaint was filed as a personal injury and property damage case, to separate the fee for time spent exclusively on the property damage aspect of the trial. The court found that no time limits were imposed upon the client, who was awarded his two-day car-rental fee for the time that his car was being repaired. Noting Mr. Traf-ford’s inability to recall any specific case that he had turned down because of this one, the court found no evidence that this case precluded him from any other employment or from accepting new cases. The court also found no evidence of a legal basis or authority- for enhancing the requested fee by five.
These findings turned on determinations of the credibility of trial testimony and the weight of the evidence, which are matters within the purview of the trial court rather than the appellate court. We hold that the trial court did not clearly err in making the findings on which it based its decision to award an attorney’s fee in the amount of $750. We find no 19abuse of discretion by the trial court in making that determination, and we affirm.
Affirmed.
Kinard and Hixson, JJ., agree.
. See Bateman I for a complete history, of the proceedings below. | [
112,
-22,
100,
-83,
26,
98,
18,
24,
121,
-53,
-89,
83,
-81,
-41,
17,
35,
-9,
61,
101,
107,
-41,
-77,
23,
-126,
-10,
-77,
59,
-47,
-71,
-52,
-28,
-33,
77,
56,
-62,
-99,
102,
-61,
-123,
-14,
10,
0,
-5,
109,
-55,
67,
48,
57,
6,
71,
49,
-98,
-61,
44,
57,
106,
108,
44,
63,
-79,
-40,
-71,
-117,
15,
79,
16,
-96,
-76,
-100,
6,
88,
40,
-120,
61,
0,
-55,
114,
-90,
-62,
84,
99,
-103,
-100,
98,
103,
16,
101,
71,
-7,
-119,
38,
-10,
15,
-90,
-102,
120,
91,
5,
-66,
-65,
120,
20,
7,
-4,
-12,
29,
28,
108,
1,
-50,
-48,
-77,
-81,
68,
12,
80,
-17,
-53,
20,
101,
-52,
-30,
94,
68,
123,
-69,
-98,
-124
] |
ROBERT L. BROWN, Justice.
| lAppellant Donnell Richard brings this appeal in which he challenges the order of the Jefferson County Circuit Court granting appellee Union Pacific Railroad Company’s (Union Pacific) motion to dismiss Richard’s complaint with prejudice based on Arkansas Rule of Civil Procedure 41. Richard contends that the circuit court erred in its interpretation and application of Rule 41 to the facts of this case. We agree, and we reverse the circuit court’s dismissal of Richard’s complaint and remand for further proceedings.
On March 28, 2008, Richard filed a complaint in the Federal District Court of Harris County, Texas, against Union Pacific under the Federal Employers’ Liability Act, 45 U.S.C. §§ 51-60. In that complaint, he alleged that, during the course and scope of his employment, he suffered physical injuries because of Union Pacific’s negligence. On October 14, 2009, 12Richard filed a notice of nonsuit without prejudice in the Texas federal district court. That court granted Richard’s motion and entered an order of nonsuit on October 16, 2009.
On March 11, 2010, Richard refiled his cause of action against Union Pacific in Arkansas in the Jefferson County Circuit Court. On July 6, 2010, Union Pacific answered and affirmatively pled, among other things, that Richard’s complaint should be dismissed for insufficiency of service of process and insufficiency of process. On September 7, 2010, Union Pacific moved to dismiss Richard’s complaint, alleging that Richard’s summons was defective because it stated that Union Pacific, a foreign corporation, had sixty days to answer the complaint instead of the thirty days required by law. Union Pacific asserted in its motion, in addition, that it was entitled to a dismissal with prejudice under Arkansas Rule of Civil Procedure 41(b) in light of Richard’s prior voluntary dismissal of his suit in Texas.
In response to this motion, Richard filed an affidavit by his counsel, Todd Elias, as well as an affidavit by Gordon Holloway, Union Pacific’s counsel in the Texas case. Elias and Holloway averred in their respective affidavits that the Texas complaint was dismissed because Richard filed a nonsuit at Union Pacific’s request and with its agreement. Specifically, Holloway stated in his affidavit that he contacted Elias, to see if Elias would agree to dismiss the case in Texas and refile the ease in Arkansas so that Union Pacific might be able to bring a third-party claim against an Arkansas company who was not subject to suit in Texas.
On March 4, 2011, the circuit court held a hearing on Union Pacific’s motion to dismiss. At that hearing, Richard claimed that the two-dismissal rule set out in Rule 41 did not apply because the first dismissal in Texas was the result of a joint agreement between the |sparties to dismiss the Texas case. Union Pacific responded and contended that Richard’s complaint should be dismissed with prejudice because the parties did not enter into a joint agreement regarding dismissal of the first complaint. Union Pacific maintained that the record only reflected that Richard requested and obtained a nonsuit on his own motion. Therefore, Union Pacific urged, Richard’s complaint should be dismissed with prejudice under Rule 41(b) because this was a second dismissal following his previous nonsuit in Texas.
The circuit court concluded at the hearing that Richard’s summons was defective because it stated that Union Pacific had sixty, rather than thirty, days to answer the complaint. The court further found that Richard’s complaint should be dismissed under Arkansas Rule of Civil Procedure 4(i) because service of the summons had not been completed on Union Pacific within 120 days after the filing of the complaint. The court then issued its ruling on whether the dismissal would be with or without prejudice. Apparently relying on Rule 41(a) to dismiss with prejudice, the court said
[T]he rule is plain. It says, a voluntary dismissal operates as an adjudication on the merits when filed by a plaintiff who has once dismissed in any court of the United States or of any state an action based upon or including the same claims ... unless all parties agree by written stipulation that such dismissal is without prejudice. In this case ... there is no written stipulation that [this case is] dismissed without prejudice. So, with the plain reading of Rule 41, and ... the Arkansas Rules of Civil Procedure [are] to be strictly construed, the court has no choice but to order that [this case is] dismissed with prejudice. And that will be the order of the court.
On March 15, 2011, the circuit court entered an order dismissing the case with prejudice “[f]or all the reasons stated by the court on the record at the hearing.” A week later, on March 22, 2011, the circuit court entered a second order granting Union Pacific’s |4motion to dismiss and dismissing Richard’s complaint with prejudice. Specifically, the court said in its March 22, 2011 order, “After reviewing the pleadings and upon the argument of counsel, this Court finds that Union Pacific’s Motion to Dismiss is well-founded and hereby grants the motion and dismisses the Complaint with prejudice.”
The sole question on appeal is whether the first dismissal in Texas triggers the two-dismissal rule under either Rule 41(a) or (b) and, thus, whether the circuit court erred in dismissing the suit with prejudice. In general, a Rule 41 dismissal is reviewed under the abuse-of-discretion standard. See Jonesboro Healthcare Ctr., LLC v. Eaton-Moery, 2011 Ark. 501, 385 S.W.3d 797. But when this court must construe the meaning of a court rule, our review is de novo. Id. When we construe a court rule, we use the same means and canons of construction that we use to interpret statutes. Id. In considering the meaning and effect of a statute or rule, we construe it just as it reads, giving the words their ordinary and usually | ¿accepted meaning in common language. Id. The basic rule of statutory construction to which all other interpretive guides defer is to give effect to the intent of the drafting body. Id. As a guide in ascertaining the drafter’s intent, this court often examines the history of the statute or rule involved, as well as the contemporaneous conditions at the time of their enactment, the consequences of interpretation, and all other matters of common knowledge within the court’s jurisdiction. Id.
Richard initially claims that the circuit court erred in dismissing his complaint with prejudice based on Arkansas Rule of Civil Procedure 41(a), which provides in pertinent part:
(a) Voluntary Dismissal; Effect Thereof.
(1) Subject to the provisions of Rule 23(e) and Rule 66, an action may be dismissed without prejudice to a future action by the plaintiff before the final submission of the ease to the jury, or to the court where the trial is by the court. Although such a dismissal is a matter of right, it is effective only upon entry of a court order dismissing the action.
(2) A voluntary dismissal under paragraph (1) operates as an adjudication on the merits when filed by a plaintiff who has once dismissed in any court of the United States or of any state an action based upon or including the same claim, unless all parties agree by written stipulation that such dismissal is without prejudice.
He contends that the circuit court’s dismissal was in error because he did not unilaterally or voluntarily dismiss his cause of action against Union Pacific in Texas. He maintains, instead, that the Texas case was dismissed at the suggestion, and with the full agreement, of Union Pacific. Relying on this court’s decision in Smith v. Washington, 340 Ark. 460, 10 S.W.3d 877 (2000), he urges this court not to apply a “literal” interpretation of Rule 41 because the purpose behind that rule, which is to prevent unreasonable use of the plaintiffs unilateral rights to dismiss an action, is not served where there has been a joint agreement between the | ¿plaintiff and defendant to dismiss the case. He urges this court to hold that the Texas dismissal did not count toward the two-dismissal rule.
Union Pacific, in contrast, maintains that the Smith decision is inapplicable to the case at hand because it involved a joint stipulation to dismiss, while in the instant case, the nonsuit in Texas was requested by Richard alone. It further contends that Smith was decided in the context of Rule 41(a), and this case should be analyzed in light of Rule 41(b). Therefore, according to Union Pacific, Smith does not apply to the case before us.
An analysis of the Smith case is necessary to the resolution of this case. In Smith, the plaintiffs first complaint, which was filed in federal district court, was dismissed pursuant to a joint stipulation of dismissal without prejudice executed by both parties in accordance with Federal Rule of Civil Procedure 41(a)(1). Smith, 340 Ark. at 462, 10 S.W.3d at 879. The plaintiff next refiled her cause of action in state court but subsequently took a voluntary nonsuit. Id. She then filed her cause of action a second time in state court, and the defendant moved to dismiss on the basis of the two-dismissal rule of Rule 41(a)(2). Id. at 462-63, 10 S.W.3d at 879.
|7The circuit court accepted the defendant’s contention that the plaintiffs dismissal of her federal court action by stipulation coupled with her voluntary nonsuit of her first state court complaint triggered the two-dismissal rule, which rendered her voluntary dismissal of her first state court action an adjudication on the merits. Smith, 340 Ark. at 463, 10 S.W.3d at 879. The court, as a result, dismissed the plaintiffs complaint in her second state action with prejudice. Id. The plaintiff appealed, and this court was confronted with the question of whether a stipulation of dismissal executed by both the plaintiff and the defendant in a federal lawsuit, pursuant to Federal Rule of Civil Procedure 41(a)(l)(ii), should be treated as a dismissal by the plaintiff for purposes of applying the “adjudication on the merits” provision of the two-dismissal rule under Arkansas Rule of Civil Procedure 41(a)(2). Id.
This court agreed with the plaintiff in Smith and held that the joint stipulation by the parties in the federal court action demonstrated that the plaintiff did not unilaterally dismiss her action. Id. at 466, 10 S.W.3d at 881. We went further and explained that the purpose behind the two-dismissal rule is to prevent unreasonable use of the plaintiffs unilateral rights to dismiss an action prior to the filing of the defendant’s responsive pleading, and we added that it is an exception to the general principle that a voluntary dismissal of an action does not bar a new suit based on the same claim. Id. at 464, 10 S.W.3d at 880 (citing Sutton Place Dev. Co. v. Abacus Mortgage Inv. Co., 826 F.2d 637 (7th Cir. 1987); Poloron Prods., Inc. v. Lybrand Ross Bros. & Montgomery, 534 F.2d 1012 (2d Cir.1975)).
This court also noted in Smith that the two-dismissal rule was unique at the time it was first adopted, and the intention was to prevent delays and harassment by plaintiffs securing | ^numerous dismissals without prejudice. Id. (citing 9 Charles A. Wright and Arthur R. Miller, Federal Practice and Procedure Civ. § 2368 (2d ed.1995)). But we made the point that “where the purpose behind the two-dismissal exception would not appear to be served by its literal application, and where that application’s effect would be to close the courthouse doors to an otherwise proper litigant, a court should be most careful not to construe or apply the exception too broadly.” Id. (citing Poloron, 534 F.2d 1012 (2d Cir.1975)) (emphasis added). Citing favorably to the United States Court of Appeals for the Second Circuit’s opinion in Poloron, we noted
[T]he danger of such abuse [by the plaintiff of his or her unilateral right to dismiss an action] diminishes, however, where the first dismissal is by stipulation. A dismissal by stipulation is not a unilateral act on the part of the plaintiff but rather is a mutual agreement by all the parties.... The filing of a notice of dismissal preceded by a dismissal by stipulation knowingly consented to by all parties does not activate the two-dismissal bar against bringing an action based on or including the same claim.
Id. at 465, 10 S.W.3d at 880-81 (quoting Poloron, 534 F.2d at 1017-18).
We next observed in Smith that under those facts, the plaintiff could not have acted alone in effecting a dismissal by stipulation under federal court procedural rules. Thus, we said, “Because [the defendant] must have agreed to participate in the dismissal in order to achieve it, the dismissal by stipulation was not a dismissal taken only by [the plaintiff] and thus does not trigger the consequences of the two-dismissal rule.” Smith, 340 Ark. at 466, 10 S.W.3d at 881. This court explained that “[w]here a defendant has acted in combination with the plaintiff in obtaining a joint dismissal by stipulation of a claim, and received benefit from that action, that defendant cannot assert that the plaintiff should be barred as a result of the stipulated dismissal from filing a later claim.” Id. We held, as a result, that the dismissal by ^stipulation entered into by the parties in federal district court was not a dismissal by the plaintiff for purposes of Rule 41(a)(2), and that her second filing of her cause of action in state court was not barred by the two-dismissal rule. Id.
More recently, this court again discussed the policy and purpose behind the two-dismissal rule when we decided that a dismissal for lack of subject-matter jurisdiction by the state district court is not the type of voluntary dismissal by a plaintiff contemplated by Rule 41(a), nor the type of involuntary dismissal contemplated by Rule 41(b). See Jonesboro Healthcare Ctr., LLC v. Eaton-Moery, 2011 Ark. 501, at 12, 385 S.W.3d at 804. In Jonesboro Healthcare, the plaintiff filed its suit in the Craighead County District Court. Id. at 1, 385 S.W.3d at 798. Seven days later, the district court entered an order dismissing the case without prejudice due to a lack of subject-matter jurisdiction. Id. at 2, 385 S.W.3d at 798-99. On the same day that its complaint was dismissed in district court, the plaintiff filed the identical complaint in circuit court. Id. The defendant answered the complaint and then moved to dismiss the complaint with prejudice due to a fatally flawed summons that did not meet the requirements of Arkansas Rule of Civil Procedure 4(b). Id.
On appeal, this court observed that Rule 41(b) “was intended to allow the trial courts to clean up their dockets and get stale cases off the active docket.” Jonesboro Healthcare, 2011 Ark. 501, at 9, 385 S.W.3d at 802 (quoting Cory v. Mark Twain Life Ins. Corp., 286 Ark. 20, 22, 688 S.W.2d 934, 935 (1985)). Citing favorably to the Smith decision, this court observed that in Jonesboro Healthcare there had been no “unreasonable use of the plaintiffs unilateral rights to dismiss an action” because a dismissal for lack of subject-matter jurisdiction may be | inraised by either party or by the court itself and is, therefore, not within the plaintiffs unilateral rights to dismiss. Id. at 10, 385 S.W.3d at 802-03. This court also referenced the fact that there had not been any delays or harassments by the plaintiff in securing numerous dismissals without prejudice; rather, there was only the one dismissal for lack of subject-matter jurisdiction that was the result of a mistake made by filing the complaint in the wrong jurisdiction. Id. This court held that
dismissal for lack of subject-matter jurisdiction is not the type of voluntary dismissal contemplated by Rule 41(a), nor the type of involuntary dismissal that is contemplated by Rule 41(b). Rule 41 is silent with respect to dismissal for lack of subject-matter jurisdiction, and a literal application of the plain language of Rule 41(b) concerning previous dismissals “whether voluntary or involuntary” to include a reference to dismissals for want of subject-matter jurisdiction brings about a harsh result in this case not intended by the rule, as well as an absurd result that is contrary to well-established law.
Id. at 12, 385 S.W.3d at 804.
Under our canons of construction, this court is to construe rules just as they read, giving the words their ordinary and usually accepted meaning in common language. As noted above, neither Rule 41(a) nor 41(b), unlike Federal Rule of Civil Procedure 41(a), contains any reference to a joint agreement to dismiss. Rule 41(a)(2) merely states that a voluntary dismissal “operates as an adjudication on the merits when filed by a plaintiff who has once dismissed in any court of the United States.... ” Ark. R. Civ. P. 41(a)(2) (emphasis added). Rule 41(b) provides that a dismissal where there has been a failure of the plaintiff to comply with the rules is without prejudice “unless the action has been previously dismissed, whether voluntarily or involuntarily, in which event such dismissal operates as an adjudication on the |nmerits.” Ark. R. Civ. P. 41(b) (emphasis added). As evidenced by the record, the motion to dismiss in Texas was filed by Richard alone.
In the instant case, however, there is no real dispute that the Texas dismissal in federal court was requested by Richard at the urging of Union Pacific and with its agreement. Holloway, Texas counsel for Union Pacific, averred in his affidavit that he contacted Richard’s Texas counsel, Elias, to determine if Elias would agree to dismiss the case in Texas and refile the case in Arkansas so that Union Pacific might be able to bring a third-party claim against an Arkansas company that was not subject to suit in Texas. In its brief on appeal, Union Pacific admits that it does not dispute that Richard dismissed his case in Texas at its request and with its agreement despite the fact that the record reflects that the notice of nonsuit in Texas was filed by Richard only and that the Texas court’s order granted Richard’s motion for nonsuit without prejudice.
It is true that there was no indication or reference in the motion, or order granting the motion, that the nonsuit was being requested by both parties. That, though, does not end the matter as this court will not cast a blind eye to the affidavit filed by Union Pacific’s counsel in Texas and Union Pacific’s own admissions in its appellate brief. Here, similar to what this court noted in our Smith opinion, there is no evidence that Richard was attempting to abuse the system by delaying and harassing Union Pacific through a series of dismissals without prejudice. See Smith, 340 Ark. at 464, 10 S.W.3d at 880. Additionally, because the dismissal was entered into based, at least in part, on Union Pacific’s request and to accommodate the railroad company so that it could file a third-party complaint in Arkansas, the dismissal was 112not an unreasonable exercise of Richard’s unilateral right to dismiss his case. See id. Rather, Richard’s dismissal was done in no small part to benefit Union Pacific. It would be directly contrary to the purpose of Rule 41 for the two-dismissal rule to be employed under these circumstances.
We agree that the Smith case is distinguishable from the instant case because it dealt with a first dismissal under Federal Rule 41(a), which permits a stipulation of dismissal signed by all of the parties. We disagree with the argument of Union Pacific, however, that if this court were to rule that the first dismissal does not operate to trigger the two-dismissal rule, then this court would be allowing an exception to that rule based on plaintiff motivation to supersede the rule. This court would then be forced, according to Union Pacific, to engage in an in-depth factual analysis, which includes monitoring conversations between attorneys, in order to ascertain if every time there is a nonsuit, the parties mutually agreed that the plaintiff would dismiss his or her case.
We disagree with the scenario mounted by Union Pacific and decline to apply Rule 41(a) and (b) in a vacuum. It would not only be adverse to the purpose of the two-dismissal rule in Rule 41 to invoke it under these circumstances, but a literal construction of Rule 41 in this case without reference to the ameliorating facts surrounding the first dismissal would also be harsh and draconian. Though the facts and law in the Smith case are distinguishable, |1swe made mention of the harshness of a strict interpretation of Rule 41 in that case. See Smith, 340 Ark. at 464, 10 S.W.3d at 880 (favorably citing Poloron, 534 F.2d 1012 (2d Cir.1975) (saying that “[W]here the purpose behind the two-dismissal exception would not appear to be served by its literal application, and where that applieation’s effect would be to close the courthouse doors to an otherwise proper litigant, a court should be most careful not to construe or apply the exception too broadly.”). We made reference again to the same harshness in Jonesboro Healthcare. See Jonesboro Healthcare, 2011 Ark. 501, at 12, 385 S.W.3d at 804 (stating that “[A] literal application of the plain language of Rule 41(b) concerning previous dismissals ‘whether voluntary or involuntary’ to include a reference to dismissals for want of subject-matter jurisdiction brings about a harsh result in this case not intended by the rule, as well as an absurd result that is contrary to well-established law.”).
We reverse the order of dismissal with prejudice by the circuit court, and we remand for further proceedings.
Reversed and remanded.
. In addition to this case, a companion case, Mack v. Union Pacific R.R. Co., 2012 Ark.App. 115, — S.W.3d -, was appealed to the court of appeals. The Mack case involved the same facts, same issues, and same attorneys as the instant case. These two cases were also heard together before the circuit court. The court of appeals determined that the second dismissal was involuntary and, therefore, applied Arkansas Rule of Civil Procedure 41(b). Mack, 2012 Ark. App. 115, at 6, — S.W.3d at -. In Mack, unlike the instant case, there was no evidence submitted supporting Mack’s contention that there was a joint agreement to nonsuit the Texas case. The court of appeals, accordingly, concluded that the Texas case was unilaterally and voluntarily dismissed by Mack and held that the circuit court, therefore, did not err in dismissing Mack's Arkansas complaint with prejudice under Rule 41(b). Id. at 8-9, -S.W.3d at
. It is unclear from the record whether the circuit court dismissed Richard’s complaint pursuant to Arkansas Rule of Civil Procedure 41(a) or (b). The nature of the second dismissal is irrelevant, however, if this court determines that the Texas dismissal did not trigger the two-dismissal rule under either subsection of Rule 41.
. Rule 41(b) provides as follows:
(b) Involuntary Dismissal. In any case in which there has been a failure of the plain tiff to comply with these rules or any order of court or in which there has been no action shown on the record for the past 12 months, the court shall cause notice to be mailed to the attorneys of record, and to any party not represented by an attorney, that the case will be dismissed for want of prosecution unless on a stated day application is made, upon a showing of good cause, to continue the case on the court’s docket. A dismissal under this subdivision is without prejudice to a future action by the plaintiff unless the action has been previously dismissed, whether voluntarily or involuntarily, in which event such dismissal operates as an adjudication on the merits.
. The joint stipulation of dismissal that is specifically allowed under Federal Rule of Civil Procedure 41(a), is different from the written-stipulation provision provided under Arkansas Rule of Civil Procedure 41(a), which allows parties to stipulate in writing that a second dismissal by the plaintiff, which would otherwise be with prejudice, is without prejudice. | [
-80,
-24,
-10,
12,
40,
-31,
50,
-102,
83,
-29,
39,
-45,
-19,
-22,
-119,
63,
-29,
63,
119,
59,
-31,
-93,
69,
-30,
83,
-78,
121,
-57,
-68,
75,
-28,
-34,
77,
16,
-21,
-107,
70,
66,
-63,
28,
-114,
0,
41,
-18,
25,
-59,
32,
-29,
70,
31,
17,
-66,
-13,
46,
24,
-61,
12,
47,
-3,
-87,
66,
121,
-110,
7,
125,
0,
-95,
4,
-100,
7,
120,
58,
-40,
48,
49,
-104,
82,
-74,
-122,
-44,
99,
-99,
64,
102,
99,
35,
21,
-89,
-52,
-88,
47,
-70,
31,
-89,
-80,
40,
75,
79,
-105,
-67,
84,
20,
-122,
-4,
110,
-115,
30,
108,
-125,
-114,
-108,
-77,
-97,
100,
-98,
75,
-21,
55,
-108,
116,
-50,
-94,
92,
7,
51,
31,
95,
-90
] |
WAYMOND M. BROWN, Judge.
11 This is an appeal from a Sebastian County jury trial finding the appellant, Quincy Jay Plessy, guilty of first-degree murder and committing a felony with a firearm. Plessy argues on appeal that there was insufficient evidence to support his conviction. He also contends that the trial court erred by allowing the prosecution to amend the criminal information on the eve of trial; by not granting his motion for a mistrial after prejudicial misconduct by the prosecution; by finding that statements by the victim were admissible as a dying declaration; and by allowing the introduction of prejudicial photographs of the victim’s body over defense objection. We affirm on all points.
19Factual Background
On November 30, 2009, Thomas Xavier Clayton was found by witnesses at an intersection in Fort Smith with multiple gunshot wounds after falling or being thrown from the back seat of a maroon four-door vehicle. Clayton was transported to St. Edward’s Hospital, where he died less than an hour later. Appellant Quincy Jay Plessy was arrested on December 4, 2009, and was charged with one count of first-degree murder by information filed on December 8, 2009. On March 1, 2011, the State filed notice that it intended to amend the information to include an enhancement for use of a firearm during the commission of a felony, pursuant to Ark.Code Ann. § 16-90-120. The enhancement would allow up to fifteen additional years to be added to Plessy’s sentence. The amended information was filed on April 13, 2011.
Trial was held on April 18-20, 2011, and a jury convicted Plessy of first-degree murder and sentenced him to 360 months in the Arkansas Department of Correction with a consecutive five-year firearm enhancement, for a total sentence of 420 months. The judgment and commitment order was entered on April 21, 2011, and Plessy timely filed a notice of appeal.
3 Discussion
I. Sufficiency-of-the-Evidence Argument Not Preserved for Appeal
Plessy contends that the trial court erred in allowing a felony conviction because the testimony of his accomplice, Jamal Gibson, was not corroborated at trial, and that there was therefore insufficient evidence to convict him of first-degree murder. Although Plessy has raised this as his last point of appeal, double-jeopardy considerations require us to review a challenge to the sufficiency of the evidence first. However, we are precluded from considering a sufficiency-of-the-evidence argument because it was not preserved for appeal. At the close of the State’s case-in-chief, defense counsel for the appellant made this motion: “Also, move for a directed verdict in this case saying that the evidence does not rise to [a] sufficient level to take this case to the jury.” The court denied the motion. At the close of all evidence, counsel renewed the motion by stating, “I’d also like to move at this time for a directed verdict in this case, directed verdict of a [sic] acquittal.” The trial court again denied the motion.
Arkansas Rule of Criminal Procedure 33.1(a) (2011) requires that a motion for a directed verdict specify how the evidence is deficient. A party is bound by the scope and |4nature of his directed-verdict motion and cannot change the grounds on appeal. An appellant’s failure to raise the issue of accomplice corroboration in his directed-verdict motion precludes appellate review of that issue. Because Plessy’s directed-verdict motion did not specify any deficiency in the State’s proof, we cannot consider his claim that the evidence at trial was insufficient to convict him.
II. Trial Court Did Not Err in Allowing Amendment of Information
Plessy argues that the trial court erroneously allowed the State to amend the information as to the first-degree-murder charge on the morning of trial. He contends that, although the State filed notice that the information would be amended to include a felony-firearm enhancement, the notice did not indicate that the underlying murder charge would be changed, and that such a change unfairly prejudiced him.
The initial information filed on December 8, 2009, listed the charge as murder in the first degree pursuant to Ark. Code Ann. § 5-10-102. The area of the information form allotted for a description of the charge alleged that Plessy
did unlawfully and feloniously and acting alone or with one (1) or more other persons, committed or attempted to commit a felony and in the course of and in furtherance of the felony or in immediate flight from the felony, the person or an accomplice caused the death of Thomas Xavier Clayton under circumstances manifesting extreme indifference to the value of human life, OR IN THE ALTERNATIVE, did unlawfully, feloniously, and with the purpose of causing the death of | ¿Thomas Xavier Clayton, they caused the death of Thomas Xavier Clayton against the peace and dignity of the State of Arkansas.
(Emphasis added.) On March 1, 2011, the State filed notice that it intended to amend the information to include a felony-firearm enhancement, but did not indicate any intent to amend the underlying charge of first-degree murder. At a hearing on April 8, 2011, ten days before trial, the court asked if the information had been amended. The prosecutor said that it had not, but that counsel for Plessy would be provided a copy of the amended information that day. Plessy claims on appeal that he moved for a continuance at that time, but the record does not bear this out. The relevant exchange between the circuit court, the prosecutor, and defense counsel at the pretrial hearing was as follows:
Court: Now the State has filed a motion to file a felony firearm enhancement and the information has been amended. Hasn’t it, Mr. Wagoner?
Prosecutor: Well actually not yet, your Honor. I did fax notice. I will give a copy to Mr. Rush today.
Court: I will grant the State’s motion in limine to exclude decedent’s criminal record and that I do not think it would be relevant in this trial.
Defense Counsel: Thank you, your Honor, note my objection to this late motion. Based on that motion and the fact that I have not had a chance to look at it, research it, I would move for a continuance for the purpose of the record.
The amended information filed on April 13, 2011, again listed the underlying charge of murder in the first degree pursuant to Ark.Code Ann. § 5-10-102, and added a charge for felony with a firearm pursuant to Ark.Code Ann. § 16-90-120. In the area allotted for a description of the charge, the information set forth only the alternative charge from the original information, alleging that Plessy “did unlawfully and with the purpose of causing the | fideath of Thomas Xavier Clayton ... caused the death of Thomas Xavier Clayton against the peace and dignity of the State of Arkansas.”
At the beginning of trial on April 18, 2011, as the court prepared to read the information to the jury, the prosecutor approached the bench and provided the court with a copy of the amended information. Counsel for Plessy objected to the timing of the amendment, but did not object to any particular change made. The prosecutor replied that the State had the right to amend the information before trial, and stated that the felony-firearm enhancement had been added pursuant to the written notice that was filed on March 1, 2011. The court denied Plessyts objection and the trial proceeded.
Plessy argues on appeal that the trial court erred in not granting his motion for a continuance made at the April 8, 2011 hearing. However, we are not persuaded that the motion referred to the State’s notice to amend the information; rather, it immediately followed and appears to refer to the State’s motion in limine regarding the victim’s criminal record. At trial, Plessy objected that the amended information was filed “late in the case,” but did not mention a particular amendment or how it unfairly prejudiced him. The only amendment to the information discussed was the felony-firearm enhancement.
It is well settled that arguments not raised at trial will not be addressed for the first time on appeal. An appellant may not change the grounds for an objection on appeal, but is 17limited by the scope and nature of the objections and arguments presented at trial. Accordingly, Plessys argument that the amended information prejudicially changed the nature of his murder charge is not preserved for appeal. Nevertheless, the argument Ples-sy did preserve — that the amended information was filed too late — will require us to address whether the amended information impermissibly changed the nature of the murder charge against him.
The State is entitled to amend the information at any time prior to the case being submitted to the jury as long as the amendment does not change the nature or degree of the offense charged. A comparison of the original information filed on December 8, 2009, and the amended information filed on April 13, 2011, shows that the original information includ ed the charge of first-degree felony murder and, in the alternative, first-degree murder. Because the charge Plessy was tried for was contained in the original information filed in 2009, we fail to see how he was unfairly surprised or otherwise prejudiced by the amended information and find no error in the trial court allowing the State to amend the information the week before trial.
| SIII. Trial Court Did Not Err in Denying Motion for Mistrial
Roy Smith, a firefighter who was a first responder to the scene, testified that when he asked Thomas Clayton who shot him, Clayton responded, “Q.” Smith then confirmed with Brad Turner, the other first responder, that Clayton said “Q.” Turner testified that Clayton said, “all I know is Q” when he was asked who had shot him. At trial, several witnesses for the State testified that Plessy goes by the nickname “Q,” and Plessy testified that although he did not personally “go by Q,” other people, including Clayton, did call him that. During cross-examination by the State, the prosecutor showed Plessy a letter and asked him if he wrote it. Plessy said that he did not remember the letter. The prosecutor told him that the letter was from his school file, but Plessy again denied that he wrote the letter and said he did not remember it or know the person to whom it was addressed. When the prosecutor asked Plessy how the letter was signed, defense counsel requested a bench conference. At the bench, the court told the prosecutor not to ask further questions about the letter unless Plessy admitted that he wrote it.
Back in open court, the prosecutor again asked Plessy how the letter was signed, in contravention of the court’s instruction. Before counsel could object, Plessy replied, “Q.” At a second bench conference, defense counsel moved for a mistrial because the prosecutor continued to ask about the letter after the court told him not to. The court denied the motion on the grounds that Plessy had already testified that he never saw the letter, and said |3that defense counsel would be allowed to re-establish that testimony on redirect examination in lieu of giving a cautionary instruction. Plessy argues on appeal that the prosecutor engaged in misconduct by continuing to ask about the letter, and that the trial court erred in denying his motion for a mistrial.
A mistrial is an extreme remedy that should be granted only when the error is beyond repair and cannot be corrected by any curative relief. An admonition to the jury from the- trial court usually cures a prejudicial statement unless the statement is so patently inflammatory that justice cannot be served by continuing the trial, or when the funda mental fairness of the trial has been manifestly affected. In reviewing a mistrial motion, the appellate court must look at all developing circumstances that surround an incident to determine whether manifest abuse of discretion occurred.
|inWe do not find that Plessy’s statement that the letter was signed “Q,” or the prosecutor’s action in eliciting that testimony, resulted in the level of prejudice that would merit a mistrial. There was evidence before the jury that Plessy was known by the nickname “Q,” including the testimony of at least three State witnesses and Plessy’s own testimony that some people, including the victim Thomas Clayton, called him “Q.” As such, the statement does not constitute prejudice severe enough to render the trial fundamentally unfair. We find no abuse of discretion in the trial court’s denial of Plessy’s motion for a mistrial.
IV. Trial Court Did Not Err in Admitting Statement as a Dying Declaration
Arkansas Rule of Evidence 802 prohibits the admission of hearsay except as provided by law or by the rules of evidence. Under the hearsay exception found in Rule 804(b)(2), however, hearsay from an unavailable declarant, such as a deceased declarant, is not excluded if it is “[a] statement made by a declarant while believing that his death was imminent, concerning the cause or circumstances of what he believed to be his impending death.” The trial court determines whether a statement is admissible as a dying declaration, and we will not reverse that determination absent an abuse of discretion.
1n Dying declarations are deemed inherently trustworthy. The principal consideration upon which such statements are admitted is that a person who realizes that death is inevitable as a result of the injury inflicted speaks with solemnity and will not resort to fabrication in order to unjustly punish another. A sense of imminent death need not be shown by the declarant’s express words alone; it can be supplied by inferences fairly drawn from his condition.
Plessy filed a pretrial motion to exclude Thomas Clayton’s response, “Q,” when first responder Roy Smith asked who shot him, arguing that the testimony would show that Clayton gave different responses to the two witnesses who discovered him before Smith arrived. At a hearing on the motion, the trial court heard Smith’s testimony on this matter and on Clayton’s condition when he was discovered. Smith testified that Clayton had multiple wounds, was in distress and had no feeling in his legs, and began to go in and out of consciousness shortly after he iden tified “Q” as the person who shot him. Smith also testified that when he heard Clayton say “Q,” he immediately confirmed what Clayton had said with Brad Turner. The trial court denied Plessy’s motion and ruled that the statement was admissible as a dying declaration even if Clayton made differing statements to other witnesses. |12At trial, Roy Smith gave the same testimony, and Brad Turner testified that he too heard Clayton say “Q.” The medical examiner, Dr. Daniel Konzel-mann, testified that Clayton had sustained eight gunshot wounds, including one -that penetrated his aorta, and that four bullets were inside his body at the time of the autopsy. Witness testimony at trial also indicated that Clayton died less than an hour after the shooting occurred.
Plessy argues that the trial court should have excluded Clayton’s “Q” statement to Smith and Turner because Clayton gave conflicting statements to witnesses, thus rendering the statement inherently untrustworthy. This argument is without merit. At trial, one witness, Ty Adams, testified that he saw Clayton fall out of the car and went to assist him. When he asked Clayton who threw him out of the car, Clayton said he did not know. Adams then asked if he knew who he had been with in the ear, but Clayton replied only that he had been shot. Adams testified that Clayton appeared to be in shock and not able to communicate. Another eyewitness, Brian Johnson, testified that when he asked Clayton who shot him, Clayton just moaned. Subsequently, when firefighters Roy Smith and Brad Turner arrived, Clayton managed to say “Q” when Smith asked who had shot him. The record does not show inconsistency or contradiction in his responses to questions; rather, it indicates that Clayton was mortally injured and struggling to communicate. Moreover, it is the province of the jury to determine the reliability of identification testimony and to weigh any | ^inconsistencies in evidence; neither of those concerns affect the threshold question of whether the testimony is admissible.
Citing Thompson v. State, Plessy argues that Clayton’s one-word statement, “Q,” should have been ruled inadmissible because it did not specifically describe the cause and circumstances of his death. However, it is sufficient for a dying declaration to concern or refer to the cause or circumstances of what the declarant believed to be his impending death. Clayton’s statement was made in response to the question of who shot him. As such, it clearly referred to and concerned the circumstances and cause of his impending death, and qualifies as a dying declaration. The trial court did not abuse its discretion in denying Plessy’s motion in limine and allowing the statement into evidence at trial.
Y. Trial Court Did Not Err in Admitting Photographs
Plessy’s final argument on appeal is that the trial court erred in allowing the State to introduce nine photographs of Clayton’s body on the grounds that they had little probative value, were prejudicial, and were used only to inflame the jurors. We disagree.
114The admission of photographs is a matter left to the sound discretion of the trial court, and we will not reverse absent an abuse of discretion. When photographs are helpful to explain testimony, they ordinarily are admissible. The mere fact that a photograph is inflammatory or gruesome is not, standing alone, sufficient reason to exclude it. Even the most gruesome photographs may be admissible if they assist the trier of fact in any of the following ways: by shedding light on some issues, by proving a necessary element of the case, by enabling a witness to testify more effectively, by corroborating testimony, or by enabling jurors to better understand the testimony. Other acceptable purposes include showing the condition of the victim’s body, the probable type or location of the injuries, and the position in which the body was discovered.
At trial, the State sought to admit two of fourteen photographs of Clayton taken by Detective Ronald Scamardo in Clayton’s hospital room minutes after he was pronounced dead, and seven of forty-two photographs taken at the medical examiner’s office. Detective Scamardo testified that he took the photos to show that Clayton was deceased and to show the wounds he received. Dr. Daniel Konzelmann, the medical examiner who autopsied |1fiClayton’s body, used the photographs to assist with his testimony regarding cause of death and the location, characteristics, and effect of Clayton’s eight gunshot wounds. The number of photographs admitted was not excessive, and the photographs were used to show the condition of Clayton’s body and the type and location of his injuries, to enable witnesses to testify more effectively, and to help the jury better understand testimony concerning Clayton’s wounds and cause of death. Accordingly, the trial court did not err in admitting them into evidence.
Affirmed.
GRUBER and MARTIN, JJ., agree.
. The certificate of service certified that the notice had been faxed to defense counsel.
. Under Ark.Code Ann. § 16-89-111(e)(1)(A) (Repl.2006), a conviction cannot stand based on an accomplice's testimony unless that testimony is corroborated by other evidence tending to connect the defendant with the commission of the offense.
. Boldin v. State, 373 Ark. 295, 283 S.W.3d 565 (2008).
. E.g., Grady v. State, 350 Ark. 160, 85 S.W.3d 531 (2002).
. Tillman v. State, 364 Ark. 143, 217 S.W.3d 773 (2005).
. Id.
. Plessy does not challenge the felony-firearm enhancement itself.
. Nelson v. State, 84 Ark.App. 373, 141 S.W.3d 900 (2004).
. Tillman, supra.
. Hill v. State, 370 Ark. 102, 257 S.W.3d 534 (2007). In Hill, our supreme court held it was proper for the State to amend the information after the close of the State’s case-in-chief. Hill was originally charged with three counts of kidnapping under Ark.Code Ann. § 5 — 11—102(a)(4), which describes kidnapping for the purpose of inflicting physical injury. The amended information added allegations that the kidnappings were for the purpose of terrorizing another or facilitating the commission of a felony, pursuant to other subsections of the statute.
.Ark.Code Ann. § 5-10-102(a)(l)(A) & (B) (2006).
. Ark.Code Ann. § 5 — 10—102(a)(2) (2006).
. The court actually said that defense counsel could address the issue on "cross,” but as Plessy was testifying on his own behalf and this issue arose during the State's cross-examination, defense counsel’s next opportunity to question Plessy would be on redirect examination.
. Whether a curative instruction should have been provided is not an issue on appeal because Plessy did not request a curative instruction or otherwise raise the issue below. Nelson, supra.
. Brown v. State, 74 Ark.App. 281, 47 S.W.3d 314 (2001), aff'd, 347 Ark. 308, 65 S.W.3d 394 (2001).
. Walker v. State, 91 Ark.App. 300, 210 S.W.3d 157 (2005).
. King v. State, 361 Ark. 402, 206 S.W.3d 883 (2005).
. Boyd v. State, 318 Ark. 799, 889 S.W.2d 20 (1994).
. E.g., Simmons v. State, 95 Ark.App. 114, 234 S.W.3d 321 (2006).
. Hammon v. State, 338 Ark. 733, 2 S.W.3d 50 (1999).
. Grant v. State, 357 Ark. 91, 161 S.W.3d 785 (2004).
. Id.
. Boone v. State, 282 Ark. 274, 668 S.W.2d 17 (1984); see also Simpkins v. State, 48 Ark.App. 14, 889 S.W.2d 37 (1994) (holding that, based on the obvious severity of the wound, combined with the victim's almost immediate collapse and inability to breathe, trial court did not abuse its discretion in admitting testimony about victim’s statement).
. Fitch v. State, 2011 Ark. App. 663, 2011 WL 5176474 (citing Gray v. State, 318 Ark. 601, 888 S.W.2d 302 (1994)).
. Id. (citing Butler v. State, 2011 Ark. App. 621, 2011 WL 4824300).
. 306 Ark. 193, 813 S.W.2d 249 (1991).
. See Ark. R. Evid. 804(b)(2); Thompson, supra.
. Springs v. State, 368 Ark. 256, 244 S.W.3d 683 (2006).
. Id.
. Parker v. State, 292 Ark. 421, 731 S.W.2d 756 (1987).
. Springs, supra,
. Jones v. State, 340 Ark. 390, 10 S.W.3d 449 (200). | [
116,
-18,
-11,
29,
42,
96,
58,
60,
80,
-93,
-28,
115,
37,
-34,
84,
123,
105,
-69,
85,
121,
-60,
-97,
55,
65,
-78,
-77,
33,
-42,
48,
-55,
-17,
-36,
79,
112,
-30,
81,
70,
72,
-25,
88,
-114,
3,
-117,
-27,
65,
64,
52,
46,
116,
-113,
53,
-98,
-21,
43,
26,
-53,
73,
44,
89,
61,
88,
24,
-120,
-115,
-117,
22,
-109,
-92,
-101,
6,
-40,
60,
-48,
49,
0,
-8,
115,
-110,
-126,
116,
107,
25,
44,
98,
-30,
2,
29,
-51,
-96,
-119,
30,
126,
-103,
-90,
-104,
73,
75,
45,
-106,
-97,
127,
116,
14,
-14,
-27,
85,
88,
108,
-121,
-50,
-104,
-79,
65,
32,
-106,
-6,
-21,
5,
84,
117,
-51,
-30,
92,
69,
25,
-37,
-113,
-74
] |
LARRY D. VAUGHT, Judge
| Appellant Zack Ryan appeals the. sentencing order entered by the Polk County Circuit Court on February 9, .2015, revoking his probation and sentencing him to ten years’ imprisonment. On appeal he argues that (1) the trial court clearly erred in finding that he had violated a condition of his probation, and (2) the trial court violated his right to confront his accuser. We affirm.
On May 12, 2011, Ryan pled guilty to possession of a schedule VI controlled substance with intent to -deliver, delivery of a schedule III controlled substance, two counts of use of a communication device, and delivery of a schedule IV controlled substance. He received six years’ probation for each count, to run concurrently. On July 12, 2011, Ryan pled guilty to possession of a schedule VI controlled substance and was sentenced to six years’ probation, to run concurrent with his May 12,2011 probation sentence.
|gOn June 11, 2014, the State filed a petition to revoke Ryan’s probation, alleging that he had violated six conditions of probation: failure to lead a law-abiding life, failure to report to his probation officer, failure to be truthful to his probation officer, failure to undergo drug-and-alcohol treatment, failure to refrain from the use or possession of controlled substances, and failure to refrain from the use or possession of alcohol.
A revocation hearing was held in January 20Í5. The only witness at the hearing was Ryan’s initial probation officer, Vici Fenwick. She testified that she performed Ryan’s intake in Polk County in May 2011. She said that "in June 2011, Ryan requested that his probation be transferred to the Malvern office in Hot Spring County and that the request was granted.
■ Fenwick further testified that she filed the violation report against' Ryan in May 2014. She stated that one condition of probation that Ryan allegedly violated was the requirement to lead a law-abiding life and commit no offensé punishable by imprisonment. She explained that a Malvern probation officer contacted her in May 2014, advising that Ryan had been arrested and charged in Hot Spring County -with three counts of producing, directing, or promoting a sexual performance by a child; three counts of distributing, possessing, or viewing of a minor; sexual assault; possession of a schedule IV or V controlled substance; and possession of drug paraphernalia. Fenwick testified that Ryan violated the condition of his probation requiring him to report to his probation officer by failing to attend his substance-abuse program on four occasions. She stated that he violated the condition of probation that required him to be truthful to his probation officer by failing to be truthful to his drug, counselor. Fenwick said that Ryan violated a fourth condition of probation when he failed to attend drug treatment. And she testified that Ryan violated two separate conditions |sof probation by testing positive for drugs on. eleven occasions in 2013-14 and testing ■positive twice for alcohol in. 2013.
At the conclusion of the-hearing, the trial court found that Ryan had violated all six of the conditions of probation and entered a sentencing order on February 9, 2015, revoking Ryan’s probation. This appeal followed^
Ryan’s first argument on appeal is a challenge to the sufficiency of the evidence supporting the revocation decision. The State must prove, by a preponderance of the evidence, that Ryan violated a condition of probation. Lambert v. State, 2013 Ark. App. 64, at 3, 426 S.W.3d 478, 480. But it need only prove that a defendant violated one probationary term or condition before a trial court may revoke probation. Id., 426 S.W.3d at 480. We will not reverse the trial court’s findings unless they, are clearly against the preponderance of the evidence. Id., 426 S.W.3d at 480. Evidence that would not support,a criminal conviction in the first instance may be enough to revoke probation or a suspended sentence. Id., 426 S.W.3d at 480. Determining whether a preponderance of the evidence exists turns on questions of credibility and weight to be given to the testimony; so we defer to the trial court’s superior position when it comes to assessing a witness’s believability. Id., 426 S.W.3d at 480.
URyan contends that the trial court clearly erred in concluding that he violated his probationary conditions. He contends that the State’s evidence that he committed new offenses in May 2014 was based solely on the hearsay testimony offered by Fenwick. He argues that the State did not introduce any physical evidence,-police reports, or court documents to support the new charges. He contends that evidence of his failure to report to his substance-abuse program does not establish that he failed to report to his probation officer. Likewise, he argues that failing to be truthful to his drug counselor does not establish that' he failed to be truthful to' his probation officer. Ryan argues that evidence of his failure to attend the substance-abuse program did not establish that he failed to undergo available drug/alcohol treatment as directed by the probation officer. And Ryan counters Fenwick’s testimony about his positive drug-and-alcohol tests by pointing out that she did not know if he had offered any excuses as to why he tested positive for alcohol and drugs and that she did not know if he had been offered rehabilitation that would have helped him.
While the. trial court found that the State proved by a preponderance of the evidence that Ryan had violated six conditions of his probation, only one violation is required. Lambert, 2013 Ark. App. 64, at 3, 426 S.W.3d at 480. Fenwick testified that Ryan tested positive for drugs and alcohol numerous times. The Arkansas Community Correction Adult Probation Officer’s Affidavit, the Arkansas Community Correction Violation Report, the probation-officer supervision-contact notes, and the drug-test results were admitted into evidence without objection and confirm Fenwick’s testimony that Ryan tested positive for drugs and alcohol on numerous occasions. Therefore, based on the- evidence supporting | sthese two violations, we hold that the trial court’s revocation decision was not clearly against the preponderance of the evidence.
Ryan next contends that the trial court committed reversible error .by allowing out-of-court statements of a Malvern probation officer into evidence in violation of the Confrontation Clause. Ryan points out that the trial court failed to make a good-cause finding for not allowing confrontation.
Although in a revocation hearing a defendant is not entitled to the full panoply of rights that attend a criminal prosecution, he is entitled to due process. Goforth v. State, 27 Ark. App. 150, 152, 767 S.W.2d 537, 538 (1989). The United States Supreme Court has held that in a revocation proceeding the accused is entitled to “the right to confront and cross-examine adverse witnesses (unless the hearing officer specifically finds good cause for not allowing confrontation).” Id., 767 S.W.2d at 538 (citing Gagnon v. Scarpelli, 411 U.S. 778, 786, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973)). This holding is codified at Arkansas Code Annotated section 16-93-307(c)(1), (2) (Supp.2015), which states that the defendant has the right to counsel and to confront and cross-examine an adverse witness unless the court specifically finds good cause for not allowing confrontation.
Un a probation-revocation, proceeding the trial court must balance the probationer’s right to confront witnesses against grounds asserted by the State for not requiring confrontation. Id., 767 S.W.2d at 538 (citing United States v. Bell, 785 F.2d 640 (8th Cir.1986)). First, the court should assess the explanation the State offers of why confrontation is undesirable or impractical. Id., 767 S.W.2d at 538. A second factor that must be considered, and one that has been focused on by a'number of courts, is the reliability of the evidence that the government offers in. place of live testimony. Id., 767 S.W.2d at 538.
Ryan is correct that the trial court violated his right to confront the Malvern probation officer. When Ryan objected to Fenwick’s testimony about what the Mal-vern probation officer had told her about Ryan’s arrest bn the new charges, the trial court overruled the objection without further comment. The trial court did not require the State to explain why the Mal-vern probation officer was absent from the hearing, and the trial court did not make a good-cause finding for not allowing confrontation.
However, trial error involving the Sixth Amendment right to confront adverse witnesses is subject to a harmless-error analysis. Green v. State, 2015 Ark. App. 291, at 5, 461 S.W.3d 731, 734. Whether a Confrontation Clause violation is harmless error depends o'n a variety of factors, including the importance of the witness’s testimony in the State’s case, whether the testimony was cumulative, the presence or absence of evidence corroborating or contradicting the testimony of the witness on material points, the extent of cross-examination otherwise permitted, and the overall strength of-the State’s case. Id., 461 S.W.3d at 734 (citing Delaware v. Van Arsdall, 475 U.S. 673, 106 S.Ct. 1431, 89 L.Ed.2d 674 (1986); Andrews v. State, 344 Ark. 606, 42 S.W.3d 484 (2001)).
|7In Green, our court affirmed the trial court’s revocation decision despite its error in permitting an out-of-court statement in violation of the defendant’s right to confront witnesses. We held that the error was harmless because there was other evidence that supported the revocation, rendering the out-of-court statement unnecessary. Id. at 5, 461 S.W.3d at 734; see also Roston v. State, 362 Ark. 408, 410, 208 S.W.3d 759, 761 (2005) (holding that the trial court’s violation of the Confrontation Clause was harmless error because other, evidence supported the trial court’s revocation decision).
In the present case, the trial court’s error in admitting the out-of-court statement of the Malvern probation officer, in violation of the Confrontation Clause, was harmless. As noted by the trial court at the conclusion of the hearing, revocation was warranted if all of the evidence relating to the 2015 charges was “completely ignored.” This is because evidence regarding the new charges filed against Ryan was not necessary to prove the State’s case for revocation. Fenwick testified that Ryan had violated two other conditions of his probation by testing positive for drugs and alcohol numerous times. Documentary evidence admitted into evidence supports these two violations as well. Therefore, the admission of the out-of-court statements of the Malvern probation officer was harmless error.
Affirmed.
Hoofman and Brown, JJ., agree.
. Fenwick stated that Ryan tested positive for controlled substances in February 2013, May 2013, three times in July 2013, four times in August 2013, March 2014, and May 2014. She said that he tested positive for alcohol in July and October 2013.
. This is Ryan’s second attempt to appeal his case. In Ryan v. State, 2015 Ark. App. 632, 2015 WL 6742204, we remanded the case to settle and supplement the record and ordered rebriefing due to abstract and addendum deficiencies, These deficiencies have been corrected.
. Under his sufficiency-of-the-evidence argument, Ryan also argues that the trial court's' revocation decision should be reversed because it failed to comply with Arkansas Code Annotated section 16-93-307(b)(5). . Section 16 — 93—307(b)(5) provides in pertinent part that after a revocation hearing, if probation is revoked, the court shall prepare and furnish to the defendant a written statement of the evidence relied on and the reasons for revok*ing probation. Ark.Code Ann. § 16-93-307(b)(5) (Supp.2015). Because Ryan did not raise this issue below, we do not address the argument. Massey v. State, 2015 Ark. App. 240, at 3—4, 2015 WL 1757107; see also Brandon v. State, 300 Ark. 32, 776 S.W.2d 345 (1989); Love v. State, 2012 Ark. App. 600; Dooly v. State, 2010 Ark. App. 591, 377 S.W.3d 471. | [
-44,
-20,
-33,
-66,
9,
-96,
58,
52,
-29,
-25,
127,
-13,
-81,
-10,
9,
107,
-94,
107,
116,
121,
64,
-93,
83,
97,
114,
-69,
-24,
87,
-77,
79,
-28,
-7,
29,
112,
-70,
117,
102,
-56,
-27,
90,
-114,
5,
-71,
107,
-40,
-63,
36,
47,
26,
-113,
49,
31,
-10,
110,
16,
75,
73,
104,
81,
43,
-64,
-32,
-104,
15,
-53,
54,
-77,
-76,
-83,
2,
-6,
58,
-112,
57,
0,
-7,
115,
-74,
2,
116,
11,
-118,
-128,
32,
38,
32,
53,
-41,
-84,
-55,
-83,
62,
-104,
-89,
-103,
89,
72,
12,
-76,
-100,
102,
22,
4,
122,
107,
70,
117,
124,
32,
-54,
-100,
-111,
77,
-96,
66,
-14,
-53,
37,
21,
85,
-51,
-26,
84,
84,
113,
-101,
-26,
-41
] |
ROBERT J. GLADWIN, Chief Judge
| fin this appeal of an order modifying visitation, Ashely Newby contends that the Benton County Circuit Court erred in its order filed October 17, 2014, claiming that (1) the court did not make findings of fact regarding any material change in circumstances; (2) passage of time per se does not constitute a material change in circumstances; (3) de novo review of the record does not support the'finding of a material change in circumstances; and (4) modifying visitation is- not in her child’s best interest. We affirm.
I. Statement of Facts
The parties entered into a property-settlement and child-custody-and-support agreement on August 21, 2008, which was incorporated into the divorce decree on September 11, 2008, wherein Ashely was awarded primary custody of the parties’ son, K.N., (DOB 3/26/2006), and appellee David Newby was ordered to pay $200 per month in child support. David was awarded visitation on Tuesday and Wednesday of each week, but not | ¿.overnight, and on alternate federal holidays. The decree provides that “[a]dditional visitation can be agreed upon by both parties.”
On June 18, 2014, David filed a petition for modification, claiming that a material change in circumstances had occurred. The trial court modified the visitation after a hearing wherein Ashely testified that the child had pulmonary and immunological issues since birth. She said that he had to carry an oxygen tank, he took breathing treatments, and she did not know if he would grow out of his health issues. She said that she did not -believe that David was capable of providing healthcare for their son because K.N. needed consistent medication, routine, sleep, and appointment-keeping. She said that K.N. currently took pills, inhalants, and nasal sprays. She said David was informed of doctors’ appointments until a year ago, but because he never -attended, she quit notifying him. She claimed that she kept him informed of what the doctors said. She said that she does not have concerns about the boy’s healthcare safety while he is at David’s mother Donna’s house.
She said the child’s football practice schedule was interfering with David’s visitation, hut she was willing to work around that. She said that David’s usual visitation was on Tuesdays from 3:30-5:30 p.m., but since football began, the practices started at 5:30 p.m., and it was her decision that David would not have visitation on that day. She said that David could pick a different day to visit if he would communicate with her. K.N. also had practice on Thursdays and games on Saturdays. She testified that K.N. also participated in baseball and basketball. .She.agreed that K.N. was physically able and capable of playing some fairly strenuous athletic activities with prior medication and pretreat-ing, “if he’s well.” She also|ssaid that only David’s mother could give K.N. medication, thus, allowing only overnights with David at Donna’s house. She insisted that the child should be getting twelve hours of sleep at night. She admitted that the boy could take his medications at his father’s house, but stated that David “had not chosen to do that,” She admitted that her son had been deer hunting with her current husband. She said David works at bars on Thursday, Friday, and Saturday nights from 9 p.m. until 2 a.m. This was the same schedule as when they divorced.
She said that Defendant’s Exhibit 1 (an agreement leading to the divorce settlement) states that overnight visitation would be readdressed on the boy’s third birthday. She said that there was a time when overnight visits began and the child would stay at Donna’s house every other weekend, but then “Donna and I discussed that that did not work for KN.’s schedule, once he started school and she went back to work, and, so, then, we discontinued that every other weekend schedule.” She admitted that David had a permanent residence and has had for a year.
David testified that he had given the child his medication and that the child was older and needed his father. He also stated that when Ashely was between husbands, he was able to see the child more often. He said that he went to the child’s activities, which include football, but wanted more visitation than just to watch him at whatever practices he had. He denied that they agree on visitations — he said that Ashely tells him what it will be and when. He said the only time the child ever missed getting his medication was when the child was with him, and Ashely had told him the child could do it himself. He denied that he had been invited to the doctors’ appointments. He said that he did not know which doctors the 14child was seeing. He said that he had given the child breathing treatments and his medication, but he later stated that he had only administered the inhalers and had not administered a breathing treatment. He stated that he had not had the child for more than two hours in the month preceding the hearing. He claimed that he had asked Ashely-for more predictable visitation, and she would not allow it. He said that the only way to obtain more visitation was for the court to tell her to provide it.
The trial court ordered that visitation should be modified. Paragraph 5 of the order states as follows:
The Court does find that a material change of circumstance has occurred since the entry of the last order of this Court touching on visitation between David Newby and K.N. which justifies the modification of that order and does further find that modification of the pri- or order is in the best interest of the parties’ child.
The trial court ordered that David should be entitled to reasonable access to K.N. and should have standard visitation. David was enjoined from cohabiting with any person to whom he was not married while having care of KN. The court ordered that, for next six months, David should keep Ashely informed of any childcare arrangements during his visitation. This appeal timely followed.
II. Standard of Review
The Arkansas Supreme Court stated in Moix v. Moix, 2013 Ark. 478, at 9, 430 S.W.3d 680, 685:
In domestic relations cases, we review the evidence de novo and will not reverse the circuit court’s findings unless they are clearly erroneous. Brown v. Brown, 2012 Ark. 89, 387 S.W.3d 159. We also give special deference to the circuit court’s superior position in evaluating the witnesses, their testimony, and the child’s best interest. Id. Because a circuit court maintains continuing jurisdiction over visitation, it may [¿modify or vacate a prior visitation order when it becomes aware of a material change in circumstances since the previous order. Id. The party seeking modification has the burden of demonstrating such a material change in circumstances. Id. With regard to visitation, the primary consideration is the best interest of the child. Id. Important factors for the court to consider in determining reasonable visitation are the wishes of the child, the capacity of the party desiring visitation to supervise and care for the child, problems of transportation and prior conduct in abusing visitation, the work schedule or stability of the parties, and relationship with siblings and other relatives. Id. We have held that fixing visitation rights is a matter that- lies within the sound discretion of the circuit court. Id.
Hackney v. Hackney, 2015 Ark. App. 114, at 5, 456 S.W.3d 394, 397-98.
This court has stated as follows-:
Where the circuit court -fails to make findings of fact about a change in circumstances, this court, under its de novo review, may nonetheless, conclude that there was sufficient evidence from which the circuit court- could have found a change in circumstances. See [Hamilton v. Barrett, 337 Ark. 460, 989 S.W.2d 520] (citing Campbell v. Campbell, 336 Ark. 379, 985 S.W.2d 724 (1999); Stamps v. Rawlins, 297 Ark. 370, 761 S.W.2 933 (1988)).
Preston v. Preston, 2014 Ark. App. 68, at 2, 2014 WL 245783.
III. Discussion
Ashely argues that the circuit court stated that a material change existed, but did not explain its reasoning in its ■written order. She.contends that the sole basis, for the .modification was that time had passed, and. the child was older. Ashely argues that a material change in circumstances cannot be based on the mere passage of time. We agree.
In Bollinger v. Bollinger, 65 Ark. App. 110, 986 S.W.2d 105 (1999), this court held that a material change in circumstances had occurred when it coupled passage of time with other factors. We held that the marriage of the father and the move of. the mother, coupled with the passage of time and other factors permitted a reopening of the best-interest inquiry. Id. at 114, 986 S.W.2d at 107. In McCoy v. Kincade, 2014 Ark. App. 664, 448 S.W.3d 740, this court affirmed the circuit court’s finding of a material change in circumstances, where the children’s' growth and maturity contributed to' those changed circumstances. As in McCoy, supra, this analysis necessarily turns in large part upon credibility determinations, and we give special deference to the superior position of the trial court to evaluate the witnesses, their testimony, and the children’s best interest. McCoy, 2014 Ark. App. 664, at 3-4, 448 S.W.3d at 741.
Given that deference and our de novo review of the record, we affirm, relying not only on the trial court’s determination that the child could participate, in managing his health, despite the, mishap during visitation with his father, but also the evidence that the child was able to participate in football, basketball, and baseball. The difference between a two-year-old’s reliance on others for monitoring and medication differs greatly from that of an eight-year-óld’s ability to explain what he is feeling and what his needs might be. The fact that' K.N. participates in physical ac-tmties supports this conclusion. The trial court’s determination that it was in the child’s best interest to modify visitation is affirmed..
Affirmed.
Virden, Glover, and Vaught, JJ., agree.
Whiteakér and Hoofman, JJ., dissent. | [
-80,
-24,
-27,
76,
-37,
33,
10,
-84,
75,
-29,
109,
83,
-85,
-29,
20,
107,
2,
11,
113,
97,
81,
-77,
71,
65,
-10,
-13,
-13,
83,
-13,
89,
-11,
-34,
93,
32,
-118,
-43,
66,
-61,
-121,
-48,
-114,
-126,
43,
101,
64,
67,
32,
-85,
26,
15,
53,
-82,
-78,
46,
-71,
-58,
104,
108,
127,
-78,
-40,
-15,
-101,
13,
79,
6,
-79,
54,
-103,
-89,
88,
42,
-120,
57,
10,
-23,
115,
-74,
-106,
116,
71,
25,
8,
100,
99,
1,
13,
-9,
-72,
-84,
46,
30,
-115,
-26,
-101,
112,
74,
15,
-73,
-74,
125,
86,
-114,
124,
110,
4,
92,
100,
-96,
-49,
-42,
-127,
-123,
8,
-100,
-93,
-26,
7,
49,
33,
-49,
-26,
117,
-58,
59,
-101,
-65,
-110
] |
PER CURIAM.
| following his conviction on two counts of manslaughter and one count of first-degree battery, appellant Eric Keith Hoyle sought relief under Arkansas Rule of Criminal Procedure 37.1 (2011). The trial court denied his Rule 37.1 petition, and appellant has lodged an appeal in this court. Because the denial of postconviction relief was not clear error, we affirm.
After a jury trial, appellant received sentences of 120 months’ imprisonment on each of the manslaughter counts and 240 months’ imprisonment on the battery charge, for an aggregate term of 480 months’ imprisonment. This court affirmed the judgment. Hoyle v. State, 371 Ark. 495, 268 S.W.3d 313 (2007). Appellant, represented by counsel, filed the Rule 37.1 petition at issue, in which he alleged ineffective assistance of counsel. Appellant based his allegation of ineffective assistance on trial counsel’s omissions in failing to object to the amendment of the information, communicate a plea offer, challenge certain hearsay testimony, file a motion for a reduction in sentence, and object to testimony during sentencing about a previous arrest.
After a hearing on the petition, the trial court provided a written order that set forth findings of fact and conclusions of law and that found that counsel was not ineffective on any Rof the alleged bases. On appeal, appellant reorders his claims and advances five points for reversal, alleging that the trial court erred in finding that trial counsel was not ineffective, as follows: (1) counsel was ineffective in representing appellant in plea negotiations; (2) counsel was ineffective in failing to object to hearsay testimony; (3) counsel was ineffective in failing to object to amendment of the information; (4) counsel was ineffective in failing to object to evidence of prior bad acts; (5) counsel was ineffective in failing to move for reduction of the sentences recommended by the jury.
This court does not reverse a denial of postconviction relief unless the trial court’s findings are clearly erroneous. Payton v. State, 2011 Ark. 217, 2011 WL 1805340 (per curiam). A finding is clearly erroneous when, although there is evidence to support it, the appellate court, after reviewing the entire evidence, is left with the definite and firm conviction that a mistake has been committed. Id.
In making a determination on a claim of ineffective assistance of counsel, this court considers the totality of the evidence. Anderson v. State, 2010 Ark. 404, 373 S.W.3d 876 (per curiam). Our standard of review requires that we assess the effectiveness of counsel under the two-prong standard set forth by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Croy v. State, 2011 Ark. 284, 383 S.W.3d 367 (per curiam).
Under the Strickland test, a petitioner raising a claim of ineffective assistance must first show that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the petitioner by the Sixth Amendment to the United States Constitution. Id. A defendant making an ineffective-assistance-of-counsel claim must show that his counsel’s performance fell below an objective standard of reasonableness. Miller v. State, 2011 Ark. 114, 2011 WL 913206 (per curiam).
In order to meet the second prong of the test, the petitioner must show that counsel’s deficient performance prejudiced petitioner’s defense to such an extent that he was deprived of a fair trial. Carter v. State, 2011 Ark. 226, 2011 WL 1896765 (per curiam). A claimant must show that there is a reasonable probability that the fact-finder’s decision would have been different absent counsel’s errors. Mingboupha v. State, 2011 Ark. 219, 2011 WL 1805339 (per curiam). A reasonable probability is a probability sufficient to undermine confidence in the outcome of the trial. Id.
In his first point, appellant contends that trial counsel erred in failing to properly negotiate with the prosecution over a plea offer. He asserts that counsel should have gone back to the prosecution and offered to accept a withdrawn plea offer, because his client only later understood the consequences of rejecting the offered plea.
The prosecution had extended an offer to recommend two consecutive ten-year terms on the manslaughter charges and six years’ suspended imposition of sentence on a second-degree-battery charge. If the offer was not accepted, the information would be amended to reflect a first-degree-battery charge rather than the second-degree charge originally filed. The prosecution confirmed that offer in a letter dated January 18, 2006, that referenced having conveyed the offer during a previous November 20, 2005 hearing. That letter was introduced as evidence at the Rule 37.1 hearing. The letter provided a final deadline for appellant to accept the offer, after which the amended information that had been discussed would be filed. The trial record shows that the amended information was filed on January 23, 2006.
On January 26, 2006, there was some discussion of the plea offer and its rejection on the record. The prosecution recapped what had transpired, explained in some detail the |4potential sentence under the now-amended information, and indicated that the plea offer had been rejected and withdrawn. The court asked appellant directly if he understood what the prosecution had stated and indicated that Mr. Hoyle had nodded in the affirmative.
At the Rule 37.1 hearing, trial counsel testified that he had no specific recollection of plea-offer discussions with appellant or of going over the potential sentence under the amended information. Trial counsel testified that he would have conveyed any offer made to appellant; that he had records of a meeting with appellant on February 2, 2006, in which he did go over the specific ramifications of the amended information; and that he may have had other, earlier conversations with him on the issue as well. Following that meeting and further discussions with his client, counsel sent a letter dated February 7, 2006, that conveyed a counteroffer. The letter that was admitted into- evidence referenced the victim’s family’s insistence that appellant do jail time and conveyed an offer to plead to an aggregate term of three years to two counts of manslaughter and one count of second-degree battery.
Appellant asserts that he did not understand that the potential sentence under the amended information was an aggregate forty years’ imprisonment until the January 26, 2006 hearing and that he had wished to accept the plea offer once he understood. He testified at the hearing on the Rule 37.1 petition that he then advised counsel that he wished to take the offer, but that he was told that it was too late to take the offer.
Appellant urges that counsel may be found ineffective for failing to properly represent a defendant regarding plea negotiations, citing to Wanatee v. Ault, 259 F.3d 700 (8th Cir.2001), for its interpreta tion of Hill v. Lockhart, 474 U.S. 52, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985) (holding that the state court’s determination that a petitioner was not prejudiced by claimed ineffectiveness of | .¡counsel during the plea bargaining stage, because he ultimately received a fair trial was an unreasonable application of clearly established federal law). The State counters by asserting that Hill held only that a defendant may be prejudiced by his acceptance of a plea through counsel error. The State posits that a defendant who rejects a plea offer cannot be prejudiced if he then receives a fair trial. Whether or not appellant can demonstrate prejudice, the trial court did not clearly err in determining that appellant failed to factually support his claim that there was attorney error in dealing with the plea negotiations.
In its order denying postconviction relief, the trial court found that appellant’s claims on this issue were not supported by the evidence and testimony. The court further found that counsel had conveyed all plea offers to appellant, that appellant had rejected the plea offer, and that appellant had never instructed counsel that he would take the plea offered by the State. A petitioner carries the burden of supporting his allegations with credible evidence during a hearing on a Rulé 37.1 petition. See Rackley v. State, 2010 Ark. 469, 2010 WL 4922390 (per cu-riam). Judicial review of a defense counsel’s performance must be highly deferential, and a strong presumption exists that counsel’s conduct falls within a wide range of reasonable professional assistance. Polivka v. State, 2010 Ark. 152, 362 S.W.3d 918. The record supports the court’s findings, and the court was not clearly erroneous in determining that appellant failed to carry his burden of proof on this issue.
The trier of fact is free to believe all or part of any witness’s testimony and may resolve [ (¡all questions of conflicting testimony and inconsistent evidence. Carter v. State, 2010 Ark. 231, 364 S.W.3d 46 (per curiam). The trial court’s findings of fact make clear that counsel’s testimony was more credible and that the court did not accept appellant’s account or his testimony that he would have accepted the plea offer if it had been better explained to him. This court does not assess the credibility of the witnesses, Loggins v. State, 2010 Ark. 414, 372 S.W.3d 785; Lacy v. State, 2010 Ark. 388, 377 S.W.3d 227; Fernandez v. State, 2010 Ark. 148, 362 S.W.3d 905. Conflicts in testimony are for the fact-finder to resolve, and the judge is not required to believe the testimony of any witness, especially that of the accused, since he or she is the person most interested in the outcome of the proceedings. Mitchem v. State, 2011 Ark. 148, 2011 WL 1319579 (per curiam). Without credible testimony to support his claims, appellant failed to meet his burden of proof.
Next, appellant challenges the court’s findings on trial counsel’s failure to object to certain hearsay. The trial court found that counsel’s decision not to object was a matter of trial strategy and did not provide a basis for the claim of ineffective assistance. When a decision by counsel is a matter of trial tactics or strategy, and that decision is supported by reasonable professional judgment, then counsel’s decision is not a basis for relief under Rule 37.1. Croy, 2011 Ark. 284, 383 S.W.3d 367.
A claimant has the burden of overcoming the presumption that counsel’s conduct falls within the wide range of reasonable professional assistance by identifying specific acts or omissions of trial counsel, which, when viewed from counsel’s perspective at the time of the trial, could not have been the result of reasonable professional judgment. Id. We cannot say that the trial court clearly erred in finding that counsel made a strategic decision based on ^reasonable professional judgment not to raise an objection.
The State asserts that counsel’s objection would have been overruled under an exception to the hearsay rule. It is true that trial counsel cannot be ineffective for failing to make an objection or argument that is without merit. Mitchem, 2011 Ark. 148, 2011 WL 1319579. Even if the objection had merit, however, counsel testified that he would have weighed the value of excluding the testimony against the danger of drawing further attention to the testimony in deciding whether to object. It was not clear error for the trial court to determine in these circumstances that the decision was tactical and based on reasonable professional judgment.
The hearsay at issue was testimony by a truck driver who was on the road behind appellant’s truck prior to the wreck that resulted in the deaths and injury in this ease. The driver testified about comments heard on his CB radio that had been made by another trucker who complained that someone, who may have been appellant, had crossed the center line and almost hit him. The witness also, however, testified that he was immediately behind appellant and personally saw appellant cross the center line and drive into the victim’s motor home without braking. Counsel indicated that he would have preferred not to highlight the type of testimony that may have been objectionable and would instead have preferred to use it to further his points in closing argument. Considering the circumstances here, the trial court’s finding that counsel made a tactical decision based upon reasonable professional judgment was well supported by the evidence.
Appellant’s third point asserts error in the trial court’s finding that counsel was not ineffective for failing to object to amendment of the information. The State is entitled to amend an information at any time prior to the case being submitted to the jury, so long as the |samendment does not change the nature or the degree of the offense charged or create unfair surprise. Phavixay v. State, 2009 Ark. 452, 352 S.W.3d 311. A motion to quash an information is proper where an amendment misleads or impedes a criminal defendant in making a defense, and the prohibition in Arkansas Code Annotated section 16-85-407 (Repl.2005) relates to matters of notice and prejudice. Terry v. State, 371 Ark. 50, 263 S.W.3d 528 (2007).
At the Rule 37.1 hearing, trial counsel testified that he did not object to the amendment because he was not surprised by it. He believed that an objection to the amendment, in circumstances where the prosecutor did not have to empanel a grand jury, was pointless and might well only result in the court granting a continuance. As already noted, the prosecution referenced discussions concerning the amendment in connection with the plea negotiations in November 2005. The trial was held March 9, 2006. In its order denying postconviction relief, the trial court found that appellant’s defense was not prejudiced by the amendment and that, even had counsel successfully objected to the amendment, the prosecution would simply have nolle prossed the charges and filed a new information that reinstated the charges as amended.
Appellant asserts that the degree of the offense changed. The trial court found, even if appellant might have successfully quashed the amended information, appellant was not prejudiced by any resulting error, because the prosecutor would have simply refiled the charges. The State’s dismissal of a case by nolle prosequi does not bar a subsequent prosecution. Ark.Code Ann. § 16-89-122 (Repl. 2005); Sturd v. Cir. Ct. of Lonoke County, 2010 Ark. 355, 370 S.W.3d 235; State v. Crawford, 373 Ark. 95, 281 S.W.3d 736 (2008); Branning v. State, 371 Ark. 433, 267 S.W.3d 599 (2007). Moreover, trial counsel appears to [3have made a well-reasoned tactical decision not to object to the amendment. Had appellant unsuccessfully challenged the amendment, this court would not have reversed without a showing of prejudice or surprise, even if the trial court had erred. See Terry, 371 Ark. 50, 263 S.W.3d 528; Hoover v. State, 353 Ark. 424, 108 S.W.3d 618 (2003). From counsel’s testimony, he appears to have made a conscious decision not to opt for the further delay in resolving the charges that would have resulted from a successful challenge, and that decision was based on reasonable professional judgment.
Appellant’s fourth point on appeal asserts error in the trial court’s finding that counsel was not ineffective for failing to object to evidence of prior bad acts. The evidence at issue consisted of statements by two defense witnesses during the sentencing phase concerning appellant’s prior arrest for his possible possession of methamphetamine. The incident did not appear to result in a felony conviction, and appellant argues on appeal that the evidence |inwould not have been admitted if trial counsel had raised an objection.
The trial court found that trial counsel had made a tactical decision on the issue. Counsel testified that he knew that the evidence of the arrest was likely to come in if he called the witnesses, but he elected to call them for the beneficial testimony that they could provide. Appellant appears to contend that the strategic decision was not founded on reasonable professional judgment because the evidence would not have been properly admitted if counsel had raised an objection. The trial court did not clearly err in finding the decision was well founded.
The case with which appellant supports his argument, Rush v. State, 324 Ark. 147, 919 S.W.2d 933 (1996), based the holding for exclusion of the evidence on the fact that the testimony was essentially offered as proof of that defendant’s conviction in place of the information and judgment. The testimony in this case did not attempt to establish that appellant had committed a particular crime. Appellant did not suggest that other, more appropriate, evidence of the conviction was available, and there was no evidence introduced that showed that there had been a conviction. The evidence, as it related to the relationship of the witness with appellant and to appellant’s character, was clearly admissible in the sentencing phase of the trial if there was no conviction. See Brown v. State, 2010 Ark. 420, 378 S.W.3d 66. If there was a conviction, the State may have been required to provide definitive proof of the conviction, but the evidence would nevertheless have been admissible. See id.; Ark. Code Ann. § 16-97-103 (Repl.2006). Appellant did not demonstrate that the information and judgment would have been less detrimental to the defense than what was introduced into evidence. The trial court did not err in finding that counsel exercised 1 ureasonabIe professional judgment in deciding not to challenge the admission of the evidence.
Finally, appellant asserts that the trial court erred in finding that counsel was not ineffective for failing to request a reduction in sentence under Arkansas Code Annotated section 16-90-107 (Repl. 2006). Appellant contends that it was clear that the verdict was a result of passion and prejudice and that counsel incorrectly concluded that a motion for reduction of sentence would have been pointless. The trial court found that a motion for reduction in sentence would have been denied.
Under the statute, “the court shall have power in all cases of conviction to reduce the extent or duration of the punishment assessed by a jury so that the punishment is not in any case reduced below the limit prescribed by law in such cases if the conviction is proper and the punishment assessed is greater than ought to be inflicted under the circumstances of the case.” Ark.Code Ann. § 16-90-107(e). The statute plainly gives the trial court the authority to reduce the recommendation of the jury, but it does not require it to do so. Brown, 2010 Ark. 420, 378 S.W.3d 66. Moreover, a defendant does not have to request leniency before the trial judge may exercise his authority to reduce a sentence that the jury assessed because he considers the punishment unduly harsh. Thomas v. State, 349 Ark. 447, 79 S.W.3d 347 (2002).
In this case, the appellant drove a tractor trailer with a loaded chip hauler after ingesting amphetamine and a relatively large amount of methamphetamine. His vehicle was of sufficient size and weight to cause the motor home that he struck after crossing the center line to explode and virtually disintegrate. Appellant’s argument that the jury’s verdict imposing the maximum sentences to run consecutively was a result of passion and prejudice 112is not persuasive. Considering the court’s ability to sua sponte reduce the sentence, we cannot say that the trial court clearly erred in finding that a motion to reduce the sentence under the statute would have been denied.
Affirmed.
. The order found that appellant had never indicated that he would enter a plea on an agreement with more than three years’ incarceration recommended. The State's offer that appellant testified that he would have taken would have provided a recommendation for twenty years’ imprisonment and six years of suspended imposition of sentence.
. Appellant asserts that the State would not have been permitted to nolle prosequi the case, because it could not establish good cause. Under section 16-89-122, the prosecution must obtain leave of the court to dismiss the charges. The court may indeed determine that the prosecution has abused its discretion in requesting dismissal of the charges on the eve of trial. Noland v. State, 265 Ark. 764, 580 S.W.2d 953 (1979). There was, however, no reason here to believe that the State would delay in filing its motion, and the basis for the motion — desiring to pursue more appropriate charges — was adequate to support a timely request. The issue of good cause arises in the context of whether the period may be excluded for purposes of speedy-trial calculations. See Jones v. State, 347 Ark. 455, 65 S.W.3d 402 (2002). Even that standard could have been satisfied by the need to develop additional evidence for additional elements of proof required by the new charge. Good cause is demonstrated where the State has good reason to seek the nolle prosequi and there is no indication the State is simply trying to evade the speedy-trial requirement. Crawford, 373 Ark. 95, 281 S.W.3d 736.
. The incident may have resulted in a conviction for the misdemeanor charge of possession of an instrument of crime, but no evidence of the actual outcome was introduced either at trial or during the Rule 37.1 hearing. | [
112,
-30,
46,
-68,
11,
97,
26,
60,
81,
-61,
103,
83,
-81,
-113,
65,
127,
-101,
105,
81,
-23,
-43,
-73,
50,
97,
-30,
-77,
17,
-10,
-73,
-53,
-75,
-68,
76,
112,
-30,
-43,
102,
72,
-19,
82,
-82,
1,
-102,
-11,
80,
23,
112,
106,
-10,
31,
49,
-98,
-69,
-86,
22,
-54,
-51,
108,
91,
-67,
64,
-79,
-120,
5,
-49,
17,
-95,
-76,
-104,
3,
82,
118,
-116,
49,
1,
-8,
114,
-106,
-125,
84,
109,
25,
44,
102,
98,
32,
65,
-17,
41,
-96,
22,
63,
-99,
-90,
-104,
41,
75,
109,
-105,
-99,
59,
54,
-82,
126,
118,
93,
113,
108,
-128,
-49,
-80,
-79,
-81,
53,
-108,
-69,
-21,
5,
16,
117,
-116,
-30,
92,
-41,
123,
-5,
-114,
-46
] |
PAUL E. DANIELSON, Justice.
[ Appellants Bennett & DeLoney, P.C., and its shareholders, Michael Bennett and Richard DeLoney, appeal from the circuit court’s order granting appellee State of Arkansas partial summary judgment and denying Bennett & DeLoney’s cross-motions for summary judgment, in which the circuit court found that the collection of amounts in excess of those set forth in Arkansas Code Annotated § 4-60-103 (Repl.2001) by a holder of a dishonored check violated the Arkansas Deceptive Trade Practices Act (ADTPA), codified at Ark.Code Ann. §§ 4-88-101 to -804 (Repl. 2001 & Supp.2011). They further appeal from the circuit court’s intermediate order, in which it found that section 4-60-103 provided an exclusive |2remedy for recovery on dishonored checks and that the use of remedies set forth in Ark. Code Ann. § 4-2-710 (Repl.2001), relating to a seller’s incidental damages, was not permitted. Bennett & DeLoney assert three points on appeal, specifically, that the circuit court erred in holding that (1) the ADTPA applied to Bennett & DeLoney’s provision of legal services; (2) Ark.Code Ann. § 4-60-101 et seq., was the exclusive remedy for recovery by holders of dishonored checks; and (3) the collection of amounts greater than those provided in Ark.Code Ann. § 4-60-103 was a violation of the ADTPA. We agree that the ADTPA has no application in the instant case, and we reverse and dismiss.
The facts are these. On April 8, 2008, the State, by Attorney General Dustin McDaniel, brought a consumer-protection action against Bennett & DeLoney, a Utah law firm, and Bennett and DeLoney, the owners and principals thereof, to redress and restrain alleged violations of the ADT-PA. The thrust of the complaint alleged that Bennett & DeLoney violated the ADTPA by attempting to collect penalties on dishonored checks greater than those amounts permitted by Ark. Code Ann. § 4-60-103. The State sought an injunction, restitution, and the imposition of civil penalties for each violation of the ADTPA, as well as the State’s costs and fees.
Bennett & DeLoney denied the allegations, and on November 21, 2008, the State moved for partial summary judgment, asserting that section 4-60-103 provided the exclusive | sremedy for collection on dishonored checks. Bennett & DeLoney responded and filed a cross-motion for partial summary judgment. In response, Bennett & DeLoney asserted that section 4-60-103 was not the exclusive remedy because the dishonored checks at issue also constituted breaches of contract, actionable under Article 2 of the Uniform Commercial Code. Pointing to Ark.Code Ann. §§ 4-2-709 and 4-2-710, they contended that those sections provided an incidental-damages remedy against a purchaser who failed to pay and constituted an alternative remedy. In reply, the State maintained its previous arguments. On July 28, 2009, the circuit court held a hearing on the cross-motions and granted partial summary judgment to the State; the circuit court’s decision was later memorialized in its order of August 4, 2009, in which it found that section 4-60-103 provided an exclusive remedy for recovery on dishonored checks and that use of the remedies set forth in section 4-2-710 was not permitted.
On October 6, 2010, the State- filed a motion for summary judgment, alleging that the actions taken by Bennett & DeLo-ney violated section 4-60-103, which the circuit court previously concluded provided the exclusive remedy for recovery on dishonored checks. Specifically, the State asserted that Bennett & DeLoney (1) failed to send their correspondence to Arkansas consumers via certified mail with return receipt; (2) requested and obtained damages or costs, in addition to the face value of the returned check, exceeding the $25 limit permitted by Arkansas law; (3) dunned and received payment from approximately 3,576 Arkansas consumers, ov-ercollecting $361,698.27; and (4) violated the terms of the ADTPA.
LDeLoney filed separately his opposition to the State’s motion and filed a cross-motion for summary judgment. DeLoney stated that Bennett & DeLoney discontinued its practice of collecting incidental damages over one year before the circuit court ruled that section 4-60-103 was the exclusive rémedy. He further- asserted that law firms and attorneys were not subject to the ADTPA and that even were they subject, the State failed to allege any unconscionable or deceptive conduct. He contended that no factual basis had been presented to show that he knew or should have known of any alleged ADTPA violations, but that the undisputed facts did show that he did not know, nor could have reasonably known, that section 4-60-103 would be declared the exclusive remedy for goods purchased with a cheek.
Bennett & DeLoney and Bennett also responded and cross-motioned for summary judgment. Like DeLoney, they maintained that the practice of law was not subject to the ADTPA. They further eon-tended that a violation of section 4-60-103 was not a violation of the ADTPA. A hearing was ultimately held on the cross-motions by the circuit court on April 4, 2011. On May 24, 2011, the circuit court entered its order, granting partial summary judgment to the State and finding that the “collection of fees on dishonored checks in excess of those set forth in ARK. CODE ANN. § 4-60-103 is a violation of the ADTPA as applied to Bennett & De-Loney, P.C.” The circuit court then denied summary judgment as to whether Bennett and DeLoney were personally liable, and it denied the cross-motions for summary judgment filed by DeLoney and Bennett & DeLoney and Bennett. After ^withholding any ruling as to whether the defenses of good faith, advice of counsel, or discontinuation of a business practice were available under the ADTPA, the circuit court issued a Rule 54(b) certificate. De-Loney and Bennett & DeLoney and Bennett filed separate notices of appeal from the circuit court’s orders and now appeal.
I. Application of the ADTPA
For this point, Bennett & DeLoney, Bennett, and DeLoney argue that the circuit court erred in its conclusion that the ADTPA applied to its provision of legal services. They point to this court’s recent decisions, claiming that we have held the ADTPA has no application to the practice of law. The State counters that this court’s prior decisions do not create absolute immunity for attorneys in violation of the ADTPA. It urges that our prior decisions are distinguishable and that the conduct undertaken by Bennett & DeLoney is not of the type traditionally regulated by this court.
As a general rule, in reviewing the grant of a motion for summary judgment, the appellate court determines if summary judgment was appropriate based on whether the evidence presented in support of summary judgment leaves a material question of fact unanswered. See DaimlerChrysler Servs. North America, LLC v. Weiss, 360 Ark. 188, 200 S.W.3d 405 (2004). The appellate court views the evidence in the light most favorable to the party against whom the motion was filed, resolving all doubts and inferences against the moving party. See id. The granting of this summary-judgment motion, however, was based on the circuit court’s interpretation of section 4-60-103. The question of the correct application and interpretation of an Arkansas statute is a question of law, which this court 1 f,decides de novo. See id.
The question presented here is whether the ADTPA had any application to the actions of Bennett & DeLoney in seeking to settle matters with Arkansas consumers on their clients’ behalf. We hold that it did not. In Preston v. Stoops, 373 Ark. 591, 285 S.W.3d 606 (2008), this court held that the unauthorized practice of law fell within our constitutional authority to control and govern the practice of law, and we affirmed the circuit court’s finding that the ADTPA did not apply to the practice of law. Likewise, in Born v. Hosto & Buchan, PLLC, 2010 Ark. 292, 372 S.W.3d 324, we again made clear that the ADTPA did not apply to the practice of law. While not cited by the parties, we further discussed the ADTPA’s inapplicability to the practice of law in Campbell v. Asbury Automotive, Inc., 2011 Ark. 157, 381 S.W.3d 21.
In Campbell, we held that “Stoops thus stands for the proposition that the unauthorized practice of law is not cognizable under the ADTPA, where an attorney not licensed in Arkansas attempts to practice law in Arkansas.” 2011 Ark. 157, at 8, 381 S.W.3d at 29. We then held that “where the General Assembly has seen fit to provide a cause of action when warranted for such activity by a nonlawyer, such as under the ADTPA, neither Stoops nor Amendment 28 precludes such action, as long as the legislation in no way hinders, interferes with, restricts, or frustrates the powers of the judiciary to define, regulate, and control the practice of law.” Id. at 10-11, 381 S.W.3d at 30.
Simply put, the ADTPA has no application to the practice of law by attorneys. Here, Bennett & DeLoney was a law firm that was practicing law, while engaged in the practice of |7debt collecting. Neither Bennett & DeLoney, nor Bennett or De-Loney, dispute the fact that they were practicing law; to the contrary, they concede that they were and the State does not contest their concession. Because the firm and its attorneys were attorneys engaged in the practice of law at the time of the alleged acts, the ADTPA had no applicability to their actions under our decisions in Stoops, Born, and Campbell.
While the State avers that the fact that the instant action was brought by the Attorney General somehow precludes any application of the foregoing case law, we disagree. The allegations made by the State against Bennett & DeLoney were brought under the context of the ADTPA, which we have clearly held has no application to the practice of law by |sattorneys. For these reasons, the circuit court erred in concluding otherwise, and we reverse and dismiss. Because of our disposition on this issue, we need not address Bennett & DeLoney’s remaining arguments.
Reversed and dismissed.
. In accord with the requirements set forth in Arkansas Rule of Civil Procedure 54(b)(2011), the circuit court issued a certificate making the requisite findings for certification of its order.
. The complaint also alleged that Bennett & DeLoney failed to correctly identify debtors prior to initiating contact; contacted consumers about debts Bennett & DeLoney knew, or should have known, were not owed by the consumers; and refused to verify alleged debts upon consumers' requests.
. DeLoney stated in his response that he resigned from Bennett & DeLoney in early 2009.
. Even if Bennett & DeLoney did not concede that it engaged in the practice of law, it is clear that it did. We have held that "the practice of law is not confined to services by an attorney in a court of justice; it also includes any service of a legal nature rendered outside of courts and unrelated to matters pending in the courts." Judicial Discipline & Disability Comm'n v. Simes, 2009 Ark. 543, at 7, 354 S.W.3d 72, 77 (quoting Judicial Discipline & Disability Comm'n v. Thompson, 341 Ark. 253, 263, 16 S.W.3d 212, 216 (2000)). Further, "[i]t is uniformly held that many activities, such as writing and interpreting wills, contracts, trust agreements and the giving of legal advice in general, constitute practicing law.” Clarendon America Ins. Co. v. Hickok, 370 Ark. 41, 45, 257 S.W.3d 43, 46 (2007) (quoting Arkansas Bar Ass'n v. Union Nat'l Bank, 224 Ark. 48, 54, 273 S.W.2d 408, 412 (1954)). Here, the letters sent by Bennett & DeLoney on behalf of their clients stated explicitly that the letter was not a demand letter, but
a settlement offer to settle all potential claims our client may have against you for a lesser amount before this matter proceeds any further within our office.... It is our position that our client may pursue such damages under any or all of several possible claims, such as the uniform commercial code, other statutory law and/or common law. If permitted by your state, some of these potential claims may allow our client to recover its collection costs, attorney fees, and punitive or exemplary damages from you, totaling far more than the original purchase price.
Clearly, Bennett & DeLoney was rendering service of a legal nature to its clients by engaging in settlement negotiations; therefore, it engaged in the practice of law. See, e.g., Kentucky Bar Ass'n v. Trumbo, 26 S.W.3d 792 (Ky.2000); In re Conduct of Devers, 328 Or. 230, 974 P.2d 191 (1999). | [
-78,
-24,
-39,
45,
24,
96,
56,
-86,
19,
-125,
39,
83,
-83,
-60,
-128,
123,
-25,
-21,
100,
-23,
-42,
-74,
21,
98,
-62,
-77,
-87,
69,
49,
75,
-20,
-33,
92,
32,
-54,
85,
70,
0,
-25,
-40,
74,
1,
59,
-24,
-7,
69,
48,
35,
20,
3,
97,
-76,
-14,
54,
24,
75,
76,
44,
-23,
-84,
-40,
-112,
-71,
77,
61,
18,
-95,
37,
-71,
7,
-8,
15,
-108,
56,
1,
-87,
114,
-122,
66,
68,
75,
25,
12,
98,
99,
0,
1,
-125,
-72,
-84,
38,
-1,
-97,
119,
-46,
105,
11,
13,
-105,
-108,
50,
22,
-116,
-4,
114,
-35,
21,
108,
-127,
-49,
-108,
-93,
39,
98,
-99,
11,
-29,
-81,
-112,
117,
-60,
-30,
93,
86,
58,
11,
-52,
-11
] |
ROBIN F. WYNNE, Associate Justice
|! Stanley Carter appeals from his convictions on three counts of rape, for which he was sentenced to consecutive terms of imprisonment of life, fifty years, and fifty years. On appeal, he argues that his convictions should be reversed and dismissed for a speedy-trial violation because the trial court did not follow the strict commands of Arkansas Rule of Criminal Procedure 28.3(b)(1). For the reason set out below, we affirm.
Appellant was arrested on June 15, 2012. His trial was continued on several occasions. Pertinent to this appeal, the circuit court entered a scheduling order setting the case for trial to be held on March 11, 2013. On March 7, 2013, the circuit court entered a scheduling order continuing the trial until May 13, 2013. On May 13, 2013, appellant’s trial was continued over appellant’s objection, with the trial court noting on the docket the 12following: “Case continued over defendant’s objection based on congested docket. The case is set for July 22, the next available date on this docket. The time is excluded. The court finds there is no prejudice to the defendant who is out on bond.” The court also entered an order setting a new trial date of July 22, 2013.
Appellant’s case was tried before a Crit-tenden County jury on July 22-24, 2013. In a pretrial healing outside the presence of the jury, appellant moved to dismiss his case based on an alleged speedy-trial violation. During this hearing, the circuit court and counsel discussed that the continuance granted on March 7, 2013, had been at defense counsel’s request due to illness in his family; his wife had been diagnosed with the flu, and the doctor had informed them that he and their three young children would likely get the flu also. The court denied the motion. Appellant was found guilty on all three counts and sentenced by the court on September 16, 2013. On September 20, 2013, appellant filed a “motion to supplement the record and to renew motion to dismiss for violation of speedy trial.” In his motion, appellant argued that “other than the State’s contention that the trial docket was congested during the May 2013 term.” “there are no excludable periods.” The State responded with a detailed explanation for each continuance of appellant’s trial date. The circuit court denied appellant’s motion by written order entered on October 2, 2013. This appeal followed.
|3Pursuant to Rule 28.1 of the Arkansas Rules of Criminal Procedure, a defendant must be brought to trial within twelve months unless there are periods of delay that are excluded under Rule 28.3. See Ark. R.Crim. P. 28.1(b), (c) (2013); Eagle v. State, 2012 Ark. 371, 2012 WL 4754961. On appeal, we conduct a de novo review to determine whether specific peri ods of time are excludable under our speedy-trial rules. Yarbrough v. State, 370 Ark. 31, 33, 257 S.W.3d 50, 53 (2007). Once a defendant establishes a prima facie case of a speedy-trial violation, i.e., that his or her trial took place • outside of the speedy-trial period, the State bears the burden of showing that the delay was the result of the defendant’s conduct or was otherwise justified. Id.
In the present case, it is undisputed that appellant was tried 402 days after his arrest; thus, the burden is on the State to prove that the delay was excludea-ble for speedy-trial purposes-. See Yarbrough v. State, supra. Relevant to this appeal, Rule 28.3(b) provides that the following is excluded:
The period’ of delay resulting from a continuance attributable to congestion of the trial docket if in a written order or docket entry at the time the continuance is granted:
(1) the court explains with particularity the reasons the trial docket does not permit trial on the date originally scheduled;
(2) the court determines that the delay will not prejudice the defendant; and
(3) the court schedules the trial on the next available date permitted by the trial docket.
(Emphasis added.) Here, the trial court’s docket notation did not comply with Rule 28.3(b)(1). As conceded by the State, our precedent has adhered to the plain, language of Arkansas Rule of Criminal Procedure 28.3(b)(1), which, provides that a period of delay due to trial-docket congestion is excluded in computing the time for trial if “in a written order |4or docket entry at the time the continuance is granted ... the court explains with particularity the reasons the trial docket does not permit trial on the date originally - scheduled.” The law is well settled that congestion of the trial docket, without more, is not just cause for breaching the speedy-trial-rule. Moody v. Ark. Cty. Circuit Court, 350 Ark. 176, 85 S.W.3d 534 (2002). The written order or the docket must detail the reason for the continuance on this basis. Id. (citing Hicks v. State, 305 Ark. 393, 808 S.W.2d 348 (1991)). Rule 28.3(b)(l)’s requirement of a contemporaneous written ofder or docket entry explaining with particularity the reasons the trial docket does not permit trial was not met in the present case. Thus, appellant is correct that the trial court erred in excluding the period from May 13 to July 22,2013.
The State argues that this court can nonetheless look to a different-period of time that should have been excluded from the speedy-trial' calculation. Indeed, in Ferguson v. State, 343 Ark. 159, 171, 33 S.W.3d 115, 123 (2000), this court found that two periods of delay, totaling 202 days, should be excluded from the calculation of-speedy trial because they were the result of delays from pretrial motions filed by the appellant. This court wrote, “Although the trial court did not rely on these specific periods of delay in denying the motion to dismiss, we are not constrained by the trial court’s rationale and may go to the record for additional reasons to affirm.”' Looking at the State’s argument in the present case, it correctly notes that postponement of a trial because of defense counsel’s illness can constitute “good cause” that is excludable under Rule 28.3(h). See Strickland v. State, 331 6Ark. 402, 962 S.W.2d 769 (1998). Furthermore, the State argues that this case is similar to Jones v. State, 323 Ark. 655, 916 S.W.2d 736 (1996), in which this court held that, despite the lack of a contemporaneous record,- the trial court had continued the case for good cause based on the undisputed fact that defense counsel was hospitalized. ■ ■ ■
Here, the,circuit court entered a scheduling order on March 7, 2013, which continued appellant’s jury trial until May 13, 2013. The record reveals that the March trial date was continued at appellant’s attorney’s request because appellant’s attorney’s wife had the flu, and the doctor had informed him that he and his three young children were likely to get sick as. wed. This period is excludable under both Rule 28.3(c) (a continuance granted at the request of the defendant or his counsel) and (h) (other periods of delay for good cause). The exclusion of,the sixty-seven days between March 7 and May 13, 2013, brings appellant’s trial date well within the one-year period for speedy trial. Because, we hold that this period was in fact excludable, we affirm.,
Finally, pursuant to Arkansas Supreme Court Rule 4-3(i), the record has been reviewed for all objections, motions, and requests ’ that were decided adversely to appellant, and no prejudicial error has been found.
Affirmed.
Baker, Goodson, and Wood, JJ,, concur in part and dissent in part.
. Appellant was convicted under Arkansas Code Annotated section 5-14-103(a)(3)(A) (Repl. 2013), which provides that a person commits rape if he engages in sexual intercourse or deviate sexual activity with another person who is less than fourteen years of age.
. In January 2015, this court ordered rebrief-ing. Carter v. State, 2015 Ark. 4, 2015 WL 224997 (per curiam). In June 2015, this court again ordered rebriefing and this time removed counsel; new counsel was subsequently appointed. Carter v. State, 2015 Ark. 259, 2015 WL 3542128 (per curiam).
. The excluded periods of time for purposes of calculating speedy trial include Rule 28.3(h): "Other periods of delay for good cause.” | [
16,
-22,
-92,
94,
11,
35,
50,
28,
66,
-29,
103,
82,
-91,
-61,
5,
123,
-29,
123,
117,
-7,
-48,
-73,
102,
65,
115,
-77,
123,
-46,
-73,
-49,
-11,
-9,
28,
112,
-54,
81,
70,
-56,
-23,
86,
-114,
0,
-103,
100,
64,
0,
56,
126,
92,
15,
49,
-98,
-29,
110,
22,
-62,
72,
72,
-55,
61,
88,
81,
-101,
-113,
-21,
20,
-93,
-124,
-97,
2,
120,
60,
-36,
49,
8,
120,
114,
-108,
-122,
100,
79,
-101,
8,
32,
98,
1,
28,
-49,
40,
9,
30,
62,
-99,
-89,
-103,
33,
75,
37,
-106,
-105,
98,
22,
6,
126,
125,
-19,
113,
108,
7,
-34,
-112,
-125,
-114,
44,
-122,
-30,
-29,
39,
48,
113,
-49,
-30,
90,
71,
121,
-37,
-102,
-41
] |
PER CURIAM
[ 1 Wendy Kelley, in her official capacity as Director of the Arkansas Department of Correction, and the Arkansas Department of Correction have petitioned this court for a writ of certiorari lifting a stay of executions granted by the Pulaski County Circuit Court or, alternatively, a writ of mandamus ordering the circuit court to expedite a scheduled hearing on a preliminary injunction requested by respondent-prisoners. The prisoners have responded and, in addition, have made a conditional request for a stay of executions from this court. Because the circuit court acted in excess of its jurisdiction in staying the executions, we grant |athe petition for writ of certiorari, Issue the writ, and lift the stay of the executions entered by the circuit court. Further, we grant the prisoners’ request and issue a stay of the executions pending the resolution of the litigation currently pending in the Pulaski County Circuit Court.
In April 2015, Stacey Johnson, Jason McGehee, Bruce Ward, Terrick Nooner, Jack Jones, Marcel Williams, Kenneth Williams, Don Davis, and Ledell Lee filed an action challenging the constitutionality of Act 1096 of 2015, which set out the mandated state method of executing condemned prisoners. Eight of the prisoners subsequently had their dates of execution set, with the first executions scheduled for October 21, 2015. On September 30, 2015, the prisoners filed an emergency motion for summary judgment on various of their claims or, alternatively, for preliminary injunction pursuant to Arkansas Rule of Civil Procedure 65. On October 9, 2015, the circuit court issued a temporary restraining order expressly staying the executions pending a preliminary injunction hearing. On October 12, 2015, the circuit court issued a scheduling order setting the preliminary injunction hearing for March 1 and 2, 2016. Petitioners filed a motion to dissolve the temporary restraining order and to set an expedited hearing on the motion for preliminary injunction. The circuit court denied that motion on October 13, 2015, and ordered the petitioners to show cause as to why the motion did not violate Arkansas Rule of Civil Procedure 11.
This prompted the petition currently before this court. A writ of certio-rari is extraordinary relief, and we will grant it only when there is a lack of jurisdiction, an act in excess of jurisdiction on the face 13of the record, or the proceedings are erroneous on the face of the record. Conner v. Simes, 355 Ark. 422, 428, 139 S.W.3d 476, 479 (2003). Petitioners have challenged the circuit court’s jurisdiction to enter a stay of execution. Pursuant to statute, the only officers who have the power of suspending the execution of a judgment of death are: (1) the Governor; (2) the Director of the Department of Correction in cases of insanity or pregnancy of the individual; and (3) the Clerk of the Supreme Court in cases of appeals. Ark. Code Ann. § 16-90-506(c) (Repl. 2006). This court has explicitly stated that a circuit court does.not have jurisdiction to stay an execution. Singleton v. Norris, 332 Ark. 196, 964 S.W.2d 366 (1998). The prisoners assert that what was issued was an injunction and not a stay; therefore, they contend that section 16-90-506(c) and our case law holding that circuit courts lack jurisdiction to stay an execution do not apply. However, we find that the argument put forth by the prisoners is purely a matter of semantics. A “stay” is defined as the postponement or halting of a proceeding, judgment, or the like. Blacks Law Dictionary, 1639 (10th ed. 2014). The circuit court effectively barred the executive branch from proceeding on the judgments of execution, and it recognized that fact when it stated in the order that it was staying the executions. As the circuit court did not have jurisdiction to issue a stay, we grant the petition for writ of certiorari and issue a writ removing the stay of executions issued by the circuit court. See Juvenile H. v. Crabtree, 310 Ark. 208, 833 S.W.2d 766 (1992) (issuing a writ of certiorari for an act by a circuit court in excess of its jurisdiction); see also Ark. Dep’t of Human Servs. v. Collier, 351 Ark. 506, 95 S.W.3d 772 (2003) (issuing a writ of certiorari when an appeal could not be had due to time constraints). The remainder of the circuit court’s order 'that does not conflict with the removal of the stay is not affected by this-writ.
|4In their response to the petition, the prisoners made a conditional request for a stay from this court in which they asked this court to issue a stay if we determined that the one issued by the circuit court was invalid. Pursuant to our decision in Singleton, supra, we may enter a stay of execution pending the resolution of a competent judicial proceeding, if we determine that the action in circuit court is-a competent judicial proceeding. In that case, we explained that we will issue a stay of execution when a constitutional claim pending in a lower court (1) only recently ripened;. (2) is bona fide and not frivolous; and (3) cannot be resolved before the execution date. The prisoners filed their complaint immediately after Act 1096 was enacted, the complaint contains bona fide constitutional claims, and the first executions are set for October 21, 2015. We hold that all three of the necessary elements'are present in this case.- Therefore, we grant the request and stay the executions pending the resolution of the litigation currently pending in the Pulaski County Circuit Court. See Davis v. Hobbs, 2010 Ark. 168, 2010 WL 1474559.
On October 15, 2015, the prisoners filed a motion to lodge supplemental record. That motion is hereby granted.
Petition for writ of certiorari granted; writ issued; stay of executions granted; motion to lodge supplemental record granted.
Brill, C.J., and Danielson, J., would deny petition for writ of certiorari without prejudice..
Wood, J., would grant petition for writ of certiorari and deny request for stay of executions.
. Arkansas Code Annotated section 16-90-506(a) (Repl. 2006) allows for the execution of a sentence of death to be stayed by "any competent judicial proceeding.” | [
52,
-18,
-12,
-4,
42,
-63,
56,
-88,
-29,
-109,
99,
83,
-91,
-12,
17,
105,
99,
-53,
85,
-7,
65,
-73,
119,
73,
99,
-13,
9,
87,
-77,
111,
-12,
-75,
88,
96,
-22,
85,
-58,
-54,
-29,
24,
-50,
43,
-119,
-11,
89,
-120,
56,
103,
90,
-121,
53,
-114,
-94,
-87,
82,
74,
-119,
108,
91,
-49,
73,
-104,
-104,
-41,
-33,
7,
-95,
-91,
24,
3,
114,
94,
-104,
49,
2,
-24,
114,
-106,
-126,
100,
99,
-37,
36,
64,
34,
40,
-100,
-33,
-88,
-88,
22,
-66,
-115,
-90,
-102,
105,
106,
15,
-122,
-107,
114,
20,
14,
126,
111,
69,
124,
44,
-116,
-50,
-104,
-109,
79,
125,
-100,
67,
-23,
5,
16,
85,
-51,
-26,
80,
-57,
121,
-33,
-50,
-78
] |
ROBERT J. GLADWIN, Chief Judge
|! Appellant Emilio Gutierrez appeals his convictions by a Sevier County jury on charges of trafficking a controlled substance — methamphetamine; simultaneous possession of drugs-and firearms; maintaining a drug premises; and possession of drug paraphernalia. Appellant argues that the circuit court erred by denying his motion in limine and overruling his objections by allowing a video of law-enforcement officers firing a weapon found in the search of his home to be played for the jury and admitted into evidence. We affirm.
On January 28, 2014, the Sevier County Sheriffs Office, relying upon information provided by a confidential informant, executed a search warrant on a residence owned by appellant at 261 West Line Road in DeQue'en, Arkansas. Upon entry, officers found Maria. Mosqueda and a minor child in the home. After conducting a search of the premises, law enforcement located in the home approximately 1,389 grams. of methamphetamine, drug ^paraphernalia, and ammunition, along with several weapons-including a .22-cali-ber rifle, a 30-06 rifle, and a modified AR-15 rifle.
Following the search, appellant was arrested upon his return from work .and taken to the Sevier County Sheriffs Office. Later that day, officers, acting on information provided by a different confidential informant, returned to. the premises .after obtaining a second search'warrant, conducted "a second search of the home, and discovered an additional amount of methamphetamine.
At trial, the State produced the controlled substances found in the home, as well as the weapons seized, and they were introduced into evidence. In addition, the State’s witness, Agent Greg Davignon, a member of the South Central Drug Task Force, testified in detail, without objection, regarding the items discovered during the search, including the admittedly legal enhancements and specific firing rate of the AR-15 rifle. At trial, there was no testimony that the gun had been used for any illegal purpose.
Then, over objection from appellant’s counsel prior to its introduction, the circuit court allowed the video of task-force officers firing the modified AR-15 rifle to be presented and played for the jury. The video depicted the agents holding and loading the AR-15 rifle with rounds secured from a source other than appellant or his home and were not those seized in the search leading to his arrest. The video showed the agents emptying the magazine loaded in the weapon using the gun’s automatic-fire setting.
|3On August 14, 2014, appellant was found guilty on all counts and sentenced to a total term of seventy-three years in the Arkansas Department of Correction. On September 15, 2014, appellant timely filed his notice of appeal.
The decision to admit or exclude evidence is within the sound discretion of the circuit court, and we will not reverse a circuit court’s decision regarding the admission of evidence absent a manifest abuse of discretion. See Paschal v. State, 2012 Ark. 127, 388 S.W.3d 429; Williams v. State, 2011 Ark. App. 521, 2011 WL 4067412. When reviewiiig a denial- of a motion in limine or a refusal to take judicial notice, we use the abuse-of-discretion standard: Mhoon v. State, 369 Ark. 134, 251 S.W.3d 244 (2007). An abuse of discretion is a high threshold; it does not simply require error in the circuit court’s decision, but requires that the circuit court acted improvidently, thoughtlessly, or without consideration. Williams, supra.
Rule 402 of the Arkansas Rules of Evidence (2014) states that “[a]ll relevant evidence is admissible, except as otherwise provided by statute or by these rules or by other rules applicable in the courts of this State. Evidence which is not relevant' is not admissible.” Further, • Rule 403 of the Arkansas Rules of Evidence states that, “[although relevant, evidence may be excluded if its probative value is substantially outweighed by the, danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.” Our supreme court in Lard v. State, 2014 Ark. 1, 431 S.W.3d 249, stated,
As a general matter, • all relevant evidence is admissible. Ark. R. Evid. 402. Relevant evidence is evidence that has a tendency to make the existence of any fact that is of consequence to the determination of the action more, or, less probable than it would be without the evidence. Ark. R. Evid. 401. Evidence, although relevant, may be |4excluded if, its probative value is substantially outweighed by the danger of unfair prejudice. Ark. R. Evid. 403.
Id. at 19-20, 431 S.W.3d at 264. Additionally, video evidence is admissible if it is relevant, helpful to the jury, and. not prejudicial. Hickson v. State, 312 Ark. 171, 847 S.W.2d 691 (1993). The same requirements for the admission of photographs apply to the admission of video evidence. Williams v. State, 374 Ark. 282, 287 S.W.3d 559 (2008). Because a videotape can give the jury' a different perspective on the crime scene, a videotape can be helpful to a jury’s understanding of the case. See Hamilton v. State, 348 Ark. 532, 74 S.W.3d 615 (2002). It is well recognized that the balancing of probative value against prejudice is a matter left to the sound discretion of the circuit court. Chapman v. State, 343 Ark. 643, 38 S.W.3d 305 (2001).
Agent Davignon testified without objection that he was familiar with the AR-15 rifle and furthermore to the enhancements made to the weapon found in appellant’s residence. In his testimony, he set out each enhancement, including ■ the laser sight, firing-rate selector, rounds used in the weapon, and the various magazines that can be used with the weapon and those found with or near the weapon. Agent Davignon further stated that law enforcement had no reason to believe that the weapon had been illegally obtained and that both the weapon and the enhancements nn ■ the weapon were legal. His testimony indicated that there was no evi-dencé that appellant had fired the weapon for any illegal purpose.
To sustain a charge of simultaneous possession of a firearm and drugs under Arkansas Code Annotated .section 5-74-106 (Supp. 2013), the State must prove that appellant was in possession of the firearm in a home while he also possessed a felony amount of a controlled | Ssubstance. The statute under which appellant was charged does not require that the weapon be firea-ble, and no defense was asserted by appellant, as set out in the statute, as to his accessibility to the rifle. Likewise, none of the other offenses with which appellant was charged require that the weapon be fireable, or even possessed. Appellant contends that the presentation of the video of law enforcement officers firing the ÁR-15 rifle was not required for a finding of guilty under the charges for which he was being tried.
The above-cited rules- of evidence require that evidence be relevant to the charge, and, if the circuit court determines the evidence to be relevant, it must then balance the probative value of the evidence against the danger of' unfair prejudice, confusion, and misleading the jury, among other considerations. Appellant argues that the presentation of the video was not relevant to any of the counts under which he was charged and should have been excluded as irrelevant evidence.
Appellant points.out that the rifle and the enhancements were legal — as was his possession of the rifle — because he was of proper age and not a convicted felon. The only relevant issue, as it relates to the charges against him, was that the rifle was possessed in proximity to. alleged controlled substances — and he never challenged that evidence. Appellant did not disclaim ownership of the rifle, and he acknowledges that ample proof was presented that the rifle was found in his home along with the large amount of controlled substances. But appellant urges that the submission of the video showing someone other than him loading or firing the weapon was irrelevant and alternatively, inadmissible under the balancing test set out in Rule 403. Appellant maintains that the video served no other | ¿purpose during the guilt phase of the trial than to inflame the passion of the jury to believe that he was a violent person, despite the lack of evidence that he engaged in violent activities or that he was a'violent person, in order to unduly prejudice appellant or mislead of'confuse the jury as to appellant’s use of the weapon.
Appellant contends that the submission of the video had an effect on the jury, not only in determining his guilt or innocence, but also by inciting such passion in the minds of the jury that appellant, was in essence, a violent person, tainting not only the jury’s belief in the guilt and innocence phase but also its determination of his sentence; even though the video was introduced again in that phase. Appellant submits that allowing the submission of the video, despite a lack of evidence regarding his use of the weapon or his tendency for violence, and further, in light of the officers’ decision to fire the weapon only in its full automatic position — absent any evidence that it was discovered in that position — unduly prejudiced him and affected the jury’s perception to such an extent that it amounts to an abuse of discretion.
Although we find merit in appellant’s argument that the submission of the video was not relevant to any specific offense with which he was charged in that it did not have a tendency to make the. existence of any fact that is of consequence to the determination of the action more or less probable than it would be without the evidence, see Arkansas Rule of Evidence 401, we hold that the circuit court’s error in allowing the submission was' harmless. This court has consistently held that under the harmless-error rule, when evidence of guilt is overwhelming and the error slight, we can declare the error harmless. Johnston v. State, 2014 Ark. 110, 431 S.W.3d 895; see also Baker v. State, 334 Ark. 330, 974 S.W.2d 474 (1998) (holding that introduction of testimony regarding the defendant’s State of mind was harmless error in light of other evidence introduced at trial); Hicks v. State, 327 Ark. 652, 941 S.W.2d 387 (1997) (holding' that admission of additional drug paraphernalia was harmless error when' there was overwhelming evidence to support the conviction).
In determining whether the error is slight, we look to see if the defendant has been prejudiced. Johnston, supra. Prejudice is not presumed, however, and this court will not reverse the circuit court’s ruling unless appellant demonstrates prejudice by the admission of the video. Gaines v. State, 340 Ark. 99, 8 S.W.3d 547 (2000). The record before us indicates that the evidence against appellant was overwhelming and justifies hip sentence, which falls within the sentencing range. Under Buckley v. State, 349 Ark. 53, 64, 76 S.W.3d 825, 832 (2002), “[a] defendant who has received a sentence within the statutory range short of the maximum sentence cannot show prejudice from the sentence itself.”
Appellant was convicted of two Class Y felonies for trafficking methamphetamine and simultaneous possession of drugs and firearms, and each conviction carries a sentence range of ten to forty years or life. Ark. Code Ann. § 5-64-440(c) (Supp. 2013); Ark. Code Ann. § 5-74-106(b); Ark. Code Ann. § 5-4-401(a)(l) (Repl. 2013). Appellant received a forty-year sentence for trafficking and a twenty-five year sentence for simultaneous possession, which is not life and is fifteen years less than the maximum sentence authorized by law. He was also convicted of a Class C felony for maintaining a drug premises, and the corresponding sentence ranges from three to ten years. Ark. Code Ann. § 5-64-402(b)(l) (Supp. 2013); Ark, j «Code Ann. § 5-4-401(a)(4). Appellant received a five-year sentence, which is only half of the maximum authorized sentence. . He was also convicted of possession of drug paraphernalia, a Class D felony that carries a sentence of up to six years. Ark. Code Ann. § 5-64-443(a)(2); Ark. Code Ann. § 5-4~401(a)(5). Appellant received a three-year sentence, which is, again, only half of the maximum sentence.' Because there was overwhelming evidence of appellant’s guilt separate and apart from the video, and because his sentence falls within statutory sentencing range, we hold that any error from the admission of the video was harmless.
Affirmed.
Whiteaker and Hoofman, JJ., agree. | [
113,
-18,
-20,
28,
58,
97,
120,
-68,
66,
-13,
-26,
115,
-89,
-62,
4,
123,
-21,
127,
116,
-7,
-63,
-73,
67,
112,
-30,
-13,
41,
-41,
50,
-53,
-84,
-36,
28,
100,
-22,
69,
6,
72,
-89,
88,
-114,
1,
-69,
123,
82,
2,
40,
43,
58,
15,
33,
-114,
-32,
46,
27,
-53,
105,
40,
75,
-68,
88,
-23,
120,
93,
-115,
6,
-79,
54,
-101,
4,
-8,
126,
-48,
49,
0,
-24,
123,
-90,
-46,
116,
32,
-101,
12,
100,
-30,
2,
29,
-19,
-84,
-128,
54,
63,
-97,
-25,
-104,
105,
107,
13,
-106,
-107,
126,
16,
46,
-10,
107,
69,
113,
108,
-122,
-58,
-108,
-109,
13,
32,
-124,
82,
-21,
1,
48,
117,
-51,
-30,
116,
71,
113,
-101,
-49,
-110
] |
RONALD L. SHEFFIELD, Justice.
I, Stark Ligón, Executive Director of the Supreme Court Committee on Professional Conduct (“the Committee”), brings this original action to disbar attorney Oscar Amos Stilley, Ark. Bar No. 91096. Our jurisdiction is pursuant to Arkansas Supreme Court Rule 1 — 2(a)(5) (2010). We adopt the findings of fact and conclusions of law entered by the special judge and agree that the appropriate sanction is disbarment.
I. Procedural History
hOn October 29, 2004, then Circuit Judge James R. Marschewski referred Stilley to the Committee for possible ethics violations (CPC No.2006-067, “the Marschew-ski Complaint”). On December 14, 2007, after hearing the matter, Panel B of the Committee voted to initiate disbarment proceedings against Stilley. The panel members also voted to place him on interim suspension pending the conclusion of such proceedings. An order of suspension was filed with the clerk of this court on December 27, 2007.
Ligón subsequently filed a petition for disbarment on January 16, 2008, and alleged twenty-eight violations of the Rules of Professional Conduct (“Rules”). The petition raised two additional allegations related to Stilley’s “overall fitness” to hold a law license. Stilley responded to the petition on March 3, 2008.
By per curiam order on April 15, 2008, we appointed Special Judge John Line-berger to hear the disbarment petition and to provide the court with findings of fact, conclusions of law, and recommendation of an appropriate sanction. Ligon v. Stilley, 373 Ark. App’x 675, 283 S.W.3d 185 (2008) (per curiam).
On June 20, 2008, Panel B authorized disbarment proceedings related to a subsequent complaint filed against Stilley by Circuit Judge Stephen Tabor (CPC 2007-062, “the Tabor Complaint”). On June 27, 2008, Ligón filed a first amended/supplement petition for disbarment based on the Tabor Complaint. The amended petition raised nine additional counts for disbarment and ten additional allegations related to Stilley’s fitness to hold a law license.
Throughout the proceedings before the special judge, Stilley filed numerous motions,_J^which will be addressed in this opinion as they are relevant. On April 22, 2009, following a three-day hearing on December 8, 9, and 10, 2008, at which he heard testimony and received evidence, the special judge entered findings of fact and conclusions of law. The order was one hundred and nineteen pages in length and found that Ligón had met his burden of proof with respect to the thirty-two counts charged in the petition for disbarment and the amended petition for disbarment.
On May 21, 2009, the special judge heard testimony and received evidence relevant to a determination of the appropriate sanction. On August 6, 2009, an order recommending disbarment was filed. We are now considering the recommendation of disbarment.
II. Standard of Review
The authority to regulate the practice of law arises from the Arkansas Constitution, specifically amendment 28 and amendment 80, section 4. The power to regulate the practice of law is also an inherent power of the courts. See, e.g., Ligon v. McCullough, 2009 Ark. 165A, 303 S.W.3d 78; see also In re Anderson, 312 Ark. 447, 851 S.W.2d 408 (1993); Hurst v. Bar Rules Comm., 202 Ark. 1101, 155 S.W.2d 697 (1941); Beene v. State, 22 Ark. 149 (1860). The Procedures Regulating Professional Conduct (“Procedures”) were promulgated by this court and govern attorney discipline. See Ark. Sup.Ct. P. Regulating Profl Conduct § 1(A) (2010) (“These Procedures are promulgated for the purpose of regulating the professional conduct of attorneys at law and shall apply to complaints filed and formal complaints instituted against attorneys.”).
Under section 13 of the Procedures, the process for a disbarment action, as relevant to |4the instant matter, is as follows:
(A) An action for disbarment shall be filed as an original action with the Clerk of the Supreme Court. Upon such filing, the Arkansas Supreme Court, pursuant to Amendment 28 of the Arkansas Constitution, shall assign a special judge to preside over the disbarment proceedings .... In disbarment suits, the action shall proceed as an action between the Executive Director and the respondent. Proceedings shall be held in compliance ■with the Arkansas Rules of Civil Procedure and the Arkansas Rules of Evidence, and trial shall be had without a jury.
(B) The judge shall first hear all evidence relevant to the alleged misconduct and shall then make a determination as to whether the allegations have been proven. Upon a finding of misconduct, the judge shall then hear all evidence relevant to an appropriate sanction to be imposed, including evidence related to the factors listed in Section 19 and the aggravating and mitigating factors set out in the American Bar Association’s Model Standards for Imposing Lawyer Sanctions, §§ 9.22 and 9.32 (1992). See Wilson v. Neal, 332 Ark. 148, 964 S.W.2d 199 (1998).
(C) The judge shall make findings of fact and conclusions of law with respect to the alleged misconduct of the respondent attorney and the imposition of sanctions, including the factors discussed in subsection 13(B).... The judge shall make a recommendation as to the appropriate sanction from those set out in Section 17(D). ■
(D) The findings of fact, conclusions of law, and recommendation of an appropriate sanction shall be filed with the Clerk of the Supreme Court along with a transcript and the record of the proceedings. Upon the filing, the parties shall file briefs as in other cases. The findings of fact shall be accepted by the Supreme Court unless clearly erroneous. The Supreme Court shall impose the appropriate sanction, if any, as the evidence may warrant. In imposing the sanction of suspension, the attorney may be suspended for a period not exceeding five (5) years. There is no appeal from the decision of the Supreme Court except as may be available under federal law.
Id. § 13.
Section 1(C) of the Procedures states that attorney disciplinary proceedings are neither civil nor criminal in nature but are sui generis, meaning of their own kind. See id. § 1(C); see also Ligon v. Dunklin, 368 Ark. 443, 247 S.W.3d 498 (2007). We will accept the judge’s | ¡¿findings of fact unless they are clearly erroneous, and we impose the appropriate sanction as warranted by the evidence. Ark. Sup.Ct. P. Regulating Profl Conduct § 1(C); see also McCullough, 2009 Ark. 165A, 303 S.W.3d 78. A finding is clearly erroneous when, although there is evidence to support it, the reviewing court on the entire evidence is left with a definite and firm conviction that a mistake has been committed. McCullough, 2009 Ark. 165A, 303 S.W.3d 78; see also Ligon v. Stewart, 369 Ark. 380, 255 S.W.3d 435 (2007).
Because the special judge’s findings are not clearly erroneous, we adopt them in full. Further, we agree with the special judge that disbarment is the appropriate sanction given the serious and widespread nature of Stilley’s professional misconduct.
III. Evidence Supports the Special Judge’s Findings and Recommendation
For his first point on appeal, Stilley contends that there was a “complete and total absence of evidence in support of [Ligon’s] claims.” Stilley urges that the special judge erred in recommending disbarment under the circumstances. Ligón responds that Stilley has failed “to address the overwhelming factual evidence in the record against him and the Special Judge’s carefully reasoned and fully-supported findings as to guilt on all thirty-two charges of misconduct.” Ligón argues instead that Stilley’s arguments relate more to procedure.
A. Underlying Facts
The facts giving rise to this disbarment proceeding are complex and have been set forth in multiple previous cases. The essence of the charges is that Stilley attempted to relitigate issues that had previously been decided by filing multiple lawsuits in state and federal courts. | fiIn doing so, it is alleged that Stilley was disrespectful toward the courts and toward individual judges; was repeatedly sanctioned under Arkansas Rule of Civil Procedure 11; threatened to report a circuit judge and opposing counsel to the prosecuting attorney’s office and to the professional misconduct committee if they did not comply with his demands; personally sued various judges and justices after they ruled against him; withheld material information from the court; directly violated court orders; and repeatedly attempted to be admitted to practice before federal courts without disclosing his disciplinary history in Arkansas.
In 2002, Stilley filed a complaint in the Sebastian County Circuit Court on behalf of his client, John Parker, against the following parties: the county judge; the county collector; and the county treasurer; the Fort Smith School District; Westark Community College, a/k/a University of Arkansas-Fort Smith; the City of Fort Smith; and Sebastian County. The complaint alleged that Act 758 of 1995 violated amendment 59 to the Arkansas Constitution and that the defendants were imposing illegal taxes on the plaintiff and other similarly-situated taxpayers. Circuit Judge Marschewski granted the defendants’ motion for summary judgment on grounds that res judicata barred the lawsuit because the claims raised were litigated in Elzea v. Perry, 340 Ark. 588, 12 S.W.3d 213 (2000). Judge Marschewski also imposed Rule 11 sanctions against Stilley after finding that he was the attorney in the Elzea case and had, therefore, previously filed an identical complaint that resulted in summary judgment and was affirmed on appeal. Parker appealed, and this court affirmed the grant of summary judgment and the Rule 11 sanctions in Parker v. Perry, 355 Ark. 97, 131 S.W.3d 338 (2003).
In July 2004, the Fort Smith School District, one of the defendants in Parker, filed a 17notice of noncompliance in circuit court, and in August, it filed a motion to enforce Rule 11 sanctions. A hearing was held on September 22, 2004, at which Stil-ley was directed by the court to provide information regarding his finances in order to determine if he was financially able to comply with the Rule 11 sanctions. Stilley then filed a complaint in federal court against Judge Marschewski, opposing counsel, and the Justices of the Arkansas Supreme Court, alleging that his due-process and equal-protection rights were violated and that Judge Marschewski and the Arkansas Supreme Court Justices were biased against him.
In response to a motion for contempt filed in circuit court regarding the sanctions in the Parker v. Perry matter, Stilley sent a letter to Judge Marschewski wherein he alleged that the sanction order was illegal. Stilley stated that he “would prefer not to report [the judge’s] conduct to the Committee on Professional Conduct or to the judicial authorities,” asked Judge Marschewski to “provide [him] with a basis for not filing a report with the appropriate professional authorities for judges and lawyers,” and concluded that if he did not respond, Stilley would “also file a criminal complaint with the Sebastian County Prosecutor’s office.”
[Judge Marschewski forwarded StiHe^s letter to the Committee and asked it to “take whatever action [it] think[s] is necessary.” Judge Marschewski also forwarded the letter to the Judicial Discipline and Disability Commission to take any appropriate action against him. In closing, Judge Marschewski stated: “I do not mind Mr. Stilley filing any complaint against me that he cares to file, but, what I do object to is being threatened with an ethics complaint or a criminal complaint unless I do what he thinks is appropriate.” This letter caused the Committee to open an investigation in the Marschewski Complaint, which led to the filing of the initial petition for disbarment.
Judge Marschewski held another hearing on the motion for contempt on January 14, 2005, after which he found Stilley in contempt and entered an order directing him to serve thirty days in jail and to pay a fine of $50 per day until he complied with the court’s order. On March 2, 2007, Stil-ley filed a motion for stay of the contempt order and for writ of habeas corpus in federal court. On March 14, 2007, Judge Stephen Tabor, as successor to Judge Marschewski, held a hearing on the Parker defendants’ amended motion to enforce sanctions. Judge Tabor told Stilley that the matters which led to the motion to enforce sanctions would not be relitigated. Judge Tabor also informed Stilley that he would be unavailable for a few |3days due to a family emergency and would issue his ruling on the motion to enforce sanctions at a hearing on March 26, 2007.
On March 5, 2007, in violation of Judge Tabor’s directive not to relitigate issues, Stilley issued subpoenas to take the deposition of numerous individuals, including Judge Marschewski. Judge Tabor then ordered that Stilley be jailed until he complied with Judge Marschewski’s order and subsequently held him in contempt for failing to comply with his directives and sentenced him to thirty additional days in jail. On May 8, 2007, Judge Tabor also referred Stilley to the Committee. His referral was the Tabor Complaint and led to the amended petition for disbarment.
Another instance in which Stilley attempted to litigate issues that had been previously decided involved his representation of his client Buck Jones. In 2002, Stilley entered an appearance on behalf of Jones and filed a pleading styled as a “Cross Claim Complaint,” in which he raised certain constitutional claims. The circuit judge dismissed the pleading, finding that an opinion against Jones had already been entered and that the pleading filed by Stilley was a compulsory counterclaim that should have been raised during the trial. This court affirmed. Jones v. Double “D” Props., Inc., 352 Ark. 39, 98 S.W.3d 405 (2003) (Jones I). After the mandate issued in Jones I, the prevailing party, Double “D” Properties, Inc., filed a petition asking the circuit court to release funds posted as a supersedeas bond by Jones and his wife, Robbie Jones. Stilley, acting on behalf of the Joneses, responded and filed a motion seeking permission to file an illegal-exaction complaint. The circuit court denied the motion |inin reliance on Jones I, and this court again affirmed. Jones v. Double "D" Props., Inc., 357 Ark. 148, 161 S.W.3d 839 (2004) (Jones II).
On October 5, 2004, the Joneses filed a "pro Se" complaint in federal court, naming Double "D" Properties, Inc.; the Arkansas State Land Commissioner; the Sebastian County Judge; the Sebastian County Collector; the Sebastian County Treasurer, the Fort Smith School Board members; the University of Arkansas at Fort Smith and its attorney; the City of Fort Smith; and each Justice of the Arkansas Supreme Court as defendants ("the federal Jones case"). The complaint raised the same claims that had been decided in Jones I and Jones II. In addition, it alleged that the Justices of the Arkansas Supreme Court deprived the Joneses of due process and "a competent tribunal" as a result of "passion and prejudice ... against Oscar Stilley."
In a subsequent deposition, Buck Jones stated that Stilley had been his attorney when the federal Jones complaint was filed and that Stilley typed and otherwise prepared the complaint. At a contempt hearing in the Sebastian County Circuit Court in January 2005, Stilley was asked about his participation in the preparation of the pleadings in the federal Jones case. He responded that he typed a lot of the documents and that "to his knowledge" Buck Jones did not type any part of the complaint. Stilley finally concluded that he "assisted Mr. Jones materially in the preparation of that complaint."
Finally, in a previous proceeding before the Committee, Stiley was found to have violated four provisions of the Rules, and a six-month suspension of his law license was recommended. This court affirmed in Stilley v. Supreme Court Committee on Professional Conduct, 370 Ark. 294, 259 S.W.3d 395 (2007). The suspension was stayed during the pendency of Stilley's petition for writ of certiorari to the United States Supreme Court, which was subsequently denied. Stilley v. Supreme Court of Ark. Comm. on Prof'l Conduct, 552 U.S. 1184, 128 S.Ct. 1248, 170 L.Ed.2d 67 (2008). Despite this history, Stilley filed multiple petitions for admission to practice pro hac vice in various federal courts without disclosing his disciplinary record in Arkansas. Furthermore, when his record was brought to the attention of the federal courts, Stilley repeatedly attempted to re-litigate the issues giving rise to his state disciplinary sanctions.
B. Charges
In the initial petition for disbarment, Ligon charged Stilley with the following:
• One violation of Rule 3.1 of the Arkansas Rules of Professional Conduct, which states that
[a] lawyer shall not bring, or defend a proceeding, or assert or controvert an issue therein, unless there is a basis in law and fact for doing so that is not frivolous, which includes a good faith argument for an extension, modification or reversal of existing law. A lawyer for the defendant in a criminal proceeding, or a respondent in a proceeding that could result in incarceration, may nevertheless so defend the proceeding as to require that every element of the case be established.
• One violation of Rule 3.3(a), which states that
(a) [a] lawyer shall not knowingly:
(1) make a false statement of fact or law to a tribunal; or fail to correct a false statement of material fact or law previously made to the tribunal by the lawyer;
(2) fail to disclose to the tribunal legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel; or
(3) offer evidence that the lawyer knows to be false. If a lawyer, the lawyer’s client, or a witness called by the lawyer, has offered material evidence and the lawyer comes to 112know of its falsity, the lawyer shall take reasonable remedial measures including, if necessary, disclosure to the tribunal. A lawyer may refuse to offer evidence, other than the testimony of a defendant in a criminal matter, that the lawyer reasonably believes is false.
• Eleven violations of Rule 3.4(c), which states that “[a] lawyer shall not knowingly disobey an obligation under the rules of a tribunal except for an open refusal based on an assertion that no valid obligation exists.”
• Ten violations of Rule 8.4(d), which states that “[i]t is professional misconduct for a lawyer to engage in conduct that is prejudicial to the administration of justice.”
The Rule 3.1 violation arose from an allegation that Stilley assisted the Joneses in the federal Jones case in bringing a frivolous claim against the named defendants, including then sitting justices of this court. The violation of Rule 3.3(a)(1) stemmed from a contempt hearing in the Sebastian County Circuit Court wherein Stilley was asked about his role in the preparation of the pleadings in the federal Jones ease. According to Ligón, Stilley’s responses “demonstrated a lack of candor, even a false statement, to the tribunal.” In counts three through thirteen, Ligón cited instances of language included in the federal Jones case pleadings that he alleged were “intemperate, contemptuous, and disrespectful” toward the court. Li-gón argued that this language violated Rule 3.4(c) because it constituted “a breach of the obligation of [Stilley’s] oath of office as an attorney-at-law, due to his general tone of disrespect for the attorney code of ethics.”
Five of the Rule 8.4(d) violations arose from allegations that Stilley threatened a circuit hajudge and two attorneys with criminal and disciplinary actions in “an attempt to coerce a favorable result in a civil court action.” The petition for disbarment further alleged that Rule 8.4(d) was violated where Stilley was sanctioned under Rule 11 for filing a complaint that was barred by res judicata; violated Rule 11 where he filed a lawsuit in federal court that was barred by several legal doctrines and for which he had previously been sanctioned; failed to comply with an order for sanctions entered in the Sebastian County Circuit Court; brought a lawsuit personally against various Arkansas judges on frivolous claims; and brought a lawsuit against then circuit judge Marschewski and the University of Arkansas-Fort Smith for an improper purpose.
Finally, Ligon urged that the previously affirmed six-month suspension of Stilley’s law license, see Stilley v. Supreme Court Committee on Professional Conduct, 370 Ark. 294, 259 S.W.3d 395 (2007), and allegations in a pending professional-misconduct case were relevant to his overall fitness to hold a law license.
In the amended petition for disbarment, Ligón brought the following additional nine charges:
• One violation of Rule 3.4(c), which states that “[a] lawyer shall not knowingly disobey an obligation under the rules of a tribunal except for an open refusal based on an assertion that no valid obligation exists.”
• One violation of Rule 4.4(a), which states that, “[i]n representing a client, a lawyer shall not use means that have no substantial purpose other than to embarrass, delay, or burden a third person, or use methods of obtaining evidence that violate the legal rights of such a person.
• One violation of Rule 8.4(d), which states that “|j]t is professional misconduct for a 114lawyer to engage in conduct that is prejudicial to the administration of justice.”
• Three violations of Rule 3.3(a)(1), which states that “[a] lawyer shall not knowingly make a false statement of fact or law to a tribunal; or fail to correct a false statement of material fact or law previously made to the tribunal by the lawyer.”
• Three violations of Rule 8.4(c), which states that “[i]t is professional misconduct for a lawyer to ... engage in conduct involving dishonesty, fraud, deceit or misrepresentation.”
The Rule 3.4(c) and Rule 4.4(a) violations arose from an allegation that Stilley had subpoenas and deposition notices issued in direct violation of a circuit judge’s directive. The Rule 8.4(d) violation resulted from an allegation that Stilley accused Judge Marschewski of lying during a legal proceeding, especially where Stilley made the same accusation in a previous case that was decided against Stilley. According to the amended petition for disbarment, Stil-ley violated Rule 3.3(a)(1) and Rule 8.4(c) on multiple occasions by filing petitions for admission to practice pro hac vice in federal courts without disclosing his prior disciplinary history in Arkansas. Ligon’s amended petition also included ten specific allegations Stilley had engaged in conduct relevant to his fitness to hold a law license, when he petitioned for admission to practice pro hac vice in federal courts. Ligón asserted that, in these cases,. Stilley attempted to relitigate his Arkansas professional misconduct proceedings in federal courts throughout the country.
C. Special Judge’s Findings
In his findings of fact and conclusions of law, the special judge reviewed extensively the factual allegations and charges brought against Stilley. He concluded, after referencing the exhibits introduced in support of the charges, that Ligón had met his burden on all thirty-two lir,charges of misconduct. Following the hearing on sanctions, the special judge concluded that twenty of the counts rose to the level of “serious misconduct,” as defined in section 17(B) of the Procedures:
Serious misconduct is conduct in violation of the Model Rules that would warrant a sanction terminating or restricting the lawyer’s license to practice law. Conduct will be considered serious misconduct if any of the following considerations apply:
(1) The misconduct involves the misappropriation of funds;
(2) The misconduct results in or is likely to result in substantial prejudice to a client or other person;
(3) The misconduct involves dishonesty, deceit, fraud, or misrepresentation by the lawyer;
(4) The misconduct is part of a pattern of similar misconduct;
(5) The lawyer’s prior record of public sanctions demonstrates a substantial disregard of the lawyer’s professional duties and responsibilities; or
(6) The misconduct constitutes a “Serious Crime” as defined in these Procedures.
Ark. Sup.Ct. P. Regulating. Profl Conduct § 17(B). He specifically found that “[f]or more than nine years Stilley has deliberately and without justification engaged in a course of conduct inconsistent with standards of professional conduct required by attorneys practicing in this state.” The special judge noted that “Stil-ley has an extensive track record” and that his “unethical conduct has not been isolated or infrequent.”
The judge then looked to the factors to be considered in imposing sanctions, listed in section 19 of the Procedures:
In addition to any other considerations permitted by these Procedures, a panel of the Committee, in imposing any sanctions, shall consider:
|mA. The nature and degree of the misconduct for which the lawyer is being sanctioned.
B. The seriousness and circumstances surrounding the misconduct.
C. The loss or damage to clients.
D. The damage to the profession.
E. The assurance that those who seek legal services in the future will be protected from the type of misconduct found.
F. The profit to the lawyer.
G. The avoidance of repetition.
H. Whether the misconduct was deliberate, intentional or negligent.
I. The deterrent effect on others.
J. The maintenance of respect for the legal profession.
K. The conduct of the lawyer during the course of the Committee action.
L. The lawyer’s prior disciplinary record, to include warnings.
M. Matters offered by the lawyer in mitigation or extenuation except that a claim of disability or impairment resulting from the use of alcohol or drugs may not be considered unless the lawyer demonstrates that he or she is successfully pursuing in good faith a program of recovery.
Id. § 19. The special judge also noted the aggravating and mitigating factors as provided in Wilson v. Neal, 341 Ark. 282, 16 S.W.3d 228 (2000). He concluded that the factors in section 19(A), (B), (C), (D), (E), (G), (H), (I), (J), (K), and (L) were relevant to the sanction and that there was evidence of ten aggravating factors. The special judge recommended disbarment “[bjecause of Stilley’s unwillingness or inability to acknowledge that his conduct has not met ethical standards; his failure to disclose his violations when required; and his continued pattern of failing to abide by Court Rules and ethical guidelines.”
D. Stilley’s Argument
||7Before this court, Stilley first seems to argue that the findings of fact and conclusions of law were erroneous because Ligón did not comply with the special judge’s request that he include an introduction or general statement of the facts in his proposed findings of fact and conclusions of law. This argument is without merit. We do not review any proposed findings of fact and conclusions of law as presented to the special judge by Ligón or Stilley. Rather, our review is from the findings of fact and conclusions of law as entered by the special judge. Ark. Sup.Ct. P. Regulating Prof 1 Conduct § 13(D).
As a related argument, Stilley contends that Ligón failed to provide, in his proposed findings of fact and conclusions of law, any “citation to the evidence in the case.” Rather, according to Stilley, Ligón relied on accusations, which were insufficient to meet his burden of proof for disbarment. This argument reflects a fundamental misunderstanding on Stilley’s part about the nature of evidence. This error is evident in the following sentence from his brief: “[Ligón] did in fact recite various parts of the ‘petition’ and ‘supplemental petition’ for disbarment, along with exhibits to the same.” (Emphasis added.) Later in his brief, Stilley notes that Ligón “presented but one witness in his case in chief on liability, namely Respondent Oscar Stilley.”
The implication of these two sentences, taken together, is that Ligón was required to prove the charges brought in his petition for disbarment with live witness testimony. However, there is no such requirement in the Procedures. Li-gón chose to rely instead on | ^documentary evidence, submitted to the special judge in the form of exhibits. It is clear that evidence includes documents as well as witness testimony. See, e.g., Black’s Law Dictionary 635 (9th ed.2009) (defining evidence as “[something (including testimony, documents and tangible objects) that tends to prove or disprove the existence of an alleged fact”).
During the evidentiary hearing and the hearing on sanctions, Stilley objected to the introduction of most of the exhibits admitted by the special judge. However, he does not argue to this court that the special judge erred in admitting the above-referenced exhibits. Therefore, he has abandoned any argument as to the admissibility of the exhibits. Instead, Stil-ley contends that there was a “complete and total absence of evidence in support of [Ligon’s] claims.” However, the special judge’s orders reflect that he relied on the exhibits admitted during the proceedings. It is clear that there was evidence on which the judge based his findings.
Finally, while Stilley may disagree about whether the exhibits admitted by Ligón constitute sufficient evidence to support the special judge’s specific findings, he has not engaged in any meaningful analysis on this issue. In other disbarment cases, we have refused to engage in a comprehensive review of the findings of fact where the respondent failed to specifically challenge or contest them. See, e g., Ligon v. Walker, 2009 Ark. 136, 297 S.W.3d 1.
linTherefore, we adopt the special judge’s findings of fact and find that Stilley violated the Rules as set forth in the petition and amended petition for disbarment. For years Stilley has refused to accept the finality of decisions rendered by courts of competent jurisdiction. Instead, he has consistently engaged in conduct intended to harass opposing counsel and judges with whom he disagrees. In so doing, he has wasted vast amounts of time and judicial resources. He has also been unwilling to obey direct orders of the court and has withheld material information from state and federal courts. We are mindful of the gravity of Stilley’s actions as well as the cumulative nature of his violations. Thus, we likewise agree with the special judge that Stilley’s actions constitute serious misconduct and that disbarment is the appropriate sanction.
IV. Meaningful Adjudication
Stilley’s next argument is that the special judge erred because he failed to “meaningfully adjudicate” his legal arguments. As a preliminary matter, in his brief to this court, Stilley purports to “incorporate all the legal arguments presented” to the special judge in eleven specific pleadings, and he cites Jones v. Ragland, 293 Ark. 320, 737 S.W.2d 641 (1987), for the proposition that, according to Stilley, “incorporation by reference seems to be acceptable so long as the arguments are included in the addendum.” However, in Ragland, we held that it was improper for a party to incorporate by reference a brief presented to the lower court in support of his argument on appeal where it was not abstracted. Id. at 324, 737 S.W.2d at 644. We do not read Ragland to mean that a party can incorporate arguments made to the 12ptrial court into the appellate brief so long as the lower-court pleading is included in the abstract or addendum. Such a holding would eviscerate our rules regarding briefing length and would render meaningless our holdings that we do not address arguments that are not sufficiently argued or briefed to this court. Ark. Sup. Ct. R. 4-1 (2010); see also Gatzke v. Weiss, 375 Ark. 207, 215, 289 S.W.3d 455, 461 (2008) (This court will not address arguments unless they are sufficiently developed and include citation to authority.).
However, even if we considered the pleadings Stilley submitted to the special judge, his argument fails. Stilley does not specifically argue that the special judge erred in rejecting his legal and constitutional arguments. Instead, he contends that he “has tried at every turn, from the written response at the Committee on Professional Conduct, to the public hearing, to the disbarment proceedings, to obtain consideration of his constitutional and other legal arguments.” According to Stilley, “[tjhese arguments have received either no consideration or such cursory consideration as to constitute a violation of due process.” The record belies this claim.
The eleven pleadings cited by Stilley in his brief are as follows:
• March 3, 2008 — Response to Petition for Disbarment
• July 30, 2008 — Stilley’s Motion to Dismiss, for More Definite Statement, and to Strike Immaterial Parts of the Supplemental Petition for Disbarment
• August 29, 2005 — Reply to the Response to the Motion to Dismiss, for More Definite Statement, and to Strike Immaterial Parts of the Supplemental Petition for Disbarment
• September 30, 2008 — Stilley’s Response to the First Amendment/Supplement to the Petition for Disbarment
|⅞1* September 30, 2008 — Stilley’s Motion to Reconsider the Motion to Dismiss, for More Definite Statement, and to Strike Immaterial Parts of the Supplemental Petition for Disbarment (with attached brief)
• October 20, 2008 — (1) Response to Motion to Quash; (2) First Motion to Extend Time for Discovery; (3) First Motion to Strike Section 5(C)(1) of the Procedures as Unconstitutional; (4) First Motion for Determination of Calculation of Travel Miles; (5) First Motion to Permit the Deposition of Stark Ligón; and (6) First Motion to Disqualify Stark Ligón
• October 31, 2008, Motion for Reconsideration and Order Commanding Stephen Tabor to Sit for Depositions, with a Continuance and Extensions of Time for All Operative Dates, Alternatively for an Order Concerning Deposition of Judges
• November 20, 2008 — Stilley’s Motion for Summary Judgment, for Dismissal for Lack of Jurisdiction, for Dismissal for Failure to State a Claim; for Rulings with Respect to Vague Allegations, and for Disqualification of Judge Lineberger and Stark Ligón
• March 18, 2009 — Stilley’s Motion for Directed Verdict or Judgment as a Matter of Law
• March 25, 2009 — Rebuttal with Respect to Petitioner’s Proposed Findings of Fact and Conclusions of Law
• April 20, 2009 — Stilley’s Motion for Directed Verdict or Judgment as a Matter of Law Regarding Counts 27-32
The record reflects that the special judge carefully considered each of these pleadings and entered written orders denying the relief Stilley sought on each motion. On September 12, 2008, he held a telephone conference on Stilley’s motion to dismiss, for more definite statement, and to strike immaterial parts of the supplemental petition for disbarment. On September 16, 2008, he entered a ten-page written order, discussing each of Stilley’s | ¡^arguments and denying the motion. The special judge then entered an order denying Stilley’s motion for reconsideration of that motion on October 20, 2008.
On October 9, 2008, Circuit Judge Stephen Tabor filed a motion to quash the subpoena issued to him by the Committee at Stilley’s request. The special judge held a telephone conference on this motion on October 14, 2008, at which both parties were permitted to present their legal arguments. The special judge entered an order granting the motion to quash on October 16, 2008, specifically relying on this court’s holding in Stilley v. Supreme Court Committee on Professional Conduct, 370 Ark. 294, 259 S.W.3d 395 (2007). Stilley filed a motion for reconsideration and order commanding Judge Tabor to sit for depositions on October 31, 2008, and the special judge entered an order denying that request on November 3, 2008.
On October 29, 2008, Stilley filed a motion seeking the following relief: (1) Response to Motion to Quash; (2) First Motion to Extend Time for Discovery; (3) First Motion to Strike Section 5(C)(1) of the Procedures as Unconstitutional; (4) First Motion for Determination of Calculation of Travel Miles; (5) First Motion to Permit the Deposition of Stark Ligón; and (6) First Motion to Disqualify Stark Ligón. In his motion for reconsideration filed on October 31, 2008, Stilley also sought a continuance and extensions of time for all operative dates, and, alternatively, for an order concerning the deposition of judges.
In response to these motions, the special judge entered orders to: (1) deny the motion for a continuance on November 3, 2008; (2) deny the motion to depose Ligón on November |¾¾6, 2008; (3) deny the motion to disqualify Ligón on November 6, 2008; (4) deny the motion to strike section 5(C)(1) of the Procedures on November 7, 2008; and (5) deny the motion to extend time for discovery on November 7, 2008.
On December 1, 2008, the special judge entered an order denying Stilley’s motion to disqualify Ligón and Special Judge Lineberger. The same day, he entered an order denying Stilley’s motion for summary judgment, specifically finding that the arguments contained in the motion were “more in the nature of a closing argument” and were not “supported by an Affidavit or by relevant facts generated and sworn to in discovery.” He then concluded that there were genuine issues of material fact.
The special judge entered an order on April 22, 2009, denying Stilley’s motions for directed verdict or judgment as a matter of law. And, finally, the arguments raised by Stilley in his response to the petition for disbarment, response to the amended petition for disbarment, and rebuttal with respect to Ligon’s proposed findings of fact and conclusions of law were addressed in the special judge’s findings of fact and conclusions of law entered on April 22, 2009.
This exhaustive procedural history is included to illustrate that, while Stilley may disagree with the special judge’s decisions in this case, he clearly received consideration of his constitutional and other legal arguments. We will not second guess the special judge with respect to his findings on the merits of these arguments because Stilley has made no argument as to why the judge was in error. It is well settled that we will not address arguments that are | ^insufficiently developed and lack citation to authority. See, e.g., Gatzke at 215, 289 S.W.3d at 461.
V. Deposition of Judge Tabor
Stilley also argues that the special judge erred in granting the motion to quash brought by Circuit Judge Stephen Tabor. He contends that because Judge Tabor referred him to the Committee for possible violations of the Rules, he became an “accuser,” and, as such, was required to sit for depositions. The special judge granted the motion to quash in reliance on precedent from this court. Stilley v. Supreme Court Comm. on Prof'l Conduct, 370 Ark. 294, 259 S.W.3d 395 (2007). He was correct in doing do.
In Stilley v. Supreme Court Committee on Professional Conduct, we squarely addressed this argument and affirmed our earlier decision to quash subpoenas issued to the then sitting justices of this court. 370 Ark. at 299-300, 259 S.W.3d at 398. In responding to Stilley’s argument that the justices should recuse from the case, the court noted that he was attempting to “reviv[e] his attempt to have the justices of this court recuse, seemingly, from all cases involving him” based on an argument that, having previously referred him to the Committee, they were his “ ‘accusers’ and have an interest in the outcome of the case.” Id. at 303, 259 S.W.3d at 401. We held that Stilley was merely “renewing his long-standing argument that he disagrees with this court’s decisions in cases he believes he should have won” and that “recusal is simply not appropriate nor warranted” in the case. Id. Just as the justices of this court were not required to sit for depositions after having referred Stilley to the Committee, | ¡^neither was Judge Tabor. The special judge, therefore, did not err in granting the motion to quash.
VI. Section 5(C)(1)
Finally, Stilley contends that section 5(C)(1) is unconstitutional because it treats complaints from judges differently from those of other citizens. Ark. Sup.Ct. P. Regulating Profl Conduct § 5(C)(1) (2008) (“It shall be the duty of the Office of Professional Conduct to receive and investigate all complaints against any member of the Bar. Such complaints shall be docketed and assigned a permanent file number. The Office of Professional Conduct and the Committee shall accept and treat as a formal complaint any writing signed by a judge of a court of record in this State regardless of whether such signature is verified.”). Stilley claims that this pro vision violates the Arkansas Constitution because “no person has a right to have their complaints treated as more important than the complaints of others solely on the basis of their position.” Stilley specifically contends that section 5(C)(1) is unconstitutional because “[t]he General Assembly shall not grant to any citizen, or class of citizens, privileges or immunities which, upon the same terms, shall not equally belong to all citizens.” Ark. Const, art. 2, § 18.
In rejecting this argument, the special judge held that the rules promulgated by this court pursuant to its authority to regulate the practice of law are presumed to be constitutional |2fiand that Stilley failed to cite any authority holding otherwise. We decline to address Stil-ley5s argument on this point because he has not presented any evidence that he was prejudiced by the Committee’s treatment of the Marschewski and Tabor Complaints. See Judicial Discipline & Disability Comm’n v. Simes, 2009 Ark. 543, 354 S.W.3d 72 (due-process argument not considered where respondent failed to show prejudice). Since Stilley has failed to show how the Committee would have acted differently if the complaints were filed by nonjudges, we reject his argument.
VII. Conclusion
We adopt the special judge’s findings of fact and conclusions of law and find that Stilley violated the Rules as charged by Ligón in the petition and amended petition for disbarment. Further, given the number of violations, the length of time over which Stilley has incurred such violations, and Stilley’s repeated unwillingness to accept the finality of court decisions, we agree that his actions constitute serious misconduct and that disbarment is the appropriate sanction. .
Order of disbarment entered.'
FINDINGS OF FACT AND CONCLUSIONS OF LAW
[This is an original action under the Arkansas Supreme Court Procedures Regulating Professional Conduct (Procedures) in which Petitioner Stark Ligón (Ligón), as Executive Director of the Arkansas Supreme Court Committee on Professional Conduct (Committee), seeks disbarment of Respondent, Oscar Amos Stilley (Stilley), an attorney who was licensed to practice law in Arkansas on April 15, 1991. (Arkansas Bar ID # 91096). Arkansas is the only state which has issued Stilley a law license.
An Order of Interim Suspension was entered by Panel B of the Committee on December 27, 2007. At the Committee’s request, Ligón filed his Original Petition for Disbarment of Stilley on January 16, 2008. The Petition sets out 23 counts of alleged 12misconduct with additional allegations addressing the overall fitness of Stil-ley to hold a license to practice law. Stil-ley filed his 53 page Response on March 3, 2008. In addition, he filed a 26 page Motion for Recusal with Conditional Demand for Hearing on March 5, 2008, in which he seeks recusal of each of the Justices of the Arkansas Supreme Court.
.On June 27, 2008, pursuant to a Finding and Order entered by Panel B of the Com mittee, Ligón filed a First Amendment / Supplement to Petition for Disbarment against Stilley in which he alleged 9 additional rules violations listed as counts 24 through 32. In addition, Ligón set forth 10 additional allegations directed at Stil-ley’s overall fitness to hold a law license. Stilley filed a Motion to Dismiss, For More Definite Statement, and to Strike Immaterial Parts of the Supplemental Petition for Disbarment on July 31, 2008. By Order dated September 16, 2008, the undersigned directed Ligón not to offer his Exhibit “I” in his casein-chief (alleged misconduct phase) and denied the remainder of Stil-ley’s Motion. Stilley filed his Response to the amended pleading on September 30, 2008.
[¿Pursuant to Section 13(B) of the Procedures, the undersigned Special Judge heard evidence relevant to the alleged misconduct of Stilley on December 8th through 10th, 2008. At the close of proof, the parties were advised that they could submit Proposed Findings of Fact and Conclusions of Law to the undersigned no later than 5:00 P.M., Monday, March 16, 2009. Ligón timely submitted his proposed findings and conclusions by e-mail and hard copy. Stilley, after first asking for additional time, e-mailed a pleading styled Motion for Directed Verdict or Judgment as a Matter of Law at 4:59 P.M. on March 16, 2009, and later advised that he intended such pleading to serve as his proposed findings and conclusions. Both parties submitted timely rebuttal briefs. On April 6, 2009, Stilley contended that he did not respond to Counts 27 through 32 because he did not know they were still viable. Although his claim was frivolous, he was granted until noon April 13, 2009, to respond to the five counts.
The evidence submitted in this case consists almost entirely of documents received as exhibits, including pleadings, affidavits, letters, motions, transcripts, briefs, court opinions, |4etc., in cases and hearings in which Stilley has been involved as a litigant and/or attorney. While Stilley was on the witness stand for a good part of three days, his testimony consisted primarily of:
(1) His identification and recognition of the various exhibits,
(2) His objections to the admissibility of most of the exhibits, and
(3) His opinion and evaluation of the documentary evidence offered by Ligón, and his view of the overall merits of the allegations made against him.
He offered very few relevant facts on his own behalf.
THE ORIGINAL PETITION FOR DISBARMENT (Counts 1-23) PERRY — STILLEY—MARSCHEWSKI STATE COURT CASES
The facts leading up to the filing of this action start with a case styled Parker v. Perry, Sebastian County Circuit Case No. CV 2002-276. There, Stilley filed an illegal exaction suit on behalf of John Parker against City, County, School District, Community College and University officials alleging that Act 758 of 1995 violated Amendment 59 to the Arkansas Constitution and that | fithe defendants were imposing illegal taxes upon Parker and other taxpayers similarly situated. The trial Judge, Honorable James Marschewski, granted summary judgment in favor of the defendants applying the doctrine of res judicata after finding that Parker was attempting to relitigate claims that had previously been fully developed and decided in a case styled Elzea v. Perry, 340 Ark. 588, 12 S.W.3d 213 (2000).
Judge Marschewski also granted the defendant’s Motion for Rule 11 sanctions against Stilley because Stilley had filed the identical complaint in a case styled Oxford v. Perry, 340 Ark. 577, 13 S.W.3d 567 (2000) [Oxford II]. Stilley appealed and the Arkansas Supreme Court affirmed both the grant of summary judgment and the award of Rule 11 monetary sanctions against Stilley personally. Parker v. Perry, 355 Ark. 97, 131 S.W.3d 338 (2003).
On July 29, 2004, the Fort Smith School District (FSSD) filed a notice of noncompliance. On August 4, 2004, the University of Arkansas at Fort Smith (OAFS), filed a motion to enforce the sanctions previously imposed, alleging that Stilley had failed to IfiComply with the Circuit Court order. A hearing was held on September 22, 2004, resulting in the Court directing Stilley to provide certain information concerning his finances that he alleged prevented him from paying the sanctions.
On October 14, 2004, UAFS filed a Motion for citation for contempt contending that Stilley had failed to comply with any of the provisions of the Order of September 22, 2004. On October 26, 2004, Stilley wrote a letter to Judge Marschewski saying, among other things:
I have received motions from James Llewellyn and Walton for show cause seeking to hold me in contempt of an order of the court. The order in question is under appeal at the present time. You acknowledged that I was unable to pay, but nonetheless imposed a cash bond of nearly $16,000.00, the same amount you knew I was unable to pay, and refused to allow a corporate surety bond. I intend to respond by pleading to the motions for contempt. This letter, however deals with certain ethics matters.
You have received a complaint that I filed against you and others. Part of this complaint deals with the fact that your order seeks to seize more than 25% of my earnings. This would appear to violate 15 U.S.C. Sec. 1673....
Your order appears to violate the federal and state laws just cited, among others.
_L- •
It thus appears to me that a crime has been committed in attempting to require me to pay more than 25% of earnings into the registry of the court.
The commission of a crime would seem to be professional misconduct.
I would prefer not to report your conduct to the Committee on Professional Conduct authorities. If I can find a fair and reasonable basis for concluding that reporting is not mandatory, I have no intention to make a report. Here are some reasons that I think would justify a conclusion that reporting is not mandatory:
1) A reasonable basis for believing that the criminal conduct was not Intentional;
2) A fair and logical basis whereby a reasonable person could conclude that your acts were not unlawful.
I am not suggesting that these two reasons are the only ones that would work. If you have another reason, by all means let me know about it so that I can give it reasonable consideration.
Please provide me with a basis for not filing a report with the appropriate professional authorities for judges and lawyers, no later than 1:30 P.M. on October 29, 2004, if you have such....
If you choose not to respond, I will also file a criminal complaint with the Sebastian County Prosecutor’s office ... I do believe that the investigative and prose-cutorial |spowers of the prosecutor’s of fice are properly invoked when a judicial officer engages in an apparent criminal activity in an open and notorious manner, and refuses to provide any mitigating circumstances or innocent explanation.
Judge Marsehewski failed to bend to Stilley’s demand but self reported the allegations to the judicial ethics committee.
Stilley followed up by filing grievances against Judge Marsehewski with the Supreme Court Committee on Professional Conduct and the Arkansas Judicial Discipline & Disability Commission. Both complaints were dismissed. In addition, Stilley filled out and filed a Warrant Information sheet with the Sebastian County Prosecuting Attorney contending that Judge Marsehewski had committed a crime in his administration of the case against him. A warrant was not issued.
In Stilley’s Motion for Recusal filed in Parker v. Perry, he alleges in paragraphs 3 and 4:
Counsel for the Fort Smith Public School District and others, James M. “Mitch” Llewellyn, Jr. and Walton Maurras, counsel for the University of Arkansas at Fort Smith (UAFS) were both sent a letter informing them of the criminal nature of their attempt to compel the payment of more than 25% of the earnings of undersigned....
Mr. Llewellyn did not respond. The whole of the response |flof Walton Maur-ras was: “I’m disappointed in you. Threats of grievance complaints won’t work. You do what you think is in your best interests and we’ll see what happens.
Stilley had earlier advised Maurras and Llewellyn by letter that he would file ethics complaints against them unless they responded in a particular manner no later than the close of business on October 22, 2004. When Stilley did not receive the responses he demanded, he filed a grievance against both lawyers with the Committee on Professional Conduct. The complaints were dismissed.
Stilley responded to the Motion for Contempt, and on November 19, 2004, he filed a Motion for Judge Marsehewski to recuse alleging, inter alia that the judge committed federal and state criminal offenses by entering the Order in question. His Motion for Recusal was denied by Order dated November 22, 2004. The Court conducted a hearing on the contempt motion on January 14, 2005, found Stilley in contempt; sentenced him to 30 days in jail and assessed a fine of $50 for each day Stilley continued to defy the Order. The Court agreed to suspend the | infinding of contempt if Stilley complied with the Order within five days of entry. The Order was entered January 18, 2005.
Three days later, Stilley filed a document entitled “Submission of Documents Demonstrating the Court’s Advocacy of Westark/UAFS.” In addition, on February 1, 2005, Stilley filed a “Motion to Amend Findings of Fact and Law and for Additional Specific Findings and Law Pursuant to Rule 52.” The trial court did not take any action on the Motion. Stilley appealed and the Supreme Court affirmed the action taken by the Circuit Court. Oscar Stilley v. Fort Smith School District, University of Arkansas at Fort Smith and Jim Perry, et al., 367 Ark. 193, 238 S.W.3d 902 (2006). In its opinion the Court said, at pages 200-202, 238 S.W.3d at 906-907:
On November 19, 2004, Stilley filed a motion to recuse. The same day, Stilley filed a motion to continue a Contempt hearing set for November 23, 2004, and in that motion he asserted a right to a hearing on his motion to recuse. In the motion to recuse, Stilley alleged that Judge Marschewski had a “substantial, direct, pecuniary interest” in the outcome of the litigation, that he had “demonstrated a deep seated personal and deep seated bias and prejudice,” and that Judge Marschewski denied a request to grant full medical expenses in an unrelated case. He further asserted that there were other instances of prejudice that he could cite but did not do so. No significant facts in support of these allegations were provided by Stilley in his motion to recuse.
Inin a November 22, 2004, order, the circuit court granted a continuance as to the contempt hearing to January 14, 2005, but denied the motion to recuse without a hearing. Stilley did not file a motion for reconsideration on his motion to recuse.
At the contempt hearing on January 14, 2005, Stilley asserted, for the first time, that Judge Marschewski had been a member of a UAFS committee that sought to obtain passage of the taxes at issue in Parker v. Perry. Stilley did not move for Judge Marschewski to recuse, nor did Stilley move to renew his motion to recuse. However, at that time, Judge Marschewski stated that he had no recollection of being a member of any such committee and invited Stilley to present any evidence he had on the issue. Stil-ley made no attempt to introduce any evidence on this issue at the hearing, nor did he ask the circuit court to allow the record to remain open so that he could introduce evidence at a later date. Stilley had ample time to secure the evidence, as the circuit court continued the hearing, at Stilley’s request, from November 22, 2004 to January 14, 2005. At the close of the hearing, Judge Mar-schewski stated that the matter was being taken under advisement, and that a decision would issue by Monday or Tuesday of the following week, or in other words, by Tuesday, January 18, 2005, at the latest. Clearly, Judge Mar-schewski expected Stilley to present any evidence he had prior to taking the matter under submission on January 14, 2005. Even if Stilley believed that Judge Marschewski offered to consider any evidence introduced after the hearing, he certainly knew he had to present it to the court before Tuesday at the latest. Nevertheless, Stilley made no attempt to offer evidence prior to the judgment issuing on Tuesday, January 18, 2005.
_k- • •
We note, however, that Stilley attempted yet again to raise the issue of Judge Marschewski’s supposed committee membership on January 21, 2005, by way of a pleading entitled, “submission of Documents Demonstrating the Advocacy for Westark/UAFS.” Attached to the pleading is a June 13, 2001, UAFS web posting listing Judge Marschewski as one of a number of “area leaders” who were to “lead the effort of citizens, students, college faculty and staff in providing information to the voters, who will determine whether Westark College becomes a four-year university.” The article indicates that a ⅜ cent sales tax would result if voters made Westark a four year college. The second item attached to the pleading is a Wednesday, June 20, 2001, newspaper article from The Times of Fort Smith regarding ethics and advocacy of Westark supporters. Judge Marschewski is not mentioned in the article. The January 21, 2005, pleading includes no mention, does not seek reconsideration of the order entered on January 21, 2005, and makes no attempt to introduce the attached items into evidence. It asks the circuit court to do nothing with respect to recusal. In that regard, it is a nullity....
JONES — STILLEY STATE COURT CASES
On January 16, 2002, two weeks after the trial judge filed his opinion resolving a contested case; Stilley entered his appearance in the case on behalf of Buck Jones (a losing party) by filing a pleading styled “Cross Claim Complaint”, which raised constitutional issues. The trial court dismissed the pleading | ^finding that it was, in reality, a compulsory counterclaim and should have been brought before or during the trial of the matter. The Supreme Court affirmed on appeal. Jones v. Double “D” Properties, Inc., 352 Ark. 39, 98 S.W.3d 405 (2003) [Jones I ].
Following issuance of the mandate in Jones I, the prevailing party, Double “D”, filed a petition asking the trial court for an order releasing funds posted as supersede-as by Buck Jones and his wife, Robbie (who were both parties in the case), as compensation for losses and costs incurred during the appeal. On April 23, 2003, Stilley, acting on behalf of both Joneses, responded to the petition and also filed a motion seeking permission to file an illegal exaction complaint against other parties in the case. The trial court denied Joneses’ motion based on the Supreme Court mandate in Jones I. On appeal, the Supreme Court affirmed holding that the issue had already been decided in the first appeal and was, therefore, the law of the case. Jones v. Double “D” Props., Inc., 357 Ark. 148, 161 S.W.3d 839 (2004). [Jones II]
JONES — STILLEY FEDERAL LAWSUITS
|i4On October 5, 2004, Robbie R. and Buck D. Jones filed what appeared to be a pro se complaint in the United States District Court for the Western District of Arkansas naming Double “D” Properties, the State Land Commissioner, State Treasurer, County Assessor, County Judge, County Collector, County Treasurer, Fort Smith School Board Members, UAFS and its attorney, City of Fort Smith and every Justice on the Arkansas Supreme Court as defendants. Robbie R. Jones and Buck D. Jones v. Double “D” Properties, Inc., et al., Case No. Civ. 04-2220. They raised identical or substantially similar claims to those raised in Jones I and Jones II. In addition they allege:
Fort Smith School Board Defendants then conspired with others including one James M. “Mitch” Llewellyn, an attorney, and Benny Gooden, the Superintendent of Schools, to use a judgment known to be issued and supported by an incompetent tribunal, to illegally harass and threaten the attorney who brought the original action for illegal exaction, in the class of which Plaintiffs are members, to make an example of him, and demonstrate that they have no allegiance to the rule of law, and no intention to comply with the rule of law, and every intention to deprive the Plaintiffs of competent counsel by conspiratorial conduct, by threats, and by flagrantly illegal harassment.
hfjPlaintiffs’ complaint further alleged that the Arkansas Supreme Court Justices “corruptly and fraudulently refused to consider and fairly adjudicate said claim for the payment of the full amounts of the sale price of the plaintiffs family home, motivated by passion and prejudice against ... Oscar Stilley”. Paragraph 86 of the complaint continues: “Despite full knowledge and conscious awareness of federal constitutional law requiring that said defendants recuse and allow the Governor of Arkansas to appoint jurists untainted by the animus ignited by present, pending, substantial ac tions between said defendants and Oscar Stilley ... said defendants continued to sit on the ease, and perverted judgment against the plaintiffs herein, depriving them of a competent tribunal and an honest and impartial arbiter of the dispute.” It is further alleged that the Justices’ refusal to recuse from Jones I and Jones II, because of a conflict of interest, they “willfully and knowingly” deprived plaintiffs of due process and of the right to a “competent tribunal”. They ask the Court to order the Arkansas Supreme Court to rescind its decisions against them, to order each 11fiJustice to recuse himself or herself from the rehearing and to award compensatory and punitive damages against each Justice.
In a 37 page brief filed by the Joneses, the following is found at page 20 and 21:
Judge Marschewski has demonstrated a total disregard of judicial ethics. He has knowingly and willfully entered an illegal order against Oscar Stilley ... presided in cases in which he has a clear conflict of interest, failed to disclose material facts showing a conflict of interest. Recently, he entered an order refusing Oscar Stilley a hearing and denying a motion to recuse despite the many facts demonstrating that he is an incompetent jurist in litigation involving Parker v. Perry.
On page 25 of the brief the following is said:
We don’t want to dish the same thing back to them, even though they have had UAFS semi-secret agent Marschew-ski engaged to fight their battles for them.
Page 28 of the brief reflects:
We would not have sued these justices save for the fact that the justices practically revel in their lawbreaking. They act in a way that no rational judge could act and still have a fig leaf or an idle thought that they are obeying the law.
As to who actually drafted the Joneses’ pleadings, the Joneses said in the aforesaid Brief:
We would not deny having received a great deal of professional guidance and drafting assistance from |17a treasured friend.
The deposition of Buck Jones was taken on March 1, 2005. Mr. Jones stated that he and Stilley and a girl in Stilley’s office typed the complaint. At page 9 of the deposition, beginning at line 17 and continuing to the next page, the following is reflected:
Q. Okay. Mr. Jones, are you saying at that time Oscar Stilley was your lawyer? Because if at that time he wasn’t your lawyer, there’s no privilege.
A. If he’s typing it, he’s working for me.
Q. Okay. So at the time—
A. So he would be working.
Q. So at the time this was typed, he was working for you?
A. That’s right.
Q. He was your lawyer?
A. Right.
At page 21 beginning with line 16 and continuing to the next page, the deposition reflect:
Q. Did you go to Mr. Stilley’s office and prepare it?
A. That’s right.
IisQ. And then you signed it and filed it?
A. Right
Q. Why did Mr. Stilley not sign it if he was representing you?
A. I don’t know. I never even thought about it.
Q. Did he ever discuss it with you?
A. No.
Q. He just asked you to sign it?
A. Asked me to sign that?
Q. Yes, sir.
A. I was right there, yes.
Q. Okay. And that’s the same that’s true with all these documents, you were there and he asked you to sign them?
A. He didn’t ask me. He just gave them — handed them to me and I signed them and took them to the courthouse.
And, at page 24, beginning at line 19:
Q. Does Mr. Stilley still represent you today?
A. Yes, sir.
At page 72, beginning at line 3, the deposition continues:
|i9Q. Okay. Did — at the time that you talked to Oscar, did he tell you that he had filed Complaints similar to the one that he filed for you? Did you know that he had filed Complaints for illegal exaction for violations of Amendment 59?
A. Well, I knew he did, yea.
Q. You were aware of that?
A. Yeah.
Q. Did you know what the outcome of those cases was?
A. I saw the judge’s ruling up here. And the judge made up the law as he went it looks like.
Q. So before this complaint was filed in this case, did you know that Oscar Stilley had filed a similar Complaint for other people and had lost each ■ of those cases here in Sebastian County?
A. Yes. But have you read the ruling by the judge?
At a hearing for contempt citation conducted on January 14, 2005, Stilley was asked if he prepared the complaint filed by Buck Jones as USDC case No. CV-04-2220. His answers, beginning on page 48 of the Transcript were:
A. I assisted.
Q. To what extent did you assist?
A. That’s hard to say.
boQ- Did you type it?
A. I worked on it.
Q. Did anybody else type on it?
A. You’d have to ask somebody else.
Q. To your knowledge, did anyone else type it?
A. Buck and Robbie Jones, they’re the signatories on that. You’d have to ask them about what they did.
Q. That’s not my question, Mr. Stilley: Did anybody else type it?
A. I don’t have personal knowledge of that.
At page 45, beginning at line 10, the Transcript reflects:
Q. Did you type it on your computer?
A. That was typed on — that was typed on a computer that I use.
Q. Did you type it?
A. I did a lot of it. Yes, I did.
Q. Do you know anybody else that did any part of it?
A. I don’t have personal knowledge of that.
Beginning on page 46, line 19:
Q. Did Buck Jones type any part of this complaint?
A. Not to my knowledge.
biQ. Did Robbie Jones type any part of this complaint?
A. Not to my knowledge.
Q. Did anyone else type any part of this complaint?
A. I’ve already answered that question.
Beginning at page 48, line 17:
Q. Did Mr. Jones come to you and ask you to file this complaint?
A. He asked for assistance.
Beginning at page 54, line 17:
Q. Do you have an attorney/client relationship with Mr. Jones involving that case?
A. I’ve provided attorney/client services — I’ve provided attorney services to Buck Jones on an as-needed basis.
Finally, at page 55, beginning at line 16:
Q. ... It’s a simple question. You either prepared this Document or you did not.
A. I assisted Mr. Jones materially in the preparation of that complaint.
Stilley entered an appearance on behalf of the plaintiffs before the case was decided.
[)20n April 5, 2005, pursuant to defendants’ Motion to Dismiss or for Summary Judgment, District Judge Garnett Thomas Eisele dismissed the complaint in its entirety. The decision was affirmed by the 8th Circuit Court of Appeals in an unpublished Per Curiam filed May 5, 2006, Case No. 05-2242. A Petition for rehearing was denied.
While the above named case was pending, Stilley personally filed a lawsuit raising similar claims against some of the same parties, plus Judge Marschewski, in the same United States District Court for the Western District of Arkansas. Oscar Stilley v. James Marschewski, et al., Case No. CIV-04-2225. In its Memorandum Opinion and Order of Dismissal, of this case, the Court observed that Stilley had raised the same claims against the Judges in the previous case and that the same analyses applied here. Judge Eisele also observed that Stilley had raised and lost identical illegal exaction claims involving school taxes not once, but several times. He held that Stilley’s attempt to manufacture a RICO action against the school defendants was disturbing and frivolous. The Judge continued:
[aThe Court further finds that Mr. Stil-ley violated Fed.R.Civ.P. Rule 11 when he filed an Amended Complaint contending that UAFS violated his civil rights by attempting to collect sanctions that ‘were without due process.’ UAFS was a party to the state court action in which Judge Marschewski entered sanctions against Mr. Stilley. Mr. Stilley had the opportunity to challenge and did challenge the award of sanctions entered against him. Having lost that battle, he filed suit against UAFS in federal court, contending that UAFS breached federal law, statutory and constitutional, when it attempted to collect the state court judgment. The Court finds it more likely than not that Mr. Stilley sued UAFS ‘for an improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation’. Fed.R.Civ.P. Rule 11(b)(1).
The Judge further said: “In light of the entire record in this case and the other ongoing litigation by Mr. Stilley noted above, the Court can only conclude that Mr. Stilley has pursued, and continues to pursue, this lawsuit for improper purposes”. The Court sanctioned Stilley by directing that he pay the costs and attorney fees incurred by UAFS, and that he be prohibited from filing any complaints, as an individual or attorney, against specifically named parties in both the Eastern and Western District Courts of Arkansas without first receiving the approval of the Court.
hiStilley appealed and the Eight Circuit Court of appeals affirmed in an unpublished Per Curiam filed May 26, 2006. Oscar Stilley v. James Marschewski, et al., Case No. 05-2816. The appellate Court said, in part:
We are troubled by Stilley’s mischarac-terization of the record as to the applicability of Rule ll’s safe-harbor provision and Rule 11(c)(1)(B). We reject Stilley’s argument that the limitations the district court imposed on his practice constitute attorney discipline, as opposed to Rule 11 sanctions. See Stilley v. James, 48 Fed.Appx. 595, 597 (8th Cir.2002) (unpublished per curiam) finding no abuse of discretion in applying appropriately fashioned Rule 11 sanctions enjoining Stilley from filing future cases involving issues that had been litigated or raised in three lawsuits and two appeals; court acted appropriately by helping stop Stilley’s pursuit of fruitless litigation.
FIRST AMENDMENT / SUPPLEMENT TO PETITION FOR DISBARMENT (COUNTS 24-32)
STILLEY — TABOR STATE COURT CASE
A petition for rehearing was denied by the Arkansas Supreme Court on October 26, 2006, in Stilley v. Fort Smith School District, et al., 367 Ark. 193, 238 S.W.3d 902 (2006). The Mandate issued and Parker v. Perry, (CV-2002-276) was back before the Sebastian County Circuit Court. In the interval, Judge Marschewski was appointed a United States Magistrate Judge for the Western 125Pistrict of Arkansas. Stephen Tabor was appointed in place of Judge Marschewski to serve as a Circuit Judge in Sebastian County.
On February 13, 2007, Judge Tabor entered an Order directing Stilley to surrender to the Sebastian County Detention Center no later than February 15, 2007, to begin serving the 30 day sentence imposed by Judge Marschewski in Parker v. Perry. Stilley surrendered, but was permitted to serve his sentence on a day-time “work release”. That allowed him to spend nights in jail and work in his law office during the daytime. A hearing was set for March 14, 2007, on an Amended Motion to Enforce Sanctions, to Compel Compliance with Previous Orders of the Court, and to Modify the Order of September 22, 2004.
On March 2, 2007, Stilley filed a 51 page Petition for Habeas Corpus, along with 6 volumes and attachments with the federal District Court for the Western District of Arkansas. He also filed a 9 page Motion to Stay his state jail sentence while his federal action was pending. The Motion was denied by the United States | ^Magistrate Judge and then by the District Court Judge on March 13, 2007.
At the commencement of the Perry hearing on March 14, 2007 Judge Tabor overruled a Motion for Continuance filed by Stilley, finding that Stilley had not given a valid reason for a continuance, and in addition, that he (Judge Tabor) had read an article in the local newspaper quoting Stilly as saying, “I don’t intend for that hearing to take place.” Stilley then orally moved for Judge Tabor to recuse, which motion was denied. During the hearing Stilley admitted that he had not complied with the Order. After Stilley raised numerous issues that had already been settled, Judge Tabor announced:
Let me just say, Mr. Stilley, and I will tell everybody, I am not here to reinvent the wheel. I am not going to rehear, matters that have been heard, either in this court or on appeal. This is simply an action to enforce a previously entered order. I am not going to rule on whether that order was appropriate or not. That Order was made, it has been affirmed by the State Supreme Court and I am not going to rehear that.
After each side rested, and after arguments were heard, Judge Tabor stated:
Mr. Stilley, you have had two and a half years through 127every Court in the State of Arkansas to address this. It is my intention, once again, not to reliti-gate this matter. My intention is to enforce the orders of this court and that is what I intend to do.
Let me tell you what I am going to do. I am going to set this matter for March 26th at noon, and let me tell you why I am doing that. I have to leave for Houston tomorrow because my father is having surgery there. I will not be back in the office until March 26th. I expect that if things continue as they are there are going to be orders that are going to generate more activity which I think will require my attention, and I do not want to be in Houston when that happens. We are going to appear back here at noon on March 26th at which time, Mr. Stilley, is to fully comply with the order of the Court previously entered in September of 2004. In addition, by close of business on this Friday, two days from now, Mr. Stilley, I want you to provide to my docket administrator a list of every current court setting you have docketed as of today. You are not to ask for any more settings in the next two days, but by close of business Friday I want a list of every court date that you currently have set. The purpose of that is to determine what extent, if, any, if this continues to be your position that you are going to refuse to abide by the order of this Court, then, I need to determine if work release is appropriate or necessary in your case, and I need that information to make that decision.
The very next day Stilley caused subpoenas to be issued for service upon seven named individuals, including Judge Mar-schewski, to appear at his office at 10:00 a.m. Friday, March 23, 2007, so that he could take their deposition for use in this | gscase. Motions to quash were filed by each of the named individuals. Circuit Judge Michael Fitzhugh, in Judge Tabor’s absence, granted some of the motions to quash.
On March 22, 2007, Circuit Judge James O. Cox, in Judge Tabor’s absence, conducted a hearing on the remainder of the Motions. After some discussion between Judge Cox and the attorneys, Stilley told the Court that “my position on it (subpoenas) is that the legality of the order would be a proper matter to show that a person shouldn’t be incarcerated under that order.” He also told Judge Cox that he understood Judge Tabor “wouldn’t consider anything about the illegality of the Order”. Judge Cox, after advising Stilley that he could not relitigate settled matters, granted the Motion and quashed the remaining subpoenas. He also directed Stil-ley not to issue subpoenas for the March 26th hearing to individuals he intended to call for the same purpose. Stilley thereupon announced that he was withdrawing the subpoenas.
At the March 26, 2007, hearing, Stilley acknowledged that he still had not complied with the Order in question. Judge Tabor | ^entered a formal Order that same day finding Stilley in contempt and remanding him to the Sebastian County Adult Detention Center until he purged himself by complying with the Order.
On April 23, 2007, Stilley filed a Motion to withdraw his federal “habeas” case. The federal court dismissed that case on May 16, 2007.
On May 2, 2007, Judge Tabor conducted another hearing in the Parker v. Perry case. Stilley was again found in contempt for disobeying the March 14, 2007, Order directing him not to relitigate matters long since decided at trial and on appeal. He was sentenced to pay the opposing parties’ attorney fees. Stilley was directed by Order dated May 11, 2007, to pay fines previously imposed, into the registry of the court.
Stilley filed a pleading entitled “Brief Regarding Assessment of Penalty, and Interest, for a Final Order” on May 11, 2007. On May 15, 2007, Stilley filed a motion for new trial with supporting brief. After UAFS and FWD responded, the Court entered an order on May 21, 2007, denying Stilley’s motion for new trial.
hnStilley filed another brief on May 28, 2007, and an amended motion for new trial on May 23, 2007. The Court denied the amended motion for new trial on June 5, 2007.
On June 19, 2007, Stilley filed a Notice of Appeal from the Orders of the Circuit Court entered May 2, 2007; May 11, 2007; May 21, 2007; and June 5, 2007. On October 19, 2007, Stilley filed a Petition for Prohibition commanding the sifting trial judge to recuse from further participation in the case. The Supreme Court dismissed the Petition without opinion on November 8, 2007.
On December 2, 2007, Stilley filed a 25 page motion asking each justice of the Arkansas Supreme Court to recuse from hearing a motion for reconsideration he filed that same day. He contended that because the Supreme Court had earlier, referred a matter involving him to the professional conduct committee for its assessment and review, the justices became his “accusers”, and were biased and prejudiced against him. The Court denied that Motion in a Per Curium entered January 31, 2008. (Case No. 07-981) On that same day, the Court granted Stilley’s Motion to reconsider other matters.
|¾1 On September 18, 2008, The Supreme Court affirmed the various decisions of the trial court. Stilley v. UAFS, et al., 374 Ark. 248, 287 S.W.3d 544 (2008).
“OVERALL FITNESS” TO HOLD A LAW LICENSE JUDGE BELL/OU-WENGA CASE (Michigan)
On October 27, 2003, Stilley filed a Motion for pro hac vice (PHV) admission to be counsel for Karen Ouwenga, who was charged with federal income tax fraud in the United States District Court for the Western District of Michigan. United States of America v. Karen Ouwenga, Case No. CR-03-212. An Order was entered On November 5, 2003, denying the Motion, the Court finding that Stilley’s past actions were “inconsistent with the standards of professional conduct this Court requires of attorneys practicing in this district, toward clients, counsel and the Court.”
Stilley sought review and a three judge panel was appointed to consider the matter (Case No. 04-0009). The panel conducted a hearing on January 12, 2004, and filed its opinion on January 28, 2005. It observed that Stilley supported his petition for | ^admission with a Certificate of Good Standing from the Arkansas Supreme Court, dated October 2, 2003. In the Certificate, a deputy court clerk certified that:
Oscar Stilley was enrolled as an Attorney at Law and Solicitor in Chancery by the Supreme Court of this State on April 15, 1991; that no disbarment proceedings have been filed against him in this court, that he has not had any adverse disciplinary action whatsoever during the past three year period, and that his private and professional character appears to be good, (emphasis added)
The certificate stated that the seal of the Arkansas Supreme Court was affixed, which was not true. The Court later received a new Certificate from the Arkansas Supreme Court dated January 1212004, which had been obtained by the U.S. Attorney’s office, which did bear the seal of the Court. That Certificate did not contain the words underlined above in the Certificate Stilley furnished.
Judge Robert Holmes Bell, writing for the panel, said at page 9 of the Opinion:
Upon questioning by this panel, Mr. Stil-ley conceded that the Certificate he had presented appeared flawed on its face, since he had certainly experienced disciplinary action during the three years immediately preceding October, 2003.
[xjAt pages 12 and 13 the Court said: Thus, it became the obligation of Mr. Stilley to show by clear and convincing evidence that, in light of a rather lengthy list of professional rules violations, his practice of law in this district will not be detrimental to the integrity and standing of the bar of this court, or to the administration of justice or subversive to the public interest in this district.
Petitioner has failed to meet this obligation in several respects. First, the disciplinary record of the petitioner in his home state has been extensive in length, and disciplinary proceedings are ongoing. He has been found to have been in violation of the Model Rules of Professional Conduct of that jurisdiction approximately twenty times. Frankly, the members of the panel cannot recall any other applicant to the bar of this court having had anything approaching twenty rule violations. Moreover, these violations are relatively recent and arise from several different cases. Petitioner has failed to show why accepting one with this disciplinary record would not be damaging to the integrity and standing of the bar, since to do so would send a message to the bar and to the public that this court tacitly countenance petitioners apparent inability to conform his practice to well recognized rules.
Petitioner has an extensive track record. And unfortunately his explanation of it seems in large part an attempt to minimize his deprecations or to explain them away, and does little to convince the panel that petitioner fully appreciates where this type behavior is leading an otherwise bright and articulate lawyer.
^Finally, the Court concluded at page 15:
Petitioner’s refusal or inability to conform his practice to generally accepted principles of law directly impacts the administration of justice.
Stilley's appeal to the Sixth Circuit Court was affirmed on November 23, 2005. Stilley v. Honorable Robert Holmes Bell, et al., 155 Fed.Appx. 217 (6th Cir.2005). On pages 221-222 of its Opinion, the court said:
Stilley makes a brash and unsupported claim that there are ulterior motives in this case to deny his petition, alleging that Judge Bell and Assistant United States Attorney Donald Davis “traveled to various places to speak concerning methods of ‘dealing with’ persons whose opinions of the proper interpretation of various tax laws fail to conform to the opinions of Davis and Bell.” ... He further suggests that their conduct “gives rise to serious ethical considerations,” and that “{w}here the judge publicly announces his views on tax issues, and then presides over criminal prosecutions of persons with unconventional views of one or more of the tax laws, the public perception is likely to be less than scrupulous impartiality in the judicial proceedings. ... Stilley provides no factual support for these spurious assertions however. There is simply no indication in the record that Stilley’s petition was denied for any reason other than his extensive disciplinary record.
Stilley’s Petition for Rehearing was denied on March 4, 2006. His petition for Writ of Certiorari to the United States Supreme Court was denied October 17, 2006. (Case No. 06-1576)
[«ENSIGN CASE (Arizona)
Patricia Ann Ensign was charged along with eight other individuals with a number of counts of willful failure to file tax returns, in the United States District Court for the District of Arizona. United States of America v. Dennis O. Poseley, et al. (Case No. CR-03-344). Eight months after the District Court appointed an attorney to represent Ensign, the Court granted her motion to appoint Stilley as “legal advisor/consultant” to her defense. On January 25, 2005, upon Ensign’s motion, the Court appointed Stilley “CJA co-counsel PHV” and as lead counsel. Fifteen days later Stilley submitted a motion for admission PHV with a certificate of good standing. The Court granted the motion on February 11, 2005.
On February 16, 2005, the Government submitted an ex parte notice of Stilley’s Rule 11 sanctions in Arkansas. The Court asked Stilley to Respond. Instead of responding to the insufficiencies in his PHV application, he alleged that the Government’s motion was not properly styled. On March 18, 2005, the District Judge asked Stilley whether he had been | ..¡(¡subjected to disciplinary proceedings in Arkansas, and if so, why the Court was not advised of the proceedings. The Judge then directed Stilley to respond in writing.
On April 19, 2005, after considering Stil-ley’s written response which included a 28 page brief collaterally attacking the various proceedings in Arkansas, the Court entered an Order terminating Stilley’s representation of Ensign as lead counsel, legal advisor, and/or consultant under the CJA. In its opinion, the Court noted that “Mr. Stilley was not forthcoming regarding the various matters pending in Arkansas”. It also said that “Mr. Stilley was either unable or unwilling to focus on the key issue, further lends credence to this Court’s concerns regarding his representation.” The court further found that some of the pleadings Stilley filed on behalf of Ensign were of dubious merit and possibly submitted for improper purposes such as delay.
Ensign was tried and convicted on 4 counts of willful failure to file tax returns. She appealed. Stilley also sought review of the district court’s refusal to allow him to proceed PHV as Ensign’s attorney. United States of America v. Ensign and Oscar Stilley v. Poseley, et al., 491 F.3d 1109 (9th Cir.2007). Ensign’s conviction was affirmed and Stilley’s appeal was dismissed. The Court stated at page 1115:
All of the trial court’s concerns were justified. Its concerns with Stilley’s ethics were reasonably based not only on pending disciplinary proceedings in Arkansas, but also on Stilley’s failure to state in his pro hac vice application that he was subject to pending disciplinary proceedings and on his failure to directly address those proceedings when so requested. This, combined with Stilley’s failure to cure his contempt of the Arkansas court order, raised concerns that he would “neither abide by the court’s rules and practices” nor “be readily answerable to the court.” (citation omitted). Furthermore, the record reveals that following his appointment as Ensign’s counsel, Stilley had filed numerous motions of dubious merit. Although a defendant is entitled to a zealous defense, the number and nature of the motions allowed for a reasonable concern that Stilley might consider obstruction to be part of the defense he would proffer for Ensign.
CAVITT CASE (Tennessee)
On April 21, 2005, Stilley filed a 16 page civil complaint on behalf of William Cavitt, a California resident, in the United States District Court for the Eastern District of Tennessee. William Cavitt v. Bob Wills, et al. (Case No. 06cv80). He alleged that the named defendants had committed fraud, assault, battery, false imprisonment, negligence, failure to provide ^necessary medical treatment, intentional and/or negligent infliction of emotional distress, and had violated the fair labor standards act. On that same day he filed a Motion for Admission PHV, attaching a Certificate of Good Standing dated February 2, 2005, issued by the United States District Court for the Western District of Arkansas. He did not provide the Tennessee Court with a Certificate from the Supreme Court of Arkansas, the only state from which he held a law license. He also did not inform the Tennessee Court of his numerous ethical problems in Arkansas.
The same day he filed the aforesaid Complaint and Motion, Panel B of the Committee conducted a hearing in Arkansas involving Stilley (CPC No.2002-077). At the conclusion of the hearing, the Panel announced that Stilley would suffer a six months suspension of his law license. He did not report the suspension to the Tennessee Court.
On November 13, 2006, the defendants in the Tennessee case filed a Motion to Disqualify Stilley from PHV representation, setting out six reasons, each involving ethical violations by |39Stilley. On December 29, 2006, Stilley filed his response, alleging, at page 1 and 2:
Oscar Stilley is licensed and in good standing in the following jurisdictions:
Jurisdiction Date admitted
Arkansas Supreme Court April 15,1991
Western & Eastern Districts Of Arkansas June 25,1991
Central District of Illinois June 6, 2002
Northern District of Oklahoma April 13, 2001
Northern District of Florida February 23, 2005
4th Circuit Court of Appeals February 7, 2006
6th Circuit Court of Appeals February 4, 2004
7th Circuit Court of Appeals April 30, 2003
8th Circuit Court of Appeals October 13,1993
9th Circuit Court of Appeals May 2, 2005
10th Circuit Court of Appeals August 8, 2003
11th Circuit Court of Appeals January 23,2001
Surely these twelve jurisdictions can’t all be wrong. Even the Arkansas Supreme Court routinely issues certificates of good standing to Oscar Stilley, to the present time, upon request, and will con tinue to do so unless a suspension of Oscar Stilley’s license is actually implemented.
From page 3 of the brief:
The opinions of other courts concerning events in the home jurisdictions of undersigned counsel should be discounted in favor of an analysis of the actual charges of misconduct.
Page 6 of the brief reflects:
|)0The sanctions in Stilley v. Fort Smith School Dist., et al. [367 Ark. 193] [238] S.W.3d [902], 2006 WL 2627537, Ark., September, 14, 2006 (No. 05-666) were made by a court deemed “incompetent” by the established case law of the 8th Circuit, of which Arkansas is part.
Stilley says at page 11 of his brief:
The Arkansas Supreme Court Committee on Professional Conduct refuses to make rulings on questions of law, when called upon to do so by persons there accused of unethical conduct.
On January 4, 2007, the United States Magistrate Judge entered an Order reluctantly allowing Stilley to appear PHV, pursuant to a local rule which only requires a certificate of good standing from the district court of the applicant’s residence. But for the local rule, the Judge stated that “... Mr. Stilley would not be admitted” ... He further said:
From the exhibits filed in support of defendant’s motion, it is clear that attorney Stilley made intemperate, disrespectful, and unprofessional remarks about an Arkansas tribunal before which he practiced, for which he was suspended from practice for six months.
The Judge also noted that Stilley had been denied admission PHV in federal district courts in two other states for failing to reveal a suspension and a disciplinary proceeding.
[t1The case-in-chief was dismissed, with prejudice, by Order entered September 19, 2007, after the Court granted defendants’ motion for summary judgment.
CAVITT CASE (Arkansas)
On December 5, 2006, while Cavitt was pending in Tennessee, Stilley filed the same styled case in the United States District Court for the Western District of Arkansas, William Cavitt vs. Bob Wills, et al. (Case No. FS-06-42). His pleading was entitled “Miscellaneous Action”. He alleged that plaintiff needed to obtain deposition testimony and documents from persons within the Western District of Arkansas for use in the Tennessee case. Immediately after filing his pleading, Stilley caused a subpoena to be issued to Judge Marschewski directing the Judge to appear at Stilley’s office at 1:30 p.m. on December 11, 2006, so that Stilley could take his deposition.
Judge Marschewski moved to quash the subpoena on December 8, 2006. Stilley filed a 28 page response on December 19, 2006, giving his reason for taking the deposition as:
... the subpoena in this case was entered for the purpose of preventing another judgment, based upon falsehoods |42by Honorable James Marschewski.
In the remainder of his brief, Stilley attempted to discredit Judge Marschewski and the Justices of the Arkansas Supreme Court and sought to justify relitigating matters long resolved, saying, “this case is not going away”.
On December 21, 2006, Judge Robert T. Dawson entered an Order quashing the subpoena finding that:
Plaintiff seeks to depose Judge Mar-schewski regarding a contempt hearing over which Judge Marsehewski presided in Stilley v. Fort Smith School Dist., ( [367 Ark. 193, 238 S.W.3d 902] 2006 WL 2627537). To allow Plaintiff to question Judge Marsehewski about the reasons behind any decision he made as a judicial officer is inappropriate. The overwhelming authority concludes that a judge may not be compelled to testify concerning the mental processes used in formulating official judgments or the reasons that motivate him in the performance of his official duties, (citations omitted).
BENNETT CASE (Hawaii)
On July 19, 2006, Stilley filed an application for Admission PHV in the United States District Court for the District of Hawaii, seeking admission to serve as co-counsel for Hamlett C. Bennett, who was charged with several tax offenses, United States of America v. Hamlet C. Bennett, (Case No. 06-68). In his 14?,application, Stilley stated: “I am not currently suspended or disbarred in any Court”. His application concluded with: “Pursuant to 28 U.S.C. Sec. 1746,1 declare under penalty of perjury that the foregoing is true and correct to the best of my information, knowledge and belief’. An Order granting Stilley PHV status was entered July 18, 2006.
The United States Attorney for the district filed a Motion to Disqualify Stilley from PHV representation on August 11, 2006, alleging, among other things, that Stilley failed to disclose a six month suspension he had been given in Arkansas on May 4, 2006, for violating four ethical rules. Although his Motion to Stay Pending Appeal was granted, the Government contended that he should have disclosed the entire matter.
After reviewing responses, the United States District Magistrate Judge entered an Order on September 12, 2006, granting the Government’s Motion to Disqualify Stilley, saying at page 4-6:
Mr. Stilley has admitted that, prior to his application for admission pro hac vice in the instant matter, an order suspending his license to practice law was entered against him in the State of Arkansas and that he was denied 144admission pro hac vice in the United States District Court for the Western District of Michigan as a result of this suspension order. Although Mr. Stil-ley’s suspension has been stayed pending his appeal, and he is challenging the denial of his application for admission pro hac vice in the Western District of Michigan, the fact remains that Mr. Stil-ley failed to disclose such information at the time he submitted his application for admission pro hac vice in this district, and only acknowledged the orders suspending his license and denying his admission pro hac vice after the Government brought these matters to light by filing the instant Motion.
Having one’s license being recommended for suspension, even if the matter is being appealed, does not equate with being in “good standing”.
Mr. Stilley’s insistence that he is in good standing in Arkansas despite the order to suspend his license to practice law is more than merely troubling. His failure to disclose this information in his application for admission pro hac vice and his insistence that he is an attorney in good standing in Arkansas “strongly suggest through his behavior that he will neither abide by the court’s rules and practices — thus impeding the ‘orderly administration of justice’ — nor be readily an swerable to the court”, (citation omitted) Under.the circumstances of this case, the public’s interest in the prompt, fair, and ethical administration of justice outweighs defendant’s interest in having Mr. Stilley represent him.
The Magistrate Judge’s Order was affirmed by the District Judge on September 27, 2006. In its Opinion, the Court said at 14Spage 11:
His (Stilley’s) prior conduct demonstrates that he is likely to file frivolous papers that would unreasonably delay these proceedings and that he is unwilling to abide by court rules and ethical guidelines, (citation omitted)
The court is further concerned by what appears to be a pattern of accusing judges, justices, and officers of the court of wrongful conduct without any basis. Not only was Stilley suspended by the Arkansas Supreme Court because of his attempts to interrogate its justices and because of his intemperate and disrespectful conduct, but Stilley has also attempted to impugn the integrity of the Government counsel by raising an unsupported charge of “judge shopping.” Stilley also indicated that Magistrate Judge Koayashi was not “even handed” or “fair and impartial” in deciding this matter. Stilley’s unsupported accusation of improper conduct by all who disagree with him gives this court concern about how he will behave in future court proceedings.
LAWRENCE CASE (Illinois)
On March 16, 2006, Robert Lawrence was indicted by a federal grand jury in the United States District Court for the Central District of Illinois, Peoria Division, and charged with three counts of tax evasion. United States of America v. Robert Lawrence, (Case No. 06-0019). Trial was set for May 15, 2006. Two days before trial, Lawrence’s attorney, Oscar Stilley, informed the government that the Paperwork Reduction Act |4R(PRA) would be part of Lawrence’s defense. The Government moved for a short continuance, not because of Stilley’s new alleged defense, but because Stilley had not provided certain discovery information. The judge, during a telephone hearing, directed Stil-ley to provide the information that day.
After the hearing, the Internal Revenue Service’s reserve agents, while preparing for trial, discovered that Lawrence’s tax liability for two of the three years in question had been calculated incorrectly. On May 12, 2006, the Court held another WI phone hearing in which the government announced that the issues it raised were cured. The government also moved to withdraw its motion for continuance. In addition, the government announced that it planned to file a motion in limine regarding the PRA defense. The government also moved to amend the indictment by interlineation. Stilley objected and the court denied the motion to amend.
Fearing that the errors were serious enough to undermine the jury’s confidence in the government’s case, the government 147moved to dismiss all counts against Lawrence. The Court dismissed the case with prejudice.
Lawrence then asked the Court to award him attorney fees pursuant to the Hyde Amendment which provides for such when the government’s position was vexatious, frivolous or in bad faith. His primary argument was that the PRA fully and absolutely protected him from the charges, therefore the government’s prosecution of him was vexatious, frivolous and in bad faith.
The trial court dismissed the motion, finding, among other things, that Lawrence failed to cite a single case standing for such a proposition. On appeal, the Appellate Court affirmed, United States v. Robert Lawrence, 217 Fed.Appx. 553 (7th Cir.2007), citing numerous cases supporting the government’s position that the PRA does not present a defense to a criminal action for tax evasion.
GEBAUER CASE (Washington)
On April 13, 2006, the federal government charged Raymond Gebauer with felony tax offenses in the United States District |4SCourt for the Western District of Washington, United States of America v. Raymond Gebauer, (Case No. CR-06-0122). Five months later, Stilley filed an application for leave to appear PHV on behalf of Gebauer. He did not mention having any disciplinary record. His application was returned September 29,2006, because he had not obtained the signature of Gebauer’s local counsel. On November 16, 2006, Stilley filed another application for PHV admission and attached a 6 page summary of his disciplinary history along with 24 more pages of related material.
The court clerk wrote Stilley a 4 page letter on December 4, 2006, denying his application and setting out his reasons. On December 22, 2006, Stilley filed a 40 page appeal with the District Court. In it, he attempted to discredit his numerous sanctions. For example, at page 20 and 21 Stilley said:
Oscar Stilley has paid the demanded price for the stated offenses, in sanctions up to and including a suspension. The petty nature of much of the charges, and the failure to punish vastly more egregious offenses by others, should cause other jurisdictions to not only question (the) seriousness of those particular charges, but also of the other charges made against Oscar Stilley.
|)SA11 these .and other reasons call the Arkansas sanctions into question, but the most serious and legally compelling reason, for other courts, is the fact that the Arkansas Supreme Court Committee on Professional Conduct will not consider and decide legal questions raised before it.
Stilley asked the Washington Court to revisit the issues related to his disciplinary proceedings in Arkansas and to reach a different result. At page 28, he says:
If in fact this Court decides that any Arkansas Disciplinary proceedings should be the subject of consideration by the court, Oscar Stilley respectfully requests that he be given specific authorization to provide the evidence and proof of why undersigned counsel says that the decision was not before a “competent tribunal” as that term is used in Yamaha Motor Corp., U.S.A. v. Riney.
The District Judge, on January 17, 2007, after setting out Stilley’s “extensive and ongoing list of disciplinary matters” and particularly noting Stilley’s continued pursuit of litigation long after the issues have been resolved, denied his appeal and PHV application.
LOBELLO CASE (Nevada)
The federal government charged Nevada attorney, Mark A. Lobello, with 5 counts of tax evasion on November 14, 2006, in |anthe United States District Court for the District of Nevada, United States of America v. Mark A. Lobe (Case No. 06-cr-376). On August 1, 2007, Stilley filed for PHV admission in the case. He appended to his petition a 9 page supplement in which he listed 9 “jurisdictions of practice for Oscar Stilley”. He also set out a listing of his disciplinary cases and issues and, in some instances, attempted to justify his conduct. On August 2, 2007, he filed a substitute attachment, saying that it was more current.
The government filed a motion on August 16, 2007, to disqualify Stilley from PHV status, citing 2 federal court decisions denying or disqualifying him from PHV privileges because of his long record of state bar disciplinary problems. It also advised that Stilley’s six month suspension from the practice of law had been affirmed by the Arkansas Supreme Court on June 21, 2007 Stilley v. Supreme Court Comm. on Prof'l Conduct, (Case No. 06-972) and that his petition for rehearing was denied on September 6, 2007. (On September 13, 2007, the Arkansas Supreme Court stayed the enforcement of the suspension pending Stilley’s Petition for Certiorari to the _[¿iUnited States Supreme Court. That Court denied Certiorari on February 19, 2008, in Case No. 07-779, resulting in the imposition of the suspension on February 25, 2008).
On September 7, 2007, Stilley filed a response with 14 exhibits totaling 487 pages. On page 4, Stilley says:
[The] exhibits [are] necessary to demonstrate that [the] Arkansas suspension was entered by an “incompetent” Court acting in defiance of due process.
On page 5 Stilley says:
The purpose of supplying this information is not to ask the reader to read the entire set of exhibits, but rather to give the government a fair chance to rebut the statements in this response, if in fact they think that any factual statement is untrue.
Pages 7-17 reflects Stilley’s views regarding his ethical difficulties together with citations which he says support his position.
At page 17 and 18 Stilley says:
... This court’s sole obligation is to inquire as to whether Oscar Stilley was accorded a competent tribunal acting in compliance with the requirements of due process.
There is no credible argument that Oscar Stilley obtained due process or a competent tribunal in the Arkansas case |fi2in which he was ordered suspended. The denial of due process and a competent tribunal have been persistent, egregious, long term, and impervious to the most respectful and plaintive pleas for the rights guaranteed by the Constitutions of the State of Arkansas and the United States. This Court should decline to give any credit whatsoever to the Arkansas suspension, and should admit Oscar Stilley pro hoc vice in the captioned case forthwith.
After the government filed its reply on September 13, 2007, the District Magistrate Judge denied Stilley’s petition by order dated October 11, 2007, finding that his “extensive record of ethical violations supports the conclusion that he is unwilling to abide by court rules and ethical guidelines.” The Court also found that the State of Arkansas provided Stilley with sufficient due process.
Stilley appealed the Magistrate Judge’s decision on October 25, 2007. Following the Government’s response, the District Judge, by Order dated December 6, 2007, found that the Magistrate’s decision was not clearly erroneous or contrary to law and denied Stilley’s Motion for Review.
STRUBLE V. FOUNTAIN (Mississippi)
On November 2, 2004, Stilley filed a Motion in the United States District Court for the Southern District of Mississippi to | ¡^appear PHV on behalf of a number of plaintiffs in a case styled Struble, et al., v. Fountain, et al., (Case No. 04-CV-814). On January 24, 2005, an Order was entered granting his Motion for admission.
The defendants moved to revoke Stil-ley’s admission on February 18, 2008, based upon the Arkansas Committee’s December 27, 2007, Order of interim suspension as part of this proceeding (CPC No.2006-067). Stilley responded and advised the Court of his earlier suspension which became effective February 25, 2008. In addition, he sought a show cause hearing in conformity with local rules.
On April 22, 2008, the Court ordered Stilley to show cause why a reciprocal suspension was not warranted. Stilley filed a 28 page response on May 23, 2008, asking the Mississippi Court to rule on the merits of his suspension. He contended that the Arkansas Committee is not a governmental agency and therefore had no legal right to suspend his license; that charges against him were barred by the First Amendment; that the Arkansas Supreme Court violated his due process rights; that the | .^Committee refused to consider and adjudicate his constitutional arguments; and that he was punished based upon the desire of the Arkansas Supreme Court Justices rather than upon any violation of any rule of law.
Stilley failed to disclose that his right to practice law in the United States District Court for the Eastern and Western Districts of Arkansas was suspended on May 1, 2008, by Order of District Judge Jimm Larry Hendren (Case No. 08-MC-008 WDA). He also failed to inform the Court that Judge Hendren had considered, analyzed and ruled against him on each issue he raised here, including his due process violation claim.
On June 3, 2008, the United States Magistrate Judge found that it was not the role of the Mississippi Court to determine the merits of the Arkansas proceedings and revoked Stilley’s PHV status.
DIRR CASE (Tennessee)
On April 1, 2008, the federal government filed criminal felony tax offenses against Brett and Renee Din’ in the United States District Court for the Eastern District of Tennessee, United States of America v. Brett Edward Din and Renee Dirr, (Case No. 011-CR-42). Initially the Dirrs’ represented themselves. On June 7, 2008, Stilley filed a motion for admission PHV declaring under penalties of perjury that he was “admitted and entitled to practice in the U.S. District Court for the Central District of Illinois”. He failed to advise the Court that he was under two suspensions and facing disbarment proceedings in Arkansas.
On May 1, 2008, Judge Hendren entered his Order suspending Stilley from the practice of law in the Federal Courts in Arkansas. That same day, Stilley requested and was denied a letter of good standing by the clerk of the District Court for the Western District of Arkansas.
The government filed its response to Stilley’s PHV motion on June 11, 2008, setting out Stilley’s Arkansas suspensions, and advising that Stilley had been suspended or denied PHV admission in 5 federal district courts together with the 8th Circuit Court of Appeals. It also pointed out that 2 of the federal district court decisions had been affirmed on appeal.
bAt a hearing on Stilley’s PHV motion on June 12, 2008, before the Honorable C. Clifford Shirley, United States Magistrate Judge, the transcript reflects at pages 2 and 3:
THE COURT: All right. We are here again to consider Mr. Stilley’s motion for admission pro hac vice. The Court notes that since the last hearing Mr. Stilley emailed to my chambers nine documents. He entitled them Oscar Stilley’s license. They appear, however, to the Court to in fact consist of one attorney’s license, an Arkansas license to practice law issued by the Arkansas Supreme Court in 1991 and eight different admissions to practice in various federal courts. Is that correct, Mr. Stilley?
MR. STILLEY: If it please the Court, let me explain. It was sent by my personnel.
THE COURT: That isn’t my question and you know it. You titled these Oscar Stilley’s licenses.
You sent me one license and eight admissions to practice in various federal courts. Is that correct?
MR. STILLEY: Your honor, I would have to say that I sent you nine licenses. Let me explain this. Obviously the Arkánsas license is suspended. I have told you that.
The Northern District of Oklahoma license has been suspended, although there is a show cause hearing or a show cause response pending in that district that has not been decided. Due to the way things are done there, the license there has been suspended. The other licenses are licenses, as defined in 157Black’s Law Dictionary and other legal dictionaries that define the term “license.” It’s a term of art and it means—
THE COURT: You then do not understand, do I take it, the difference in being licensed to practice law and being admitted to practice in a court?
MR. STILLEY: Your honor, I don’t make a distinction there.
Page 5 of the transcript reflects:
THE COURT: Well, I am going to move on, but I will tell you that your inability to understand this basic principle of law practice probably in and of itself may make you unqualified to practice in this court. Either you are not being honest, or you really don’t understand the difference.
Pages 25-27 of the transcript reflect:
THE COURT: You are a man without a law license.
MR. STILLEY: That is not true, your Honor. I have licenses and I sent you a number of licenses that are in good standing.
THE COURT: I am not going to argue with you about those again. They aren’t licenses and they don’t say licenses. The fact that you don’t understand that is not my problem. You can hold up a legal pad and say that is a license, but it doesn’t make it so.
You know what a law license is. If you don’t, then I am not sure you are qualified to be in | fiSthis Court anyway.
At the conclusion of the hearing, Judge Shirley announced from the bench that he was denying Stilley’s Motion. In his Memorandum and Order, he found that Stilley was not in good standing in Arkansas, the only state in which he was licensed. He also found that Stilley was not entitled to practice in the federal court in the Central District of Illinois, the court in which he claimed good standing in his PHV application. In addition, the Judge noted that Stilley failed to self report his Arkansas suspension to the Illinois court clerk as required by their local rules. The Court continued at pages 4 and 5:
The Court further finds Mr. Stilley displayed less than proper candor required for both this Court and the Central Dis trict of Illinois in pursuing his letter of good standing, which in this Court’s view, shows an apparent lack of respect for the courts, its officers, and its rules. Thus, the Court has serious concerns that Mr. Stilley would abide by this Court’s rules or practices in his representation of the Dirrs. The Court is also concerned that Mr. Stilley continued to argue that despite the suspension of his Arkansas license, he was validly “licensed” in several other jurisdictions, but what he produced in support of that position were only admissions to practice in various federal courts, not law licenses. Despite this being pointed out to Mr. Stilley, he remained adamant that what he submitted to the Court were law licenses. As such, the Court is concerned either as to his | m knowledge and ability or his credibility in persisting in such argument.
Page 6 of the Opinion reflects:
Prior to the filing of Mr. Stilley’s Motion (PHV) this Court as well as the government, were under the impression that the Dirrs were proceeding Pro Se. [See Doc 15] Yet, at the motion hearing, Mr. Stilley advised the Court that he assisted the Dirrs with their response to the government’s motion in limine [Doc.26] Ms. Dirrs also advised the Court that she and her husband had retained Mr. Stilley as their attorney about a month prior to the June 9, 2008 hearing. The Court finds the late-filing of the motion a veiled attempt to not only prevent the government from objecting to his admission, but also to prevent the Court adequate time to discover his numerous ethical violations. Action such as this further shows Mr. Stilley’s lack of appropriate legal understanding and competence in providing his clients with an effective advocate.
Thus, even if Mr. Stilley were admitted to the Eastern District of Tennessee, pro hac vice, he would be in immediate violation of practicing law without a valid license due to his suspension in Arkansas, which would ultimately lead to his suspension or disbarment in this court.
United States District Judge Thomas W. Phillips denied Stilley’s Motion for Reconsideration.
MARSCHEWSKI DEPOSITION
lioOn September 12, 2007, Stilley had an opportunity to depose Judge Marsehewski before the Supreme Court Committee on Professional Conduct. Excerpts from the transcript beginning on pages 13 through 15 reflect:
Q. (by Stilley). As you sit here today, do you recall being on a steering committee for the citizens for our University?
A. (by Judge Marsehewski).Yes
Q. What was the purpose of the committee?
A. To the best of my recollection, Sandi Sanders called me sometime and asked me to be on that committee. That was — according to my research after you — after whatever you filed and I have looked at that — evidently was in June of 2001. The purpose of that committee as I understood it was to have the Westark, which was our community college, absorbed into the University of Arkansas so that it became a four-year university. I was in favor of that. I thought that it brought added opportunities, it brought added degrees, the ability to get degrees, to the college and I was in favor of that.
So I — obviously I told her that I would serve on the committee. I don’t remember — I don’t believe I ever attended a meeting of the committee. I don’t — didn’t talk to any of the committee members about the committee. I — only after I looked at what had been supplied years and years later did I even recall that it had to do with the one-cent sales tax and the elimination evidently of a five-mill increase or five-mills on the real estate taxes.
But I didn’t meet with any of the people. And I believe that I got an invitation to come to some luncheon put on by the — Westark, and I had agreed to go to the luncheon. |fi1But I had court all day and did not get to go to the luncheon. I — well, I went, but it was after it was over. The only person I remember being there was Joel Stubblefield, and I don’t remember what we talked about. I don’t remember any of the discussions about it. I didn’t-that was the only activity that I had with it.
Q. Was this a political committee?
A. Not — I don’t know what you mean by “political Committee”, Mr. Stilley.
Q. Well, the purpose of it was to raise some money to — to try to, in essence, change the law, correct?
A. That was not my understanding at all. I didn’t — I didn’t know there was a fund-raising aspect to it.
... that committee was formed in June of 2001. The election occurred in July of 2001. I mean, if — if they did some fund-raising, I didn’t know anything about it. I didn’t participate in it nor have 1 ever had any accounting about it. And that resolution passed. It — the vote passed, think, in July of 01. It was about 75 or 80 percent approval rating, and UA of Westark became part of the University of Arkansas.
At pages 37 and 38 the following is reflected:
Q. You were aware at the time you denied this motion to recuse that you had falsely stated that you were not working for — or—you were not on the committee for UAFS, correct?
A. That I had falsely stated. Mr. Stil-ley, you asked me in that | ^hearing if I was on that committee. I told you to give me evidence that I was. You did not give me any evidence, and I didn’t remember being on the committee. Somehow you equate that for me making a lie to you or falsely stating because I was mistaken.
If you had submitted any documentation during that hearing process, we could have aired that all out. But you didn’t. You waited until after judgment was entered. I had no clue. I didn’t remember being on this committee. I didn’t remember anything about the committee. I didn’t have anything to do with the facts of your case. And I made a judgment based upon what I thought was — was the right thing to do.
Now, I — I should not have said anything. But I didn’t remember being on that committee. But, yes, I said you are^-you were mistaken.
Q. Which was not the truth, correct?
A. It was not. I was mistaken.
Page 45 of the deposition reflects:
Q. ... Would you agree on the basis of this that a court that has bias has a duty to step aside and let another—
A. I would agree with that 100%, Mr. Stilley. I had absolutely no bias towards you regarding this decision. I made it strictly on the law that I thought was applicable and without any knowledge or any remembrance of this committee that I regretfully served on.
Q. Is it also regretful that you forgot that you served on it?
A. Yes, evidently it is.
Q. Was it also regretful that you didn’t make any corrections with it when you—
kjA. I didn’t think that was appropriate, Mr. Stilley. I think the judgment had been made. I had made my decision based upon that. You should have presented the evidence at the hearing. And then, as I said, I still— I don’t think I would have recused. I didn’t think there was a basis for re-cusal.
TRANSCRIPT OF PROCEEDINGS BEFORE COMMITTEE
The 87 page Transcript of the public hearing conducted by Panel B on June 20, 2008, (hearing prompting amendment to petition) reflects that Stilley offered only 1 exhibit, a Motion to Dismiss. Ligón offered 15 exhibits, many of which are the same exhibits offered and received as evidence in this proceeding.
The transcript farther reflects at pages 16 and 17 that Stilley advised the Panel’s Chair that he believed that truthful statements were privileged under the first amendment, and further said “... I would like a ruling from the Chair of the panel that that’s correct, that’s a correct statement of the law”. Page 25 reflects Stilley saying: “I’ve got another Motion to make. That is a Motion for a ruling that the Executive Director bears the burden of proof of falsity of any statements alleged to be punishable.” Further down the page Judge Kelly responded: “... the Chair’s ruling is that the Chair is not going through whatever | ^particular paragraphs you choose and give you an individual ruling on it. Your Motion to Dismiss and the Motion to Reconsideration, they are both denied”.
Page 85 of the Transcript reflects that Ligón advised the Panel that his only live witness would be Stilley. Stilley stated that he had no witnesses.
Page 46 reveals that Ligón called Stilley to the witness stand but Stilley refused to testify saying: “Object on the grounds that the Judges have the prerogative to choose whether or not to testify and the Arkansas Constitution says that there will be no special privileges passed out to a certain group, then there is no basis for requiring Oscar Stilley to testify either.”
Pages 85 and 86 reflect that the Panel unanimously found Rules violations and imposed sanctions.
CONCLUSIONS OF LAW
The authority to regulate the practice of law arises from the Arkansas Constitution Amendments 28 and 80, and the power is an inherent power of the courts. Ligon v. McCullough, 2009 Ark. 165A, 303 S.W.3d 78 (2009); In re Anderson, 312 Ark. | 447, 851 S.W.2d 408 (1993). Section 1(c) of the Procedures Regulating Professional Conduct provides that disciplinary proceedings are neither civil nor criminal in nature but are sui generis, meaning of their own kind. Ligon v. Dunklin, 368 Ark. 443, 247 S.W.3d 498 (2007).
Stilley does not challenge the accuracy of the numerous and voluminous exhibits forming the evidence, rather he contest their admissibility, refuses to recognize their precedent, and gives his own spin to what the exhibits reflect. He strongly criticizes Ligon’s arguments and contends that Ligón should be sanctioned by the Committee for making such contentions.
In his Motion for Directed Verdict or Judgment as a Matter of Law, Stilley basically contends that:
1. There is no evidence supporting the allegations against him.
2. There were no Committee findings except those represented by the first 26 counts so neither party should be required or permitted to brief any matter after Count 26.
3. Rule 3.2 does not apply to a lawyer who did not sign or file a pleading and does not include lawyers who help a pro se litigant.
4. The Court may not treat a technical legal term as if used in its ordinary sense, and then impute the worst possible motives to the accused.
hfi5. Nothing in the disbarment petition alleges that any part of the Jones pleadings were false.
6. It is not permissible for a court to punish speech without an allegation of falsity.
7. Judge Marschewski was given an opportunity to show why his acts were not illegal or criminal.
8. Federal Rule of Procedure 11(b) does not extend sanctions to persons who do not advocate on behalf of a pleading, written motion, or other paper.
9. Judge Eisele denied him due process and “safe harbor” without case-law support.
10. The 8th Circuit Court of Appeals refused to meaningfully analyze and acknowledge his arguments and did not comply with due process.
11. The rule of law does not permit the Arkansas Supreme Court to make up rules as it goes along.
12. The Committee neglected and failed to make requested rulings on serious issues of law.
13. The Committee reached its decision in this case solely upon allegations without any supporting evidence.
Stilley demanded at the Panel B hearing, as he has in this proceeding, that he is entitled to a declaration that “truth is an absolute defense”. The panel did not succumb to his demand and neither will the undersigned because he is asking for an advisory opinion, which is forbidden. Terry v. White, 374 Ark. 387, 391, 288 S.W.3d 199, 202 (2008); Cotten v. Fooks, 346 Ark. 130, 55 S.W.3d 290 (2001). Court opinions are rendered upon a given set of facts developed in a case, not upon abstract statements. For example, truth can be a shield for an innocent defendant in a 167criminal case but it can also be a sword for the guilty. The role truth plays for Stilley in the instant case will be determined from the evidence adduced at trial and the applicable law.
By using the term “truth is an absolute defense” Stilley is urging the undersigned to find that he has truthfully proven that Judge Marschewski should have recused in Parker v. Perry; that had the judge re-cused, another judge would have reached a different result favorable to him; and, as a result, he would not have encountered his numerous ethical problems. There is absolutely no evidence or law to support such a finding.
The evidence reflects that Stilley offered no evidence to support his allegation in the court proceeding in which he says Judge Marschewski should have recused. The Supreme Court affirmed Judge Marschew-ski’s decision finding that, with the facts presented in the case, the Judge applied the applicable law. Stilley v. Fort Smith School District, 367 Ark. 193, 238 S.W.3d 902 (2006). There is no evidence in Mar-sehewski’s deposition or anywhere else in the record reflecting that the Judge actively participated in any activity which had anything to |BRdo with the Parker case. The results of the appeal clearly show that another judge could not have lawfully reached a different result.
A judge is not required to re-cuse because of his or her life experiences. Irvin v. State, 345 Ark. 541, 49 S.W.3d 635 (2001). In addition, there exists a presumption of impartiality and a party seeking recusal must demonstrate any alleged bias. City of Dover v. City of Russellville, 346 Ark. 279, 57 S.W.3d 171 (2001).
This entire matter was put to rest in Stilley v. Fort Smith School District when the Supreme Court said at 367 Ark. at 203, 238 S.W.3d at 907-908:
Stilley’s motion {to recuse} was devoid of any facts supporting his assertion that Judge Marschewski should recuse. It raised no issue of fact or law to be considered in a hearing and was properly disposed of by summary denial. The circuit court did not abuse its discretion in denying Stilley’s request for a hearing on the motion to recuse. There is no requirement that a hearing be held every time a litigant files a motion to recuse and asks for a hearing.
Stilley also contends that everything alleged in the Joneses lawsuits is true. Regretfully, he has failed to accept the decisions handed down in Jones I, and Jones II, Judge Eisele’s decisions in the two federal cases, the 8th Circuit Court of IfflAppeals decision, and decisions reached by numerous other courts in which Stilley has made the same allegations. He has no respect whatsoever for court decisions that are not decided in his favor.
Stilley’s argument that Panel B did not base its June 20, 2008, findings on competent evidence is moot in light of Ligon v. Walker, 2009 Ark. 136, 297 S.W.3d 1 (2009). There, the Court held that the Executive Director may amend a petition to raise new matters, without first referring it to the Committee, provided that the amendment is filed in a timely fashion. Ligón filed his Amended Petition 6 months after filing his Original Petition and more than 5 months before trial. Stilley’s due process rights were protected.
Stilley alleges that Ligón is required to plead and prove that part or all of the Joneses pleading were false. He is wrong. Ligon’s obligation is to prove the allegations set out in his Petition. Davis v. U of A Med. Ctr. & Coll. Svc., 262 Ark. 587, 559 S.W.2d 159 (1977); Williams v. Smart Chevrolet Co., 292 Ark. 376, 730 S.W.2d 479 (1987); People v. Nowack, 462 Mich. 392, 614 N.W.2d 78 (2000). As the Appellate Court of Illinois, Fourth District said in Schleyhahn v. Cole, 178 Ill.App.3d 111, 127 Ill.Dec. 307, 532 N.E.2d 1136 (1989), “Plaintiffs need not disprove every theory which defendant propounds”.
As to Stilley’s contention that Judge Ei-sele and the Eighth Circuit Court of Appeals violated his right to due process, he has cited no authority granting this Court jurisdiction to exercise appellate review of federal district and appellate court decisions.
Stilley has alleged many times that the Committee, along with Arkansas state and appellate courts, have denied him due process. Those arguments were put to rest by the United States District Court for the Western District of Arkansas, Fort Smith Division in a case styled In Re: Oscar A. Stilley, Civil No. 0841C0005 (May 21, 2005) in which Judge Jimm Larry Hendren thoroughly reviewed Stilley’s due process arguments and found them to be without merit. A similar decision was reached by the United States District Court for the Central District of Illinois, Peoria Division, In Re: Oscar Amos Stilley, Case No. 08-MC-2043 (November 19, 2008). There, a three judge panel, after reciting [7110 pages filled with Stilley’s ethical problems, reviewed and denied his claim of due process violations.
Based on the evidence and conclusions heretofore set out and the reasoning hereinafter set forth, Stilley’s Motion for Directed Verdict or Judgment as a Matter of Law is without merit, should be and hereby is denied.
CO UNT I
It is alleged in Count 1 that Stilley violated Model Rule 8.1 by assisting Robbie and Buck Jones, who had been his clients in a similar, if not identical, unsuccessful action in the state court, in preparing a Complaint that was filed in federal court as No. CIV04-220. It is alleged in the Jones complaint, among other claims, a “RICO” (Racketeer Influenced and Corrupt Organizations Act) violation, a claim Judge Eisele specifically found to be frivolous and his decision was affirmed on appeal by the 8th Circuit Court of Appeals.
Model Rule 3.1 provides, in relevant part, that a lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis in law and fact for doing so that is |72not frivolous, which includes a good faith argument for an extension, modification or reversal of existing law.
The evidence reflects that the complaint was prepared in Stilley’s office on Stilley’s computer and that Buck Jones considered Stilley to be his lawyer at the time of preparation. Further, Stilley acknowledged that he assisted Jones “materially in the preparation of the complaint”. Considering all the proof, it is convincing that Stilley prepared the complaint, and that both Stilley and Jones knew that the Complaint was similar, if not identical to claims they had pursued unsuccessfully in State Court. See, Jones I and Jones II. Judge Eisele granted defense Motions to dismiss the complaint in its entirety. Stil-ley violated Model Rule 3.1 by preparing and causing Buck Jones to file the complaint he knew, or reasonably should have known, to be frivolous. See, generally, Stilley v. University of Arkansas at Fort Smith, et al., where the Court said: “We have stated that an attorney is expected to know the law”.
COUNT 2
_JgIt is alleged in Count 2 that Stilley violated Model Rule 3.3(a)(1) in a hearing conducted on January 14, 2005, in Sebastian Circuit Court (case No. CIV-02-276), by demonstrating a lack of candor or even making a false statement with his response to the question “Did you prepare that complaint”, (referring to the complaint filed by Buck and Robbie Jones as USDC case No. CV-04-2220).
Model Rule 3.3(a)(1) provides, in relevant part, that a lawyer shall not knowingly make a false statement of fact or law to a tribunal.
The evidence reflects that Stilley gave the following answers to the question “Did you prepare the Complaint” at issue:
“I assisted”
“I worked on it”
“I do not have personal knowledge” whether anyone else typed it.
“Buck and Robbie Jones” they’re the signatories on that.
“that was typed on a computer I use”
“I did (typed) a lot of it”
“I assisted Mr. Jones materially in the preparation of that complaint”
When asked whether Buck or Robbie Jones typed any part of the complaint, Stilley responded: “Not to my knowledge”. He also |74said, “I’ve provided attorney services to Buck Jones on an as-needed basis”.
According to Buck Jones, Stilley was his lawyer when the complaint was prepared; the complaint was prepared at Stilley’s office; Stilley did not discuss the complaint with him; and that Stilley didn’t ask him to sign the documents, “He just gave them — handed them to me and I signed them and took them to the courthouse”.
The proof is convincing that Stil-ley prepared the complaint in question then falsely, and in violation of Model Rule 3.3(a)(1), told the Court that he only assisted in its preparation.
COUNT 3
It is alleged in Count 3 that Stilley violated Model Rule 3.4(c) by assisting his clients, the Joneses, in preparing a pro se Plaintiffs Complaint, which they filed on October 5, 2004, as USDC No. CV-04-2220 in the United States District Court for the Western District of Arkansas, containing language which Mr. Stilley either prepared, or ratified, that was clearly intemperate, contemptuous, and disrespectful of the Justices of the Arkansas | ^Supreme Court individually and as a Court, and accused them of not being a “competent tribunal” as that term is used by the Eighth Circuit Court of Appeals. Mr. Stilley’s conduct constituted a breach of his oath of office as an attorney at law, due to his general tone of disrespect for the attorney code of ethics.
The Attorney’s Oath which Stilley swore to uphold when he was granted his license to practice law provides:
I will support the Constitution of the United States and the Constitution of the State of Arkansas, and I will faithfully perform the duties of attorney at law.
I will exhibit, and I will seek to maintain in others, the respect due courts and judges.
I will, to the best of my ability, abide by the Model Rules of Professional Conduct and any other standards of ethics proclaimed by the courts, and in doubtful cases I will attempt to abide by the spirit of those ethical rules and precepts of honor and fair play.
I will not reject, from any consideration personal to myself, the cause of the impoverished, the defenseless, or the oppressed.
I will endeavor always to advance the cause of justice and to defend and to keep inviolate the rights of all persons whose trust is conferred upon me as an attorney at law.
Model Rule 3.4(c) provides that a lawyer shall not knowingly disobey an obligation under the rules of a tribunal except for an | TfiOpen refusal based on an assertion that no valid obligation exists.
Stilley alleges that “It is understandable that a layperson might mistake the claim that a judicial officer is ‘incompetent’ for a mere personal insult. The term ‘incompetent tribunal’ was modified in this instance by the phrase ‘as that term is used by the Eighth Circuit Court of Appeals’. Petitioner should not accuse another lawyer of disrespect when he has made a claim of incompetency based upon clear, unmistakable conflict of interest, as politely and respectfully as possible, in a legal pleading”.
The record of this proceeding provides no factual support for Stilley’s spurious claim of “incompetency”. There is simply no indication in the record that any court in which Stilley has appeared as an attorney and/or litigant has acted incompetently.
Stilley made similar unsupported accusations in United States of America v. Hamlet C. Bennett, (USDC for District of Hawaii Case No. 06-68) 2006 WL 2793170. There, the District Judge said at page 11 of his opinion:
I^The Court is further concerned by what appears to be a pattern of accusing judges, justices, and officers of the court of wrongful conduct without any basis. Not only was Stilley suspended by the Arkansas Supreme Court because of his intemperate and disrespectful conduct, but Stilley attempted to impugn the Government counsel by raising an unsupported charge of “judge shopping.” Stilley also indicated that Magistrate Judge Koayashi was not “even handed” or “fair and impartial” in deciding this matter. Stilley’s unsupported accusations of improper conduct by all who disagree with him gives this court concern about how he will behave in future court proceedings.
Considering Stilley’s history of accusing judges, justices, lawyers and court officials of unsupported accusations of improper conduct merely because he does not agree with their decisions, leads the undersigned to find and conclude that Stil-ley violated Model Rule 3.4(c) by intentionally being disrespectful of the Justices of the Arkansas Supreme Court individually and as a Court, by accusing the Justices’ and the Court of not being a “competent tribunal”.
COUNT 4
In Count 4 it is alleged that Stil-ley violated Model Rule 3.4(c) by assisting his clients, the Joneses, in preparing a pro se Plaintiffs Complaint which was filed on October 5, 2004, as USDC No. CV-04-2220 in the United States District Court for the 17SWestern District of Arkansas, containing language which Mr. Stilley Way prepared, or ratified, that was clearly intemperate, contemptuous, and disrespectful of the Justices of the Arkansas Supreme Court individually and as a Court, and accused them of being a Court that has “rendered it impossible for the Plaintiffs to obtain due process concerning the claims made herein, in any state court.” Mr. Stilley’s conduct constituted a breach of the obligation of his oath of office as an attorney at law, due to his general tone of disrespect for the attorney code of ethics.
Stilley’s accusation is nothing more than a disrespectful, caustic remark, that only serves to vent his emotions and is totally devoid of supporting evidence. He alleges that he can’t be punished for his actions because he was “not put on notice” by written rules saying that disrespectful conduct sanctions can be applied in appellate courts. He disregards White v. Priest, 348 Ark. 783, 73 S.W.3d 572 (2002), and Davenport v. Lee, 349 Ark. 113, 76 S.W.3d 265 (2002) as precedent, saying that “the rule of law does not permit a tribunal to make up the rules as it goes along”. Those cases certainly put Stilley and every other _|_79Arkansas lawyer on notice that disrespectful conduct directed at any judges will not be tolerated.
Stilley further alleges that an attorney’s oath of office does not constitute an obligation for which, if violated, an attorney can be punished. He cites no authority for such a proposition.
Stilley’s bold claim that the United States Supreme Court precludes punishment for free speech is irrelevant because he has repeatedly failed to recognize and adhere to precedent holding that his speech (allegations) has not been true. See In re Coe, 903 S.W.2d 916, 917 (Mo.1995), in which the Missouri Supreme Court said “An attorney’s free speech rights do not authorize unnecessary resistance to an adverse ruling.... Once a judge rules, a zealous advocate complies, then challenges the ruling on appeal; the advocate has no free-speech right to rear-gue the issue, resist the ruling, or insult the judge”. See also, In re Shearin, 765 A.2d 980 (Del.2000) and United States v. Cooper (In re Zalkind), 872 F.2d 1 (1st Cir.1989).
The First Amendment protection of free speech does not preclude an attorney from disciplinary action when he or she Ispengages in undignified and discourteous conduct degrading to a tribunal. Board of Professional Responsibility v. Slavin, 145 S.W.3d 538 (Tenn.2004); In re Pyle, 283 Kan. 807, 156 P.3d 1231 (Kan.2007); In re Converse, 258 Neb. 159, 602 N.W.2d 500 (1999); Konigsberg v. State Bar, 366 U.S. 36, 81 S.Ct. 997, 6 L.Ed.2d 105 (1961); In re Martin-Trigona, 55 Ill.2d 301, 302 N.E.2d 68 (1973); In re Cobb, 445 Mass. 452, 838 N.E.2d 1197 (2005).
Stilley’s conduct as set out in Count 4 and supported by substantial evidence violated Model Rule 3.4(c).
COUNT 5
It is alleged in Count 5 that Mr. Stilley’s conduct violated Model Rule 3.4(c) in that he assisted his clients, the Joneses, in preparing a pro se Plaintiffs Complaint which they filed on October 5, 2004, as USDC No. CV-04-2220 in the United States District Court for the Western District of Arkansas, containing language which Mr. Stilley either prepared, or ratified, that was clearly intemperate, contemptuous, and disrespectful of the Justices of the Arkansas Supreme Court individually and as a Court, and accused them of “willfully and knowingly depriving the | ^plaintiffs of due process and a competent tribunal”. Mr. Stilley’s conduct constituted a breach of the obligation of his oath of office as an attorney at law, due to his general tone of disrespect for the attorney code of ethics.
Stilley’s defense is that ghostwriting need not be disclosed; that a lawyer cannot be chargeable by statements unless there is some basis for attributing those statements to the lawyer; and that Ligón does not allege or prove the statements false.
The language is intemperate and contemptuous and was intended by Stilley to show disrespect for the Justices of the Arkansas Supreme Court individually and as a Court, in violation of Model Rule 3.4(c). The rationale set out in the undersigned’s conclusions under Counts 3 and 4 apply here.
COUNT 6
It is alleged in Count 6 that Mr. Stilley’s conduct, violated Model Rule 3.4(c) in that he assisted his clients, the Joneses, in preparing a pro se Plaintiffs Complaint which they filed on October 5, 2004, as USDC No. CV-04-2220 in the United States District Court for the Western District of Arkansas, containing | ^language which Mr. Stilley either prepared, or ratified, that was clearly intemperate, contemptuous, and disrespectful of the Justices of the Arkansas Supreme Court individually and as a Court, and accused them of “corruptly and fraudulently refusing to consider and fairly adjudicate said claim for the payment of the full amounts of the sale price of the plaintiffs’ home, motivated by passion and prejudice against counsel at that time retained by the Plaintiffs, one Oscar Stilley”. Mr. Stil-ley’s conduct constituted a breach of the obligation of his oath of office as an attorney at law, due to his general tone of disrespect for the attorney code of ethics.
The language is intemperate and contemptuous, and was intended by Stilley to show disrespect for the Justices of the Supreme Court individually and as a Court, in violation of Model Rule 3.4(c). The rationale set out in the undersigned’s conclusions under Counts 3 and 4 apply here.
COUNT 7
It is alleged in Count 7 that Mr. Stilley’s conduct violated Model Rule 3.4(c) in that he assisted his clients, the Joneses, in ^preparing a pro se Plaintiffs Complaint which they filed on October 5, 2004, as USDC No. CV-042220 in the United States District Court for the Western District of Arkansas, containing language which Mr. Stilley either prepared, or ratified, that was clearly intemperate, contemptuous, and disrespectful of the Justices of the Arkansas Supreme Court individually and as a Court, by alleging, “said Defendants [the justices] continued to sit on the case, and perverted judgment against the plaintiffs herein, depriving them of a competent tribunal and of an honest and impartial arbiter of the dispute”. Mr. Stilley’s conduct constituted a breach of the obligation of his oath of office as an attorney at law, due to his general tone of disrespect for the attorney code of ethics.
The language is intemperate and contemptuous, and was intended by Stilley to show disrespect for the Justices of the Arkansas Supreme Court individually and as a Court, in violation of Model Rule 3.4(c). The rationale set out in the undersigned’s conclusions under Count 3 and 4 apply here.
COUNT 8
kJt is alleged in Count 8 that Mr. Stilley’s conduct, violated Model Rule 3.4(c) in that he assisted his clients, the Joneses, in preparing a pro se Plaintiffs Complaint which they filed on October 5, 2004, as USDC No. CV-04-2220 in the United States District Court for the Western District of Arkansas, containing language which Mr. Stilley either prepared, or ratified, that was clearly intemperate, contemptuous, and disrespectful of the Justices of the Arkansas Supreme Court individually and as a Court, and sought compensatory and punitive damages against the individual Justices “for having willfully and knowingly deprived Plaintiffs of due process and a competent tribunal in the cases stated in the body of the complaint”. Mr. Stilley’s conduct constituted a breach of the obligation of his oath of office as an attorney at law, due to his general tone of disrespect for the attorney code of ethics.
The frivolous allegations are intemperate and contemptuous, and were intended by Stilley to show disrespect for the Justices of the Arkansas Supreme Court individually and as a Court, in | ⅞-⅞violation of Model Rule 3.4(c). The rationale set out in the undersigned’s conclusions under Counts 3 and 4 apply here.
COUNT 9
In Count 9 it is alleged that Mr. Stilley’s conduct violated Model Rule 3.4(c) in that he assisted his clients, the Joneses in preparing a pro se Brief in Support of Plaintiffs’ Response to the various Motions to Dismiss or for Summary Judgment, which they filed on or about January 11, 2005, in CIV-04-2220 in the United States District Court for the Western District of Arkansas. The Brief contained language which Mr. Stilley either prepared, or ratified, that was clearly intemperate, contemptuous, and disrespectful of the trial court, the Honorable James Marschewski, by accusing him of “presiding over a case involving Westark College (now UAFS) despite a clear conflict of interest”, apparently Parker v. Perry. Mr. Stilley’s conduct constituted a breach of his oath of office as an attorney at law, due to his general tone of disrespect for the attorney code of ethics.
The frivolous allegation is intemperate and contemptuous and was intended by Stilley to show disrespect for Judge IsfiMarschewski in violation of Rule 3.4(c). The rationale set out in the undersigned’s conclusions under Count 3 and 4 apply here.
COUNT 10
It is alleged in Count 10 that Mr. Stilley’s conduct violated Model Rule 3.4(c) in that he assisted his clients, the Joneses, in preparing a pro se Brief in Support of Plaintiffs’ Response to the various Motions to Dismiss or for Summary Judgment which were filed on or about January 11, 2005, in CIV-04-2220, in the United States District Court for the Western District of Arkansas. The Brief contained language which Mr. Stilley either prepared, or ratified, that was clearly intemperate, contemptuous, and disrespectful of the trial court, the Honorable James Marschewski, where it accused him of having “demonstrated a total disregard of judicial ethics”. Mr. Stilley’s conduct constituted a breach of the obligation of his oath of office as an attorney at law, due to his general tone of disrespect for the obligation of his oath of office as an attorney at law due to his general tone of disrespect for the attorney code of ethics.
[7The frivolous allegation is intemperate and contemptuous and was intended by Stilley to show disrespect for Judge Mar-schewski in violation of Rule 3.4(c). The rationale set out in the undersigned’s conclusions under Counts 3 and 4 apply here.
COUNT 11
It is alleged in Count 11 that Mr. Stilley’s conduct violated Model Rule 3.4(c) in that he assisted his clients, the Joneses, in preparing a pro se Brief in Support of Plaintiffs’ Response to the various Motions to Dismiss or for Summary Judgment which they filed on or about January 11, 2005, in CIV-04-2220 in the United States District Court for the Western District of Arkansas. The Brief contained language which Mr. Stilley either prepared, or ratified, that was clearly intemperate, contemptuous, and disrespectful of the trial court, the Honorable James Marschewski, where it accused him of “knowingly and willfully entering an illegal order against Oscar Stilley”. Mr. Stilley’s conduct constituted a breach of the obligation of his oath of office as an attorney at law, due to his general tone of disrespect for the attorney code of ethics.
bsThe frivolous allegation is intemperate and contemptuous, and was intended to show disrespect for Judge Marschewski in violation of Model Rule 3.4(c). The rationale set out in the undersigned’s conclusions under Count 3 and 4 apply here.
COUNT 12
In Count 12 it is alleged that Mr. Stilley’s conduct violated Model Rule 3.4(c) in that he assisted his clients, the Joneses, in preparing a pro se Brief in Support of Plaintiffs’ Response to the various Motions to Dismiss or for Summary Judgment which they filed on or about January 11, 2005, in CIV-04-2220 in the United States District Court for the Western District of Arkansas. The Brief contained language which Mr. Stilley either prepared, or ratified, that was clearly intemperate, contemptuous, and disrespectful of the trial court, the Honorable James Marschewski, where it accused him of having “failed to disclose material facts showing a conflict of interest”. Mr. Stilley’s conduct constituted a breach of the obligation of his oath of office as an attorney at law, due to his general tone of disrespect for the attorney code of ethics.
k9The allegation is frivolous, intemperate and was intended by Willey to show disrespect for Judge Marschewski in violation of Model Rule 3.4(c). The rationale set out in the undersigned’s conclusions under Counts 3 and 4 apply here.
COUNT 13
It is alleged in Count 13 that Mr. Stilley’s conduct violated Model Rule 3.4(c) in that he assisted his clients, the Joneses, in preparing a pro se Brief in Support of Plaintiffs’ Response to the various Motions to Dismiss or for Summary Judgment which they filed on or about January 11, 2005, in CIV-04-2220 in the United States District Court for the Western District of Arkansas. The Brief contained language that was clearly intemperate, contemptuous, and disrespectful of the trial court, the Honorable James Marschewski, where it accused him of having been “UAFS’s semi-secret special agent Marschewski engaged to fight their battles for them”. Mr. Stil-ley’s conduct constituted a breach of the obligation of his oath of office as an attorney at law, due to his general tone of disrespect for the attorney code of conduct.
bnThe frivolous allegation is intemperate, strident, and contemptuous and was intended by Stilley to show disrespect for Judge Marschewski in violation of Model Rule 3.4(c). The rationale set out in the undersigned’s conclusions under Counts 3 and 4 apply here.
COUNT 14
It is alleged in Count 14 that Mr. Stilley’s conduct violated Model Rule 8.4(d) in that by his letter of October 26, 2004, Mr. Staley threatened Judge James Marschew-ski with criminal prosecution if he did not rule in a certain manner or take certain action requested by Stilley in Sebastian Circuit Court No. CV-2002-276, Parker v. Perry. When Judge Marschewski failed to act as Mr. Stilley demanded, on November 10, 2004, Mr. Stilley caused a document entitled “Warrant information”, apparently obtained from the Sebastian County Prosecuting Attorney’s Office, to be filled out against Judge Marschewski, and others, to be transmitted to the Judge by means of the Motion Mr. Stilley filed on November 19, 2004. Mr. Stilley attempted to use criminal 131 process to coerce a favorable result in a civil court action in which he had an interest, a misuse of the court system and the criminal justice system.
Model Rule 8.4(d) provides that it is professional misconduct for a lawyer to engage in conduct that is prejudicial to the administration of justice.
Stilley’s defense is that he “offered Judge Marschewski an opportunity to show why his acts were not illegal or criminal, such as to require the Respondent (Stilley) to make a report to the proper authorities”. As a lawyer, Stilley knew, or reasonably should have known, that the Judge’s act of enforcing his Order was not a criminal act. He also knew, or reasonably should have known, that there was nothing illegal to report to the proper authorities.
Stilley also contends that Judge Mar-schewski’s decision was wrong and infers that he was not required to obey the order.
Stilley’s unsupported accusation against Judge Marsehewski was not an “innocent explanation” but a threat of criminal 192prosecution if the judge did not take action favorable to him, and it was a clear violation of Model Rule 8.4(d).
COUNT 15
It is alleged in Count 15 that Mr. Stil-ley’s conduct violated Model Rule 8.4(d) in that by his letter of October 26, 2004, he threatened Judge Marsehewski with the filing of a complaint against the Judge with “the judicial authorities” presumably the Arkansas Judicial Discipline Commission, if he did not take certain action requested by Mr. Stilley, or decline to take action unfavorable to Stilley, in Sebastian Circuit No. CV-2002-276, Parker v. Perry. Judge Marsehewski promptly sent the letter to the Arkansas Judicial Discipline and Disability Commission, as a self-report, which, on information and belief, did not result in any charges or action against the judge. Mr. Stilley attempted to use the judicial disciplinary system to coerce a favorable result in a civil action in which he had an interest, a misuse of the judicial discipline system, and prejudicial to the administration of justice.
Stilley’s defense is that Ligón cites no specific language in support of this allegation and that there is no legal basis for the 19SCourt to punish him based on theories that were concealed from him.
The evidence reflects that Stilley began his letter by telling Judge Mar-schewski that he was facing contempt proceedings in the judge’s court. Then he attempted to plead his defense in the cause. Next he reminded the judge that he did not prevail in the Judge’s court the last time he used that defense. The only logical reason for the letter was to attempt to coerce Judge Marsehewski into reversing his prior decision in the upcoming hearing, which is clearly a violation of Model Rule 8.4(d).
COUNT 16
It is alleged in Count 16 that Mr. Stil-ley’s conduct violated Model Rule 8.4(d) in that he followed through on his October 26, 2004, threat to Judge Marsehewski with the filing of a complaint against the Judge with the Committee on Professional Conduct in an attempt to use the judicial discipline system to coerce a favorable result in a civil court action in which he had an interest, which was a misuse of the judicial discipline system, and was prejudicial to the administration of justice.
li4 Stilley’s defense is that the charge fails to identify the specific language relied upon and that Ligón failed to meet his burden of proof.
The undersigned finds and concludes that Stilley knew, or reasonably should have known, that the mere failure of a judge to accept his argument is no basis for him to file a complaint with the attorney or judicial discipline system. His conduct was reckless and mean spirited.
The evidence is convincing that Stilley filed his complaint against Judge Marsehewski for the sole purpose of attempting to coerce the Judge into reversing his prior decision, which is a violation of Rule 8.4(d).
COUNT 17
In Count 17 it is alleged that Mr. Stil-ley’s conduct violated Model Rule 8.4(d) in that by his letter of October 2612004, he threatened attorney Walton Maurras with the filing of a grievance against him with the Committee on Professional Conduct if he did not back off prosecuting a motion to show cause for contempt against Mr. Stil-ley in Sebastian Circuit No. CV-2002-276, Parker v. Perry. When Mr. Maurras failed to act as Mr. Stilley demanded, on or about November 19, 2004, Mr. Stilley filed a grievance against him with the Committee. Mr. Stilley attempted to use the attorney discipline system to coerce a favorable result in a civil court action in which he had an interest, a misuse of the attorney discipline system, and prejudicial to the administration of justice.
Stilley’s defense is that he has not been informed of the precise nature of the charge.
Maurras considered the letter a threat when he responded to Stilley by saying: “I’m disappointed in you. Threats of grievance complaints won’t work. You do what you think is in your best interest and we’ll see what happens”.
The only logical explanation for Stilley writing such a letter to Maurras was to attempt to cause him to back away from pursuing his contempt petition. Such conduct was a clear violation of Rule 8.4(d).
COUNT 18
It is alleged in Count 18 that Mr. Stil-ley’s conduct violated Model Rule 8.4(d) in that by his letter of October 26, 2004, he 1 ^threatened attorney James M. Llewellyn, Jr., with the filing of a grievance against him with the Committee on Professional Conduct if Mr. Llewellyn did not back off prosecuting a motion to show cause for contempt against Mr. Stilley in Sebastian Circuit No. CV-2002-276, Parker v. Perry. When Llewellyn failed to act as Stilley demanded, on or about November 19, 2004, Stilley filed a grievance against him with the Committee. Mr. Stil-ley attempted to use the attorney disciplinary system to coerce a favorable result in a civil court action in which he had an interest, a misuse of the attorney discipline system, and prejudicial to the administration of justice.
Stilley’s defense is that he has not been informed of the precise nature of the charge and, further, that his communication was privileged and confidential. His citations are not in point.
He also alleges here that “The proper role of a special judge is to rule on competing arguments made by the parties”. Obviously he overlooks the Per Curiam appointing the undersigned wherein the Court said: “As provided in Section 13(A), the special judge shall hear all evidence relevant to the alleged misconduct and [ 37then make findings of fact, conclusions of law, and recommendations of an appropriate sanction ...”
Attorney arguments are not evidence but are made only to help judges or juries understand the evidence and the applicable law. See, Arkansas Model Jury Instructions, 101. Arguments of attorneys which have no basis in the record are disregarded. Judges make decisions after sifting through the evidence, finding the facts, and applying the applicable law.
The allegation in this Count is supported by the evidence in the record; it is not privileged and is not confidential. Stilley’s conduct violated Rule 8.4(d).
COUNT 19
It is alleged in Count 19 that Mr. Stilley’s conduct violated Model Rule 8.4(d) because in Parker v. Perry, Sebastian Circuit No. CV-2002-276, Judge Marschewski sanctioned Mr. Stilley in September 2002, for violating Rule 11 by filing a lawsuit that was barred by the principles of res Judicata, the statute of limitations, and the voluntary payment rule. He assessed sanctions against Stilley by directing that he pay fees incurred by the Fort Smith |98School District ($14,421.16) and the University of Arkansas at Fort Smith ($2,196.81). By Judgment issued January 18, 2005, Judge Marschewski found Mr. Stilley in civil contempt and sentenced him to jail and fined him (suspended on conditions), after finding that he had failed to comply with the September 2002, Order.
The record reflects that the allegations are true. Stilley alleges that the Sebastian County Circuit Court and the Arkansas Supreme Court were wrong in their rulings; therefore this Court should not respect their decisions. Those decisions became final long ago and the matters resolved therein cannot be relitigated here. Stilley’s conduct violated Rule 8.4(d).
COUNT 20
It is alleged on Count 20 that Mr. Stilley’s conduct violated Model Rule 8.4(d) in that he violated Rule 11, ARCP, by filing a lawsuit barred by several legal doctrines. He assisted the Joneses in filing pro se, a subsequent lawsuit in federal court in October, 2004, Jones v. Double “D” Properties, et al., which was Inexactly the same cause of action that resulted in Mr. Stilley being sanctioned by Judge Marschewski in September, 2002.
The allegation is supported by proof. Stilley’s defense is that the charge is not specific enough to allow an adequate defense; that he cannot be sanctioned if he did not sign or file the pleading; that the causes of action were not the same; and that the Joneses were not bound by the previous lawsuit. The undersigned finds that the allegation is specific and that the Joneses were bound by the previous lawsuit as found by Judge Eisele. Stilley cites no authority for his allegation that a lawyer cannot be sanctioned unless he actually signs or files a frivolous pleading. Model Rule 3.1 does not use the words “signed” or “filed”. It says that “... a lawyer shall not bring or defend a proceeding, or assert or controvert an issue ... ”. The undersigned finds and concludes that Stilley “brought and asserted” the cause of action at issue and that his conduct violated Model Rule 8.4(d).
COUNT 21
lionln Count 21 it is alleged that Mr. Stilley’s conduct violated Model Rule 8.4(d) in that his failure to comply with the order for sanctions caused the Circuit Court of Sebastian County to have to expend unnecessary and limited time and resources on matters he caused or assisted to occur.
The record reflects that this allegation is true. Stilley’s defense is that this Court should not respect the Orders of the Sebastian County Circuit Court. Those Orders are final and binding and cannot be relitigated. Stilley’s conduct violated Model Rule 8.4(d).
CO UNT 22
It is alleged in Count 22 that Mr. Stil-ley’s conduct violated Model Rule 8.4(d) in that on October 19, 2004, he filed suit personally against Judge Marschewski, Justices Robert Brown, Tom Glaze, Donald Corbin, Annabelle Clinton Imber, Jim Hannah and Ray Thornton, in their official and individual capacities, and others, in Case No. CIV-042225 in the United States District Court for the Western District of Arkansas. The case was eventually the subject of a Memorandum Opinion and an Order of |ini Dismissal by Judge G. Thomas Eisele filed May 18, 2005. His Opinion and Dismissal was affirmed on May 26, 2006, by the Court of Appeals for the Eighth Circuit (No. 05-2816). Judge Ei-sele particularly found that the “RICO” claim the Joneses and Mr. Stilley alleged was disturbing and frivolous. Judge Ei-sele sanctioned Mr. Stilley for his conduct by striking the RICO claim from the Amended Complaint. He also assessed costs and UAFS’s attorney fees (determined after further pleadings) against Mr. Stilley. Judge Eisele further referred the matter and Mr. Stilley’s conduct to the Committee on Professional Conduct and directed the clerks of both federal districts in Arkansas not to accept for filing any complaint tendered by Mr. Stilley naming as parties any of at least twenty-nine (29) individuals or entities identified in an exhibit attached to his Opinion. His decision was affirmed on appeal. Mr. Stilley’s "conduct and frivolous claim in this matter resulted in the unnecessary use of court, party and attorney time and resources, conduct that was prejudicial to the administration of justice.
||fi?The evidence adduced at trial fully supports the allegation. Stilley’s defense is that he did not receive a show cause order in the case, therefore this court should nullify Judge Eisele’s decision. He either raised that issue, or should have raised that issue before Judge Eisele, not here. Judge Eisele’s decision is final and binding and . Stilley must respect it. Stilley’s conduct violated Model Rule 8.4(d).
COUNT 23
It is alleged in Count 23 that Mr. Stilley’s conduct violated Model Rule 8.4(d) in that on October 19, 2004, he filed suit personally against Judge Marschewski, the University of Arkansas at Fort Smith (UAFS), and others, as No. CV-04-2225 in United States District Court for the Western District of Arkansas. This case was eventually the subject of a Memorandum Opinion and Order of Dismissal by Judge G. Thomas Eisele filed May 18, 2005. His Opinion and Dismissal was affirmed by the Court of Appeals for the Eighth Circuit (No. 05-2816) on May 26, 2006. Judge Eisele found that Mr. Stilley challenged Judge Marschewski’s award of sanctions against Mr. Stilley in the [ ^earlier state court version of the Jones litigation and lost on appeal. Judge Eisele found that Mr. Stilley then filed the federal suit, contending that UAFS breached federal law, both statutory and constitutional, when it attempted to collect the state court judgment. Judge Eisele further found that Mr. Stilley sued UAFS “for an improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation” to UAFS, in violation of Fed.R.CivJP. Rule 11(b)(1). The decision was affirmed on appeal. Mr. Stilley’s conduct and improper purpose in this matter resulted in the unnecessary use of court, party, and attorney time, money, and resources, conduct that is prejudicial to the administration of justice.
The allegations are true as reflected in the record. Stilley’s argument is that Judge Eisele and the 8th Circuit denied him due process. He also alleges that Judge Marschewski should have recused in Parker v. Perry; that if he had done so and another judge had been appointed, the new judge would have found in his favor, which would have resulted in his not facing ethical problems. He further complains that he has been denied the |m4right to depose his accusers. Those issues were resolved against him long ago and he must accept the various courts’ rulings. His conduct-violated Model Rule 8.4(d).
COUNT 24
In Count 24 it is alleged that Mr. Stil-ley’s conduct violated Rule 3.4(c) because in direct defiance of Judge Tabor’s directives from the bench at the hearing on March 14, 2007, Mr. Stilley had subpoenas and deposition notices issued on March 15, 2007, to compel certain witnesses, including Judge Marschewski, to attend depositions to be conducted by Mr. Stilley for the purpose of attempting to relitigate issues already settled in the appeal in Parker v. Perry. Such action had no substantial purpose other than to burden those third persons who were subpoenaed, including Dr. Beran, Judge Marschewski, Judge Jim Spears, Mayor Ray Baker and Sam Sicard.
Stilley contends that there is no proof to support the allegation. The evidence reflects otherwise. Stilley’s conduct violated Model Rule No. 3.4(c).
COUNT 25
ImJt is alleged in Count 25 that Stilley’s conduct violated Rule 4.4(a) because in direct defiance of Judge Tabor’s directive from the bench at the hearing on March 14, 2007, Mr. Stilley had subpoenas and deposition notices issued on March 15, 2007, to compel certain witnesses, including Judge Marschewski, to attend depositions to be conducted by Stilley for the purpose of attempting to relitigate issues already settled in the appeal in Parker v. Perry. The action had no substantial purpose other than to burden those third persons who were subpoenaed, including Dr. Beran, Judge Marschewski, Judge Jim Spears, Mayor Ray Baker, and Sam Si-card. These persons were required to obtain counsel and file motions to quash the subpoenas.
Model Rule 4.4(a) provides that in representing a client, a lawyer shall not use means that have no substantial purpose other than to embarrass, delay, or burden a third person, or use methods of obtaining evidence that violate the legal rights of such a person.
The evidence supports the accusation. Stilley’s conduct violated Model Rule 4.4(a).
JmCOUNT 26
It is alleged in Count 26 that Mr. Stil-ley’s conduct violated Rule 8.4(d) because in a hearing on March 14, 2007, Mr. Stilley stated that he intended to put on witnesses “who will testify that Judge Marschewski lied when he said he was not represent ... [cut off by court]”. By this statement, Mr. Stilley engaged in conduct that is prejudicial to the administration of justice by accusing a judge of lying in a legal proceeding, and especially where the same allegation was part of the issues on appeal in a case styled Stilley v. Fort Smith School District, et al., that had been decided adversely to Mr. Stilley on September 14, 2006.
Stilley’s defense is that Ligón does not allege that his statement was material to the proceedings and that Ligón has made no attempt to prove the statement false. He also alleges that there is no evidence to support the allegation and that Ligón has cited no legal authority supporting his position.
The evidence reflects that the allegation is true. The record does not support Stilley’s bare allegation that Judge Marschewski “lied”. Ligón is not required to disprove every | in7defense theory Stilley puts forth. Schleyhahn v. Cole, 178 Ill.App.3d 111, 127 Ill.Dec. 307, 532 N.E.2d 1136 (1989). Stilley’s conduct violated Model Rule 8.4(d).
COUNT 27
It is alleged in Count 27 that Arkansas is the only state to have granted Oscar Stilley a license to practice law. On April 21, 2006, at the conclusion of a public hearing in case No. CPC 2002-077, Panel B announced a decision to suspend Mr. Stilley’s Arkansas law license for six months. On May 4, 2006, an Order from Committee Panel B in CPC 2002-077 was filed of record, and provided to Mr. Stilley, informing him of a six month suspension of his Arkansas law license. This suspension order was stayed while he appealed to the Arkansas Supreme Court. On July 14, 2006, Mr. Stilley filed a motion for admission pro hoc vice in the case of USA v. Hamlet Bennett, No. 06-cr-68 in the United States District Court of Hawaii. In his motion, Mr. Stilley failed to set out any information about his Arkansas law license disciplinary history to that date. He also answered Question 6 in his application, under oath, as follows, “I am not currently 11fl8suspended or disbarred in any court”. By his response and omission, Mr. Stilley knowingly made a false statement of fact to a tribunal for the purpose of obtaining admission pro hac vice in the Bennett case.
Model Rule 3.3(a)(1) provides that A lawyer shall not knowingly make a false statement of fact or law to a tribunal; or to fail to correct a false statement of material fact or law previously made to the tribunal by the lawyer.
Stilley’s defense is that he is “licensed” in a number of federal bars; that he was not suspended at the time of application; that his certificate of good standing was readily available from the Arkansas Supreme Court Clerk; that Leslie Steen, Clerk of Court, would testify that Oscar Stilley was not “currently suspended” and that a certificate of good standing would have been available as a matter of course at the time he filed his sworn statement with the Hawaiian federal district Court. His arguments are not supported by the record.
The evidence reflects that in Stilley’s application for admission PHV, he stated under oath that “I am not currently suspended or | ,09disbarred in any court”. An Order was entered granting him PHV status. After the United States Attorney brought Stilley’s Arkansas suspension to the Court’s attention, the U.S. Magistrate Judge (after hearing) disqualified Stilley, finding that even though the suspension was stayed pending appeal, Stilley should have disclosed such information when he submitted his application for admission. The court noted that the staying of a suspension pending appeal does not equate with Stilley being in “good standing”. The court further found that Stilley’s insistence that he was still in good standing despite the suspension order was, “more than merely troubling”. The District Judge affirmed the Magistrate’s Order.
Stilley knew he was not “licensed” to practice in any “federal bars” and that his only “law license” was suspended when he prepared and filed his application. As a lawyer, he knew or should have known, that he was not in “good standing” in Arkansas. His conduct violated Model Rule 8.3(a)(1) because he knowingly made a false statement to the Hawaii District Court.
COUNT 28
limit is alleged in Count 28 that Arkansas is the only state to have granted Oscar Stilley a license to practice law. On April 21, 2006, at the conclusion of a public hearing in Case No. CPC 2002-077, Panel B announced a decision to suspend Mr. Stilley’s Arkansas law license for six months. On May 4, 2006, an Order from Committee Panel B, in CPC 2002-077, was filed of record, and provided to Mr. Stilley, informing him of a six month suspension of his Arkansas law license. This suspension order was stayed while he appealed to the Arkansas Supreme Court. On July 14, 2006, Mr. Stilley filed a motion for admission pro hac vice in USA v. Hamlet Bennett, No. 06-cr-68, in the United States District Court of Hawaii. In his motion, Mr. Stilley failed to set out any information about his Arkansas law license disciplinary history to that date. He also answered Question 6 in his application, under oath, as follows, “I am not currently suspended or disbarred in any court”. Mr. Stilley failed to correct his false statement of material fact to the tribunal, and the true facts were only revealed when the United States of America filed | ma Motion to Disqualify Oscar Stilley on August 11, 2006, in the Bennett case.
Stilley’s defense is basically the same as that offered to Count 27, and is not supported by the record.
The evidence fully supports the allegations set forth in Count 28. Stilley’s conduct was in violation of Model Rule 8.8(a)(1).
COUNT 29
In Count 29 it is alleged that on September 29, 2006, when Mr. Stilley applied for admission pro hac vice in USA v. Gebauer, USDC (WA) No. 06-cr-122, he provided that court with an eight page detailed summary of his Arkansas law license disciplinary matters and sanctions. On August 1, 2007, when Stilley applied for admission pro hac vice in USA v. Lobello, USDC (NV) No. 06-cr-376, he twice provided that court with an eight page detailed summary of his law license disciplinary matters and sanctions. On June 9, 2008, when Mr. Stilley applied for admission pro hac vice in USA v. Dirr, USDC (TN) No. 08-cr-42, he failed to provide that court with any negative information about his Arkansas state and federal law disciplinary matters and sanctions. He |112knew at the time that he had been placed on state interim suspension on December 27, 2007; that State disbarment proceedings had been filed against him on January 16, 2008; that the federal courts in Arkansas had suspended him from practicing there on May 2, 2008; and that the Eighth Circuit Court of Appeals had suspended him from practicing there on May 2, 2008. His practice status representations to the Dirr court, directly and by knowing omission of material facts, constitute false statements of fact to the Dirr tribunal.
Stilley’s defense is that omission of facts not requested cannot be summarily deemed false statements. His argument is not supported by authority.
Every word of the lengthy allegation set out in Count 29 is supported by the record. Stilley’s conduct violated Model Rule 3.3(a)(1).
COUNT 30
It is alleged in Count 30 that Arkansas is the only state to have granted Oscar Stilley a license to practice law. On April 21, 2006, at the conclusion of a public hearing in Case No. CPC 2002-|113077, Panel B announced a decision to suspend Mr. Stilley’s Arkansas law license for six months. On May 4, 2006, an Order from Committee Panel B in CPC 2002-077 was filed of record, and provided to Mr. Stilley, informing him of a six months suspension of his Arkansas law license. This suspension order was stayed while he appealed to the Arkansas Supreme Court. On July 14, 2006, Mr. Stilley filed a motion for admission pro hac vice in the case of USA v. Hamlet Bennett, No. 06-cr-68 in the United States District Court of Hawaii. In his motion, Mr. Stilley failed to set out any information about his Arkansas law license disciplinary history to that date. He also answered Question 6 in his application, under oath, as follows: “I am not currently suspended or disbarred in any court”. By his responses and omissions, Mr. Stilley knowingly engaged in conduct involving dishonesty, fraud, deceit or misrepresentation for the purpose of obtaining admission pro hac vice in the Bennett case.
Model Rule 8.4(c) provides that It is professional misconduct for a lawyer to engage in conduct involving dishonesty, fraud, deceit or misrepresentation.
li^Stille/s defense is that Ligón is doubling up on him and that Ligón “has cited no authority for the proposition that complete and candid responses on an official government information request form constitutes dishonesty, fraud, deceit or misrepresentation. His argument is not supported by evidence or law.
The allegation set out in Count 30 is fully supported by the record. By his conduct Stilley violated Model Rule 8.4(c).
COUNT 31
It is alleged in Count 31 that on or about September 29, 2006, when Mr. Stilley applied for admission pro hac vice in USA v. Gebauer, USDC (WA) No 06-cr-122, he provided that court with an eight page detailed summary of his Arkansas law license disciplinary matters and sanctions. On August 1, 2007, when Mr. Stilley applied for admission pro hac vice in USA v. Lobello, USDC (NV) No. 06-cr-376, he twice provided that court with an eight page detailed summary of his Arkansas law license disciplinary matters and sanctions. On June 9, 2008, when Mr. Stilley applied for admission pro hac vice in USA v. Dirr, USDC (TN) No. 08-cr-42, |11Bhe failed to provide that court with any negative information about his Arkansas state and federal disciplinary matters and sanctions. He knew at the time that he had been placed on state interim suspension on December 27, 2007; that state disbarment proceedings had been filed against him on January 16, 2008; that the federal courts in Arkansas had suspended him from practicing there on May 1, 2008; and that the Eighth Circuit Court of Appeals had suspended him from practicing there on May 2, 2008. By his practice status representations to the Dirr court, directly and by knowing omissions of material fact, Mr. Stilley engaged in conduct involving dishonest, fraud, deceit or misrepresentation to the Dirr court.
Stilley’s defense is that Ligón is tripling up on him; that nothing in the facts indicates a “positive falsehood”; and that Li-gón has no evidence or authority for his theories. Stilley is mistaken.
The allegation set out in Count 31 is sustained by proof. By his conduct, Stilley violated Model Rule 8.4(c).
COUNT 32
|n(¡It is alleged in Count 32 that by repeated attempts to relitigate his Arkansas state license and discipline issues and charges in federal courts in Michigan, Arizona, Hawaii, Tennessee, Washington, Nevada, and Mississippi, Mr. Stilley has wasted the time and resources of those courts that could otherwise be put to use on other cases and business of those courts, conduct prejudicial to the administration of justice in those courts.
Model Rule No. 8.4(d) provides that it is professional misconduct for a lawyer to engage in conduct that is prejudicial to the administration of justice.
Stilley’s license was suspended for six months on May 4, 2006. The Arkansas Supreme Court affirmed the suspension on June 21, 2007, and denied rehearing on September 6, 2007. Stilley’s petition for certiorari to the United States Supreme Court was denied February 19, 2008. The suspension became effective February 26, 2008.
Stilley contends that, “the suspensions of Respondent have been the product of serious violations - of constitutional | mguar antees including but not limited to due process”; that Ligón did not allege or prove that Stilley’s challenges were made without a good faith basis; that Ligón did not allege or prove that the Arkansas suspensions were taken and had in compliance with due process; and that Ligón is seeking Stilley’s disbarment “for attempting to expose constitutional violations in Arkansas courts”.
Stilley also says at page 21 of his second Motion that he (Stilley) “is still counsel in a case in the Northern District of Illinois and an appeal from the same case in the 7th circuit.” He also says further down the same page:
This ease will resonate for many years, but never so loudly as it does by exposing a lawyer to disbarment for seeking recourse to the law, in good faith.
Stilley has continuously refused to recognize court decisions, particularly Arkansas decisions, settling the issues raised therein. If he disagrees with a ruling, he simply goes to another court, or judge, and asks that the matter be relitigated, under the pretence that his due process rights were violated the last time around. Judge, after judge, in state after state, has pointed out |11sto him the error of his ways. Unfortunately, he has not heeded the decision and reasoning of a single judge. By his actions he has wasted a substantial amount time of numerous court officials, lawyers and parties. Such conduct violated Model Rule 8.4(d).
SANCTION HEARING
During the first week in April, 2009, the undersigned permitted Ligón to offer, without objection, a recent Oklahoma court decision involving Stilley as additional evidence in this case. After the case was received, the parties were advised that the offer, while relevant to sanctions, would not be considered in this phase of the proceedings because it did not directly relate to one of the counts at issue. On April 6, 2009, the undersigned advised Stil-ley by e-mail that he would be afforded the same opportunity, and that if he wanted to offer any additional proof, to advise immediately. Stilley responded the same day saying, ... “I have no proof to offer and see the need for none at this specific stage of the proceedings”.
In ¡¿Pursuant to Section 13 of the Procedures, the undersigned will hear all evidence relevant to an appropriate sanction to be imposed, including evidence related to the factors listed in Section 19 and the aggravating and mitigating factors set out in the American Bar Association’s Model Standards for imposing Lawyer sanctions, Sec’s. 9.22 and 9.32 (1992), beginning at 9:00 a.m., Thursday, May 21, 2009, in Little Rock, Arkansas, at a place designated by Larry Brady, Court Services Director for the Administrative Office of the Courts. Dated this 22 day of April, 2009.
. The findings of fact and conclusions of law, entered by the special judge on April 22, 2009, are attached as an appendix to this opinion. The appendix is attached to the official electronically reported opinion and the opinion on file in the Supreme Court Clerk's Office.
. This complaint was dismissed by the federal district court, and the judge imposed Rule 11 sanctions against Stilley, finding that "Mr. Stilley has pursued, and continues to pursue, this lawsuit for improper purposes.” Stilley v. Marschewski, CIV-04-2225 GTE (W.Dist.Ark. May 18, 2005). Stilley appealed the imposition of sanctions, and the Eighth Circuit Court of Appeals affirmed. Stilley v. Marschewski, 182 Fed.Appx. 611 (8th Cir.2006).
. Stilley filed a complaint against Judge Mar-schewski with the Arkansas Judicial Discipline and Disability Commission and the Supreme Court Committee on Professional Conduct, both of which were dismissed. Stilley also filled out a warrant information sheet with the Sebastian County Prosecuting Attorney; a warrant was not issued.
Stilley sent a similar letter to James M. “Mitch” Llewellyn, counsel for the Fort Smith Public School District, and counsel for the University of Arkansas at Fort Smith, S. Walton Maurras. When neither responded, Stil-ley filed grievances against each with the Committee on Professional Conduct. The complaints were likewise dismissed.
. Stilley subsequently filed a motion asking Judge Marschewski to recuse, which was denied. After filing various other pleadings, Stilley appealed the judge’s decision not to recuse to this court, and we affirmed. Stilley v. Fort Smith Sch. Dist., 367 Ark. 193, 238 S.W.3d 902 (2006).
. We express some concern about these charges because it is unclear whether an attorney can be sanctioned for violating his “lawyer’s oath.” However, Stilley does not raise this as an argument on appeal, and we will not address issues that are not argued. See, e.g., Gatzke v. Weiss, 375 Ark. 207, 289 S.W.3d 455 (2008).
. The counts rising to the level of serious misconduct were: 1, 2, 4, 6, 7, 10, 11, 13, 14, 15, 16, 19, 22, 25, 26, 27, 29, 30, 31, arid 32. The special judge specifically found that subsections 17(B)(2), (3), (4), and (5) applied.
. The judge found that Stilley had not presented any evidence of mitigating factors.
. There were seventeen exhibits submitted with the petition for disbarment; ten exhibits submitted with the amended petition for disbarment; two-hundred and four exhibits admitted during the evidentiary hearing on December 8-10, 2008; and thirty-eight exhibits admitted at the sanctions hearing on May 21, 2009. In addition, five witnesses testified at the sanctions hearing.
. Section 5(C)(1) of the Procedures has recently been amended and now provides that "[t]he Office of Processional Conduct and the Committee may accept and treat as a formal complaint any writing signed by a judge.” Ark. Sup.Ct. P. Regulating Profl Conduct § 5(C)(1) (2010) (emphasis added).
. In the Marschewski matter, there was an additional complaint filed by an attorney from Fort Smith, Walton Maurras. | [
52,
-6,
-48,
76,
8,
96,
-72,
-4,
67,
-101,
103,
115,
-23,
-42,
13,
115,
-21,
111,
80,
107,
-60,
-78,
117,
104,
102,
-13,
-7,
-57,
-77,
79,
-27,
-3,
89,
48,
-54,
-43,
70,
72,
-63,
28,
-126,
0,
11,
-20,
91,
-123,
48,
63,
-112,
11,
37,
-74,
-125,
42,
30,
-53,
44,
108,
87,
43,
80,
16,
-104,
5,
111,
16,
-77,
39,
-98,
7,
-40,
126,
-100,
49,
9,
-8,
51,
-74,
90,
84,
13,
-104,
12,
98,
98,
38,
17,
-89,
-88,
-88,
30,
57,
29,
-90,
-103,
89,
75,
9,
-105,
-99,
-13,
16,
14,
120,
-31,
-51,
20,
104,
10,
78,
-44,
-79,
-98,
51,
-34,
35,
-21,
-121,
20,
85,
4,
-9,
84,
85,
-110,
91,
76,
-111
] |
KAREN R. BAKER, Judge.
[,A jury in Pulaski County Circuit Court convicted appellant Xzavier Butler of two counts of first-degree murder, Class Y felonies, and one count of committing a ter-roristic act, a Class Y felony. Appellant was sentenced to sixty-five years’ imprisonment in the Arkansas Department of Correction on each charge, to be served consecutively, for a total of 195 years’ imprisonment. As his sole point on appeal, appellant challenges the sufficiency of the evidence as to his terroristic-act conviction. We affirm.
On January 29, 2008, the State filed a four-count felony information against appellant, alleging that on or about September 11, 2007, appellant committed two counts of first-degree murder and one count of committing a terroristic act. The State alleged a firearm ^enhancement for each of the three felony offenses and alleged that appellant was a habitual offender with four or more prior felony convictions.
At trial, the evidence showed that on September 11, 2007, appellant stepped out of his motel room at the America’s Best Value Inn and fired five shots from a .45-caliber semiautomatic pistol through the front windshield of an automobile that was parked close to his motel room door. Three victims were inside the vehicle. All three men were struck by bullets fired by appellant. Two of the victims, Daryl Wiggins and Brian Washington, suffered fatal gunshot wounds. The third and only surviving victim, Michael Jenkins, suffered a gunshot wound to the left foot.
Michael testified at trial that he knew of appellant prior to the shooting in that he had “seen him around a couple of times.” He testified that on September 11, he, Daryl Wiggins, and Brian Washington took Michael’s vehicle to the America’s Best Value Inn in order for Daryl to meet a girl named Serena. On the way to the motel, Daryl drove Michael’s vehicle, and Michael sat in the front passenger seat. When they got to the motel, they parked “around the back.” Daryl and Serena “engaged in what appeared to be friendly talk.” Michael testified that while they were sitting in the parking lot, appellant drove up, “bumping his music.” Michael testified that the music caught his attention, and he looked over at appellant. Appellant then walked over to Michael’s vehicle, and he and Michael exchanged phrases, such as “What are you looking at?” “We ain’t looking at nothing,” and “You looked at me wrong.” Michael conceded that he and appellant “were arguing.” Appellant then walked |saround to Michael’s side of the car, and Michael “kind of opened [his] door.” Appellant then said, “Oh, okay, okay,” and walked to his motel room. Michael testified that at that point, he thought “something’s not right here.” Michael watched appellant as he entered his motel room. He stated that he saw “the sheets kind of move” and thought appellant was “grabbing something.” Michael told Daryl that they needed to leave. Michael testified that appellant began walking toward his car “saying something.” Michael could not hear appellant, but saw a pistol in appellant’s hand. As appellant walked toward the vehicle, he began shooting “right into the windshield,” “[s]traight at us like he [was] trying to kill all of us.”
Michael was riding in the front passenger seat with the seat back “leaned back,” so when he saw appellant about to fire, he was able to flip his body from the front seat to the back seat. Michael exited the vehicle through the back door and ran to “duck down” behind a white van parked near them. Michael soon “looked up” and saw appellant. He testified that appellant said, “It’s time to go,” walked back to his car, and drove away. Michael testified that Daryl was hiding with him behind the white van. He and Daryl then went to check on Brian, who was still in the vehicle. Michael opened the car door and saw that Brian was “kind of breathing” and “not responding.” Then, Daryl “hit the ground.” Michael ran upstairs to find Serena hiding in her room. Michael also spoke with a white male who told Michael that he saw appellant and got his license-plate number. The man called the police.
Michael, then realizing that he had been wounded, wrapped his foot with a towel. When the police arrived, he “told them what happened.” Michael testified that he was “not |/or sure why did he shoot at us.” After describing the events to the officers, Michael was taken to the hospital. Michael explained that the bullet hit the “bottom of [his] foot.” The bullet entered underneath his foot and exited on the side of his foot. He had scars from the wound. He explained that he had “problems all the time with [his] foot now.” He stated that he was often unable to wear any shoes. He described a “ball up under where [he] got, where the hole was at, and it’s like really tender in there.” He had pain that prevented him from playing basketball.
Appellant testified as to his version of the events of September 11, 2007. He stated that he and Michael Jenkins were both members of the Gangster Disciples. He testified that earlier in the day on September 11, 2007, he was at Buck’s gas station in Jacksonville, Arkansas, when Michael Jenkins and two other men “pulled in.” Appellant alleged that Michael and the others were staring at him and giving him looks of disgust. They began to call each other names, and Michael threatened appellant by stating, ‘You can die tonight.” Appellant stated that he got in his car and drove away. That night, when appellant arrived at the America’s Best Value Inn where he was staying, he was walking to his room when Michael leaned out of his vehicle and yelled at appellant. Appellant testified that as the men were exchanging words, Michael, Daryl, and Brian got out of the vehicle. Appellant testified that he saw a gun in Daryl’s hand as he backed up into his motel room. Appellant grabbed his gun from the nightstand, loaded the chamber, and went back outside to get in his car to leave. When |she came out from his room, Michael was still “hollering” and shouted, “[W]hat’s you going to do with that?” When appellant saw Daryl raise his pistol, appellant testified that he began shooting in order “to protect [himjself.” He stated that he shot two times and then three more times. Appellant then ran to his vehicle and drove away. He ultimately fled to Michigan but returned to Arkansas and turned himself in to authorities. At the close of the State’s ease, appellant’s counsel made several motions for directed verdict, and renewed the motions at the close of all the evidence. The trial court denied the motions. The case was submitted to the jury, and the jury returned guilty verdicts on two counts of first-degree murder and one count of committing a terroristic act. This appeal followed.
When the sufficiency of the evidence is challenged, the test is whether substantial evidence supports the verdict. Mosley v. State, 87 Ark.App. 127, 130, 189 S.W.3d 456, 458 (2004). Substantial evidence is evidence of sufficient force and character to compel a conclusion beyond suspicion or conjecture. Hutcheson v. State, 92 Ark.App. 307, 313, 213 S.W.3d 25, 29 (2005). We review only evidence that supports the conviction and do not weigh it against other evidence that is favorable to the accused. Turbyfill v. State, 92 Ark. App. 145, 149, 211 S.W.3d 557, 559 (2005). The fact finder is free to believe all or part of a witness’s testimony. Harmon v. State, 340 Ark. 18, 24, 8 S.W.3d 472, 476 (2000). Further, we do not weigh credibility of witnesses on appeal; such matters are left for the fact finder. Turbyfill, 92 Ark.App. at 149, 211 S.W.3d at 559.
Appellant argues that the State failed to introduce substantial evidence that the victim | (¡sustained serious physical injury as a result of appellant’s conduct. Appellant concedes that Michael suffered a physical injury, but maintains that the State failed to prove that Michael’s injury was a serious physical injury. In pertinent part, Arkansas Code Annotated section 5-13-310(a)(l)(A) and (B) (Repl.2006) provides that for the purposes of this section, a person commits a terroristic act if, while not in the commission of a lawful act, the person shoots at or in any manner projects an object with the purpose to cause injury to another person or damage to property at a conveyance that is being operated or that is occupied by another person. Any person who commits a ter-roristic act as defined in subsection (a) of this section is deemed guilty of a Class Y felony if the person with the purpose of causing physical injury to another person causes serious physical injury or death to any person. Ark.Code Ann. § 5-13-310(b)(2). “Serious physical injury” is defined as “physical injury that creates a substantial risk of death or that causes protracted disfigurement, protracted impairment of health, or loss or protracted impairment of the function of any bodily member or organ.” Ark.Code Ann. § 5-1-102(21) (Repl.2006).
Our courts have considered whether gunshot wounds constituted serious physical injury on several occasions. See Brown v. State, 347 Ark. 308, 65 S.W.3d 394 (2001). In Brown, James Brown was chasing his wife, each in their respective vehicles, when Brown shot at his wife’s van, hitting it nine times and wounding her. Id. She was taken to the hospital with two gunshot wounds to the hip that had pierced her small intestine, requiring surgery and a temporary colostomy. Id. In Brown, the court stated,
In Witherspoon v. State, 319 Ark. 313, 891 S.W.2d 371 (1995), the victim was hospitalized for two days, and a bullet remained lodged in his hip. The victim also suffered superficial graze wounds to his hand and thumb. The shot to the hip narrowly missed his bones and arteries. This court held these wounds to be sufficient evidence of serious physical injury to sustain the conviction. In Henderson v. State, 291 Ark. 138, 722 S.W.2d 842 (1987), this court upheld a jury’s finding of serious physical injury by a gunshot wound where the victim was shot two times in the feet and legs. The victim was hospitalized for one night and one day and could not return to work for a month.
Brown’s argument is that under the statutory definition quoted above (§ 5-1-102(19)), he did not cause Shirley Brown a serious physical injury because she now has made a full recovery. We disagree. The facts indicate that she did in fact suffer a serious physical injury, regardless of her recovery. She was hospitalized for nine days and required surgery to remove a portion of her intestine. She had to wear a colostomy for three months.
Brown, 347 Ark. at 316, 65 S.W.3d at 399.
In this case, as a result of appellant firing numerous shots at Michael, Daryl, and Brian, Michael suffered a gunshot wound from a .45-caliber semiautomatic pistol to his left foot that was serious enough that he was taken to the emergency room. Michael testified that he still had pain and tenderness when walking and that he was often unable to wear shoes because of the lasting effects of the wound. Michael also stated that he was unable to engage in activities that he participated in before the shooting, such as basketball. Michael continued to have problems with his foot, and he had visible scarring from the entry and exit of the bullet. We hold that Michael’s injuries constituted a serious physical injury. See also Enoch v. State, 37 Ark.App. 103, 826 S.W.2d 291 (1992) (finding a serious physical injury where the victim testified that as a result of being struck by a rock, he suffered a bruised shoulder, a damaged nerve in his arm, and numbness and weakness in grip that remained at the time of|strial).
Appellant also alleges that Michael’s testimony is not sufficient to prove that the .45-caliber gunshot wound to Michael’s left foot created a substantial risk of death or caused him protracted disfigurement, protracted impairment of health, or the loss or protracted impairment of the function of his left foot. Appellant concedes that a serious physical injury need not be proven by expert medical testimony because the jury is not required to set aside common knowledge and may consider the evidence in light of its observations and experiences, citing Bell v. State, 99 Ark.App. 300, 259 S.W.3d 472 (2007), and Johnson v. State, 26 Ark.App. 286, 764 S.W.2d 621 (1989). Appellant is correct that expert medical testimony is not required. We hold that under these facts, Michael’s testimony is sufficient to prove that he sustained a serious physical injury from the gunshot wound inflicted upon him by appellant. As a result of the injury, Michael was taken to the hospital for treatment. Michael still suffers pain and discomfort from the bullet that entered the bottom of his left foot and exited the side of his foot, is restricted in his ability to wear a shoe on that foot, is restricted from his normal activities such as basketball, and has visible scarring.
Whether a victim has sustained serious physical injury, as well as the question of temporary or protracted impairment, are issues for the jury to decide. E.g., Bangs v. State, 338 Ark. 515, 998 S.W.2d 738 (1999). In determining whether a physical injury exists, a jury may consider the severity of the attack and may rely on its common knowledge, experiences, and observations in life to make this determination. Linn v. State, 84 Ark.App. 141, 133 S.W.3d 19407 (2003). Here, substantial evidence to supports the jury’s finding that Michael suffered a serious physical injury.
Affirmed.
GRUBER and BROWN, JJ., agree.
. On appeal, appellant is challenging only the sufficiency of the evidence as to his terroristic-act conviction, not the sufficiency of the evidence as to his two murder convictions.
. However, on re-cross, appellant testified that Michael, Daryl, and Brian were inside the vehicle when he fired the shots. | [
113,
-22,
-20,
62,
25,
96,
90,
-72,
82,
-61,
114,
-37,
101,
-27,
5,
41,
49,
73,
81,
-7,
-123,
-73,
101,
96,
-16,
-77,
121,
85,
-78,
75,
-4,
-91,
8,
112,
-22,
17,
38,
74,
-27,
92,
-54,
37,
-117,
84,
-46,
67,
36,
62,
12,
15,
53,
-81,
-13,
42,
18,
-53,
77,
40,
91,
45,
-45,
41,
-56,
7,
-53,
18,
-79,
36,
-66,
7,
-8,
28,
-100,
53,
32,
40,
115,
-110,
-128,
116,
109,
-119,
44,
34,
98,
36,
9,
-57,
-83,
-87,
47,
-1,
-109,
-89,
-104,
105,
65,
77,
-97,
-97,
122,
84,
14,
-16,
115,
86,
120,
108,
-113,
-50,
-44,
-111,
-27,
35,
-42,
-70,
-21,
109,
16,
101,
-51,
-30,
84,
101,
120,
-37,
-120,
-9
] |
JOSEPHINE LINKER HART, Judge.
| ,In this family land dispute, appellant Bethel Acuff appeals from a summary judgment entered in favor of her brother, appellee Donald Bumgarner. The summary judgment effectively granted Donald approximately 478 acres of land in Madison County that had once been owned by his and Bethel’s parents, Frank and Mary Bumgarner. Bethel appeals and argues that (1) the circuit court failed to give effect to a Kansas probate court’s disposition of the property, which she contends would have vested half of the property in her; (2) Donald should be estopped from taking positions contrary to the representations he made in the Kansas proceedings; (3) factual issues exist as to Donald’s purported ownership of the 1 property; and (4) her claims are not barred by the statute of limitations, the statute of frauds, or other defenses. Because genuine issues of material fact remain to be decided and because further factual development is needed on some issues, we reverse and remand.
I. Factual Background
We view the facts in a light most favorable to Bethel, as the party resisting the motion for summary judgment. Howard v. Adams, 2009 Ark. App. 621, 332 S.W.3d 24. Frank and Mary Bumgarner had three children: Donald, Virgil, and the youngest, Bethel, who was born in 1927. In the 1950s and 1960s, Frank and Mary acquired joint ownership of five tracts of land in Madison County containing a total of more than 400 acres. In addition, Frank acquired forty acres in his own name via a grant from the U.S. Bureau of Land Management.
On January 16, 1967, Frank, who was then a Kansas resident, drafted his last will and testament. The will named Donald and Virgil as executors and devised a life estate in all of Frank’s property, including his realty, to Mary with “the understanding being that she shall enjoy all of the rents, income, use and profits therefrom, during the term of her natural life, and she shall have the power to sell any of said property as may be necessary to maintain her during her lifetime.” The will further provided that, after Mary’s death and payment of her debts and final expenses, all of the property remaining in Frank’s estate would vest equally in Donald, Virgil, and Bethel. The will also contained a provision, signed by Mary, in which she “consented” to the will and “accepted] the provisions therein made for me in lieu of the rights secured to me by Statute.”
|,sFrank died on June 29, 1972, and Donald and Virgil submitted the will for probate in Kansas. They filed an estate inventory, which recited that Frank held a “1/2 interest” in the five Madison County tracts that he owned jointly with Mary. Based on that representation, the Kansas court’s final settlement stated that Frank owned “an undivided one-half interest” in the five jointly held tracts, despite the fact that he and Mary had acquired the tracts as husband and wife and thus owned them as tenants by the entirety with the right of survivorship. See generally Cloud v. Brandt, 370 Ark. 323, 259 S.W.3d 439 (2007); Lowe v. Morrison, 289 Ark. 459, 711 S.W.2d 833 (1986). The court then declared that, under the terms of Frank’s will, Mary was a devisee of a life estate in Frank’s one-half interest in the five tracts (and his full interest in the sixth tract), with the power of sale, and that, after Mary’s death, the remainder of that property would go to Donald, Virgil, and Bethel equally.
On March 6,1975, shortly after the Kansas proceedings were closed, Mary deeded to Donald three of the Madison County tracts that she had jointly owned with Frank, consisting of 338 acres. According to Donald, Mary deeded the property to him in exchange for his promise to care for her in the last years of her life. The deed stated that Mary granted Donald a fee-simple interest in the property and that she made the grant as the widow of Frank Bumgarner and “a survivor of a tenancy by the entirety.” According to Bethel, she was unaware of the deed, and Donald led her to believe that she continued to be a one-third heir to the Arkansas property.
Mary died on November 29, 1979. Although she had executed a will on March 6, |41975, devising all of her property to Donald, the will was never probated. Donald would later say that Mary’s 1975 conveyance to him of three tracts of the Arkansas property rather than all six tracts was an oversight, and, in 1999, he sought deeds from Bethel and Virgil on the three remaining tracts. Bethel and Virgil signed deeds to Donald in 1999 and 2000, conveying their interests in the three remaining tracts and thereby giving Donald apparent ownership of all six parcels of Arkansas property.
After Virgil died in 2005 without spouse or issue, Bethel claimed that she and Donald, as surviving siblings, each owned a one-half interest in the Arkansas properties. However, Donald asserted full ownership of the properties by virtue of his deeds. As a result, Bethel attempted to open an ancillary administration of Frank Bumgarner’s estate in Madison County Circuit Court, Probate Division, for the purpose of distributing the Arkansas property. However, the probate court ruled that Bethel’s request was untimely and dismissed her petition. Bethel then filed the present action on August 2, 2007, in Madison County Circuit Court, Civil Division. She asked the court to quiet title to her in one-half of the Arkansas land; to impose a constructive trust or a resulting trust in her favor based on Donald’s false representations in acquiring the property and his failure to distribute a proportional share to his siblings; and to hold Donald liable for fraud and breach of fiduciary duty, based on his misrepresentations to her about the nature of her deed and his knowledge of Virgil’s incapacity at the time he signed his deed. Both Donald and Bethel filed motions for a judgment on the pleadings, which the circuit court treated as cross-motions for summary | ¡¡judgment.
In Donald’s motion, he argued that the Kansas court’s distribution of the Arkansas property was void. He asserted that Frank and Mary owned five of the Arkansas tracts as husband and wife and, therefore, when Frank died, those properties did not pass through Frank’s estate but vested in Mary as a surviving tenant by the entirety. Thus, Donald asserted, his deed from Mary conveying three of the five tracts was valid. Donald also argued that (1) the Kansas court had no jurisdiction to determine ownership of Arkansas realty; (2) he did not commit fraud in acquiring Bethel’s and Virgil’s interests in the three remaining tracts; and (3) Be-thel’s claims were barred by the statute of frauds, the statute of limitations, res judi-cata, and estoppel by deed. Attached to his motion were, inter alia, the many deeds, wills, and other documents previously mentioned in this opinion; his affidavit denying any misrepresentations to Bethel and denying that Virgil was incompetent; and an affidavit from Dr. Ivan Box stating that Virgil was not incapaci tated when he signed his deed to Donald in 2000. In Bethel’s motion, she argued that the Kansas probate court’s disposition of Frank’s interest in the Arkansas tracts should be given full faith and credit and a res judicata effect. She also claimed that Donald was estopped to argue that the Arkansas property passed outside of Frank’s estate, given his representations in the Kansas proceeding that the property was a part of Frank’s estate. Additionally, she asserted that Donald committed fraud and breach of fiduciary duty in procuring the deeds from her and Virgil. She attached to her motion the orders, petitions, and other documents from the Kansas proceedings, and an affidavit with supporting | (¡documents stating that Virgil had been adjudged incompetent when he signed his deed; that Donald was acting as Virgil’s court-appointed guardian at the time the deed was executed; that she suffered from macular degeneration and could not read her deed; and that Donald told her that her deed was merely a logging easement over the three tracts.
On December 22, 2008, the circuit court made the following ruling:
The plaintiff [Bethel] has requested that this Court find that the order of a probate court in the State of Kansas, rendered over thirty (30) years ago, should not be given effect. The Court finds that, for the reasons stated in the briefs filed by [Donald], the request is barred by estoppel, res judicata, the statute of frauds, lack of jurisdiction, laches, and other reasons argued in [Donald’s] brief. The Court finds that summary judgment should be and hereby is granted in favor of [Donald].
Bethel appeals from that order.
II. Kansas Proceedings
Bethel argues first that the Kansas court resolved the ownership of Frank’s one-half interest in the five jointly owned tracts of Arkansas property by distributing it to Mary for life and then to the three children equally, and that the court’s orders should be accorded full faith and credit and a res judicata effect. She argues further that Donald, having facilitated and acquiesced in the Kansas court’s distribution, should not be heard to make an argument now that the property should never have passed through probate. Donald contends that the Kansas court simply had no jurisdiction to determine the ownership of Arkansas lands.
Donald’s general statement of the law is correct as far as it goes. Our courts have recognized that a foreign state’s probate judgment is not entitled to full faith and credit or a [ 7res judicata effect on matters pertaining to á decedent’s Arkansas realty. See Estate of Torian v. Smith, 263 Ark. 304, 564 S.W.2d 521 (1978); Ferguson v. Ferguson, 2009 Ark. App. 549, 334 S.W.3d 425. However, this statement of the law does not resolve the underlying issues presented herein. We are not faced with a situation in which a foreign court is attempting to invade the province of an Arkansas court. Rather, we have a case in which the parties have taken certain actions and made certain representations regarding these parcels of Arkansas land, and it matters not that their actions and representations occurred outside of our borders. The issue is, what is the effect of those actions and representations on the ownership of the property? As noted below, material questions of fact remain to be decided on that issue.
First, a fact-finder, though not required to do so, could determine that the evidence established a decision by Mary and the children to forego Mary’s tenancy by the entirety in the five Arkansas parcels in favor of allowing part of that land to pass through Frank’s estate. According to Bethel, the Kansas probate order reflected an agreement among Mary and the three children that Mary would have use of the Arkansas property during her lifetime, after which the property would be divided equally among the children. Additionally, Mary consented to the terms of Frank’s will. The right of survivorship in a tenancy by the entirety may be dissolved by a party’s voluntary action. See Lowe, supra. Under the circumstances of this case, there is room for a difference of opinion as to the effect and meaning of Mary’s consent and any purported agreement regarding the disposition of the property. Summary judgment is therefore inappropriate. Holliman v. Liles, 72 Ark. App. 169, 35 S.W.3d 369 (2000).
Additionally, a fact-finder could conclude that Donald is judicially or equitably estopped from asserting, contrary to his representations in the Kansas probate proceeding, that Mary maintained unfettered ownership of the five jointly owned Arkansas tracts. Judicial estoppel occurs when the following elements are present: (1) a party must assume a position clearly inconsistent with a position taken in an earlier case or with a position taken in the same ease; (2) a party must assume the inconsistent position with the intent to manipulate the judicial process to gain an unfair advantage; (3) a party must have successfully maintained the position in an earlier proceeding such that the court relied upon the position taken; (4) the integrity of the judicial process of at least one court must be impaired or injured by the inconsistent positions taken. Dupwe v. Wallace, 355 Ark. 521, 140 S.W.3d 464 (2004); Howard, supra. Equitable estop-pel, which may involve inconsistent positions taken outside of litigation, is similarly based on the inherent unfairness of permitting a party to take inconsistent positions and thereby benefit from them. Dupwe, supra. In particular, a party should not be allowed to accept the benefit of a judgment or decree then question its validity or oppose the enforcement of its terms. Id.
As the executor of Frank’s estate, Donald informed the Kansas court that Frank owned a one-half interest in the five tracts of Arkansas property and that Frank’s interest in that property should pass through his estate. Donald now takes the wholly inconsistent position that the five tracts did not pass through Frank’s estate but remained in Mary’s ownership as |9a surviving tenant by the entirety. Whether Donald’s change of position is made for the purpose of manipulation or constitutes an inherent inequity are questions for a fact-finder to decide. When factual questions remain on estoppel issues, summary judgment is inappropriate. See Lewis v. Crelia, 365 Ark. 330, 229 S.W.3d 19 (2006); Howard, supra.
Likewise, factual questions remain on other matters. For instance, Frank’s will gave Mary the power to sell the Arkansas property for her own maintenance. If Mary’s deed to Donald fell within this provision, it could be considered a valid conveyance. We make no ruling on this issue, but simply point out another area in need of further factual development and resolution in this case. At this juncture, summary judgment is not proper.
III. Factual Questions Regarding Bethel’s and Virgil’s Deeds
In 1999 and 2000, Bethel and Virgil deeded their interests in the three remaining tracts of Arkansas land to Donald. Bethel contends that the deeds were procured by fraud, undue influence, or breach of fiduciary duty. On appeal, she asserts that summary judgment was improper because material questions of fact remain on these issues. We agree.
Imln Bethel’s affidavit, she asserted that she suffered from macular degeneration when she signed her deed to Donald. Medical records supported her claim of vision difficulties. She also asserted that Donald knew that she could not read and that he told her that she was only signing a logging easement across the property. According to Bethel, she had long trusted Donald to help her with documents and other matters that she had problems with due to her eyesight. Donald testified in a deposition that a third party’s desire for an easement prompted his acquisition of the deed from Bethel. However, Donald denied any fraud in connection with the conveyance and stated that Bethel knew of Mary’s desire that he have all the Arkansas property. He also offered an affidavit from notary Tonja Smith, who said that Bethel knew she was signing a warranty deed as grantor and that Bethel did not sign the deed at her home, as she had previously stated.
These matters constitute factual questions that could affect the validity of Bethel’s conveyance to Donald. In her complaint, Bethel sought a constructive trust based on Donald’s actions surrounding the deed. A constructive trust may be imposed where a person holding title to property is subject to an equitable duty to convey it to another on the ground that he would be unjustly enriched if he were permitted to retain it. Cox v. Miller, 363 Ark. 54, 210 S.W.3d 842 (2005). The duty to convey the property may arise because it was acquired through fraud, duress, undue influence or mistake, breach of a fiduciary duty; or wrongful disposition of another’s property. Id. The question of whether Donald acquired Bethel’s deed by fraud or breach of fiduciary duty is a factual one, given the conflict in the evidence. See generally Found. Telecomms., Inc. v. Moe Studio, Inc., 341 Ark. 231, 16 S.W.3d 531 (2000). Summary judgment therefore should not have been granted. See Ellis v. State Farm Bank, 2009 Ark. App. 569, 2009 WL 2877636.
Bethel also presented evidence to support her claim that Virgil was mentally incompetent when he signed his deed to Donald on March 1, 2000. If the maker of a deed, will, or other instrument has sufficient mental capacity to retain in his memory, without prompting, the extent and condition of his property, and to comprehend how he is disposing of it, and to whom, and upon what consideration, then he possesses sufficient mental capacity to execute such instrument. Donaldson v. Johnson, 235 Ark. 348, 359 S.W.2d 810 (1962). Whether Virgil had such capacity is a question of fact in this case. He was adjudicated incapacitated by a Kansas court on May 19, 1999, after a doctor opined that he was “unable to make decisions regarding his health or his business affairs.” Though Donald stated in his affidavit that Virgil was competent when he signed the deed, it is undisputed that Donald was aware of the incompetency proceedings in Kansas, In fact, the court appointed Donald as Virgil’s guardian on May 19, 1999, long before the deed was signed. Additionally, Donald stated in his deposition that Virgil suffered from dementia and forgetfulness, and he expressed concern to his lawyer about Virgil’s “being incompetent” when it was time to sign the deed. These evidentiary conflicts, along with a situation in which a guardian acquired a deed from a ward, raise the twin specters of incapacity and undue influence — issues to be resolved by a fact-finder. See generally Yarbrough v. Moses, 223 Ark. 489, 267 S.W.2d 289 (1954); Hooten v. Jensen, 94 Ark. App. 130, 227 S.W.3d 431 (2006).
Donald argues that the doctrine of estoppel by deed bars Bethel’s claims under this point, but that doctrine is not applicable here. Estoppel by deed prohibits one party to a deed and his privies from asserting, as against the other party and his privies, any right or title in derogation of the deed, or from denying the truth of any material facts asserted. Cummings v. Shults, 91 Ark. App. 48, 207 S.W.3d 572 (2005). Under this doctrine, a grantor is estopped to assert anything in derogation of his deed; thus, a specific recital in a deed, to the effect that the grantor has title to or that he is in possession of the land conveyed, will estop him from asserting the contrary as against the grantee. Id. In this case, Bethel does not challenge her recitals in the deed or her title to the land conveyed. Rather, she asserts that the deed was procured by fraud. That assertion may be made without violating the doctrine of estoppel by deed. See 28 Am.Jur.2d Estoppel & Waiver §§ 8, 10 (stating that estoppel by deed does not apply where the grantor lacks capacity or where the deed was obtained by artifice).
Donald also contends that Be-thel’s argument on this point is barred by the doctrine of after-acquired title. Though Donald’s argument is difficult to follow, he appears to say that, when Bethel deeded her interest in the three remaining tracts to Donald, she effectively deeded Virgil’s interest as well because she “acquired” Virgil’s interest “after” Virgil died. However, Donald misapplies the after-acquired-title doctrine. After-acquired title becomes relevant when a person conveys a deed to lands he does not yet own but later acquires. White v. Cordes, 14 Ark. App. 104, 685 S.W.2d 524 (1985). In the present case, Bethel and Virgil | lsboth owned then-interests in the tracts at the time they conveyed them to Donald, and there was no need to “bolster” their deeds by after-acquired title.
IV. Defenses
The circuit court ruled that Bethel’s claims were barred by various defenses such as estoppel (as previously discussed), statute of frauds, res judicata, and laches (statute of limitations). We conclude that none of these defenses required dismissal of Bethel’s claims as a matter of law.
The statute-of-frauds defense apparently arises from Bethel’s assertion that Mary deeded the first three tracts of land to Donald based on his promise to carry out Frank’s intent to distribute the property to the children equally and that Donald “repudiated” that promise after Virgil died. See Ark. Code Ann. § 4-59-101(a)(4) (Repl.2001) (providing that no action shall be brought to charge any person upon any contract for the sale of lands or any interest concerning them unless the promise on which the action is brought is in writing and signed by the party to be charged therewith). However, where a party alleges the existence of a constructive trust, as Bethel does here, it is proper for the trial court to admit parol evidence of an oral promise to determine if a con structive trust should be imposed by a court of equity, and the statute of frauds does not apply. See Bmmlett v. Selman, 268 Ark. 457, 597 S.W.2d 80 (1980).
Donald also defended on the ground that Bethel’s attempt to open an ancillary administration of Frank’s Arkansas estate in 2006 operated as res judicata as to Bethel’s current 114claims of entitlement to the Arkansas land. Res judicata bars relitigation of a claim in a subsequent suit when (1) the first suit resulted in a final judgment on the merits, (2) the first suit was based on proper jurisdiction, (3) the first suit was fully contested in good faith, (4) both suits involve the same claim or cause of action, and (5) both suits involve the same parties or their privies. Villines v. Harris, 340 Ark. 319, 11 S.W.3d 516 (2000). Given the parties’ limited legal arguments on this issue, both below and on appeal, and the circuit court’s lack of explanation for its ruling on this matter, we decline to rule at this point on whether the elements of res judicata have been satisfied. The parties may develop their arguments further upon remand.
Finally, Donald claimed that Bethel’s arguments were barred by the statute of limitations. This defense likewise suffers from a lack of development, not only regarding when Bethel’s various causes of action arose, but also on the applicability of fraudulent concealment to toll the running of the limitations periods. Bethel pled fraudulent concealment and asserted that Donald had made various promises and misrepresentations that hid his actions and prevented her from discovering them. Fraudulent concealment is normally a question of fact not suited for dismissal by summary judgment. Floyd v. Koenig, 101 Ark. App. 230, 274 S.W.3d 339 (2008).
V. Conclusion
For these reasons, we reverse the grant of summary judgment and remand the case for further proceedings.
Reversed and remanded.
PITTMAN and GLADWIN, JJ., agree.
. The summary judgment was also entered in favor of Donald's wife and son, appellees Mildred and Donnie Bumgarner. For the sake of clarity, we will refer to Donald as the sole appellee.
. Bethel also argues that the circuit court misunderstood the issues in the case, as evidenced by its erroneous statement that Bethel was asking that the Kansas order not be given effect. Because we are reversing on other grounds, we need not address this issue. We observe only that the court did mischaracterize Bethel’s position with regard to the Kansas order. If the court truly labored under a misconception, we are certain it will be cleared up on remand.
. Even though Bethel and Donald filed cross-motions for summary judgment, the court was not prohibited from denying summary judgment if material fact issues remained. See Millwood-RAB Mktg., Inc. v. Blackburn, 95 Ark. App. 253, 236 S.W.3d 551 (2006). | [
112,
108,
-3,
92,
24,
-96,
10,
-102,
106,
-21,
117,
83,
79,
-50,
21,
127,
-78,
9,
-15,
105,
-46,
-77,
23,
-128,
112,
-13,
-103,
95,
-80,
73,
54,
86,
76,
48,
10,
69,
98,
-126,
-41,
-48,
-114,
-124,
-117,
116,
73,
-64,
56,
43,
18,
66,
-79,
-81,
-77,
43,
61,
-29,
24,
46,
123,
56,
73,
-72,
-117,
22,
93,
19,
33,
36,
-78,
-125,
72,
43,
-112,
113,
0,
-24,
115,
54,
-110,
116,
75,
-119,
12,
102,
102,
49,
109,
-19,
-80,
-104,
71,
53,
-99,
-89,
-14,
0,
67,
73,
-76,
-99,
121,
0,
75,
120,
-28,
12,
24,
104,
-80,
-113,
-44,
-79,
-114,
124,
-118,
18,
-61,
3,
48,
113,
-55,
-94,
92,
7,
112,
59,
-98,
-15
] |
JIM HANNAH, Chief Justice.
[|Antwan Lavan Fowler entered a conditional plea of guilty under Arkansas Rule of Criminal Procedure 24.3 and now seeks appellate review of the circuit court’s denial of his motions to suppress evidence and statements. This appeal was heard by the Arkansas Court of Appeals. See Fowler v. State, 2010 Ark. App. 23, 2010 WL 135209. This court granted a petition for review filed by the State of Arkansas. When we grant a petition for review, we treat the appeal as if it had been originally filed in this court. Osborn v. Bryant, 2009 Ark. 358, 324 S.W.3d 687. Our jurisdiction is pursuant to Arkansas Supreme Court Rules l-2(e) and 2-4. The decision of the circuit court on the motions to suppress is reversed, and this case is remanded for proceedings consistent with this opinion.
On October 22, 2007,' Fowler was arrested for fleeing and transported to the Conway 12Police Department. He was charged with misdemeanor counts of fleeing and obstruction of justice. Because Fowler had been charged with misdemeanors, he would have been released. However, because it was learned that he was on parole, parole officers were notified of his arrest. The parole officers asked police officers to hold Fowler. They subsequently interrogated Fowler, who admitted that he had possessions in his home that violated his probation and the law. His home was searched, and a gun, illegal'drugs, a stolen credit card, and a set of scales were found. Fowler was charged with possession of a controlled substance while in possession of a firearm, felon in possession of a firearm, possession of a controlled substance with the intent to deliver, possession of drug paraphernalia, theft by receiving, fleeing while knowing that his “immediate arrest or detention was being attempted by a duly authorized law enforcement officer,” and obstruction of justice. This appeal followed his conditional plea on the denial of his motion to suppress evidence and motion to suppress statements.
The issue on appeal regarding suppression turns on the validity of the police stops and requires that we closely examine the facts surrounding the stops and his seizure. At about 7:25 a.m. on October 22, 2007, Conway police officers Shawn Schiehtl and Paul Burnett were on patrol duty together in a police vehicle working the “school zones” about a half a block from Conway High School. They observed a person, later identified as Fowler, walking through a backyard on private property behind a house or apartments. Fowler’s presence on private property in the early morning, and his close proximity to the school, caused the officers concern. Schiehtl testified that he wondered what Fowler was doing there, whether he might |3be a truant student or whether he might have broken into a nearby home. The officers drove around a corner to draw closer to Fowler, and Schiehtl called and asked Fowler to come over to their vehicle. Schiehtl testified that he asked Fowler his name, and that Fowler started to approach them but then blurted some word and ran. Burnett testified that he thought Fowler said “Jason” just before he ran.
Burnett left the police vehicle and pursued Fowler on foot, but Fowler eluded him by running through nearby housing. Schiehtl pursued Fowler in the vehicle and caught him some distance away. According to Schiehtl, when he caught up with Fowler, Fowler said, “I’m giving up.” Schiehtl testified that he told Fowler to get on the ground and that he then took Fowler into custody, placed him under arrest for fleeing, and put him in handcuffs. At this point, Schiehtl was alone with Fowler and did not know his name. He testified that “I didn’t get his name there I don’t think.” Schiehtl testified that other officers responded to the scene. It is unclear which officer obtained Fowler’s name; however, it is clear that his name was obtained after his arrest. In the circuit court, the prosecuting attorney confirmed that Fowler’s name was obtained after his arrest stating that, “[o]nce they had him in custody — or where they had him detained, he did tell them his identity, and it was then found he was on parole.” Fowler first argues that the initial stop when Schiehtl called to him was illegal because police had no reasonable suspicion justifying the stop. Fowler next asserts that his “running was an understandable response for a young and slight African-American approached by two large white police officers,” and that police had no “specific or articulable” facts [Justifying the second stop when they arrested him.
At issue are Fowler’s encounters with police. This court has stated that encounters with police may be separated into three categories:
The first and least intrusive category is when an officer merely approaches an individual on a street and asks if he is willing to answer some questions. Because the encounter is in a public place and is consensual, it does not constitute a “seizure” within the meaning of the fourth amendment. The second police encounter is when the officer may justifiably restrain an individual for a short period of time if they have an “articula-ble suspicion” that the person has committed or is about to commit a crime. The initially consensual encounter is transformed into a seizure when, considering all the circumstances, a reasonable person would believe that he is not free to leave. The final category is the full-scale arrest, which must be based on probable cause.
Cockrell v. State, 2010 Ark. 258, at 17, 370 S.W.3d 197, 207 (quoting Thompson v. State, 303 Ark. 407, 409, 797 S.W.2d 450, 451-52 (1990) (citing United States v. Hernandez, 854 F.2d 295 (8th Cir.1988))).
On the first stop, police approached Fowler, asked him to come to their vehicle, and asked him his name. They did so because he seemed suspicious to them. This first stop is of the first category where a person is asked whether he or she is willing to answer some questions. See Ark. R.Crim. P. 2.2(a). Police may certainly approach persons in public to ask if they are willing to answer questions. There was no constitutional violation in the initial stop nor was it violative of Rule 2.2.
Under the first encounter, Fowler was free to ignore the police and leave. Rather than simply ignore police, Fowler blurted some word in response to the request for his name and ran. We now consider whether the facts that police possessed at the time that they first stopped |fiFowler, combined with Fowler’s blurting an unintelligible response when asked his name, and his immediate running, constituted the reasonable suspicion required to justify the pursuit and second stop. Additionally, assuming the second stop was proper, we must consider whether police transformed the second stop into an illegal seizure. The State asserts that Fowler’s running alone was justifiable cause for police to stop and arrest him. Fowler argues that without reasonable suspicion to stop him, police did not have the authority to pursue and stop him when he ran. Fowler also challenges the arrest as an illegal seizure.
Fowler’s reaction at the first stop to the officer’s request for his name was to blurt something and run. The officers pursued, stopped, and detained Fowler. Where police have reasonable suspicion that a person may be involved in criminal activity, they may “stop the person for a brief time and take additional steps to investigate further.” Hiibel v. Sixth Judicial Dist. Ct. of Nev., 542 U.S. 177, 185, 124 S.Ct. 2451, 159 L.Ed.2d 292 (2004) (citing Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968)). The issue of what role unprovoked flight plays in a reasonable suspicion determination was | fidiscussed in Illinois v. Wardlow, 528 U.S. 119, 120 S.Ct. 673, 145 L.Ed.2d 570 (2000). In Wardlow, the defendant was holding an opaque bag and standing on the street in an area known for heavy narcotics trafficking. Upon noticing the police, he fled. After discussing the facts in the case that led to the officers’ reasonable suspicion, the Supreme Court went on to state that “nervous, evasive behavior is a pertinent factor in determining reasonable suspicion.” Wardlow, 528 U.S. at 124, 120 S.Ct. 673. Thus, the defendant’s flight was an additional factor justifying the offi cers’ determination that they had reasonable suspicion to pursue the defendant. The Court stated that “[h]eadlong flight— wherever it occurs — is the consummate act of evasion: It is not necessarily indicative of wrongdoing, but it is certainly suggestive of such.” Id. The Court also stated that “the determination of reasonable suspicion must be based on commonsense judgments and inferences about human behavior.” Id., 528 U.S. at 125, 120 S.Ct. 673. In Wardlow, the fact that the defendant was in an area of heavy illegal-drug trafficking holding an opaque bag, along with his unprovoked flight, provided reasonable suspicion justifying the pursuit and stop. In the case before us, the totality of the circumstances arising from Fowler’s early morning presence in a backyard of a residential area in close proximity to a school, along with his blurted response when asked his name, and his running, provided the officers reasonable suspicion to pursue and stop Fowler when he ran.
But, our analysis does not end there. Pursuant to Wardlow, the stop permitted when there is a determination that reasonable suspicion exists “allow[s] the officer to briefly investigate further.” Id., 528 U.S. at 126, 120 S.Ct. 673. If upon the stop, “the officer does not learn facts 17rising to the level of probable cause, the individual must be allowed to go on his way.” Id.
In Wardlow, the brief investigation disclosed that the opaque bag contained a firearm, and the defendant was arrested for violation of an Illinois firearms statute. In the present case, no investigation was undertaken prior to Fowler’s arrest. As already noted, Schichtl arrested Fowler upon catching him. Schichtl testified that when he caught Fowler, he did not search him. Rather, he handcuffed Fowler while placing him under arrest for fleeing. After the arrest, Schichtl made no attempt to determine whether Fowler lived in the area. He did not charge him with trespassing. At the police station, Schichtl and Burnett charged Fowler with fleeing and obstruction of justice, which was consistent with the reason they gave for chasing Fowler — because he ran. Fowler’s name was not ascertained until after his arrest. There is no evidence showing that the arresting officers carried out any investigation as allowed under Wardlow. Had police ascertained Fowler’s name pri- or to his arrest and radioed for a background check, they doubtless would have learned he was on parole. That is not what happened in this case. The arresting officer, Schichtl, first learned Fowler was on parole after the arrest when he read a printout at the police department. There was a postarrest radio call from an unidentified officer who provided Fowler’s name and birth date and asked that the printout be made, which presumably is the printout later seen by Schichtl and Burnett. But, Fowler had already been arrested by Schichtl before that call was made. Both Schichtl and Burnett testified that, to the best of their recollection, they learned Fowler was on parole at the police department when they were booking him. Thus, it is apparent that the stop and |sbrief detention afforded by Wardlow was not undertaken by the officers. They simply arrested Fowler for fleeing. While they had reasonable suspicion under Wardlow to make the stop, they transformed the stop into an illegal seizure by arresting him instead of carrying out the brief investigation permitted.
Fowler raises additional points on appeal. Because we reverse on the second stop and on the arrest, we need not address the remaining issues. The circuit court is reversed and ordered to suppress the evidence and statements at issue on this appeal.
BROWN, J., dissents.
. Arkansas Rule of Criminal Procedure 3.1 discusses the stop and detention of persons and provides as follows:
A law enforcement officer lawfully present in any place may, in the performance of his duties, stop and detain any person who he reasonably suspects is committing, has committed, or is about to commit (1) a felony, or (2) a misdemeanor involving danger of forcible injury to persons or of appropriation of or damage to property, if such action is reasonably necessary either to obtain or verify the identification of the person or to determine the lawfulness of his conduct. An officer acting under this rule may require the person to remain in or near such place in the officer’s presence for a period of not more than fifteen (15) minutes or for such time as is reasonable under the circumstances. At the end of such period the person detained shall be released without further restraint, or arrested and charged with an offense. | [
16,
-23,
-12,
60,
41,
97,
58,
60,
83,
-61,
111,
112,
-17,
81,
5,
121,
-21,
95,
116,
-39,
-60,
-74,
39,
105,
66,
-13,
27,
87,
-73,
-45,
-28,
-97,
92,
96,
-30,
85,
68,
-56,
-25,
-36,
-114,
1,
-119,
97,
82,
67,
40,
35,
18,
15,
49,
-106,
-13,
46,
21,
-54,
-55,
44,
91,
-68,
80,
56,
24,
95,
-49,
4,
-93,
53,
-69,
21,
114,
60,
-104,
49,
1,
-20,
115,
-128,
-110,
84,
69,
-39,
-120,
98,
98,
1,
57,
-26,
-88,
-120,
30,
43,
-99,
-90,
-104,
105,
105,
13,
-121,
-75,
61,
20,
6,
-4,
107,
-52,
84,
108,
-94,
-50,
48,
-125,
7,
45,
4,
50,
-21,
101,
48,
116,
-49,
-30,
85,
87,
17,
-37,
-34,
-47
] |
Smith, J.,
(after stating the facts). The lease contract was exhibited with the complaint, and is the foundation of the action, and the allegations of the complaint are explanatory of its terms. Cox v. Smith, 99 Ark. 218. This lease contract makes no reference to any other lease, or the prices contained therein, and furnishes no means outside of its express terms for measuring the amount of rent, but its terms are plain and unambiguous, and requires no construction of its terms to ascertain its meaning, nor any reference to any other instrument to ascertain the amount of rent contracted to be paid. It is riot alleged that appellant was unacquainted with the terms of the lease exhibited, nor is it contended that he did not get what he bargained for, at the price he agreed to pay, except that he says his rent shouLd have been only that paid by his lessor.
Notwithstanding the allegations of the complaint, as to the false representations, appellant does not ask its rescission, but only its reformation, and this is asked in the face of the fact that appellant always knew the terms of his written contract, and had paid the rent as agreed for about eighteen months. It is not alleged that appellant was deceived in regard to the property itself, or its adaptability to the purpose for which it leased it, nor that the rental value is not in fact equal to the amount agreed to be paid. In the case of Mitchell Mfg. Co. v. Kempner, 84 Ark. 349, it was said that ‘ ‘ a written contract will not be reformed except upon clear and satisfactory proof that the writing fails by reason of fraud, accident or mutual mistake, in the preparation or execution thereof, to express the agreement intended to be entered into,” and it was there further said: ‘ ‘ The pleadings and proof present no grounds for reformation of the contract. It is neither alleged nor proved that any contract, was agreed upon other than the one signed by the appellee, nor that appellant’s agent misrepresented the contents of the writings presented to appellee for their signature.
The solemn written engagements of contracting parties can not be reformed or amended except upon clear and satisfactory proof that the writing fails by reason of fraud, accident, or mutual mistake in the preparation or execution thereof, to express the agreement intended to be entered into.”
The case of Comer et al. v. Lehman Durr & Co., 6 So. 264, was a proceeding to reform a mortgage, and the court there said: “Equity will reform written contracts so as to make them evidence what they were intended to evidence — the pact between the parties; but it will not amend a contract entered into under a misapprehension of facts by one party, or both, so as to make of it an agreement which the parties, or either of them, did not contemplate, and which the parties, or one of them, might have declined to execute had both been cognizant of all- the facts. This would be, not to make the writing speak the true terms of the agreement, the real intent of the parties ■ — but to make a new contract, embodying terms on which the minds of the parties not only had not met, but with respect to which, in this case, according to the aspect of the evidence most favorable to the complaints, one of the parties had resorted to misrepresentation td avoid. This may have been fraud, it may have afforded grounds for equitable relief against the contract made, but it is not grounds for making a new contract between the parties.”
There is nothing in the written contract of lease between appellant and appellee that requires any. reference' to any other lease, or for that matter to any other writing or transaction to' determine the amount appellant was to pay, and in the absence of any allegation of fraud, or such mistake as a court of equity would relieve against, in the execution of this lease, parol evidence will not be permitted to vary it. “Antecedent propositions, correspondence, prior writings, as well as oral statements and representations, are deemed to be merged in the written contract which concerns the subject-matter of such antecedent negotiation, when it is free from ambiguity and complete.” Barry Wehmiller Mach. Co. v. Thompson, 83 Ark. 283.
There are no allegations in the complaint which would authorize the introduction of evidence to vary the terms of the written lease, and under its terms, the court did not err in sustaining the demurrer and rendering judgment on the cross complaint for the rent due, and the decree is therefore affirmed. | [
18,
-7,
-116,
-49,
-54,
96,
42,
-102,
-21,
-64,
39,
95,
-19,
86,
4,
46,
-25,
125,
64,
64,
69,
-77,
102,
99,
-14,
-105,
115,
89,
-75,
-50,
-11,
92,
76,
36,
-62,
-41,
-26,
-62,
-43,
88,
78,
-125,
8,
104,
-7,
64,
52,
25,
1,
77,
65,
-35,
-13,
44,
17,
87,
107,
58,
127,
41,
-16,
-8,
-110,
13,
127,
7,
-77,
36,
-4,
15,
120,
8,
-128,
61,
9,
-56,
81,
-74,
-124,
62,
45,
-117,
-120,
34,
98,
32,
65,
115,
-74,
-100,
43,
-66,
31,
-90,
-45,
88,
11,
5,
-66,
-100,
116,
16,
103,
124,
103,
21,
29,
111,
2,
-21,
86,
-85,
13,
44,
-102,
15,
-1,
-110,
37,
112,
-51,
-86,
92,
101,
75,
-37,
-114,
-72
] |
Kirby, J.,
(after stating the facts). It is contended by appellant that since the deed from Carroll to N. R. Moffett, the father of appellees, was not placed of record until more than two years.after the deeds made by said Carroll and wife to Frankie Moffett, his widow, and from her to Sam Johnson, conveying the land, had been recorded, that .they were not bound to take notice of same, it not being in their chain of title, and that in any event their grantor, Sam Johnson, was an innocent purchaser of the lands and that they acquired all his rights, as such, without regard to the record of said conveyances.
There is no question but that one who purchases land in good faith for a valuable consideration and without notice of any adverse claim thereto, acquires a good' title as against the unrecorded title of a prior purchaser from the same grantor. Long v. Langsdale, 56 Ark. 239; Penrose v. Doherty, 70 Ark. 256. It is also a well established principle of law that a purchaser of real estate must take notice of all prior recorded instruments in the line of his purchased title. Thompson v. Bowen, 87 Ark. 492.
It is equally true that, “A person purchasing an interest in lands ‘takes with constructive notice of whatever appears in the conveyance constituting his chain of title.’ If anything appears in such conveyance ‘sufficient to put a prudent man on inquiry, which, if prosecuted with ordinary diligence, would lead to actual notice of some right or title in conflict with that he is about to purchase, it is his duty to make the inquiry, and if he does not make it he is guilty of bad faith or negligence,’ and the law will charge him with the actual notice he would have received if he had made it. ’ ’ Gaines v. Summers, 50 Ark. 327; Stroud v. Pace, 35 Ark. 103.
Appellants insist that since the deed from Carroll and wife, the common source of title, to N. R. Moffett, appellees’ father, was not placed of record until more than two years after the deed from Carroll and wife to Frankie Moffett and her deed to Sam Johnson conveying the same lands were recorded, that they were not bound by constructive notice thereof, nor required to look for the record of any such conveyance or instrument, it not being in their chain of title.
We do not deem it necessary to determine whether they were bound to take notice of such deed from its record, for the reason that both the appellant and his immediate grantor had notice in fact of the deed from Carroll to N. E. Moffett, at the time of their purchase of the land, the abstract of-title furnished them showing such deed, although it was shown to be recorded after the deeds to Frankie Moffett and Sam Johnson, already referred to, were put of record.
Of course, if Sam Johnson was an innocent purchaser of the land, appellant having succeeded to his title, would also be entitled to the same protection as an innocent purchaser, and in Osceola Land Co. v. Chicago Mill & Lbr. Co., 84 Ark. 1, this court said:
“When a party relies upon the defense of being a bona fide purchaser and shows that he has paid a valuable consideration, the burden of showing that he purchased with notice is upon the party alleging it, or who relies on the notice to defeat the claim of a bona fide purchaser.” Appellant contends in his argument that Sam Johnson was a bona fide purchaser, although the answer does not allege it, and that his deed recites a valuable consideration paid, and there being no evidence tending to show that he was not such purchaser, that the court erred in its direction of a verdict. Appellees realized at the time of the trial that the burden was upon them- to show notice on the part of Sam Johnson to defeat the claim that he was a bona fide purchaser of the lands and offered to prove this fact, but the court, upon objection of appellant, declined to receive, and rejected such proof, and he can not be heard now to insist that he should recover the lands because there was no proof, showing that Sam Johnson, a grantor in his line, was not an innocent purchaser, when the proof of such fact was rejected upon his objection. The case can not be tried here on an issue not raised below. Newton v. Russian, 74 Ark. 92; Schenck v. Griffith, 74 Ark. 562.
The deed from T. P. Carroll and wife to N. E. Moffett, appellees’ father, was effectual to pass the title to the lands, which could not be divested by the loss or destruction of such deed of conveyance.
Cunningham v. Williams, 42 Ark. 170, 12 S. W. 1216, 6 L. R. A. 783; Campbell v. Jones, 52 Ark. 493; Ames v. Ames, 80 Ark. 9; Foster v. Elledge, 153 S. W. 819, 106 Ark. 342.
Appellants had actual notice of this deed before purchasing the lands and knew that it was prior in time to Carroll’s deed to Frankie Moffett, and her deed to Sam Johnson, under which he claims title, and he can not occupy the position of a bona fide purchaser for value without notice. Carroll and his wife, having conveyed the title to the lands by the deed to N. R. Moffett, had no title thereafter and. the second deed to Frankie Moffett did not operate to convey any.
It follows that appellees were entitled to recover the lands, and the court did not err in directing the verdict.
The judgment is affirmed. | [
-75,
111,
-36,
28,
10,
96,
-86,
-72,
107,
-93,
-92,
83,
-1,
66,
4,
61,
-26,
105,
-27,
121,
-58,
-78,
39,
-29,
82,
-77,
-39,
95,
-75,
76,
-10,
-42,
76,
48,
-56,
85,
102,
-54,
-59,
20,
-90,
7,
11,
69,
89,
80,
56,
51,
20,
15,
85,
-106,
-29,
46,
29,
68,
109,
46,
-49,
45,
80,
104,
-97,
69,
127,
3,
-79,
101,
-92,
1,
-8,
-102,
-112,
57,
0,
-56,
83,
-90,
-126,
116,
73,
25,
8,
34,
98,
32,
-43,
-17,
-92,
-104,
15,
-14,
61,
38,
80,
72,
3,
97,
-65,
-99,
104,
0,
-89,
-2,
-30,
13,
29,
44,
16,
-117,
-106,
-77,
13,
126,
-118,
3,
-5,
7,
48,
113,
-57,
-18,
92,
67,
49,
-101,
-98,
-47
] |
McCulloch, C. J.
The State of Arkansas entered into a written contract with appellants, Caldwell & Drake, dated August 14, 1903, whereby the latter undertook to construct for the State, on its grounds, a new State Capitol building for a certain price, payable in installments on certificates of the architect as the work progressed. The work of constructing the building progressed until the year 1907, when interrupted by failure of the General Assembly to make appropriation of funds for payments under the contract. Appellants, upon instructions from the State Capitol Commission, boarded up the openings of the uncompleted building and suspended work thereon until an appropriation could be made at the next (1909) session of the General Assembly. The General Assembly of 1909 passed an act discharging appellants as contractors, also discharging the architect, George R. Mann, and the capitol commissioners, and creating a commission to “adjust the controversy between the State of Arkansas and Caldwell & Drake” concerning the performance of the contract. That statute is commonly known as the Patterson Act. Subsequently at the same session another statute was enacted entitled “An Act to provide for carrying forward the work on the new State Capitol and making appropriations therefor, and for paying any sums which may be found due the former contractors,’ and for the creation and appointment of a capitol commission and defining its duties. ’ ’ That is known as the Oldham Act, Acts 1909, page 727, and it provided that the new commission should be composed of the Governor of the State and four other citizens to be appointed by him. Appellee, George W. Donaghey, was then Governor of the State, and, pursuant to the terms of the statute, he appointed his coappellees, John I. Moore, H. L. Remmel, Chas. L. Thompson and R. F. Foster, as the other members of the commission.
A synopsis of each of the statutes above referred to is set forth in the two opinions of this court in Jobe v. Caldwell, 93 Ark. 503, and 99 Ark. 20, and it is unnecessary to set them out again.
The capitol commission, composed of appellees, proceeded, pursuant to the terms of the Oldham Act, to take possession of the uncompleted building and to let a new contract for its completion. According to the allegations of the complaint in this case, they broke the locks, took possession of the building over the protest of appellants, who claimed to be in possession thereof, and caused to be torn out, certain portions of the building which appellants had constructed.
Appellants assert that by reason of said acts of appellees in taking from them the possession of said uncompleted building and “by advertising to the world that these plaintiffs have been discharged” they sustained damages in the sum of $250,000, and they instituted this action against appellees in the circuit court of Pulaski County to recover the damages alleged to have been thus sustained.
The circuit court sustained a demurrer to the complaint, and from the final judgment of the court rendered upon the failure of appellants to plead further, an appeal to this court is prosecuted.
This is characterized by learned counsel for appellants as simply an action to recover damages for unlawful trespass committed by appellees. The substance of the argument is that appellants were in lawful and peaceable possession of the State’s property for the purpose of performing their contract with the State and had the right to retain possession until they completed the Capitol building according to contract; that the statutes enacted by the General Assembly of 1909, attempting to discharge appellants as contractors, and to complete the building through other agencies, were unconstitutional and void as impairing the obligation of the State’s contract with appellants, and that all acts of appellees in going upon the premises and disturbing appellant’s quiet possession, constituted trespass which rendered appellees liable in damages for any injury which resulted. This argument involves the inquiry, primarily, into the question as to what possessory rights appellants had, if any, as between them and the State, to the latter’s premises and the building thereon in process of construction. The State owns the premises and merely contracted with appellants to erect a building thereon for public use as a capitol or seat of government. The answer is plain that the State did not cede to appellants, either partially or exclusively, its possessory right to the premises. It merely granted to them the privilege or license to enter upon the premises for the purpose of constructing the building according to the terms of the contract. That did not constitute either a right to the premises or a right in same.
Even between individuals, whether a lien be given by statute or not, a building contractor does not acquire, against the owner, the right to hold possession of the premises. Overton on Liens, § 547; Phillips on Mechanic’s Liens, § 9; Boisot on Mechanic’s Liens, § 7. For a stronger reason one who contracts with the State to construct a building on its premises, can not hold possession against the will of the State’s authorized agents.
With that question out of the way it remains to inquire whether the statutes of 1909, which discharged appellants and provided other agencies for completing the building, were valid, or whether they were unconstitutional as impairing the obligations of appellant’s contract with the State. . We speak of the Patterson Act discharging appellants as contractors. That is what we said of it in the opinion in Jobe v. Caldwell, 99 Ark. 20. “Whatever else may be said of the Patterson Act,” is the language used, “it abrogated the contract with plaintiffs to the extent that the State refused to allow further performance, and it also amounted to an assertion that the condition of accounts between plaintiffs and the State called for an adjustment.”
Let us say now that the Patterson Act was, at least, a determination by the State, speaking through its highest agency, not to permit appellants to complete the building. Whether or not the Legislature did right in that respect depends on the question of fact whether appellants had broken the contract (a question we do not have to decide in this case), for the State had no greater right than an individual to refuse performance of its contract. The exact language of the Patterson Act is that the contract with Caldwell & Drake “is hereby annulled, cancelled and set aside.” We are only concerned, so far as relates to the present controversy, with the effect of the statute in withdrawing the State’s consent to the completion of the building by appellants. That much is embraced in the language used, whatever else may have been intended, and to that extent the statute was valid, even if it was unjust and amounted to a violation of the contract. There is a wide distinction between the power to break a contract and the right to do so. The one thing may exist in the absence of the other. The power to violate a contract exists when, the circumstances are such that courts will not decree specific performance; but the right to do so depends upon some justification recognized in the law. The present case is only affected by the State’s exercise of its power to treat the contract with appellant as broken; and we are not called upon now to determine the question of its justification in doing so, for the power to violate a contract does not necessarily involve the impairment of the obligation. The obligation remains after the contract has been broken.
The General Assembly controls the economic and administrative policies of the State, and if the statutes in question wrongfully violated the contract with appellants, the obligation of that contract remains unimpaired; but the power of the Legislature to violate the contract can not be questioned any more than the exercise of the like power by an individual.
The doctrine applicable to this case is very clearly stated by the New York Court of Appeals in the case of Lord v. Thomas, 64 N. Y. 107. The State of New York had contracted for the erection of a certain building, but before the completion of the building, discharged the contractors and appointed commissioners with directions to construct the building upon another plan. An injunction was sought in that case by the contractors, and the court said:
“The State can not be compelled to proceed with the erection of a public building, or the prosecution of a public work at the instance of a contractor with whom the State has entered into a contract for the erection of a building or the performance of "the work. The State stands, in this respect, in the same position as an individual, and may at any time abandon an enterprise which it has undertaken, and refuse to allow the contractor to proceed, or it may assume the control and do the work embraced in the contract by its own immediate servants and agents, or enter into a new contract for the performánce by other persons, without reference to the contract previously made, and although there has been no default on the part of the contractor. The State in the case supposed would violate the contract, but the obligation of the contract would not be impaired by the refusal of the State to perform it. The original party would have a just claim against the State for any damages sustained by him from the breach of the contract, and although the claim could not be enforced through an action at law, the remedy by appeal to the Legislature is open to him, which can, and it must be presumed will, do whatever justice may require in the premises. This remedy is the only one provided in such a case, and ■ this is known to the party contracting with the State, and the courts can not say that it is not certain, reasonable and adequate. ’ ’
In a later case involving the same contract, where the contractors had sued the State for recovery of damages, the court again said:
“Where a valid contract has been entered into, on behalf of the State by its duly authorized agents, for the construction of a public work, it can not, in the absence of any stipulation authorizing it so to do, destroy or avoid the obligation of the contract. While it may refuse to perform and arrest performance on the part of the contractor, it is liable for the breach of the contract the same as an individual and the contractor is entitled to claim prospective profits.” Donolds v. State, 89 N. Y. 45.
In Brown v. Colorado, 106 U. S. 96, there was a controversy between the State of Colorado and an individual who had conveyed certain lands to the Territory before admission to Statehood for the purpose of erecting a capitol. He refused to surrender possession and the State brought ejectment and recovered possession of the land. The. Supreme Court of the United States, speaking through the then Chief Justice, said:
“The most that can be said * # * is, that in this way the contract was violated by the State. * * * All the obligations of the original contract remain, and the State has not attempted to impair them. If the contract is all that he claims it to be, and the Constitution and statutes are just what he says they are, the most that can be contended for is that the State has refused to do what the Territory agreed should be done. This may violate the contract, but it does not in any way impair its obligation.”
The same thought is announced by the following authorities: 15 Am. & Eng. Enc. of Law, p. 1041; Clark v. Marsiglia, 1 Denio, 317; McMaster v. State, 108 N. Y. 542; 15 N. E. 422; Sanilac County v. Alpine, 68 Mich. 659; 36 N. W. 794, 797.
In the recent case of Falls City Construction Co. v. City of Fort Smith, 107 Ark. 148, 154 S. W. 496, which involved a controversy concerning the construction of a county courthouse, we said that a contractor could not compel the county to construct a building, whatever might be the rights under the contract to recover damages for nonperformance. That principle has its force in this controversy, for any other view would permit the contractor to compel the State to proceed with the construction of the building against the express will and determination of the lawmakers.
The fact that the State can not' be sued upon its obligation has no bearing upon the question. If the contract was one which appellants could require the State to specifically perform, then there might be some plausibility in the claim that the commissioners subsequently appointed had no right to interfere with the performance of the contract by appellants. But the contract, even if made with an individual, was not one which a court of equity would require to be specifically performed. Leonard v. Board of Directors of Plum Bayou Levee District, 79 Ark. 42, and cases therein cited.
Moreover, any action for the purpose of compelling the State, either directly or indirectly, to perform the contract, would be a suit against the State' and could not be maintained. Pitcock v. State, 91 Ark, 527.
The decisions of the Supreme Court of the United States cited by appellants on tbe brief announce principles wbicb have no application here. Those cases involve statutes which attempted to take away tbe rights of parties and impair tbe obligation of contracts, whereas in tbe present case tbe acts of tbe Legislature, as we bave already shown, to tbe extent that they discharged appellants, and withheld permission to proceed further in tbe construction of tbe building, did not impair tbe obligation of tbe contract.
After tbe State bad, through tbe enactment of tbe statute known as tbe Patterson Act, elected not to proceed with tbe construction of tbe building under tbe contract with appellants, another statute, tbe Oldham Act, provided for tbe creation of a new commission, and appellees, as such commissioners, were clearly within their legal rights in proceeding with tbe construction of tbe building, pursuant to tbe mandate of tbe last-mentioned statute. They were not trespassers but were acting in tbe line of their duty and are not liable to appellants in any sum. Tbe judgment of tbe circuit court is therefore affirmed. | [
-68,
107,
-12,
108,
-54,
-119,
24,
-102,
59,
-93,
117,
83,
-23,
92,
20,
81,
-31,
109,
80,
105,
-28,
-106,
19,
97,
-62,
-41,
119,
-57,
-77,
79,
-4,
-1,
74,
32,
-62,
-103,
-58,
64,
-59,
-100,
-114,
41,
74,
68,
-40,
-48,
52,
121,
50,
15,
81,
-105,
-9,
32,
84,
-53,
109,
44,
-56,
-67,
81,
-5,
-116,
5,
127,
7,
33,
39,
-102,
7,
124,
60,
-104,
49,
4,
-68,
115,
-94,
-122,
70,
79,
-103,
12,
34,
102,
32,
-88,
-85,
48,
-84,
6,
-69,
-115,
-89,
-110,
89,
34,
73,
-66,
29,
120,
-106,
6,
118,
-29,
-59,
-37,
44,
-125,
-113,
-48,
-93,
7,
104,
-106,
19,
-37,
-85,
50,
116,
-59,
-26,
95,
-41,
-77,
-101,
-114,
-23
] |
McCulloch, C. J.
Appellee was a passenger on appellant’s train from Delaware, Oklahoma, to Greenwood Junction, Oklahoma, and was injured while stepping from the train at her destination.
She testified that when the train reached Greenwood Junction, it stopped only a few moments; that the station was not called, and when she looked out of the car window, it appeared to her that it had stopped at a tie yard; that as the train moved off, she started up to the car door and asked the brakeman or porter if that ivas her station —Greenwood Junction, and that he told her it was, and instructed her to step off the train, assuring her that the train was going very slow, and that she could do so with safety.
Her testimony was sufficient’to establish the charge of negligence on the part of the trainmen in failing to call the station so as to give a passenger an opportunity to debark from the train, and in advising her to step from the moving train. Whether or not she was guilty of negligence herself in stepping off the moving train was, under the circumstances, a question for the jury.
She was seriously injured, and the jury awarded damages, the amount of which is not claimed to be excessive.
There are numerous exceptions to rulings of the court in giving and refusing instructions. Only a few of these assignments need be mentioned.
One is that the court erred in instructing the jury that “if plaintiff recklessly and negligently jumped off the train while in motion, and was thereby injured, plaintiff can not recover.”
The court gave several other instructions telling the jury that appellee could not recover if she was guilty of negligence which contributed to her injury, and on appellant’s request defined contributory negligence as “doing that or omitting to do that which a reasonably prudent person would do or would not do under the same or similar circumstances. ” The court did not tell the jury that appellee would be entitled to recover unless she “recklessly and negligently jumped off the train while in motion, ’ ’ and none of the instructions extend her right to recover to that limit. On the contrary, all of the instructions, read together, clearly explained to the jury that she could not recover if her own conduct was wanting in ordinary care for her own safety. The instruction complained of is technically correct in saying that if appellee “recklessly and negligently jumped off the train while in motion, ’ ’ she could not recover, though it would have been incorrect to use language in the instruction which would have placed recklessness as the only limitation upon her right to recover. Recklessness means more than mere carelessness or want of ordinary care, and is too strong a word to use in that connection; but the instruction, considered with the others given, did not convey the impression to the jury that appellee was entitled to recover unless her conduct amounted «to recklessness, and, therefore, it was not prejudicial.
Another assignment is that the court erred in its first instruction in telling the jury that defendant, as a carrier of passengers, was “required to use the highest degree of care consistent with the practical operation of its trains for the safety of the plaintiff while a passenger on its train and while embarking and debarking from the train.”
That is, under ordinary circumstances, the correct measure of a carrier’s duty toward its passengers. 2 Hutchinson on Carriers (3 ed.) § 1118. And that is the law in the State of Oklahoma, where this cause of action accrued. A. T. & S. F. Ry. Co. v. Calhoun (Okla.), 89 Pac. 207.
Counsel for appellant rely upon a decision of this court holding that such is not the degree of care which a carrier owes to its passengers under all circumstances. St. Louis, I. M. & S. Ry. Co. v. Green, 85 Ark. 117. That was a case where a passenger, while attempting to board a train, was assisted by two friends, and we held that under those circumstances, no duty devolved upon the carrier to assist the passenger at all, but if its servants volunteered to do so, they were only bound to. use ordinary care in discharging that duty. That rule has no application to the present ease, for while the passenger was on the train and about to debark at her destination, it was the duty of the servant, in inviting her to alight from the moving train, to exercise the highest degree of care for her safety, as that was a dangerous situation in which she was placed by the act of the company’s servants.
Several of appellant’s requests for instructions were denied, but the refused instructions were covered in the following instruction, which the court gave at appellant’s request:
“The court instructs you that it is the duty of a passenger when his destination is reached to leave said train, and the law only requires that a reasonable time be allowed a passenger in which to do so; and if you believe from the .evidence in this case that the train upon which the plaintiff was a passenger, stopped at Greenwood Junction for a reasonable length of time in which the plaintiff, acting with ordinary care, could have reasonably left the train, and that she failed to leave the train while it was stopped, and voluntarily attempted to, and did jump from the train, while the same was in motion, then your verdict should be for. the defendant. ’ ’
That instruction was in some respects more favorable than appellant was entitled to, for it ignored the testimony tending to show the failure to call the station and the invitation extended to appellee by the company’s servant to alight.
Other instructions on the subject of contributory negligence were, as above stated, given at appellant’s request.
Upon the whole, we are convinced that the case was submitted to the jury upon instructions which were not prejudicial to appellant’s rights.
The judgment is therefore affirmed. | [
-110,
104,
-120,
-113,
59,
96,
58,
-126,
113,
-121,
37,
-45,
-83,
64,
-107,
43,
99,
63,
-47,
33,
113,
-77,
7,
-93,
-6,
-13,
51,
-121,
-105,
74,
100,
-10,
77,
112,
-54,
81,
102,
75,
85,
62,
-122,
-105,
-54,
96,
57,
-120,
32,
114,
-108,
15,
113,
-33,
-29,
106,
24,
-58,
108,
44,
107,
-3,
-64,
120,
-117,
5,
119,
2,
-93,
36,
-65,
-91,
-2,
56,
92,
-75,
8,
-68,
114,
-90,
-109,
-44,
107,
-101,
68,
98,
98,
33,
12,
-17,
-67,
-71,
110,
30,
-67,
-91,
-46,
13,
73,
15,
-73,
-3,
-86,
20,
28,
-68,
-8,
-52,
89,
96,
-127,
-53,
-108,
-79,
-51,
116,
-106,
-121,
-21,
33,
18,
117,
-52,
-78,
92,
-121,
58,
-101,
-33,
-34
] |
Smith, J.
Appellant was convicted in the Union Circuit' Court under an indictment charging the larceny of a promissory note of the value of $140, and the property of one Mrs. M. F. Norman. His punishment was assessed at one year in the penitentiary, and he prosecutes this appeal from that judgment. Appellant had contracted to buy a forty-acre tract of land from Mrs. Norman, for the consideration of $250, and after having made some payments, owed a balance, evidenced by the note alleged to have been stolen. Appellant had been given a bond for title to the land, and demanded a deed upon presentation of the note, under the claim that he had paid the note. The appeal questions chiefly the sufficiency of the evidence, and, while it is not altogether satisfying, it is legally sufficient to sustain the verdict. In fact, the veracity of the witnesses is the principal question in the case, but that question is concluded by the verdict of the jury, and it will serve no useful purpose to review this evidence.
The court gave an instruction on the impeachment of witnesses, which is challenged, and is said to be erroi calling for the reversal of the case. It reads as follows ¡ “You will disregard the testimony of any witness, which you may believe to be false, and if you believe that any witness has testified wilfully falsely to any material fact, you may disregard the whole of the testimony of such witness, if you believe it totally unworthy of credence.” Appellant insists that this instruction tells the jury that if any part of the statement of a witness is wilfully false, they may disregard it all, even though they believe portions of it to be true. The instruction does not say so, and, if it is susceptible of that construction, the fact should have been called to the attention of the court. Evidently, what the court intended to tell the jury was that, if they believed a witness had testified wilfully falsely, they could disregard such portions as they believed to be false, or they would be warranted in rejecting it all, if they did not believe any of it to be true.
There was an attempt to impeach both the State’s principal witness, and the principal witness for the defendant, and this instruction applied to each, and a specific objection should have been made to call the court’s attention to the objection now urged. The rule in regard to false swearing is clearly stated in the opinion in the case of Frazier v. State, 56 Ark. 242, where an instruction was discussed, which read as follows : “If the jury find that any witness has sworn falsely to any material fact, they may, if they see proper, disregard the whole testimony of such witness.” And, in discussing this instruction, Justice Hemingway said: “False swearing as to a particular fact warrants a jury in discrediting the entire testimony of a witness only when it is wilful, and the instruction is incomplete in omitting this. Moreover, the instruction might he construed as warranting a jury in disregarding testimony which it believed to be true, if it emanated from a witness who had sworn falsely to some other fact. Thus construed, it dqes not reflect the law, for, although a witness is found to have wilfully testified falsely to a material fact, the jury will not he warranted in disregarding other parts of his testimony which appear to be true.”
The instruction complained of is not- as clear as it should be, or probably would have been, if the objection now made had been made at the trial. The instruction tells the jury they may disregard the testimony of any witness, which they believe to he false, and this, of course, is true whether the witness wilfully testified falsely or not, and it further says that if the testimony was wilfully false on any material fact, the jury may disregard all of it, if they believe it totally'unworthy of credence. The instruction does not authorize the jury to disregard any part of it believed to he true, hut, if it is open to that construction, that fact should have been called to the attention of the court. Schuman v. State. 106 Ark. 362.
Other exceptions were saved and are argued in the briefs, but we do not regard them as of sufficient importance to discuss here, and we do not think they sustain the claim of prejudicial error.
The judgment of the court below is therefore affirmed. | [
48,
-6,
-88,
-97,
10,
96,
-88,
-104,
-63,
-64,
-10,
82,
109,
66,
0,
59,
-93,
57,
85,
105,
68,
-109,
55,
67,
-14,
-13,
-37,
-43,
-67,
77,
-19,
-43,
76,
52,
-62,
85,
102,
-56,
-25,
-48,
-114,
-95,
-88,
105,
91,
-64,
48,
43,
20,
79,
53,
-98,
-29,
46,
25,
72,
-119,
40,
107,
41,
-56,
-71,
-98,
-51,
77,
7,
-77,
23,
-114,
1,
-40,
14,
-104,
21,
0,
-40,
115,
-106,
2,
-44,
15,
-69,
12,
98,
98,
-111,
109,
123,
-72,
-36,
63,
62,
-99,
-89,
-46,
72,
75,
109,
-74,
-35,
119,
16,
-89,
-26,
-26,
5,
89,
104,
3,
-49,
-46,
-77,
15,
120,
-98,
-109,
-21,
-79,
0,
112,
-51,
-86,
92,
103,
115,
-101,
-49,
-7
] |
Hart, J.
The defendant, John Jackson, was convicted of larceny charged to have been committed by stealing a hog belonging to R. B. Brown, and from the judgment of conviction, he has duly prosecuted an appeal to this court.
R. B. Brown testified substantially as follows:
I live near Plumerville in Conway County, Arkansas, and the defendant lives near me. During the month of August, 1912, I turned out seven shoats, and on the same day late in the evening, I met a neighbor who told me my hogs were in his - field, and he would try to get them out. The next morning I penned up four of the hogs, but three of them never came up. In a day or two, I was informed that the defendant had taken up one of them, and upon meeting the defendant, asked him about it. My mark was a hole in the right ear. The defendant said that he had taken np a hog, hut he was not marked like mine. He said that the hog he took up was marked with a smooth crop and swallow fork in the left ear, and that there was no mark in the right ear. I accepted his statement, and did not go to examine the hog he had taken up. My hog did not come up, and I again learned that he had a hog in his pen marked in my mark. In the course of two or three weeks, I went to his house, and went around to his pen, which was in his back yard. I saw a hog in the pen and recognized it as my hog. The mark had been changed to a smooth crop and swallow fork in the right ear. The hog had been freshly marked, and the marked place had not yet healed up.
On cross examination, he stated that Jackson told him that he cared nothing about the hog, and that if he would pay him six dollars for his expenses in keeping the hog, he could have it. This Brown declined to do. Brown also stated that Jackson had had him arrested for permitting his hogs to run at large within the limits of the fencing district. The son of the prosecuting witness corroborated the testimony of - his father in all essential respects.
The defendant adduced testimony tending to show that the hog he took up was marked with a smooth crop and swallow fork in the right ear, and that it was an old mark. Several witnesses who examined the hog while in the pen testified to this fact. Other testimony tended to show that the defendant went to a justice of the peace after he had taken up the hog within the limits of the fencing district, and asked him how to proceed in advertising the hog. The- justice of the peace prepared a form of advertisement, which was given to the defendant. The defendant advertised the hog for sale, and became the purchaser thereof at the sale. The defendant said that he took up the hog in controversy in his field, and that it was at the time marked with a smooth crop and swallow fork in the right ear. That he did not claim the hog as his own, but advertised it as an estray.
The principal contention made by counsel for the defendant is, that the evidence is not sufficient to sustain the verdict, but we can not agree with his contention in this respect. In the case of Blackshare v. State, 94 Ark. 548, the court said:
“An effort on the part of one who takes up cattle as estrays to post them would not justify such one in converting such cattle to his own use. The law requires, one taking up estrays to do something more than simply to make an effort to post them. (See chapter 149, Kirby’s Digest.) An effort, but failure, to comply with the estray laws before converting estrayed animals to one’s own use would be evidence to be considered by the jury as tending to prove the absence of a felonious intent in making such conversion. But that is as far as it could go. Where one has taken and converted the animals of another to his own use, if, at the time of the taking, there was the felonious intent to deprive the true owner, whoever he might be, of the permanent use and benefit of his property, the one so taking the animals of another under our statute would be guilty of larceny. One so charged may set up in defense an effort to comply with the estray laws, and the testimony adduced to establish such defense may be considered by the jury in determining the question as to whether the accused took the animals with a felonious intent at the time of the taking to convert them to his own use, and to permanently deprive the owner of his property.”
In Jackson v. State, 101 Ark. 473, the court held: “In a prosecution for larceny of hogs, the good faith of an alleged attempt by the accused to notify the owner, and whether he converted the hogs to his own use by marking them, were questions for the jury.” See also, Cravens v. State, 95 Ark. 321; Douglass v. State, 91 Ark. 492; Brewer v. State, 93 Ark. 479.
It will be noted that the prosecuting witness testified positively that the hog belonged to him, and that the mark on it had been changed. He said that when he first was informed that the defendant had up the hog, he questioned him about it,, and the defendant told bim the hog he had up was not marked like his at all, and that the hog had no mark at all in the right ear, bnt was marked in the left ear. That the mark had been recently changed, and the freshly cnt ear had not healed.
Other testimony showed that the hog was marked in the right ear. From this the jury was warranted in finding that the defendant at the time he took up the hog, had the felonious intent of converting it to his own use, and this was sufficient to warrant a conviction. It is true that a number of witnesses testified that the mark on the hog w;as an old mark, and other evidence on the part of the defendant tended to show that he never did claim to own the hog, but took it up within the limits of the fencing district, and advertised it for sale under the provisions of the fencing act. This conflict in the testimony, however, was settled by the verdict of the jury, and, according to the settled rules of this court, we can not invade the province of the jury, and its verdict is binding on us.
Counsel for the defendant also urges that the court erred in refusing certain instructions asked by him on the question of reasonable doubt. This phase of the case was fully covered by other instructions given by the court, and we have repeatedly held that it is not prejudicial error to refuse instructions when the matters embraced in them are fully covered by the instructions given. Turner v. State, 100 Ark. 199.
The defendant took the stand in his own behalf, and counsel for the defendant urges that the court erred in requiring him to answer .certain questions propounded to him on cross examination. In regard to this assignment of error, it is sufficient to say that it was not made one of the grounds of his motion for a new trial, and, under our rules of practice, he will be deemed to have waived it. Burris v. State, 73 Ark. 453; Ince v. State, 77 Ark. 418; King v. Blach, 92 Ark. 598.
The judgment will be affirmed. | [
48,
105,
-3,
63,
40,
96,
42,
-70,
83,
-119,
118,
83,
-57,
86,
1,
41,
98,
-3,
84,
121,
-58,
-78,
47,
-41,
-78,
-5,
-119,
-41,
-72,
75,
-83,
86,
10,
48,
-122,
93,
98,
108,
-95,
92,
-114,
7,
-69,
100,
87,
64,
48,
41,
4,
10,
53,
31,
-17,
42,
55,
-43,
105,
44,
111,
47,
112,
-15,
-80,
77,
13,
2,
-94,
98,
-112,
5,
90,
111,
-104,
49,
3,
-8,
115,
-74,
-126,
84,
15,
-115,
12,
34,
102,
1,
-35,
-53,
40,
-24,
47,
126,
-119,
-90,
-104,
72,
75,
12,
-98,
-99,
42,
-48,
38,
-8,
-27,
-60,
-107,
104,
7,
-49,
-108,
-77,
9,
-84,
-98,
-53,
-13,
39,
52,
117,
-51,
-62,
89,
71,
112,
-101,
-122,
-73
] |
McCulloch, C. J.
The General Assembly of 1913 enacted a special statute creating a levee district in Jackson County, Arkansas, designated as Village Creek & White River Levee District.
The bill was presented to the Acting Governor, for his approval or disapproval, on March 12, 1913, the day before final adjournment, and on March 13, 1913, at 10:10 o’clock a. m., Mr. Oldham, who then occupied the Governor’s office and assumed to discharge the duties of Acting Governor, approved and signed the bill, and filed it in the office of the Secretary of State.
That session of the General Assembly came to a close at noon on -that day, and Mr. Futrell succeeded to the office of Acting Governor by election to the office of President of the Senate.
The controversy between these two gentlemen over the question of the succession lo that office was decided by this court in the reecnt case of Futrell v. Oldham, 107 Ark. 386, 155 S. W. 502. The details are set forth in the opinion of the court in that case. The decision was rendered on March 24, 1913, and on that day Mr. Oldham relinquished the Governor’s quarters in the State Capitol to Mr. Futrell and no longer assumed to act as Governor.
Thereafter, on March 31, 1913, which was within the twenty days allowed for approval or disapproval of hills by the Governor when the General Assembly by adjournment prevents the return of a bill within five days (Constitution, art. 6, § 15), Mr. Futrell withdrew this bill from the office of the Secretary of State and vetoed it. His proclamation announcing the veto recites that he had qualified as President of the Senate at 9:11 o’clock a. m. on March 13, 1913, and at that moment became Acting Governor, and that the power of his predecessor to act at that time ceased.
The Secretary of State.has refused to cause the act to be published as required by statute, and appellees, who are property owners within the boundaries of the levee district, instituted this action in the Pulaski Circuit Court to compel the Secretary of State to perform his duties in that respect. The circuit court awarded the writ of peremptory mandamus as prayed, and the Secretary of State has appealed to this court.
The contention of appellees is that Mr. Oldham, at the time he signed the bill, Avas, not only cle facto President of the Senate and Acting Governor, but that his term had not ended and that he was President of the Senate cle jure.
On the other hand, it is contended by the Attorney General and the counsel associated with him in the ease that Mr. Futrell became President of the Senate and Acting Governor before the bill Avas signed by Mr. Old-ham and that the power of the latter to act as Governor had ceased.
We look to the journals of the two houses and'the records in the office of the Secretary of State for the purpose of ascertaining the proceedings concerning the enactment and approval of a statute. Powell v. Hays, 83 Ark. 448.
The regular session of the General Assembly came to an end, as before stated, on March 13, 1913, at noon.
On Monday, March 10, 1913, the Senate passed a resolution reciting the section of the Constitution that “whenever, at the close of any session, it may appear that the term of the member elected President of the Senate will expire before the next regular session, the Senate shall elect another president from those members whose terms of office continue over,” and providing that the Senate “proceed to the election of a president from those members who continue over as provided by said Constitution of the State of Arkansas.”
Pursuant to said resolution the Senate proceeded to the election, and Mr. Futrell was elected on that day.
The Governor of the State had resigned on March 8, and Mr. Oldham, as President of the Senate, was acting as Governor, and continued to act in that capacity until the close of the session, and he also assumed to act until the controversy was settled by the decision of this court.
Mr. Futrell appeared before one of the Associate Justices of the Supreme Court at chambers on March 13, 1913, at 9:11 o’clock a. m., and took,and subscribed the oath of office as President of the Senate. A copy of the oath was filed in the office of the-Secretary of State. He did not make known to the Senate or to Mr. Oldham the fact that he had taken the oath as President of the Senate, and did not undertake to discharge the duties of that office until he again took the oath of office before the Chief Justice of the Supreme Court, in the presence of the Senate, at 10:45 o ’clock a. m., with the usual ceremonies. He explains in a statement of his which was adduced in evidence in this case that he was ready to take the chair as President of the Senate at any moment, but had business on the floor of the Senate,' and for that reason did not do so.
It will be seen from the above recitals that Mr. Old- ham approved and signed the hill between the time that Mr. Futrell took the oath of office before one of the Associate Justices and the time that he again took the oath administered by the Chief Justice in the presence of the Senate.
The determination of who was President of the Senate de jure at the time the bill was signed by Mr. Old-ham turns, of course, upon the decision of the question when the term of office of the President of the Senate, elected at the beginning of the session, ends, and when the term of the holdover, elected at the close of the session, begins.
The Constitution provides that the Senate, “at the beginning of every regular session of the General Assembly, and whenever a vacancy máy occur, shall elect from its members a presiding officer * * *; and whenever, at the close of any session, it may appear that the term of the member elected President of the Senate will expire before the next regular session, the Senate shall elect another President from those members whose term of office continue over, who shall qualify and remain President of the Senate until his successor may be elected and qualified; and who, in the case of a vacancy in the office of Governor, shall perform the duties and exercise the powers of Governor.”
The President of the Senate is elected at the beginning of the session for a term. That term begins with. Ms election and ends with the close of the session. He may be removed and a vacancy created by a vote of the Senate. The particular method and procedure in that respect need not now be determined.
Conceding that the president may be removed by resolution at any time during the session, and another elected in Ms stead, it is apparent from the record that it was not intended by the election of Mr. Futrell three days before the close of the session to remove Mr. Old-ham from office at that time and to create a vacancy to be filled by the election of another. The resolution itself recites that the election was to be held in performance of the constitutional function of electing a president to regularly succeed the incumbent.
The election was not held precisely at the close of the session, and that need not have been done. The language of the Constitution is that that shall be done “at the close of any session.” Manifestly, the election must be held before the session actually closes, and it need not be the last act of the Senate. The purpose of this provision is that, in contemplation of the close of the session and before the session actually ends, the Senate shall elect a successor to the then incumbent of the office of president, and that he shall qualify as such. In other words, the fall of the gavel at the end of the session marks the end of the term of the old president and the beginning of the term of the new'. That is the effect of our decision in Futrell v. Oldham, supra.
It is unimportant to inquire whether the oath of office taken by Mr. Futrell before one of the Associate Justices in his chambers, or the oath taken later, in the presence of the Senate, before the Chief Justice, was the one upon which he was inducted into office. Both oaths were taken in contemplation of assuming the duties of the office at the moment specified by the Constitution, and was effective for that purpose, but neither of the oaths ushered him into office until the time specified by the Constitution, which was the close of the session, and until that moment his predecessor, Mr. Oldham, was President of the Senate de jure.
Now, there is another reason which could well be brought forward why Mr. Oldham’s act in approving and signing the bill was valid. He was Acting Governor de facto and in the discharge of the duties as such and no demand had been made upon him at that time for a surrender of the office, and Mr. Futrell had not at that time asserted his right to hold the office. Without attempting to go into any full discussion as to what period of time the validity of Mr. Oldham’s acts as de facto Governor continued, it seems clear to us that, up to the time that Mr. Futrell demanded the office and undertook to set up as Acting Governor a separate office in the State Capitol, the acts of Mr. Oldham as de facto Acting Governor should be held to be valid. Under any other view of the case interminable confusion might arise.
Appellees adopted the proper remedy in this case. The statutes of the State require the Secretary of State to cause the acts of the General Assembly to be published under his certificate by the public printer, and those specially interested in the enforcement of this statute have the right to insist upon its being published, so as to be given proper public authenticity. Appellees are property owners to be benefited by the improvement specified in the act and are, therefore, interested within the meaning of the law and entitled to ask for mandamus to compel the Secretary of State to discharge his duty in this respect. Maddox v. Neal, 45 Ark. 121. As to remedy by mandamus, see authorities cited in appellee’s brief.
The judgment of the circuit court awarding peremptory mandamus was correct, and the same is therefore affirmed.
Smith, J., concurs. | [
-11,
-23,
-4,
44,
-22,
-62,
16,
-110,
123,
-109,
-59,
83,
-81,
26,
17,
97,
-29,
-21,
-15,
121,
-28,
-74,
87,
64,
50,
-13,
-95,
71,
-74,
93,
-4,
127,
72,
24,
74,
-47,
70,
72,
-55,
-100,
-122,
-86,
11,
-20,
-56,
-64,
52,
109,
54,
-117,
69,
47,
-10,
46,
30,
99,
-23,
36,
-55,
-66,
57,
-70,
-100,
-100,
95,
4,
1,
-90,
-112,
3,
66,
62,
-104,
49,
-100,
-68,
127,
-90,
-122,
118,
15,
-55,
40,
98,
102,
17,
-27,
-25,
-88,
-88,
84,
-69,
-87,
-122,
-46,
73,
98,
75,
-69,
-99,
-3,
-106,
6,
122,
-89,
-59,
83,
46,
-124,
-50,
-42,
39,
7,
-67,
4,
3,
-21,
99,
100,
117,
-123,
-10,
-36,
71,
83,
27,
-122,
-16
] |
Kirby, J.
This is the second appeal of this cause, which is sufficiently stated in the opinion rendered on the first appeal, reported in the 104 Ark. 1. 147 S. W. (Ark.) 83.
The court reversed the case because of an erroneous instruction, which was held, in effect, to be peremptory and amounting to a direction of the verdict, and said:
“From the testimony adduced at the trial, we are of the opinion that there was sufficient evidence to warrant a finding that the defendant was negligent in not exercising ordinary care to furnish a safe machine near which the defendant was directed to work by reason of its failure to supply it with an apron or shield in order to prevent the saw from hurling the blocks; or that the defendant was negligent in permitting the blocks to accumulate upon the floor to such a height as to fall upon the saw.”
It also said the testimony was sufficient to warrant the jury in finding that the saw furnished was a reasonably safe instrumentality for performing the work and it was a question of fact for the jury to determine whether the defendant was negligent in permitting the blocks to accumulate near the saw as was done on this occasion.
Upon the trial anew, virtually the same testimony was introduced as upon the former trial, the appellant objecting to a statement of the attorney for appellee that it, immediately after the accident and injury, provided a shield around the saw to prevent it coming in contact with blocks and occasioning injury such as occurred to appellee, and to the introduction of testimony relating thereto.
In the opening statement to the jury, appellee’s counsel said: “We will show you, gentlemen of the jury, by their own testimony, by their own employees, it is not disputed or denied, never has been and I assume never will be, that this saw could have been protected at very small cost, of almost nothing; they did protect it immediately afterward.” This was objected to, and the court said: “You can state what was done before the accident, but not afterwards.”
Counsel for appellee said further: “The proof will show, gentlemen of the jury, it has been repeatedly shown by witnesses and by the facts in the case, that within five minutes after he (Ramey) was hurt, they had at- no cost put a hood on it, fixed it, and since then they have never hurt a man by that saw.” The court, on appellant’s objection, said.to counsel, “Gro on,” and to the jury, “You will not consider anything they did after- wards, but before-and at the time of the injury,” without any further remark.
The appellant asked the court to exclude all the remarks of counsel in regard to placing the shield about the saw after the accident from the consideration of the jury and to instruct them not to consider it, to which the court said: “Gentlemen of the jury, that is just what I said before. * * * You are not to consider what they did did afterwards, but before it was on, at the time of the injury. ’ ’
PI. S. Lacy testified that it was his duty to remove the blocks as they fell from the cut-off saw, where he was at work at the time of the injury. “There was a way to prevent the saw from throwing blocks. An apron put there would have shoved the blocks off to one side. An apron two and a half feet wide and four feet long would have been sufficient.” Counsel then asked the witness if appellant did not put one there after the accident. This being objected to, and the objection sustained, counsel immediately said: “I 'will ask you if they did not put one there within five minutes after Ramey was hurt? “Do not answer.” The court likewise sustained the objection. Counsel for the plaintiff then said: “I want to ask if since then it has thrown any blocks, your honor, and want it written down and I will pass on,, write down. I want to ask if since that apron was put there, if it is a fact it has ever thrown a block.” Upon objection, the court said: “You can show if it has not thrown any blocks since, you can show the reason why it has not.” Objections were made and exceptions saved to this ruling. Counsel for appellee asked: “State whether, or not, since Mr. Ramey got hurt, if there has ever been anybody else hurt by blocks thrown that way?” To which the witness replied: “Not to my knowledge,” and upon being asked, “Why?” said: “Because there was a shield to protect that.” He then described the shield. ’ By counsel for appellee: “Therefore, it could not throw blocks?” A. “The saw could not pick up the blocks from underneath, because it could not get underneath the saw.”
Appellant moved to exclude this testimony, relating to the changed condition since the accident and its objections were overruled and exceptions saved.
During the examination of F. M. Pittman, another witness for appellee, the following occurred:
“I worked there several weeks after that and did not see the saw throw any blocks.” Upon objection, the court told the witness to answer, to which the witness replied, “No; I did not.” Q. “Why did it not throw the blocks after that? Tell the jury why it did not?” Counsel for the defendant objected to the question and objections were overruled and exceptions saved by the defendant. A. “Well, there was a protection put there what is called an apron, put so the blocks could not get under the saw, could not drop under that, I suppose.” Q. “All the time since, you never saw it throw any blocks.” A. “No, sir; I never did.” Counsel for defendant objected to the answer and asked that it be stricken from the record and the jury instructed not to consider it. The objection was overruled and exceptions saved.
During the examination of Finis LeMay, another of the witnesses for appellee, the following occurred: “I will ask you if that cut-off saw ever threw blocks at any time after that?” Counsel for defendant: “I object to the question.” Court: “Ask if he knows.” “Q. How long did you work after that?” A. “I worked about a year.” Q. “State whether or not in the year you worked at that saw it ever threw any more blocks?”
The defendant objected to this testimony, the objections were overruled and exceptions were saved by the defendant. Q. “Did it or not?” Objected to, objections overruled by the court and defendant saved its exceptions. A. “After that they put a sheathing on to keep it from throwing blocks. ’ ’ Counsel for defendant: “I move that be stricken from the record.” The court: “Overruled.” Exceptions were saved by the defendant to the ruling of the court.
This witness being recalled and asked again: “State whether or not it could have thrown blocks after that?” Objections being overruled and exceptions saved to this question, witness answered: “No; I don’t think it could.”
The court instructed the jury, giving instruction numbered 3 for the plaintiff, as follows:
“You are instructed that the plaintiff assumed all the risks ordinarily incident to the work he undertook to do for the defendant, but not the risk of failure of defendant to do its duty,” and declined to modify it at appellant’s request, by adding the following:
“But the plaintiff did assume the risks if he was aware of the condition of the machinery around which he worked and the perils and dangers incident thereto. ’ ’ Appellant also objected to two of the other instructions given and complains of the court’s refusal to give several requested by it, among those one, numbered 4, as follows:
“The jury is instructed that before the plaintiff can recover you must find that the negligence complained of was the proximate cause of the injury, and satisfying yourself in this respect you must believe that the injury was the natural and probable consequence of the negligence as alleged in plaintiff’s complaint, and that the injury, if any, ought to have been foreseen in the light of the attending circumstances.”
The jury returned a verdict against the appellant and from the judgment thereon it appealed.
It is contended for reversal that the court erred in permitting appellee to show that a shield or hood was placed about the saw to make its operation safer immediately after the injury to appellee and also in refusing to give appellant’s requested instruction numbered 4, and in failing to modify, as requested, instruction numbered 3, given for appellee.
It has been repeatedly held by this court that it is prejudicial error to permit proof of the fact after the occurrence of an injury, that the manner of the operation of the appliance causing it was immediately changed or the defect remedied in order to show negligence of the master in furnishing it. St. Louis, I. M. & S. Ry. Co. v Steed, 105 Ark. 205; 151 S. W. (Ark.) 259; Prescott & N. Ry. Co. v. Smith, 70 Ark. 179; St. Louis S. W. Ry. Co. v. Plumlee, 78 Ark. 148; Fort Smith Traction Co. v. Soard, 79 Ark. 393; St. Louis, I. M. & S. Ry. Co. v. Walker, 89 Ark. 556; Bodcaw Lbr. Co. v. Ford, 82 Ark. 561.
This proof of the fact of putting a shield and apron about the saw after the injury occurred did not come out incidentally as in the Ford case, supra, but appears to have been the result of persistent effort on the part of appellee’s counsel from the beginning of his opening statement to the conclusion of the introduction of testimony, finally resulting in the court allowing it to go to the jury. It can not be said that the evidence established, conclusively, negligence upon the part of the stave company in operating the cut-off saw unprotected by a shield or hood and this testimony was prejudicial and calls for r reversal of the case.
Appellant’s requested instruction numbered 4 was also a correct statement of the law and should have been given, but the case would not have been reversed for the court’s failure to give it, alone.
Instruction numbered 3 for appellee should have been modified as requested by appellant. The modification only tells the jury that the plaintiff assumed the risk if he was aware of the condition of the machinery around which he worked and the perils and dangers incident thereto.
The testimony shows conclusively that he knew the manner of the operation of the cut-off saw which was open and obvious; that he was a grown man of reasonable intelligence, and made no complaint about the operation of it without a shield or hood, and if the stave company was negligent in so operating it lie assumed the risk incident to its operation and could not hold the master liable for injuries received by Mm on account of its being operated without a hood. Emma Cotton Oil Co. v. Hale, 56 Ark. 221; St. Louis, I. M. & S. Ry. Co. v. Goins, 90 Ark. 392; Ark. Mid. Ry. Co. v. Worden, 90 Ark. 411; St. Louis, I. M. & S. Sy. Co. v. Wells, 93 Ark. 155; Mo. & N. A. Ry. Co. v. Van Zant, 100 Ark. 465; Asher v. Byrnes, 101 Ark. 201; Chicago Mill & Lbr. Co. v. Wells, 101 Ark. 537; Fullerton v. Henry Wrape Co., 105 Ark. 434; Ry. v. Edwards, 154 S. W. (Ark.), 209.
Of course the appellee did not assume the risk of the negligence of the master in piling or allowing the blocks to aeoumlate about the cut-off saw to such an extent that it was liable to strike and throw them and produce the injury that did result, unless he was aware of such negligence and appreciated the danger arising therefrom or incident thereto, as this modification told the jury. Asher v. Byrnes, 101 Ark. 201.
The court erred in refusing to modify the instruction as requested.
Instruction numbered 4, relating to the assessment of damages, is open to the objection that it seems to assume that appellee’s injury is permanent, but it could and would have been corrected if a specific objection had been made. It will doubtless not be given in the same form upon the trial anew.
For the errors designated, the judgment is reversed and the cause remanded for a new trial. | [
-16,
-18,
-100,
-115,
8,
96,
56,
-40,
65,
-91,
-25,
83,
-17,
-110,
77,
111,
-10,
125,
85,
43,
-42,
-77,
22,
-53,
-14,
-13,
115,
-43,
-67,
110,
-10,
60,
76,
52,
74,
-43,
98,
-128,
-59,
84,
-122,
4,
-69,
-21,
89,
16,
36,
-66,
-10,
11,
49,
-106,
-29,
40,
28,
-49,
43,
44,
107,
61,
113,
-71,
-78,
37,
95,
16,
-77,
38,
-98,
103,
-8,
44,
-104,
-67,
0,
-56,
112,
-76,
-125,
116,
65,
-119,
8,
102,
98,
34,
29,
103,
-24,
-72,
62,
-2,
31,
-90,
-111,
40,
11,
41,
-66,
-35,
114,
48,
52,
126,
-26,
93,
93,
108,
3,
-121,
-16,
-77,
-51,
52,
-100,
-126,
-17,
-117,
22,
113,
-35,
-86,
94,
37,
19,
95,
-98,
-102
] |
McCulloch, C. J.
This is an action on two life insurance policies issued by appellant company on the life of one John Nolen, payable to the latter’s wife, appellee, Josephine Nolen.
Each of the policies contain a clause reciting that it “is issued in consideration of the application therefor, which application is hereby made a part of this contract, and attached or copied hereon, * * * and the payment of the premimum for one year’s term of insurance and the payment of a like sum * * * on or before the 8th day of May in every year thereafter during nineteen years of the life of the insured.
On the reverse of each policy there appears the following, among other, printed clauses :
“Incontestability: This policy shall be incontestable after one year from the date of its issue, except for nonpayment of premium.”
“Statements: All statements made by the insured shall, in the absence of fraud, be deemed representations, and not warranties, and no such statements shall avoid this policy unless they are contained in the written application for insurance., a copy of which is hereto attached.”
■ Attached tó the policy is the application, in three parts, the first, the application proper, containing the name, age and occupation of the applicant; his place of birth and place of residence; a summary of all other insurance on. his life; the name-of -his -wife,’ the beneficiary, and a request for the-kind of insurance desired. That part concludes with the following clause: “I agree that this policy, together with the answers and explanations given to the above various questions, shall form the exclusive-and only basis of agreement between me and the Tennessee Life Insurance Company.”
Part 2, which was signed by the applicant, contains questions and answers concerning occupation, environments', family history-and hereditary influences, health record, clinical history,, and habits as to the use of intoxicating beverages, tobacco and narcotics.
Part 3 constitutes the report of the medical examiner.
The answer pleads as a defense, a breach of the warranties as to the truth of answers in part 2, and also pleads fraudulent misrepresentations concerning the health and habits of the deceased.
In the progress of the trial the court ruled that, by the terms of the policy, the agreement in part 1 constituted a waiver of the warranties and representations contained in part 2. Appellant saved its exceptions to that ruling, and the case was tried solely upon the issue whether deceased was in good health when the policies were delivered. The verdict of the jury settled that issue in favor of the appellee, and no question is raised here as to the sufficiency of the evidence to sustain the verdict, nor as to the instructions of the -court upon that issue.
Learned counsel on both sides devote their argument to the question whether a clause in a policy, making it incontestable from date of issue, is valid, so as to cut off the defense of fraudulent misrepresentations which operated as an inducement to the issuance of the policy;
We do not, however, find that clause in these policies. On the contrary, there is a clause, printed on the back of each policy, to the effect that it “shall be incontestable after one year from the date of its issue. ’ ’ The assured died, and this action was commenced within the year. Therefore, that clause does not come into play.
There is the question in the case, and we consider it vital, whether the agreement, contained in part 1 of the application, to the effect “that this policy together with the answers and explanations given to the above various questions, shall form the exclusive and only basis of agreement,” between the assured and the company, operated as a waiver of the falsity of answers contained in other parts, and cut off the defense of fraudulent misrepresentations contained in those parts.
That question the learned circuit judge decided in favor of appellee, and we. consider that the only ruling presented now for review.
There is a sharp division in the authorities whether or not a clause in a policy stipulating for immediate incontestability, is void as being against public policy so far as it cuts off the defense of fraudulent misrepresentation in procuring the policy. The cases on that subject are cited in the briefs of counsel.
It is contended that that question has been decided by this court in the case of National Annuity Association v. Carter, 96 Ark. 495. But an examination of the opinion of the court in that case shows that the language referred to was used with reference to warranties, and not fraudulent misrepresentations. The question is, therefore, an open one so far as this court is concerned, but, as before stated, we do not regard that question as raised here. The question upon which the trial judge decided the cause was entirely different, and we are of the opinion that his ruling was correct.
Conceding that it is against sound public policy to permit the company to stipulate for immediate incontestability, even against fraud, yet the parties, when' they come to close the contract, may stipulate for a waiver of matters which have been inquired into in the application. We see no reason why the company should not be permitted to contract that it will waive all inquiry into the truth of answers which it has had an opportunity to fully investigate. That is a different thing from waiving all inquiry as to fraud. As the company saw fit, on the application and examination of the physician, to inquire specifically into certain matters concerning the health and habits of the applicant, this gave an opportunity to make full examination concerning those matters, and the truth or falsity of the answers made by the applicant. With that opportunity for examination, we see no reason why the company should not be permitted to waive any further inquiry into those matters.
The matters and things which are brought forward by appellant in its answer as a defense, were embraced within part 2 of the application, and, therefore, fell squarely within the terms of the waiver.
That being the only question in the case, it follows that the judgment should be affirmed, and it is so ordered. | [
-80,
125,
-103,
-116,
-104,
32,
40,
18,
123,
-112,
37,
81,
-23,
-42,
4,
113,
-70,
109,
97,
106,
-75,
-93,
55,
32,
-42,
-73,
-15,
-60,
-79,
-37,
-4,
126,
12,
40,
-118,
81,
-62,
11,
-63,
90,
-110,
-123,
-103,
-24,
91,
-62,
48,
107,
84,
79,
113,
-97,
-29,
46,
29,
-50,
41,
40,
75,
41,
-48,
-32,
-117,
5,
-1,
17,
-77,
5,
-100,
15,
-54,
10,
-104,
49,
24,
-8,
50,
54,
-42,
52,
111,
-119,
-120,
102,
99,
32,
1,
-19,
-116,
-104,
39,
66,
-97,
-123,
-70,
89,
33,
12,
-73,
28,
116,
12,
-84,
-8,
124,
92,
29,
-24,
5,
-101,
-106,
-79,
79,
124,
28,
11,
-2,
7,
36,
85,
-49,
-24,
92,
15,
61,
-109,
14,
-54
] |
Wood, J.,
(after stating the facts). 1. In Hot Springs St. Ry. Co. v. Johnson, 64 Ark. 420, an instruction was given by the trial court which told the jury that “the rights of persons to pass along, over and across the streets where defendant company’s tracks are laid are equal with those of said defendant.” This court, passing upon the above declaration of law, said: “The tracks of street railways, including crossings, as well as every other portion of their tracks traversing the public streets of cities and towns, are used by the cars of such companies in common with the traveling public. No one is a trespasser for going upon their tracks. But, while this is true, the' traveling public does not have equal rights with the railway company to the use of the tracks for passing along or crossing over same. ‘Equal’ is not the word. The street cars, ex necessitate, must have, and do have, a right-of-way on their tracks, where they aloné can travel, and this right is superior to that of ordinary vehicles and travellers. This paramount or better right to the use of their tracks does not give them the right to exclude travellers, and these may move along or across these tracks at any time and place where such travelling does not interfere with the progress of the cars. Where there is a conflict, the individual traveller must yield the right-of-way. This requirement of the law is to subserve the public convenience and accommodation. As was said by the Supreme Court of Pennsylvania, it would be unreasonable that'a car load of passengers should be delayed by the unnecessary obstruction of the street railway track by every passing vehicle, horseman or footman. It is true that the travelling public and the street railway company has equal rights in using the public street. * * * But it is not correct to say that the right of the general public to use that particular portion of the public street covered by the street railway track is equal with that of the street railway company.”
The opinion in the above case does not disclose whether the injury to Johnson occurred at a street crossing, but this was wholly immaterial. The relative rights of street railway companies and pedestrians with reference to the use of that particular portion of the public street covered by the street railway tracks are precisely the same at crossings as elswhere.
The doctrine announced in Railway v. Johnson, above, is the outgrowth of a usage so universal and long continued as to ripen into law. Its object, as stated, is to subserve the public convenience. The reasons for the rule are: First, that street cars can only proceed along their tracks, whereas pedestrians, equestrians and travellers by vehicle may easily use other portions of.the street, and may readily stop or change their course. Second, the street cars, on account of their weight, momentum and motive power, can not be so easily stopped or controlled as travellers by other methods. Third, they are operated to afford the general public rapid transit, which would be greatly impeded unless, in cases of conflict, they have the right-of-way in the use of their tracks.
It is obvious, from all these considerations, that there can be no well grounded distinction between the relative rights of street railway companies and pedestrians and other travellers at crossings and between' crossings as to the use, in case of conflict, of that portion of the street covered by the car tracks. Since the public convenience is to be subserved, there is all the more cogent reason for applying the rule announced at crossings, in cities like Little Rock, for at crossings the public travel is more likely to be congested unless the rule is rigidly observed.
The authorities almost unanimously hold that street railway companies have the paramount or preferential right-of-way over other travellers in the- use of their tracks between street crossings. But there are adjudicated cases, and standard writers upon street railway law, that declare that street railways do not have the superior right-of-way on their tracks over other travellers at street crossings. Such authorities declare that at crossings neither has a superior right-of-way to the other. They say the car has a right to cross and must cross the street, and a vehicle or pedestrian has the right to cross and must cross the railway track; that their rights in this respect are equal, etc. Booth on Street Railways, § 304; Nellis on Street Railways, § 388; O’Neal v. Dry Dock, E. B. & B. R. Co., 129 N. Y. 125, 29 N. E. 84, and other cases cited in note; White in Supplement Thompson on Negligence, volume 7, § 1376; 2 Thompson on Negligence, § 1392; Joyce on Electricity, § 589.
But, while it is true that each has the equal right to cross, it by no means follows, and it can not be true, that each has the equal right to pass over the tracks at the same time where there is a conjunction in their line of travel. Necessarily, one or the other would have to yield, in case of conflict, or the public travel would be completely blocked.
We believe that the authorities which concede that street railway companies have the preferential right-of-way over their tracks between crossings, but which at the same time deny them this right at crossings, and which loosely declare that the rights-of-way over the railway track are equal at crossings, are all illogical and unsound. They ignore, or fail to discriminate between, the equal rignt to the use of the street as a public highway and the relative rights of each as to the use of that particular portion of the street occupied by the street car tracks. They overlook entirely the object of the rule of law stated in Railway v. Johnson, supra, as well as the reasons upon which it is based. The reason generally assigned by them why street railway companies have the preferential right-of-way between crossings is because pedestrians and other travellers may easily stop or turn aside from the railway track, whereas the cars can not do so. But this is only one reason for the preferential right between crossings. In assigning this as a reason, the other reasons, viz.: The difference in motive power, weight and momentum of the car, and the greater difficulty on that account in stopping and starting the same, are overlooked.
In the absence of statute or ordinance prohibiting it, travellers may cross the tracks of street railways anywhere between crossings as well as at the crossings, though at the intersection of streets the crossing by travellers is ‘much more frequent. The reasons given for the preferential right-of-way between crossings all exist as well at crossings, and a fortiori the rule should apply there in order that the general public may not be discommoded.
Answering the contention that the rule of preferential right-of-way in favor of the street car does not apply at street crossings, the Supreme Court of Wisconsin, in Stafford v. Chippewa, etc., 85 N. W. 1036, 1044, said: “That doctrine has been fully considered and rejected by this and by most courts. If it were to prevail as a measure of relative rights of a person operating a street car and a traveller upon the street, then each might run a race with the other, and the one that arrived at the crossing first demand as a matter of right that his contestant give way for him to pass. Such a system would greatly interfere with the execution of the public purposes for which street railway franchises are granted. ’ ’ The court concludes the discussion with a clear announcement and strong approval of the doctrine we have stated.
The Superior Court of Delaware, in Price v. Charles Warner Co., 42 Atl. 699, 703, holding that the doctrine applies to street crossings, says: “It would certainly be contrary to public policy and in violation of the rights of the railroad company to allow its tracks to be blocked at street crossings by the negligence of drivers of vehicles ; but a correct understanding of the rights and duties of both parties will avoid any confusion upon the subject.”
A careful consideration and analysis of the modern authorities only convices us that the doctrine as announced in Railway v. Johnson, supra, is an accurate statement of the law. See, Denver City Tramway Co. v. Norton, 141 Fed. 599, 604; Austin Electric Ry. Co. v. Faust, 133 S. W. 449; Tesch v. Milwaukee, etc. Ry., 84 N. W. (Wis.) 823, 828; McCarthy v. Consolidated Ry., 63 Atl. (Conn.) 725; see also Nappli v. Seattle Ry., 112 Pac. 89; Helber v. Spokane St. Ry., 61 Pac. 40, 41.
The first paragraph of instruction No. 1, given at appellee’s request, was the converse of the doctrine announced in Railway v. Johnson, supra. And the second paragraph, in which the court undertook to explain the doctrine announced in the first, told the jury that if appellee reached the crossing first, he had the right to use that particular part of the street, in the exercise of due care, to the exclusion of the street railway company. Under the instruction, as thus explained, the jury were warranted in finding that if appellee reached the particular point where the street car crossed the street in the line of his travel first he had the right to be there and to use that particular part of the street, if he was careful thereafter, regardless of whether or not he exercised ordinary care in arriving at that point. The law required appellee to exercise ordinary care in approaching the street crossing traversed by the street railway to ascertain whether or not a car was approaching with which he might come in collision if he proceeded in his regular course to cross the street car tracks. He could not cross the street car track at a crossing in front of a car that was approaching in its regular course without keeping his senses open to determine whether he would reach the track in front of the approaching car at the same time that the car would reach it. In other words, he had no right negligently to approach the street railway tracks at a public crossing, and by thus getting there first, claim that he had a preferential right-of-way. This follows as a necessary corollary to the doctrine above announced, declaring the superior right-of-way in the street railway company.
If a traveller, approaching a crossing, in the exercise of ordinary care, could see that a collision with an approaching car was inevitable or highly probable unless the motorman stopped the car, then it would be the duty of the traveller, under the above rule, to stop and let the car pass before endeavoring to cross, so as not to delay or impede its passage.
The instruction was misleading and highly prejudicial. Under it, no matter what may have been the negligence of the appellee in arriving at the particular spot where he was injured, if he got there first and exercised due care thereafter to avoid injury, he was entitled to recover, although if he had exercised ordinary care before arriving at the spot the injury would have been avoided.
The first paragraph of the instruction, as explained by the court in the second paragraph, was “in the teeth” of the law giving street railway companies where there is conflict the preferential right-of-way over their tracks at crossings and requiring pedestrians to exercise ordinary care in approaching crossings so as not to place them selves upon the street car tracks at the same time that the car moving along the tracks in the regular course would pass.
2. There is quite a contrariety of view among the authorities as to whether a failure to look and listen should be declared contributory negligence in any case as a matter of law, or whether it should be left in all cases as an evidentiary fact to be considered by the jury in passing upon the issue of contributory negligence. The authorities on the subject are collated in volume 3, pages 334-5-6, Am. & Eng. Ann. Cases, in a note to Birmingham Railway, Light & Power Co. v. John S. Oldham (141 Ala. 195); Orlando S. Wood v. Omaha & Council Bluffs St. Ry. Co. 22 L. R. A. (N. S.) 228. See also cases in briefs of counsel.
It would be of no practical value to review the cases, and would unnecessarily lengthen this opinion to do so.
The law is correctly stated in 36 Cyc. page 1537, as follows: “As a general rule it is the.duty of a person about to cross a street railroad track to look and listen for approaching cars in time to avoid an accident, and, if he sees an approaching car in close proximity, to stop until it passes, although he need not exercise the same high degree of care in this respect as is required in crossing a steam railroad. He must look and listen at the time and place which will be reasonably effective to afford him information of the presence of an approaching car, and ordinarily must look and listen in both directions, and must continue to look and listen until he is safely across, and if he goes along heedlessly * * * and allows his attention to become so absorbed that he gives no heed to his danger by reason whereof he is injured, he is guilty of contributory negligence precluding a recovery, notwithstanding negligence on the part of the company, unless the company wilfully or wantonly inflicts the injury, or fails to exercise ordinary care to avoid injuring him after discovering his peril. But ordinarily a person is not required to stop to look and listen before' crossing, except where the circumstances, as where the view is temporarily obstructed, are such as to require stopping in order to properly look or listen. As a general rule, however, the duty to look and listen is not an absolute duty, and it is not negligence per se to fail to look and listen for approaching cars before crossing, but such failure is negligence only when the situation and' surrounding circumstances are such that a person of ordinary prudence would have looked and listened. ’ ’
Joyce, in his work on Electric Law, in section 650, after reviewing many cases on the subject of the duty of travellers crossing electric railway tracks to look and listen, has this' to say: “At the beginning of this chapter, we have stated that the courts have not inclined to make the crossing of electric street railways subject to the same strict rules as are applied to crossing railroad tracks. In only two States are decisions to be found which favor a strict application of such rule, and in both of these States these decisions appear to be modified by later ones. In the majority of the States the rule seems to be, that it is the duty of a person about to cross tracks to look and listen and that a failure to do so is contributory negligence. ’ ’
And he concludes as follows: ‘ ‘ Ordinary care would generally require, it would seem, that a person should look both ways, or look and listen before crossing tracks, since we can conceive of but few cases where a reasonably prudent man would not exercise his powers of vision and of hearing before attempting to cross electric railway tracks; and in our opinion the degree of care defined in the different cases as necessary to be exercised varies but little, whether it be ordinary care, reasonable care, such care as a reasonably prudent man would exercise, or the requirement to look both ways, or to look and listen. So we think we are justified in stating the rule that it is the duty of the person about to cross the tracks of an electric street railway to look and listen for approaching cars, and that failure to do so is prima facie contributory negligence, not necessarily precluding recovery, but dependent as to its effect upon the circumstances of each particular case.” See also Booth, Street Railways, 311-12.
In determining whether, under the evidence, contributory negligence should be declared as a matter of law, the same rule obtains in cases of this kind, as in all other eases. If the evidence is undisputed, and men of ordinary intelligence could draw but one conclusion from it, then contributory negligence should be declared as a matter of law. But, if there is a conflict in the' evidence, or if from the undisputed evidence men of ordinary intelligence might reach different conclusions, then the isue of contributory negligence must be submitted to the jury.
Applying these familiar principles to the facts of this record, a majority of the court are of the opinion that the court properly submitted the issue of contributory negligence to the jury upon instructions free from prejudicial error. The failure upon the part of appellant’s motorman to sound his gong, as the ordinance required, in the opinion of the majority was sufficient, in connection with the other facts and circumstances in evidence to send the issue of contributory negligence to the jury, under proper instructions.
While prayer No. 3, granted at the instance of appellee, is not happily framed and can not be approved as a precedent, yet no specific objection was made to it, and in the opinion of the majority, when the prayer is taken in connection with prayers and , given at the instance of appellant, there was no prejudicial error in granting it. (The writer, however, is of the opinion that the third instruction furnished no correct guide on contributory negligence, and that appellee was guilty of contributory negligence as a matter of law in not looking and listening for approaching cars before attempting to cross the railway tracks.)
For the error in granting appellee’s prayer for instruction No. 1 the judgment is reversed and the cause remanded for a new trial.
. If you find that plaintiff was guilty of contributory negligence in attempting to cross the track in front of an approaching car, without looking or listening for the car, or using such other means to protect himself from injury, as an ordinarily prudent man would have used under like circumstances, then he can not recover, unless you further find that the motorman became aware of his peril in time to have avoided injuring him by the use of ordinary care, yet failed to use such care.
. If you find from the evidence that the plaintiff was guilty of any negligence, which directly contributed to cause his injury, if any, then he can not recover in this action, unless you further find that the defendant became aware of his peril in time to have prevented his accident and failed to do so. | [
-16,
122,
-36,
-2,
59,
96,
3,
-104,
113,
-69,
-89,
-13,
-81,
-55,
21,
49,
-9,
-9,
-13,
11,
-11,
-29,
-57,
-125,
-78,
-45,
115,
78,
51,
74,
100,
70,
76,
112,
-118,
-11,
101,
72,
77,
30,
-114,
38,
42,
97,
-109,
112,
36,
122,
84,
79,
81,
-97,
-109,
46,
24,
-59,
-24,
60,
75,
-92,
-128,
114,
-120,
-57,
124,
6,
-93,
102,
-67,
-91,
118,
8,
24,
53,
26,
120,
115,
-90,
-110,
-4,
41,
-103,
-127,
-62,
99,
-95,
5,
-25,
-100,
-95,
42,
-38,
-81,
-90,
4,
24,
67,
19,
-73,
-43,
82,
4,
103,
126,
-58,
85,
29,
-68,
-123,
-49,
-76,
-127,
-17,
-96,
-126,
69,
-21,
33,
48,
97,
-54,
58,
92,
-59,
-74,
-101,
-113,
-2
] |
McCulloch, C. J.
A written contract was entered into on February 12, 1909, between the Big Rock Stone & Construction Company, a domestic corporation, and Chatwin Bros. Rip-Rap & Contracting Company, a foreign corporation, reciting that the former owned lands and was lessee of certain other lands fronting on the Arkansas River in Pulaski County, Arkansas, and that for a certain consideration named in the contract, it gave to the last-named corporation “the right to take sand from the Arkansas River and along and in front of the land embraced in the leases recited therein, and the exclusive right to load and store same at the point where the present sand plant is located, and at a point above the rock crusher.” The contract also gave the last-named corporation “the right of ingress and egress into and over said land during the period covered by this contract,” and “the right to carry on a sand business at the point where the sand plant is now located on said premises.” The contract also contains the following clause:
“4th. The party of the second part shall have the right to use the spur tracks along the river bank for loading its cars, subject to the rules and regulations of the St. Louis, Iron Mountain & Southern Railway Company, but in so doing, it shall not interfere with the loading, unloading, or moving of cars used by the' party of the first part for quarrying or shipping its rock.”
The consideration named in the contract was that the lessee should pay to the lessor the sum of $200 per annum, and that it should deliver to the lessor certain quantities of sand per month at specified prices. The ■contract was to continue in force from the date of its execution up to September 23, 1912, unless sooner terminated by agreement of parties.
The lessee, said Chatwin Bros. Rip-Rap & Contracting Company, did not take any steps in the performance of the contract, but by written contract entered into with appellant, Mord Roberts, on February 15, • 1909, it assigned to appellant said contract with the Big Rock Stone & Construction Company in consideration of the undertaking on appellant’s part to perform said contract and to pay to said Chatwin Bros Rip-Rap & Contracting Company certain sums per cubic yard for sand and gravel delivered under the contract with the Big Rock Stone & Construction Company, etc.
Appellant proceeded in the performance of the contract and delivered sand pursuant to the terms thereof, but in July, 1910, ceased performance of the contract.
On June 21, 1911, Chatwin Bros. Rip-Rap & Contracting Company assigned all its interest in the contract with appellant to appellees, A. Gf. Chatwin and Samuel Chatwin, and the latter instituted this action against appellant in the circuit court of Pulaski County to recover certain sums of money alleged to be due under the terms of the contract.
The Big Rock Stone & Construction Company intervened in the action, asserting a claim for the amount due it under the contract, and the cause was tried before the court sitting as a jury upon the claim of appellees, A. G-. Chatwin and Samuel Chatwin, as plaintiffs, and the Big Rock Stone & Construction Company as intervener.
The court found from the testimony that appellant was indebted to the plaintiffs in the sum of $834.58, and that the intervener was entitled to recover the sum of $364.52 from the plaintiffs under the contract. Therefore, judgment was rendered in favor of the plaintiffs for said sum of $834.58, and of that sum it was adjudged that the intervener recover said sum of $364.52. An appeal has been prosecuted from that judgment.
The first point made is, that the contract was void because the Chatwin Bros. Rip-Rap & Contracting Company was a foreign corporation which had not complied with the statute of this State, authorizing it to do business here at the time the contract was entered into.
The position of counsel for appellant is based upon the contention that the act of May 23, 1901 (Kirby’s Digest, § § 832, 833), which required foreign corporations, before doing business in the State, to file, both with the Secretary of State and with the county clerk of the county where business was to be transacted, a copy of its articles of incorporation, was then in force, and that that feature of the statute was not complied with.
The General Assembly of 1907 enacted a statute, approved May 13,1907, known as the Wingo act, which prescribed a different method for foreign corporations to enter the State for the purpose of doing business, and, among other things, provided that the articles of incorporation should be filed only with the Secretary of State.
This act was a complete revision of the whole subject, and, if valid, operated as a repeal of all of the prior acts on the subject. Western Union Telegraph Company v. State, 82 Ark. 302.
The foreign corporation hereinbefore named complied with the Wingo act before it entered into the aforesaid contract with the Big Rock Stone & Construction Company, and before it attempted to do any business in this State, so far as the record in this case shows.
It is insisted, however, that the Supreme Court of the United States, in the case of Ludwig v. Western Union Telegraph Company, 216 U. S. 146, declared the Wingo act to be unconstitutional and void, and counsel for ap pellant argues that the latter act did not, therefore, repeal the former statute on the subject.
It is true that the Supreme Court of the United States held, in the case mentioned above, that the Wingo act was unconstitutional and void insofar as it attempted to impose upon a foreign corporation, as a prerequisite to its right to do intrastate business in this State, the payment of fees based upon the whole of its capital stock.
It does not follow from this that the whole act is void. Its validity was recognized by this court in the case of London & Lancashire Fire Insurance Co. v. Ludwig, 86 Ark. 581.
The first section of the Wingo act prescribed a new method for a foreign corporation to be admitted into the State by filing with the Secretary of State a copy of its articles of incorporation, etc., instead, as under the former statute, of filing both with the Secretary of State and the county clerk of the counties wherein business was to be transacted. In a subsequent section of the act a schedule of fees was prescribed, and this is the part of the act that the Supreme Court of the United States dealt with exclusively in passing on the question of the right of the State to impose fees based upon the whole of the capital stock of a foreign corporation.
Our conclusion is that the first section of the Wingo act is valid, and that a compliance with it authorizes a foreign corporation to make contracts in the State, and to bring suit in the courts of the State to enforce them.
Even under the former statute, the contract was not void. Woolfort v. Dixie Cotton Oil Co., 77 Ark. 205.
This suit was not brought by the foreign corporation itself, and it is contended on behalf of appellees that, even if the prior statute was in force, as the contract had been assigned to appellees, A. Gr. and Samuel Chatwin, they have the right to maintain suit thereon. Inasmuch, however, as we are holding that the Wingo act, the terms of which the corporation complied with, is valid and was in force at the time the contract was entered into, it is unnecessary to discuss the question of the right of ap pellees to maintain this suit, even if tested by the prior statute.
This disposes of the question raised as to the right to maintain the suit.
It is conceded by counsel for appellant that the judgment is correct to the extent that appellees were permitted to recover the sum of $402.89, which was for liability accrued up to the time that appellant ceased performance of the contract; but it is contended that the judgment for the balance of $431.69 is not sustained by the testimony. •
This contention is based upon section 4 of the original contract with the Big Rock Stone & Construction Company, which provides that the lessee ‘ ‘ shall have the right to use the spur tracks along the river bank for loading its cars, subject to the rules and regulations of the St. Louis, Iron Mountain & Southern Railway Company.”
The Big Rock Stone & Construction Company used a spur track running from the main line of the railway up to its rock crushing plant, and it also had a sand plant on this spur track with access to the river. It used the spur track for loading rock from the crusher and sand from this plant. Subsequently the railway company made a change in the track running to the plant of the Big Rock Stone & Construction Company, and after this change it discontinued the use of the main spur for loading sand at the sand plant, and refused to permit that to be done any longer. Appellant was, however, promised another spur for loading purposes if he would procure the right-of-way therefor.
It is insisted in this behalf that the contract was conditioned upon his right under section 4 to use this spur track, and that the whole consideration failed when his right to use this track was withdrawn.
We do not think, however, that that contention is sound, for a substantial privilege was granted to him aside from the use of this track, and his right to use it was, by express terms, made “subject to the rules and regulations of the St. Louis, Iron Mountain & Southern Railway Company.” The fact that the railway company saw fit to change its plans and withdraw the privilege of using this particular track for loading purposes did not absolve appellant from the performance of the contract.
Our conclusion is, therefore, that appellant was liable for the amount adjudged by the court, or, at least, that the evidence was sufficient to warrant the finding of the court as to liability to that extent.
The question of the right of the parties to contract with reference to taking sand from the bed of the Arkansas River is not presented, and we do not attempt to decide that question. Other valuable rights are conferred by this contract which were enjoyed by appellant, and the question of the right to take sand from the bed of the river has not been raised.
The judgment of the circuit court is therefore affirmed. | [
116,
123,
-38,
76,
-72,
-24,
40,
-102,
89,
41,
117,
87,
-115,
84,
12,
97,
-93,
93,
80,
106,
52,
-29,
99,
96,
-110,
-73,
-15,
-121,
-78,
73,
-68,
-41,
76,
4,
-54,
-123,
-58,
66,
-51,
30,
-34,
6,
26,
76,
-15,
65,
48,
46,
16,
-53,
81,
-113,
-13,
37,
21,
-53,
45,
62,
-19,
46,
89,
-16,
-117,
5,
125,
21,
32,
38,
-108,
7,
-24,
28,
-112,
113,
12,
-88,
83,
38,
-60,
100,
1,
-39,
-120,
106,
103,
42,
-127,
-57,
124,
-80,
4,
-38,
-119,
-90,
-44,
121,
2,
75,
-97,
28,
-38,
6,
-90,
-14,
-22,
-123,
89,
109,
-125,
-113,
-16,
-93,
47,
-68,
-100,
7,
-21,
3,
38,
116,
-116,
-94,
77,
79,
122,
-101,
7,
-15
] |
Hart, J.,
(after stating the facts). The determination of the issue raised by the appeal depends upon the question whether the defendant was upon the land of the plaintiff in the capacity of tenant or employee.
Where the owner of land makes a contract with another whereby the latter is to cultivate the land and the crops produced are to be divided between the two parties in a certain proportion, the relation of landlord and tenant may or may not result. The question whether it does result is one of intention, to be determined upon a construction of the whole instrument if the contract is in writing, or from the language used by the parties and their acts in carrying out the contract if the agreement is oral. Tiffany on Landlord & Tenant, vol. 1, p. 38. To the same effect are the following: Birmingham v. Rogers, 46 Ark. 254; Tinsley v. Craige, 54 Ark. 346; Neal v. Brandon, 70 Ark. 79.
The answer alleges in substance that the defendant is in possession of the premises under and by virtue of an oral contract of rental. That under said oral contract the defendant was to remain in and have possession of the premises and the use and occupation thereof for the year 1912 for the purpose of cultivating thereon crops of cotton, corn and hay. That defendant was to furnish all the labor to make, gather and market said crops. That when said crops were gathered and marketed the same were to be divided as follows: One-half to the plaintiff and one-half to the defendant.
It might be inferred from these facts and the circumstances surrounding the parties at the time the contract was made that it was their intention to create the relation of landlord and tenant and not that of landlord and cropper or employee. A jury might infer from the allegations of the answer that the defendant was already in possession of the land; that it was the intention of the parties that he should remain in possession and cultivate certain crops of cotton, corn and hay, and should market the same. That after the crops were sold, the defendant should make a division of the proceeds by giving one-half to thb plaintiff and retaining one-half himself. In this view of the case the defendant would have the right to the possession of the land for the year 1912 and would have the whole property in the crop until he made a division. This would create the relation of landlord and tenant between the parties and would defeat the action of the plaintiff for the recovery of the land. It may be admitted that the allegations of the answer are somewhat ambiguous and uncertain but in such cases, if the inference may be drawn therefrom by a fair intendment that facts exist sufficient to constitute a ground of defense, the defect must be corrected by a motion to make more definite and certain and not by demurrer. Bush v. Cella, 52 Ark. 378; Citizens’ Bank of Mammoth Spring v. Commercial National Bank of Chicago, 107 Ark. 142, and cases cited.
It follows that the judgment must be reversed and the cause remanded for a new trial. | [
-48,
126,
-35,
13,
10,
96,
42,
-40,
97,
-93,
39,
87,
-19,
-37,
24,
41,
-77,
125,
81,
104,
87,
-77,
1,
65,
-16,
-5,
-38,
85,
-67,
77,
-25,
92,
12,
20,
-62,
-41,
-30,
-62,
-63,
92,
-114,
-121,
-117,
108,
-108,
64,
48,
42,
88,
74,
32,
-114,
-5,
44,
17,
-57,
-51,
46,
11,
49,
113,
-8,
-82,
13,
111,
6,
49,
36,
-100,
-93,
-8,
76,
-112,
57,
1,
-56,
51,
54,
-122,
84,
31,
-103,
-120,
102,
103,
32,
109,
-21,
-6,
-101,
46,
-2,
-115,
-90,
-112,
88,
11,
64,
-100,
-97,
126,
4,
-25,
126,
-9,
-99,
31,
109,
3,
-113,
-42,
-77,
39,
104,
-102,
9,
-49,
3,
49,
97,
-49,
-94,
92,
69,
114,
-37,
-97,
-44
] |
McCulloch, C. J.
The plaintiff (appellee) in each of these cases owns land situated within the territorial boundaries of the Crawford County Levee District as prescribed by the special statute creating that district, and they instituted separate actions in the chancery court of Crawford County to enjoin the collection of assessments.
The act of March 15, 1909, creating the district, provides that the directors shall “assess and levy, annually, a tax upon the valuation as it shall appear each year upon the real estate assessment book of Crawford County, Arkansas, upon all lands and real estate within said district. ’ ’
That method of assessment was declared to be valid by the decision of this court in the case of Alexander v. Board of Directors, 97 Ark. 322, as being a legislative determination that benefits to real property in the district will accrue in proportion to the value thereof assessed for State and county taxes. That method of assessment has likewise been upheld by this court in numerous cases. St. Louis Southwestern Ry. Co. v. Grayson, 72 Ark. 119; Porter v. Waterman, 77 Ark. 383; St. Louis Southwestern Ry. Co. v. Board of Directors Red River Levee District, 81 Ark. 562.
The legislative determination is conclusive and can not be reviewed by the courts unless there has manifestly been an arbitrary abuse of the power.
The last expression of the court on that subject is found in the case of St. Louis, Iron Mountain & Southern Ry. Co. v. Board of Directors, 103 Ark. 127, where the former decisions on the same subject are cited.
In Moore v. Board of Directors of Long Prairie Levee District, 98 Ark. 113, we said:
“Only an arbitrary and manifest abuse of power by the Legislature would be reviewed, and not merely mistakes of judgment. To hold otherwise would be to take away from the law-makers the powers committed to them and to substitute the judgment of the courts, requiring the latter to review every matter alleged to have been erroneously determined by the Legislature. ’ ’
In Salmon v. Board of Directors, 100 Ark. 366, the court said:
‘‘The Legislative branch of the Government, is, as we have said in several cases, the sole judge in the matter of creating improvement districts of this character, in establishing the boundaries thereof, and in determining, or in providing means for determining, the amount of assessments based on benefits, and the -courts will not interfere unless an arbitrary and manifest abuse of the power is shown. Mere mistakes of the law-makers, or of those empowered by the law-makers to make assessments, in fixing the amount or rate of assessment, will not be reviewed and corrected by the courts.”
Now, in the present cases, it is conceded that the lands of the plaintiffs will receive some benefit from the construction of the levee; but it is contended that the lands will not be benefited in the same proportion, and that the basis of assessment is unjust.
The cases fall, however, squarely within the principle announced in the decisions cited above, and to sustain the contention of plaintiffs is to overrule those cases.
The most that can be said, from the proof in these cases, is that, according to the preponderance of the evidence, the lands of the plaintiffs will not be benefited as much as other lands in the district, and that the benefits from the construction of the improvement will not accrue to the lands in the same proportion as other land values. So, the contention, after all, is that the Legislature has made a mistake of judgment in determining that the benefits will accrue in proportion to value, and that that is a fair and just basis.
The controlling principle in such cases can not, we think, be stated any clearer than has been done in many of our previous decisions, and, as before indicated, to decline to apply those principles in these cases would be to overrule those decisions, which have been steadily adhered to. Absolute equality and uniformity in matters of taxation are unattainable, and substantial or approximate equality and uniformity is all that the Constitution requires. Shibley v. Fort Smith & Van Buren Bridge Dist., 96 Ark. 410.
Our conclusion, therefore, is that the chancellor, in each of the cases, erred in holding that the assessment was invalid. For that reason, the decree in each case is reversed, and each cause is remanded with directions to enter decree dismissing the complaint for want of equity. | [
-10,
-54,
-4,
-20,
-24,
-64,
24,
-128,
72,
-93,
117,
83,
-81,
72,
4,
101,
-30,
61,
-59,
104,
-28,
-78,
3,
96,
-102,
-77,
-71,
71,
-69,
-33,
-12,
-12,
76,
49,
-54,
-11,
70,
96,
-51,
-100,
-114,
-117,
-118,
77,
-63,
64,
60,
99,
18,
75,
117,
-97,
-21,
40,
28,
-62,
73,
44,
-55,
45,
80,
-6,
-102,
31,
95,
17,
1,
38,
-104,
1,
-54,
26,
-104,
49,
-114,
-24,
127,
38,
-122,
84,
77,
-103,
8,
36,
102,
24,
41,
-17,
-72,
-87,
14,
-97,
-55,
-90,
-46,
89,
66,
79,
-106,
-100,
76,
70,
6,
126,
-25,
-123,
-33,
44,
-113,
-18,
-106,
-91,
7,
125,
-47,
67,
-37,
-93,
48,
113,
-115,
-46,
94,
71,
19,
27,
-58,
-112
] |
Hart, J.,
(after stating the facts). The indictment alleges that the assault was made unlawfully and feloniously, with malice aforethought, and after premeditation and deliberation. This was sufficient, and the court did not err in refusing to sustain the demurrer to the indictment. Section 1588 of Kirby’s Digest; Dillard v. State, 65 Ark. 404.
The defendant in his motion for a new trial assigns as error the action of the court in admitting certain evidence. We do not deem it necessary to set out the testimony or more particularly refer to it. It is sufficient to say that we have examined the transcript and it does not appear that the defendant excepted to the ruling of the court in admitting it. Under our rules of practice, the defendant must first object to the introduction of evidence and, if the court admits the evidence over his objection, he must except to the ruling of the court. This the defendant did not do and we can not consider his objection. Walker v. State, 39 Ark. 221; Burris v. State, 38 Ark. 221; Green v. State, 38 Ark. 304; Meisenheimer v. State, 73 Ark. 407.
The record shows that the defendant’s wife first claimed that her husband cnt her with a razor and afterwards testified in the examining court that he did not cut her and that she did not know who did cut her. Because of her change in testimony, she was indicted for perjury. At the beginning- of the tiial the defendant agreed to try this case at the same timé and together with the perjury case against his wife. He now contends that, although he consented to do this, the action of the court in permitting it was error. The precise question has never been determined by this court and, so far as our examination discloses, by any other court. In the case of McClellan v. State, 32 Ark. 609, two separate indictments were returned against the same defendant, and, by his consent, he was tried upon both indictments at the same time. The case was reversed for other reasons and the court said that the trial of the defendant upon both indictments at the same time was an irregularity, to say the least of it, and that such practice would certainly produce great confusion ancl uncertainty and should be condemned. It must be conceded that irregularities come at first by degrees and are tolerable because no perceptible injury has followed the ■ first step, and such practice should not be allowed by the trial court. It does not follow, however, that the judgment below should be reversed alone on the ground of the irregularity here mentioned. The court had jurisdiction to try the charges made by the indictments against both parties, and had obtained jurisdiction over the persons of both of them. McDonald v. State (Ark.), 149 S. W. 95. Although they were indicted separately, the same facts were involved in the trial of both cases. While the court would have no authority against the objection of the defendant to try the cases together, yet as the record affirmatively shows. the defendant expressly consented to it, and inasmuch as the record does not show he was prejudiced thereby, he can not now be heard to complain of the action of the court which was superinduced by him. Lucas v. State (Ala.), 3 L. R. A. (N. S.) 412. In discussing a somewhat similar question, in the case of Parker v. The People, 4 L. R. A. 803, the court said:
“While this order is not very happily expressed, it shows that the cases were consolidated for trial upon motion of the defendants. Why the consolidation was asked, we are not advised. It may have been for the purpose of saving expense to the defendants, or for some expected benefit to arise to them from having all the cases submitted to a particular jury; it is sufficient for the purposes of the ease for us to know that the consolidation was ordered to accommodate the defendants; and they can not be heard to complain of this action of the court induced by their request.”
The defendant also assigns as error the action of the court in admitting the testimony of his wife. Her testimony was admissible under section 3092 of Kirby’s Digest, which is as follows:
“In any criminal prosecution a husband and wife may testify against each other in all cases in which an injury has been done by either against the person or property of either.”
The testimony on the part of the State was sufficient to show malice on the part of the defendant and would have warranted a conviction of the defendant of murder if the death of his wife had ensued from the assault. Therefore, there was sufficient evidence to warrant a conviction of assault with intent to kill. Young v. State, 99 Ark. 407. The instructions, given by the court were fair to the defendant and fully covered every phase of the charge embraced in the indictment.
The judgment will be affirmed. | [
-80,
-3,
-87,
-67,
40,
-32,
42,
-88,
-40,
-125,
109,
115,
-17,
-38,
12,
127,
58,
123,
84,
105,
84,
51,
55,
65,
-10,
-13,
114,
87,
51,
79,
-10,
-68,
84,
-16,
-62,
-43,
102,
74,
-59,
-36,
-126,
-116,
-87,
100,
-46,
64,
100,
37,
84,
15,
113,
-97,
-13,
42,
23,
71,
105,
46,
79,
127,
-64,
113,
-104,
13,
-35,
0,
-79,
38,
-67,
35,
-8,
62,
-104,
49,
1,
-68,
50,
-106,
-126,
118,
77,
27,
-116,
98,
98,
33,
-19,
-49,
28,
-120,
63,
62,
61,
-90,
16,
65,
105,
44,
-74,
-35,
34,
112,
14,
-24,
-32,
-52,
89,
108,
9,
-49,
-110,
-77,
-55,
116,
-102,
3,
-13,
-123,
16,
113,
-51,
-30,
92,
97,
18,
-5,
4,
-95
] |
Kirby, J.,
(after stating the facts). Appellants contend that the court erred in not directing a verdict in their favor and are right in so doing.
The undisputed testimony shows that the stallion was not “a satisfactory sure breeder” as warranted, but it also shows that appellees gave no notice to appellants of a breach of the warranty nor did they return or offer to return the horse to the seller and receive another of equal value in his place by August 1, 1908, as they were required to do by the terms of the contract or at all. Neither was there any testimony tending to show a waiver by appellants of this condition. The written contract expressed the terms of the warranty and provided the remedy that should accrue from a breach of it which was exclusive of any other mode of compensation and afforded the only relief to which they were entitled. Not having complied with the said condition on their part, nor shown a waiver thereof on the part of appellants, they will be held to have accepted the stallion as in all respects complying with the warranty and bound to the-payment of the balance due on the note for the purchase money. Highsmith v. Hammonds, 99 Ark. 400. See also Walters v. Akers, 101 S. W. (Ky.), 1179; Wisdom v. Nichols & Shepherd Co., 97 S. W. 18.
The court erred in not directing a verdict for appellants and its judgment is reversed and judgment will be entered here for them in the sum sued for. It is so ordered. | [
-77,
124,
-35,
-83,
72,
96,
42,
-102,
65,
-113,
39,
83,
-49,
-121,
16,
107,
-26,
109,
96,
98,
84,
-93,
118,
112,
-46,
-45,
-37,
85,
-75,
108,
-16,
124,
68,
32,
-86,
-43,
-26,
-118,
-59,
80,
-22,
5,
31,
108,
-7,
112,
48,
91,
20,
75,
33,
-114,
99,
38,
29,
87,
108,
40,
-21,
45,
-64,
112,
-69,
5,
127,
12,
49,
52,
-68,
39,
-56,
110,
-112,
49,
1,
-56,
83,
-74,
-126,
116,
9,
9,
8,
102,
110,
33,
76,
-51,
-36,
-100,
47,
95,
15,
-90,
-110,
88,
34,
97,
-74,
-99,
24,
66,
-89,
-2,
-29,
-99,
29,
32,
3,
-113,
-106,
-89,
-81,
102,
-102,
13,
-17,
-121,
23,
113,
-49,
-22,
93,
69,
54,
-101,
-113,
-66
] |
McCulloch, C. J.
This is a companion ease to Wulff v. Claibourne, 107 Ark. 325, 155 S. W. 497, and every point now raised is concluded by the decision in that case, except the one that the appeal from the county court should have been dismissed because the affidavit for appeal was not filed until four days after the appeal was granted by tbe county court. That question was not, however, raised in tbe circuit court, and can not be raised bere for tbe first time. Appellant filed a motion in tbe circuit court to dismiss tbe appellee’s appeal from tbe county court, and assigned numerous grounds for dismissal, but did not raise any question as to failure to file an affidavit before tbe order was made granting tbe appeal. Tbe first time tbis was referred to was in tbe motion for new trial filed several days after tbe final judgment of tbe circuit court was rendered upon tbe merits of tbe cause.
Tbe filing of an affidavit was a prerequisite (Walker v. Noll, 92 Ark. 148), but was waived by appellant’s appearing and taking substantive steps without moving to dismiss tbe appeal on that ground. Ex parte Morton, 69 Ark. 48; Stricklin v. Galloway, 99 Ark. 56.
Tbe judgment of the circuit court is therefore affirmed. | [
116,
-22,
-3,
28,
104,
-31,
50,
-68,
64,
-89,
45,
115,
111,
-38,
12,
127,
-29,
11,
101,
121,
-33,
-73,
55,
73,
98,
-74,
1,
87,
-13,
-53,
-26,
62,
76,
112,
-22,
-43,
68,
72,
-121,
90,
-50,
-124,
-117,
-20,
65,
-38,
32,
-29,
90,
15,
49,
-106,
-30,
43,
29,
-61,
104,
44,
73,
45,
90,
48,
-118,
69,
95,
22,
-79,
-42,
-110,
0,
120,
46,
-104,
-79,
3,
-8,
50,
-74,
-122,
116,
106,
25,
8,
110,
98,
1,
17,
-17,
-84,
-88,
14,
62,
29,
-90,
-72,
25,
75,
13,
-122,
-99,
93,
48,
5,
126,
106,
77,
24,
108,
0,
-113,
-112,
-73,
47,
108,
20,
19,
-29,
19,
20,
33,
-59,
-26,
90,
71,
49,
-37,
-58,
-106
] |
McCulloch, C. J.
The plaintiff, Anna B. Campbell, is the owner of a quarter section of farm land located near the town or village of Tupelo, in Jackson County, Arkansas. She purchased the same from one J. M. J ones in the year 1900. Prior to that time, in the year 1885, the plaintiff’s grantor had executed to the White & Black River Valley Railroad Company a deed conveying a right-of-way fifty feet in width through said tract of land running twenty-five feet each way from the center of the railroad track. The railroad was constructed by said railroad corporation along the center of the right-of-way, and has been occupied as such to the present time, said railroad property, including the roadbed, right-of-way, etc., having passed by mesne conveyances to, and is now owned and operated by, the Chicago, Rock Island & Pacific Railway Company.
The abutting land owners, including the plaintiff, have continued, without objection from the company, to cultivate the lands up to or near the roadbed.
During the year 1903, the Patterson Telephone Company constructed a telephone line, parallel with said railroad, to the city of Newport, Ark., and in doing so, crossed tins tract of land owned by the plaintiff.
The court, on the hearing of the present cause, found from the proof that there were ten of the poles along the front of plaintiff’s land, all of which were upon the right-of-way of the railroad company except three, which were just off the right-of-way and a few feet on the plaintiff’s land.
The telephone line had been operated along there, as originally constructed, up to the date of the trial of this cause, and no compensation has been rendered to plaintiff for right-of-way across her land.
The Patterson Telephone Company sold out to the Southwestern Telegraph & Telephone Company, and in November, 1910, the plaintiff instituted this action in the chancery court of Jackson County against the latter to recover damages alleged to have been sustained in the sum of $1,000 by reason of the maintenance of said telephone poles over and along plaintiff’s land, and to have a lien declared on the telephone line for the amount of damages recovered.
The Southwestern Telegraph & Telephone Company filed an answer, and also a cross complaint, asking that the Patterson Telephone Company, its grantor, be made a party to the action, which was done, and an answer was filed by that corporation.
On final hearing of the cause, the court found from the testimony that only three of the poles were on plaintiff’s land, the others being on the right-of-way of the railroad company; that the said three poles were placed on plaintiff’s land by mistake, the intention being to follow the right-of-way of the railroad company; that the defendants had offered to remove said three poles, and the court rendered a decree allowing the said Southwestern Telegraph & Telephone Company sixty days within which to remove the telephone poles from plaintiff’s land, and directed the defendants to remove them within that time. The decree also was that plaintiff take nothing by the suit, and that the costs of the case be divided so that the plaintiff pay the costs incurred by her, and the defendants to pay their own costs. The plaintiff has prosecuted an appeal from that decree.
The evidence is sufficient to sustain the finding of the chancellor that only three of the telephone poles were located on plaintiff’s land, the others being on the right-of-way of the railroad company.
Plaintiff’s husband and agent testified that when he purchased the land for plaintiff he did not know the width of the right-of-way, and was, therefore, not advised that the railroad company had a right-of-way to the extent of twenty-five feet on each side from the center of the track.
The right-of-way deed was not placed of record until after J. M. Jones conveyed the quarter section of land to the plaintiff; hut the railroad had been constructed and the company’s occupancy of the roadbed was sufficient to put all persons on inquiry as to the extent of its right-of-way. Plaintiff, when she purchased the land, was chargeable with notice- of the extent of the railroad company’s rights.
The question whether the railroad company had' the right to grant a right-of-way to the telephone company does not arise, for the plaintiff’s occupancy up to the edge of the roadbed was a permissive one, and she can not claim damages for obstructions upon the land which the railroad company had the right to occupy. So tong-as the railroad company occupied any portion of its right-of-way it had the exclusive use and right of control coextensive with the boundary described in its deed. Ritter v. Thompson, 102 Ark. 442.
Plaintiff can not, therefore, recover damages for obstruction to the use of land embraced in the right-of-way.
The three telephone poles on plaintiff’s land were near the outer line of the right-of-way, and the evidence does not establish more than nominal damages to the plaintiff. The plaintiff directed all of her proof to establishing the amount of damages sustained by reason of ten poles running through cultivated land and the effect that the presence of the poles and wires would have upon town lots into which she expected to subdivide the land. The testimony of the witnesses which she introduced tended to show substantial damages upon that theory; but their testimony is without any force in establishing damages on account of three of the poles near the line of the right-of-way.
We are, therefore, of the opinion that the court was correct in refusing to assess any damages on account of the presence of the three poles which were ordered to he removed within sixty days.
The chancellor had the power to separate the costs of the litigation and tax the same against the respective parties according to the justice of the case; and it does not appear that there was an abuse of discretion in this case in so dividing the costs. City Electric Street Railway Co. v. First National Bank, 65 Ark. 543.
The plaintiff was entitled to recover nominal damages; but this court will not remand the cause for the recovery of nominal damages. Crutcher v. Choctaw Oklahoma & Gulf Rd. Co., 74 Ark. 358.
The rule in an action at law is, that-, on appeal to this court, where nominal damages should have been recovered, the judgment will be reversed and judgment for costs rendered here in favor of appellant; but the rule is otherwise in equity, where this court, as well as the chancellor, may exercise discretion in awarding costs. The decree is, therefore, affirmed. | [
-80,
124,
-68,
-116,
-88,
-28,
24,
24,
123,
-93,
-28,
83,
-83,
68,
16,
61,
-29,
93,
65,
105,
118,
-78,
2,
99,
27,
-109,
-77,
-57,
-79,
75,
-28,
-42,
77,
16,
-54,
93,
69,
64,
-49,
-100,
-114,
-125,
-55,
108,
121,
64,
52,
123,
86,
79,
113,
-97,
-13,
46,
21,
-29,
72,
46,
109,
-87,
89,
123,
-118,
30,
95,
22,
1,
100,
-104,
-125,
106,
26,
-104,
53,
8,
-72,
115,
38,
-122,
84,
65,
-103,
8,
36,
102,
41,
-19,
-1,
108,
8,
7,
-66,
-111,
-89,
-24,
105,
67,
67,
-69,
-107,
72,
-43,
7,
-2,
-6,
-59,
16,
44,
1,
-113,
-112,
7,
39,
-92,
-107,
51,
-21,
35,
52,
96,
-51,
-14,
93,
79,
62,
-101,
94,
-3
] |
Smith, J.
The Dyer Trading Company brought suit by attachment against the McCoy-Kessinger Lumber Company, in the circuit court of Sebastian County for the Fort Smith District. On that day, and thereafter, a number of suits were filed in the justice courts against the lumber company, which suits were removed to the "circuit court and consolidated with the case of the trading company, and tried as one case.
Appellant, J. W. Smith, filed an interplea in the circuit court, claiming the lumber attached under a chattel mortgage given to him by the McCoy-Kessinger Lumber Company, prior to the commencement of any of the suits. Judgment was rendered against appellant, dis missing Ms interplea, and lie brings this appeal. The property mortgaged to Smith was described as follows:
“Fifty thousand feet of cottonwood lumber of the last sawing to include the following grades: First and second narrows; first and second wide; narrow box, No. 1 common, and No. 2 common. To be kept on the Frank Wright farm at the site of the sawmill on Arbuckle Island in Sebastian County, Arkansas. ’ ’
TMs mortgage was dated the 6th day of July, 1912, and was executed to secure a note of that date for $500, and the attachments were levied upon the mill on July 27, 1912. The trial below was before the court, sitting as a jury, and about twenty consolidated cases were tried as one, and while the court made no special finding of fact, it did find against appellant’s interplea and dismissed it, and this appeal is prosecuted from that judgment.
Some questions of pleading are raised, which need, not be considered under the view we have of this mortgage. The proof shows that there was lumber upon the yards on the dáy the mortgage was given, and that the mortgagors continued to operate the mill from that date until it was closed down by the attachment, during all of which time the lumber was sMpped away as it became dry enough to ship. There were on the yard on July 22, about 99,000 feet of lumber and between 50,000 and 60,000 on the day of the attachment. Appellant says this is not the case of a mortgagor, left in possession of merchandise, which he had mortgaged and was selling in the regular course of business, but the contention is that the mortgage conveyed only a particular 50,000 feet and that to be of the last sawing, and that this was such a description as would enable third persons, aided by inquiries, which the instrument itself suggests, to identify the property. If tMs was true, the description would have been sufficient and the mortgage valid. Gurley v. Davis, 39 Ark. 394; Johnson v. Grissard, 51 Ark. 410.
But this was not such a description. The fact that the lumber had not been sawed when the mortgage was executed is not controlling. For in the case of Morton v. Williamson, 72 Ark. 390, a mortgage was held valid where the property conveyed was described as follows: “All the lumber and logs now on the ground, and all that may be put on the grounds and sawed by us, until final settlement of our account with Williamson Bros.” And the court there said: ‘ ‘ The lumber though not in existence, when the mortgage was executed, was clearly in contemplation of the parties to the mortgage. Wright v. Bircher, 72 Mo. 188. There is no reason for any distinction between a mortgage of future crops to be grown by the mortgagor, and a mortgage of lumber to be manufactured in the future.” This was said notwithstanding the fact that a special statute gives validity to mortgages on future.crops. Kirby’s Digest, § 5405.
But this mortgage was unlike the one in that case. There the mortgage covered all the lumber sawed up to a certain time; here the mortgage was ‘£ of the last sawing.” On the 22d of July, there were 99,000 feet of lumber on the yard, which would otherwise fill the description of this lumber mortgaged, had the mill suspended operation that day, yet none of it would have been conveyed had as much as 50,000 feet been sawed thereafter before the mill was closed down by the attachments, as may indeed have been the case.
Such mortgages are void because the description is ambulatory and the judgment of the circuit court is accordingly affirmed. Gauss Sons et al. v. Doyle & Co., 46 Ark. 122; Dodds v. Neil, 41 Ark. 70; Krone & Co. v. Phelps, 43 Ark. 350; Person v. Wright & Montgomery, 35 Ark. 169. | [
112,
110,
-68,
-115,
24,
-32,
40,
-72,
90,
-31,
-28,
83,
-51,
-58,
9,
117,
-31,
29,
85,
104,
-26,
-109,
115,
99,
-45,
-13,
-69,
-41,
-72,
75,
-91,
-34,
76,
60,
66,
-51,
-90,
-112,
-49,
-100,
78,
-128,
-83,
-20,
-35,
64,
58,
-85,
53,
74,
97,
46,
-6,
45,
29,
75,
9,
46,
-17,
41,
-48,
-7,
-102,
30,
95,
22,
49,
116,
-104,
19,
72,
14,
-48,
53,
-120,
-23,
112,
-76,
-58,
116,
45,
-119,
12,
34,
98,
34,
-91,
-17,
92,
-40,
46,
-10,
-99,
-90,
-128,
88,
19,
10,
-66,
-97,
-2,
16,
-106,
122,
-90,
45,
-112,
104,
7,
-113,
-76,
-90,
15,
-80,
-100,
19,
-22,
-122,
48,
113,
-49,
-86,
93,
69,
49,
27,
-121,
-7
] |
McCulloch, C. J.
Separate actions were instituted in the circuit court of St. Francis County against appellant, Western Union Telegraph Company, by the sender and the addressee, respectively, of a message, to recover damages for mental anguish sustained by reason of negligence of the company in failing to transmit and deliver the message with diligence. The message was sent from Byhalia, Mississippi, to Forrest City, Arkansas, by one of the appellees, acquainting the other, who was his brother, of the death of their mother at Byhalia. The message was sent promptly from Byhalia, and was received at 6:30 o’clock p. m. at Forrest City, but was not delivered to the addressee until 8:15 o’clock the next morning. According to the undisputed testimony, the office hours of appellant for the receipt and delivery of messages were from 8 a. m. to 6 p. m. The telegraph office was kept open at night for railroad business, and what is termed commercial telegrams were sometimes received during the night for convenience, but were held for delivery until the office was opened the next morning. No messenger for the delivery of telegrams was kept in attendance during the night. The addressee lived in the town of Forrest City, and had a telephone in his residence.
The cases were tried separately and resulted in separate verdicts for the appellees.
Both cases are controlled by the same questions of law and will be disposed of in one opinion.
The court correctly instructed the jury that the company had the right to prescribe reasonable hours for receiving, sending and delivering messages, and that there could be no recovery for delay in delivering messages during the night. All question of negligence after the message was received at Forrest City was properly eliminated from the case. Western Union Telegraph Co. v. Harris, 91 Ark. 602.
The night operator at Forrest City, whose duty it was to receive messages, could have delivered the message to the addressee by telephone, and if there was any legal duty devolving upon him to make delivery during the night, the jury would have been warranted in finding that there was negligence. But the company had the right to prescribe rules for office hours, and to withhold the imposition of any duty upon the part of its employees to deliver messages during the hours of the night, and under those circumstances the company can hot be held liable for failure of the night operator to deliver the message during the hours prescribed for closing the office. The failure of the operator to deliver the death message, which he could have conveniently done by telephone, ivas, under the circumstances, inexcusable, viewing his acts from the standpoint of moral duty to his fellow man; but the delivery of the message during the hours of the night did not fall within the line of his duty prescribed by his employer, and as the latter had the right to prescribe reasonable hours, it is not responsible for the failure of its servant to make the delivery. Any other conclusion on that point would nullify the right of the company to prescribe the hours for receiving and delivering messages.
There is some testimony tending to show that the sender of the message was misled by the operator at Byhalia’ into believing that the message had been promptly sent and would be delivered immediately to the addressee at Forrest City; and it is suggested that this brings tbe case within, tbe rule announced in Western Union Telegraph Co. v. Harris, supra, where we held that a telegraph company was liable for negligent failure of the sending operator to inform the sender of necessary delay on account of the delivering office being closed, thus preventing the sender from adopting other means of communication with the addressee. If there was any negligence in that respect it occurred in the State of Mississippi, where the contract was entered into, and in that State, mental anguish on account of nondelivery of a telegram is not an element of recoverable damages. Western Union Telegraph Co. v. Griffin, 92 Ark. 219; Western Union Telegraph Co. v. Crenshaw, 93 Ark. 415; Western Union Telegraph Co. v. See, 94 Ark. 86.
The rule established by those cases is, that damages may be recovered on account of mental anguish where the contract for transmission of an interstate message was made in this State, or where the act of negligence occurred in this State, even though there could be no recovery in the State to or from which the message was sent. But, conversely, there can be no recovery on account of negligence in the transmission of such a message unless the contract was made in this State, of the act of negligence occurred here.
There are other questions urged affecting the liability of the company in each of these cases, but as the questions already discussed are controlling, it is unnecessary to discuss them. According to the undisputed facts in each case, the appellees are not entitled to recover damages. The judgment in each case is therefore reversed and the cause dismissed. | [
-80,
-40,
-72,
-99,
42,
96,
10,
26,
114,
-111,
-92,
83,
-119,
-27,
29,
113,
-85,
57,
-16,
107,
-12,
-106,
7,
98,
-54,
-45,
39,
-121,
19,
75,
-20,
-34,
77,
48,
74,
17,
70,
74,
-55,
-98,
-50,
-123,
73,
-32,
89,
-109,
52,
104,
20,
75,
85,
-98,
-10,
42,
28,
74,
105,
59,
105,
-103,
-39,
-15,
-118,
7,
125,
16,
-95,
70,
-104,
-121,
-23,
28,
-104,
53,
-112,
-72,
112,
-73,
-122,
-12,
35,
-103,
-116,
102,
102,
32,
13,
-25,
-120,
-120,
15,
-74,
-107,
-89,
-92,
41,
43,
13,
-106,
21,
106,
84,
-122,
120,
-70,
21,
17,
108,
3,
-113,
-48,
-89,
47,
124,
-106,
-65,
-5,
55,
48,
113,
-50,
-94,
92,
87,
26,
-101,
-114,
-107
] |
■ Wood, J.,
(after stating the facts). Appellant filed a motion to vacate the order of court reciting waiver of arraignment and the entry of a plea, and the order setting the case for trial on a certain day, alleging that the appellant had no counsel to represent him at the time, and that he was therefore ignorant of the effect of the waiver of arraignment and the purported entry of the plea, and the setting of the case for hearing, etc.
The record recites that, “On this day comes the State of Arkansas, by her attorney, C. M. Erwin, and comes said defendant in his own proper person, in custody of the sheriff of Jackson County, and by his attorneys, Phillips, Hillhouse and Boyce.”
The record itself refutes the motion of the appellant. There is no sufficient showing to impeach the recitals of the record. Moreover, appellant is not shown to have been prejudiced by the matters set up in the motion, even if they were true. The matters complained of are matters proper to be shown in the record entries. The court did not err in overruling the motion to vacate.
The appellant moved to continue the case on account of the absence of witness, Will Roddy, alleging that Roddy was present at the time Neely was killed, and would swear that Neely was advancing upon appellant in a threatening manner with a knife drawn. Appellant alleged’that he had used due diligence to procure the attendance of the witness, and that the witness was not absent by the consent, procurement or connivance of appellant; that the witness was within the jurisdiction of the court, and that appellant could procure his attendance at the next term.
Appellant sets up, in addition to the formal grounds for a continuance, that he could not procure counsel to represent him, and that the counsel who did represent him were appointed by the court, and that they did not' understand that they were to have the full responsibility of representing the defendant until Monday, February 24, 1913, and that the cause was set down for trial on February 25, 1913, that his attorneys, therefore, had not had sufficient time to prepare for his defense; that they had not had time to subpoena witnesses, nor to consult with the witnesses, nor to consult with the defendant with reference to his trial in time to have the witnesses present that were necessary to his defense.
When the motion for a continuance was filed, with its supporting affidavits, the court postponed the trial until March 5, 1913. The appellant then renewed the motion for a continuance, setting up substantially the same facts shown in his first motion.
The sheriff, who had a subpoena for the absent witness, Will Eoddy, testified that he had made an effort to serve him, and he had learned from his deputies and others that he was out of the State. He said he had used due diligence in trying to locate him ever since he had had the subpoena; that he didn’t go to the home of Will. Eoddy in Newport, nor to his usual place of abode, and didn’t know that Will Eoddy was out of the State, but to the best of his knowledge, he knew that he was not in Jackson County. Other witnesses testified that they were told by Will Eoddy, after the killing, that he was going to Missouri.
The court overruled the original motion for a continuance, and postponed the trial to another day in the term, and when the case was called on the day appointed, appellant filed a supplemental motion, as we have stated, and offered to introduce the testimony of Will Eoddy’s wife to the effect that she had recently heard from Eoddy, and that she was expecting him home soon; and appellant' alleged that he had sent several telegrams to Eoddy at different places, and had received information that he. was working on the railroad at Malden, Missouri, and appellant exhibited a telegram showing that the gang with whom Roddy was supposed to be working had gone south from Malden, Mo., and that Malden was just north of the Arkansas State line, and contended that, therefore, Roddy was now within the jurisdiction of the court. The court declined to hear the testimony, and overruled the motion.
It was within the discretion of the court to overrule the motion for a continuance upon the showing made. The court doubtless concluded that there was no certainty of procuring the attendance of the witness at the next term of the cQurt for the reason that said witness was beyond the jurisdiction of the court.
The testimony was sufficient to warrant the court in finding that witness, Roddy, was in Missouri, or that his whereabouts were unknown, and that there was no reasonable certainty of procuring his attendance if the case were postponed. The court heard the evidence, and we can not say that he abused his discretion in overruling the motion for a continuance.
The court did not err in refusing to instruct the witnesses not to talk about the case among themselves while in the witness room. The matter of excluding witnesses from the court room while they are not on examination is within the sound discretion of the court, and will not be reviewed when no abuse of discretion is shown. Marshall v. State, 101 Ark. 155. When witnesses are put under the rule, it is customary and the better practice to instruct them not to talk to each other about the case, but it is entirely within the discretion of the trial judge having supervision of the matter and knowledge of the witnesses and their surroundings as to whether such instructions are necessary to the ends of justice; and where such instructions are not given the witneses we must presume, in the absence of a showing to the contrary, that it was not necessary in order to secure to the appellant a fair and impartial trial. There is nothing in the record to show that the substantial rights of the appellant were prejudiced by the court’s ruling in this respect.
During the taking of the testimony, a witness was asked the following by defendant’s counsel, on cross examination, concerning the deceased: “Did Neely drink?” The question was objected to by counsel for the State, and the court remarked: “It is a violation of the law to kill a drunken man.” Appellant excepted to the remark of the court. The examination of the witness was then continued as follows: “Q. Neely drank, didn’t he? Did he drink? A. Yes, sir; he drank a glass of beer.”
The remark of the court was made while the defendant was endeavoring to ascertain whether or not the deceased, on the night of the fatal rencounter, was drinking. We think, in the absence of a showing in the record that the remark of the court was addressed to the jury, that it must be considered as a remark made to counsel, giving his reasons for allowing the question rather than as expressing his opinion upon any question of fact. The court permitted the question to be answered, and therefore permitted the fact to be elicited which appellant was seeking to prove, and the incidental remark of the court during the examination of the witness, addressed to counsel, was not an expression of his opinion upon any fact proved, and could not have been considered by the jury as an opinion of the court as to the guilt of the appellant. If appellant conceived that the remark was made as an expression of the opinion of the court as a proposition of law, he should have asked the court to instruct the jury not to consider the remark as an expression of his opinion upon the weight of the evidence, and if the court had refused, then appellant would have been in an attitude to complain. But, as we view the remark, it was not intended by the court to be, and could not have been considered by the jury as an expression of an opinion of the court upon any question of fact in the ease. There was no evidence that the deceased was a drunken man, and the fact that appellant desired to show was shown by the question and answer, i. e., that Neely did take a' drink the night he was killed.
We have examined the objections made to the remarks of the prosecuting attorney in his closing argument to the jury, and it is unnecessary to set them out in the opinion. It is sufficient to say of these that they were but the expressions of the opinion of counsel on behalf of the State that the appellant, under the circumstances shown in evidence, was guilty of the highest crime known to the law, and that it was the duty of the jury to so find by their verdict. These remarks- were clearly within the bounds of legitimate argument. Leonard v. State, 106 Ark. 449; James v. State, 94 Ark. 514.
The appellant objected to the refusal of the court to give his prayer for instruction No. 7, which is as follows :
“If Neely, at the time Valentine fired the fatal shot, was making a demonstration, as if to draw a weapon to be used against Valentine, under such circumstances as made it reasonable for him to believe as such circumstances appeared tq him, that he was in imminent danger of losing his life or receiving great bodily harm, and he, Valentine, while acting in good faith, and under such belief, fired the fatal shot to protect himself, he is not guilty of any crime. And this would be true, although you might believe from the evidence that at the time Valentine went into the house in question, he knew that he would likely meet Neely there, and that Neely would likely make an attack upon him.”
All that part of the prayer except the last sentence was fully covered by correct instructions on the law of self-defense which the court gave. The last part of the instruction was not a correct statement of the lair, and was calculated to confuse and mislead the jury. Before one will be justified in killing his adversary in self-defense, he must do everything in his power consistent with his safety to avoid the danger and avert the necessity of the killing. The latter part of the prayer might ivell be construed as in conflict with this wise provision of the law. Other questions are presented in appellant’s brief, but we do not deem them of sufficient importance to require discussion. The record is free from error prejudicial to appellant, and the judgment is therefore affirmed. | [
113,
-29,
-20,
-49,
9,
97,
40,
-72,
-46,
67,
100,
115,
-25,
6,
0,
121,
123,
61,
117,
105,
68,
-77,
83,
81,
-78,
-109,
65,
85,
55,
-17,
-4,
-65,
76,
96,
98,
-43,
70,
72,
-27,
92,
-114,
-87,
-103,
96,
-46,
-128,
32,
35,
70,
15,
117,
94,
-13,
42,
24,
-53,
-23,
44,
79,
-98,
112,
56,
-108,
15,
-1,
4,
-79,
-74,
-98,
7,
112,
12,
-40,
49,
17,
-24,
115,
-74,
6,
116,
109,
-101,
40,
98,
98,
33,
-115,
-21,
-88,
-119,
119,
62,
-103,
-90,
80,
65,
75,
9,
-106,
-103,
55,
16,
14,
122,
-19,
-59,
113,
44,
-125,
-49,
-44,
-75,
15,
40,
-106,
19,
-29,
5,
80,
112,
-51,
-30,
92,
103,
81,
-37,
-52,
-75
] |
Smith, J.
This ease involves a contest over the office of school director, in Common School District No. 9, in Prairie County. The parties treat the evidence as being undisputed, and the depositions upon which the court made its findings of fact are not copied into the transcript. The judges of the election declared appellant elected, and gave him a certificate, certifying that fact, and upon it he qualified and assumed the duties of the office. Appellee instituted a contest in both the county and circuit courts. Trial was first had in the county court, and judgment there being rendered against appellee, when he appealed to the circuit court, where the cases were consolidated and tried together, as if one, and originating in the circuit court. The court found that the vote was a tie, that each party had reecived ten votes, and that neither the appellant nor appellee had been elected, and rendered judgment against appellant for costs. Appellant appeals from that order. The court found that the election was a tie, after holding that the vote of one Jim Gilliam, who had voted for appellant, should be counted, the court’s finding of fact and declaration of law in regard to this vote being as follows: “That the evidence that Jim Gilliam (one of the defendant’s votes, being one of the ten above held to be a legal vote), who had not paid his poll tax for the year 1910, became of age since August 31, 1910, and the evidence that he did not become of age since that date are of equal weight and strength, and that because of the presumption that a vote cast is legal, the court holds that the burden of proving said vote illegal was on the plaintiff, and hence the court holds said vote legal.”
Appellee complains of this action of the court, and insists that if this vote was excluded, as it should be, that there was no tie, and lie would have been entitled, and is now entitled to a judgment in his favor for the possession of the office.
The court found that neither appellant nor appellee had been elected and assessed all costs against the appellant, who insists that this action was unauthorized, for the reason that costs is a liability created by statute, and in the absence of a statute allowing costs, there can be no judgment against a defendant in favor of a plaintiff for costs. It was so decided in the case of Wilson v. Fussell, 60 Ark. 194. The case of Buchanan v. Parham, 95 Ark. 81, was a contest over the office of sheriff of Garland County, which originated in the county court of that county-, and upon appeal from the judgment of the county court, it was decided that Buchanan had been elected, and was entitled to the office, and after the rendition of that judgment, Buchanan filed a motion in the circuit court to tax the costs of the contest against Williams, his unsuccessful adversary, who appeared and resisted the motion, on the ground that the court was without jurisdiction 'to render a judgment in favor of the contestant for costs in an election contest. At the same time, Parham, who was the clerk of the circuit court, during the pendency of the contest, filed a motion, praying that his fee for making the transcript on the appeal to the Supreme Court be taxed, and that judgment be rendered in his favor for the amount of his unpaid costs for making the transcript on the appeal against Buchanan and the sureties on his bond. On the hearing of both motions together, the circuit court rendered a judgment in favor of Buchanan against Williams for the amount of the costs of the contest in the county court, and in the circuit court, and also rendered judgment in favor of Parham against Buchanan, and his sureties, for the amount of his unpaid costs for making this transcript. Both parties appealed, and the court, in disposing of the question there, said: ‘‘No express authority is found in the statutes for rendering judgment against an unsuccessful contestant in an election contest, which originated in the county .court,”' and after reviewing the prior decisions upon this ques tion, it was there further said: “Taking the language of all these opinions, it can be said to be yet an open question, whether there is any authority for rendering a judgment for costs in favor of a successful contestant for office, the contest of which is by statute originated in the county. court. It is plain that the statute does not expressly confer such an authority, and it is significant that the Legislature expressly authorized judgment for costs against an unsuccessful 'contestant, and also expressly authorized judgment for costs in favor of the successful contestant for an office, the contest of which is by statute originated in the circuit court. We need not seek a reason for the omission to authorize judgment in favor of the successful contestant in the first-named class of contests, as it is within the power of the law-makers, either to give, or withhold, such authority. Probably, the Legislature did not deem it expedient to impose the costs of a contest on a county officer, who defends the title vested in him by the declared result of the election, even though he does not succeed in his defense,” and after stating that all the authorities appear to agree that the courts have no authority to give judgment for costs, in contested election cases, unless the statute expressly authorizes it, the court reversed the judgment of the circuit court awarding costs to Buchanan.
. Appellant insists that the provisions of the general election law relating to contested elections has no application here, for the reason that the office of school director is not within the provisions of the sections of the election laws governing the contest of elections, and in support of that position, cites the cases of Brown v. Hasselman, 79 Ark. 213, and Stout v. State, 43 Ark. 413. But it will be unnecessary to decide that question here, because of the facts of this case as found by the circuit judge. Appellee concedes that the right to recover costs rests upon the statute only, and that the right to contest the election of a school director does not come from sections 2856 to 2864 of Kirby’s Digest, said sections being the ones which relate to election contests, but he says the circuit court had the jurisdiction of the case originally under article 7, section 11, of the Constitution, which makes the circuit court the residuum of all unassigned original jurisdiction, and that the circuit court had jurisdiction under chapter 155 of Kirby’s Digest, which is the usurpation of office statute. Chapter 155 does provide for proceedings against one who has usurped an office, and under its provisions, the court may render judgment ousting the usurper, and reinstating the party entitled thereto, and it may enforce its decree by fine and imprisonment, and may render judgment for the fees and emoluments of the office, but nowhere does it provide for a judgment for costs in favor of the prevailing party. And appellee also relies upon section 965 of Kirby’s Digest, which provides: “If the plaintiff recover judgment, he shall have judgment for costs against the defendant.” But this section did not authorize the judgment here rendered for costs, because plaintiff did not recover judgment, and the section quoted applies only in cases where that occurs. And for the same reason, section 2859 of Kirby’s Digest did not authorize a judgment for costs, if it were applicable and authorized the contest. The provisions of that section are as follows:
“If the contestant shall succeed in his action, he shall not only have a judgment of ouster, but for damages, not exceeding the salary and fees of the office during the time he was excluded therefrom, with costs of suit; provided, either party shall have the right of appeal, with or without supersedeas, as in other cases at law. ’ ’
But, as has been stated, appellee does not claim that this section supports his judgment for costs. The judgment of the circuit court, assessing costs against appellant, is therefore reversed.
But upon the question of the cross appeal, appellee insists that the court erred in counting the vote of the said John Gilliam, but we do.not think so. We can not know from the transcript in this case what the evidence was in regard to the age of this voter, but we do know that the court found that the evidence was of equal weight, as to the time when he came of age, and, therefore, indulged the presumption that the voter was qualified. It is conceded that if he became of age since August 31, 1910, he was not required to have a poll tax receipt, and the fact that he did not have a poll tax receipt was not sufficient to make a prima facie case that he was not entitled to vote, because he was not required to have a poll tax receipt, if he had come of age since the date of the last personal assessment, which date was the 30th of August, 1910. The question was not whether he had a poll tax receipt, for it was conceded that he did not have, but his right to vote depended upon the time when he came of age, and the court has found that the evidence is of equal weight upon that question, and we can not disturb that finding under this state of the record. “Where it appears that a person was registered, or that his vote was accepted by the election officers, there is the presumption, which, in the absence of proof to the contrary, that-such person was a legally qualified voter.” Enc. of Evidence, volume 5, page 116. It is not sufficient for a contestant, by merely challenging a voter, to impose upon the voter, or upon the contestee, the burden of proving the voter’s qualification. To so hold would deprive the election returns of any presumptive validity, and would result in interminable confusion. The Judgment of the court declaring the election a tie, is therefore affirmed. | [
-44,
-20,
-76,
-51,
26,
-128,
43,
-114,
1,
-79,
101,
83,
-19,
-46,
4,
125,
-109,
127,
81,
106,
-62,
-77,
87,
-29,
-65,
-77,
-37,
-41,
-67,
-22,
-12,
-11,
92,
-80,
-126,
-43,
70,
64,
-59,
88,
-58,
-128,
-85,
73,
88,
-126,
60,
115,
114,
79,
113,
-38,
-13,
44,
-104,
-61,
-55,
44,
-39,
-86,
65,
-37,
-34,
5,
127,
6,
-77,
7,
-114,
-121,
120,
42,
-40,
61,
-124,
-8,
51,
-90,
2,
-42,
45,
-71,
40,
-30,
98,
19,
-75,
-17,
-8,
-119,
46,
63,
29,
-90,
-105,
89,
-30,
12,
-74,
29,
117,
80,
14,
126,
-31,
69,
31,
44,
10,
-50,
-12,
-69,
13,
32,
-114,
3,
-49,
-72,
-112,
97,
-51,
-14,
94,
101,
51,
27,
-58,
-107
] |
McCulloch, C. J.
Appellant instituted this action to recover the amount of a series of notes executed by appellees, a partnership composed of C. Y. Green, H. H. Houchins and T. A. Crockett, doing business under the style and firm name of Blytheville Realty Company.
After the execution of the notes T. A. Crockett sold out his interest in the firm' to O. B. Suggett, who succeeded him.
Appellees answered admitting the execution of the notes, but pleaded, by way of set-off,' several items for commissions on sales of real estate made by them for appellant.
The record is imperfectly abstracted and does not show what the judgment of the court was, but there is enough in the abstract to show that appellant raised the question as to the right of the appellees to plead their claim against appellant for commissions against their liability on the notes executed to appellant.
It is contended, in the first place, that appellant’s claim being based upon the joint and several liability of Green, Houchins and Crockett, and the account for the alleged commissions being due from appellant to the new firm composed of Green, Houchins and Suggett, the latter can not be pleaded as a set-off against appellant’s claim.
Our statute on the subject reads as follows
“A set-off can only be pleaded in an action founded on contract, and must be a cause of action arising upon contract or ascertained by the decision of a court.” Kirby’s Digest, § 6101.
It will be observed that the statute does not define a set-off nor undertake to limit the right to plead it except in the particular expressly named.
This court, in the case of Leach v. Lambeth, 14 Ark. 668, decided that ‘ ‘ a debt due from a sole plaintiff to one of several defendants, may be pleaded under the statute as a set-off, by the defendant to whom such debt is due. ’ ’
Of course, if it can be pleaded by one of the defendants, it inures to the benefit of all so far as there being any recovery in the cause, for if it extinguishes the debt of the plaintiff there can be no recovery against any of the defendants.
Our statute at the time that decision was rendered used language somewhat different, but the effect was, the same under the present statute so far as the question now presented is concerned. At that time the statute on the subject of set-off provided:
“That when two or more persons are mutually indebted to each other, and one of them commences an action against the other, one debt may be set-off against the other, although they may be of a different nature.”'
The court in the- case just cited said that the statute being remedial it should be construed liberally.
The Kentucky Court of Appeals, under a statute quite similar in its terms, decided that one of several defendants could set-off his separate demand against a plaintiff who sued upon a joint and several contract. Dunn v. West, 5 B. Monroe, 376; Powell v. Hogue, 8 B. Monroe, 443. In reaching that conclusion the court said:
“The plaintiff can not be injured by discharging his own liability. There is nó other person jointly interested with-him in the debt, to be prejudiced by it; and as it is a voluntary assumption of the payment of the whole by one defendant, the other defendants jointly bound with him have no cause to complain. ’ ’
This disposes of the first of appellant’s contentions. The other is that a claim which is in dispute can not be made the subject of a set-off.
That contention is not correct. It is true that we have held that unliquidated damages for breach of contract can not be made the subject-matter of set-off. B. A. Stevens Co. v. Whalen, 95 Ark. 488, and cases cited.
Our statute was taken substantially from-the Kentucky statute on the subject, and the highest court of that .State reached the same conclusion. Shropshire v. Conrad, 2 Metcalf (Ky.), 143.
But the claim of appellees was not unliquidated. There was a dispute whether the appellees had performed services in selling property under contract with appellant, but the verdict of the jury settled that issue, and it does not appear that there was any controversy a.s to the price to be paid for the services performed* at least, the abstract furnished by appellant does not disclose any dispute on the subject.
Therefore, the rule concerning unliquidated damages, does not apply in this case.
The record is free from error so far as appears from the abstract, and the.judgment is therefore affirmed. | [
-78,
124,
-80,
44,
-102,
96,
56,
-102,
105,
34,
-25,
87,
-19,
-58,
5,
101,
-26,
73,
69,
104,
37,
-74,
7,
113,
-62,
-13,
83,
87,
53,
77,
-28,
-41,
72,
16,
-54,
85,
-57,
-54,
-59,
124,
-58,
-87,
8,
100,
-8,
0,
48,
91,
20,
15,
81,
-114,
-30,
42,
29,
-50,
105,
42,
111,
-71,
-47,
-80,
-103,
5,
125,
5,
33,
103,
-104,
3,
106,
42,
-112,
17,
-127,
-24,
114,
38,
22,
84,
73,
27,
-116,
102,
102,
32,
64,
-25,
-104,
45,
47,
-66,
-99,
-122,
-14,
89,
11,
65,
-106,
-99,
124,
18,
-121,
118,
-22,
-115,
29,
-20,
7,
-81,
-44,
-93,
7,
86,
-100,
3,
-2,
3,
21,
96,
-51,
-94,
92,
79,
58,
-37,
14,
-61
] |
Wood, J.
The appellant contends that the proximate cause of the death of Charles Champion was the fact of his being knocked down on the track by his companion running into him, when he was in front of the moving car. On this question, the court instructed the jury, at the instance of appellant, as follows:
“If you-find that a child ran into the deceased child and knocked him down on the track, and, without the intervention of this act, that the result would not have followed; and you further find that men of ordinary care and prudence would not, in switching, anticipate such an occurrence, then the act of the boy knocking him down would be the proximate cause. ’ ’
The instruction, given at the instance of appellant,, was certainly as favorable to it as it could expect, and it has no right to complain. For under the lookout statute of May 26, 1911, enacted before the injury herein complained of, no matter what may have caused the unfortunate predicament of young Champion, if the employees of the appellant in charge of its train, by keeping the lookout, could have discovered his peril in time to have prevented his injury, by the exercise of ordinary care, then appellant is liable. See Acts of Arkansas, 1911, page 275; Railway v. Lindley, 151 S. W. 246; St. Louis, I. M. & S. Ry. Co. v. Gibson, 107 Ark. 431, 155 S. W. 510.
The child could not have been in a more perilous position, by reason of having been knocked down on the track, than he would have been had he deliberately placed himself in that position, and yet even though he might have voluntarily assumed the dangerous situation in front of the moving cars, still the railroad company, under the above statute, would be liable for his death, if by keeping the lookout which the statute requires it could have discovered his peril in time to have avoided killing him by the exercise of ordinary care. In other words, under the lookout statute, where the injury complained of could have been avoided by keeping the lookout therein prescribed, then the failure to keep such lookout, resulting in the injury, is the proximate cause of such injury, no matter what may be the causes by which the party injured has been placed upon the track. The intention of the Legislature was to make railway companies absolutely liable for the killing or injuring of persons on their tracks, where such killing or injuring could have been avoided by keeping the constant lookout which the statute requires. The effect of the statute in the case of killing of persons on a railway track by the running of trains is to make the failure to keep the lookout, which the statute prescribes, the proximate cause of such killing, where, if such lookout had been kept, the perilous situation would have been discovered in time to have avoided the killing.
Therefore, under the statute, in suits for damages against railways, for the killing of a person on their tracks by the running of trains, where the negligence alleged is a failure to keep the lookout, the issue is as to whether or not the company was negligent as alleged, and not whether snch negligence was the proximate cause of the death, for, as wé have stated, if the person was killed while on the tracks of the railway, by the running of trains, and such person would not have been killed had the lookout required been kept, then the law makes such failure to keep the lookout the proximate cause of the death, no matter by what cause or under what conditions the party killed may have been upon the railway tracks. The being upon; the railway tracks, whether by accident, through negligence, or from whatever cause, would be but a mere condition or incident to the killing and not the proximate cause thereof.
The court erred in submitting to the jury the question as to whether or not the alleged negligence of appellant in failing to keep the lookout required by the statute was the proximate cause of the death of Charles Champion. But the error was not prejudicial to appellant.
It follows, therefore, that the court did not err in refusing appellant’s prayers for instructions to the effect that the evidence was not sufficient to show that the defendant had been guilty of any negligence, which was the proximate cause of the injury, and that the proximate cause of the injury, under the evidence, was the boys running together and one being knocked down upon the railroad track.
• The appellant also contends that the court erred in submitting to the jury the question of the alleged negligence of the company in failing to give signals on approaching the crossing. The court, among other things, told the jury that one of the grounds of negligence alleged was the failure of appellant to ring the bell or sound the whistle, and that if this ground was proved, and was the proximate cause of the death of the child, that they should find for appellee, unless contributory negligence barred recovery. But in another instruction, given at the request of appellant, the court told the jury that if the child knew that the car was moving and went in front of the car, then a failure to ring the bell or sound the whistle should not be considered, because in such case the failure to ring the bell or sound the whistle would not be the proximate cause of the injury. We are of the opinion that under the undisputed evidence, the. failure on the part of the appellant to ring the bell or sound the whistle could not have been the proximate cause of the injury, and the court might have so told the jury in so many words. But when the instructions on this issue are considered together, there was no prejudicial error in the instructions. Indeed, the instructions on this issue are more favorable to appellant than they should have been, because in these instructions the court' virtually told the jury that contributory negligence would bar recovery, whereas, such is not the law, if the killing was caused by the failure to keep the lookout required by the statute.
Appellant contends that there was no evidence to warrant the court in submitting to the jury the issue as to whether the death of Charles Champion was caused by the alleged failure on the part of the employees of appellant to keep the constant lookout required. But we are of the opinion that this was a question for the jury under the evidence, and that it was submitted under instructions free from error. Indeed, the instructions in this' respect were more favorable to appellant than the law warranted. The testimony shows that the train crew, who were handling appellant’s cars at the time, were not in position to see the little boy, after he went in front of the cars. There was a curve which prevented the engineer and fireman from seeing; and the switch-man, also, who uncoupled the car, was not in a position to see. The watchman, whose duty it was to guard the crossing and to prevent accidents as far as possible, was too far away to render efficient service in preventing this injury. There was no one on top of the cars to keep a lookout for travellers, who might be in danger of such cars, and to stop them in cases of emergency. These cars, in other words, were uncoupled and left to roll without any one being on them to sound a warning or to arrest their progress, under exigencies calling for such action on the part of the company. The street upon which young Champion was killed was the main thoroughfare leading from the depot to the principal business part of the city, and was constantly travelled, and it was the duty of the appellant to anticipate the necessity of being able to arrest or-stop the progress of its cars, to prevent their coming in contact with any pedestrian using the street at any time. In Inabnett v. St. L., I. M. & S. Ry. Co., 69 Ark. 130, we said:
“The duty of railroads is to exercise reasonable and ordinary care to observe travellers about to cross the railroad upon 'the highway. Here the travellers have the right to be and they must be expected to be constantly passing. They are ever present, so to speak, and the railroad employees must exercise that diligence which the law requires to observe them. The care and skill to be reasonable, must be proportioned to the danger and multiplied chances of injury. ’ ’
The law embodied in the lookout statute contemplates that an efficient lookout, commensurate with the danger to be apprehended and avoided, shall be kept. St. L. S. W. Ry. Co. v. Russell, 64 Ark. 239. If this can not be done by the engineer’ and fireman, then -there must be other employees so situated with reference to the moving cars that they will be able to make the lookout effective, for the purpose of preventing injury to persons and property, on the tracks of railways by the running of trains.
Hnder the evidence adduced, it was for the jury to say whether or not appellant was keeping the lookout required by the statute. It was also a question for the jury as to whether or not, if this lookout had been kept, the perilous position of young Champion could have been discovered in time, by the exercise of ordinary care, to have avoided killing him.
There was testimony tending to prove that the cars, were running very slowly. One witness said: “They were, running two or three or four miles an hour, at the time they struck the child.” The car must have been “three or four feet from the child at the time he fell on the track.” Another witness said: “When the car hit him, it turned him over on his back. It kind o’ jogged and almost stopped. If a fellow had been there with a broomstick and presence of mind enough to use it he could have stopped the car. They were not going with any speed at all — just enough to take'them across.”
There was testimony tending to show that the first pair of trucks passed over the little boy without killing him, and, that after the trucks passed over him, “he tried to get out and the rods under the car hit him and knocked him back down toward the east side of the track.”
Now, if there had been some one on top of the cars to have kept a lookout for pedestrians on the street at the crossing, and to have stopped or checked the speed of the cars, in cases of emergency, the deplorable killing of this child might have been avoided. At least, it was a question for the jury.
There was some testimony from which the jury might have found that there was conscious suffering on the part of the child from the time he passed under the car until he was run over by the hind trucks and instantly killed. That also was a jury question.
Upon the whole record, we find no prejudicial error. The judgment is therefore affirmed. | [
-80,
124,
-36,
-114,
27,
104,
58,
120,
101,
-61,
-27,
-45,
-113,
-57,
-111,
103,
-5,
61,
-47,
43,
116,
-29,
23,
-110,
-78,
-45,
115,
-59,
55,
-23,
103,
-23,
77,
48,
10,
85,
-29,
75,
-59,
30,
-122,
-88,
43,
-32,
27,
2,
116,
90,
22,
31,
17,
-97,
-85,
42,
24,
-25,
45,
56,
88,
-91,
-48,
112,
-120,
13,
-26,
2,
-79,
-92,
-99,
37,
120,
112,
72,
49,
10,
-8,
49,
-90,
-128,
-12,
105,
-119,
-56,
98,
103,
33,
13,
37,
-88,
-103,
46,
110,
31,
-89,
22,
16,
43,
15,
-105,
-41,
122,
20,
62,
-2,
-27,
85,
92,
48,
-125,
-117,
-108,
-79,
-19,
38,
-106,
55,
-53,
1,
50,
97,
-52,
-78,
94,
-59,
122,
-97,
-97,
-114
] |
Smith, J.
Esko Lawhon owned, and with his wife, Fannie, and seven children, occupied as their homestead, the west half of the southeast quarter of section 4, township 2 south, range 12 west, in Saline County, and had owned and occupied it as such for a number of years, ánd owned no other real estate. He was indicted by the grand jury of that county, and he undertook to employ appellant to defend him at his trial, and he negotiated with him in regard to making a bond for his appearance at his trial, and finally it was agreed that appellant should be paid a fee of $200, and that appellant would sign the appearance bond, and to secure the payemnt of his fee and to indemnify him against loss upon signing this bond, Lawhon executed a mortgage on the property above described on the 31st day of October, 1910. Mrs. Lawhon did not sign this mortgage, and her testimony is that she knew nothing about it until some time after its execution by her husband; she and her husband continued to reside on the place for some time after the execution of this mortgage, and until Lawhon disappeared just before the time for his trial. Mrs. Lawhon remained on the property after her husband’s disappearance until the 2d day of February, 1912, at which time she removed to Little Rock.
After the execution of the mortgage to Newman, Lawhon and his wife executed a mortgage to appellee, and there were other transactions between Lawhon and appellee and other considerations alleged to have been paid by appellee to Lawhon in consideration of which a deed, dated the 10th day of November, 1911, was executed to appellee, and afterwards recorded. This suit was filed by appellee in the chancery court of Saline County to quiet the title in him, alleged to have been conveyed by said deed, and appellant was made defendant, and it was alleged that the mortgage in his favor was void for the reason that the property mortgaged was Lawhon’s homestead; and that Lawhon’s wife had not joined in its execution. It appears from the evidence that Esko Lawhon had not in fact executed or acknowledged the deed to appellee, but that one W. A. Lawhon, a brother of the said Esko Lawhon, had appeared before the acknowledging officer and impersonated his brother, and had undertaken to acknowledge the deed for him. Appellant filed an answer and cross complaint upon which the cause was finally heard, and in it he alleged that when Esko Law-hon executed said mortgage to him, he was told that the property was not his homestead, and that he owned two other tracts of land, one of which consisted of forty acres near Sweet Home in Pulaski County, which was in fact his homestead; and that he was going to move on it as soon as he had some improvements done on it; and that it thereafter would be his homestead, and he thereupon alleged that the Lawhons were estopped from claiming said property as a homestead to avoid payment of his fee, and the indemnity from liability on the bond which he had signed. It was also alleged in the cross complaint, and proof tended to sustain the allegation, that Newman frequently called upon Lawhon to have his wife join in the execution of this mortgage, and that at first it was promised that this should be done, but later an agreement was made that Lawhon should sell and convey the land to one J. S. Walker for the consideration of $700 in cash, of which sum $200 should be paid appellant for his services, and the remaining $500 deposited to indemnify him against liability upon the bond. In accordance with this agreement, Lawhon and his wife executed a deed to Walker for the recited consideration of $700, and delivered it to W. D. Brouse, an attorney at Benton, with directions to deliver the deed and collect the money when he had examined and approved the title, bu.t the title was not approved and the money was not collected and the deed was never delivered, but was destroyed. Appellant insists that he has such rights under this agreement to sell to Walker as entitles him to have a lien declared in his favor upon the land for the amount of his fee and his liability on the bond. Without considering other objections that might be made to this statement of the law, it is sufficient to say that the arrangement for the sale of the land to Walker was never consummated.
Nor do we think appellant’s contention that Lawhon had either abandoned his homestead, or had estopped himself from denying his abandonment, is sustained by the evidence. It appears from the recitals of the decree that Lawhon was never served with process, yet his wife appeared and answered and alleged the mortgage was invalid because of her nonjoinder in its execution, but the chancellor held that it was not necessary to have Law-hon before the court to dispose of the rights of the parties.
Section 3901, of Kirby’s Digest, is as follows: “No conveyance, mortgage or other instrument affecting the homestead of any married man shall be of any validity except for taxes, laborers’ and mechanics’ liens, and the purchase money, unless his wife joins in the execution of such instrument and acknowledges the same.”
It has been held that this section does not restrict the right of abandonment, and that where the owner of the homestead does abandon, it is thereafter subject to sale like other property belonging to the husband. Stewart v. Pritchard, 101 Ark. 104. And we might add that after its abandonment, it is subject to conveyance like any other property belonging to the husband. In the case of Farmers Building & Loan Assn. v. Jones, 68 Ark. 79, it was said: “While the act of the Legislature of March 18, 1887, is a limitation upon the right of the husband to convey his homestead, except by the consent of his wife, it does not in any manner affect or restrict Ms right of abandonment. This right he has by virtue of his marital and parental authority, and when he has chosen to exercise it he renders the property which had formerly been his homestead the proper subject of alienation without his wife’s concurrence.” But there is no estoppel here for the reason that Lawhon was living on the land with his family at the time of the conveyance to appellant, and appellant had knowledge of that fact, although he says he was expecting Lawhon to move to Pulaski County and occupy a tract of land there as his homestead as soon as he had made certain improvements on it. The proof does not establish that Mrs. Lawhon was a party to tMs representation or knew anything about it having been made. Nor does the fact that, subsequent to the date of tMs mortgage, Lawhon abandoned the homestead operate to cure the defective conveyance of it, for in the case of Pipkin v. Williams, 57 Ark. 242 (quoting the syllabus), it was said: “When a married man conveyed Ms homestead by a deed which is invalid by reason of the nonjoinder of Ms wife in its execution, and with his family abandons the lands as a homestead, the invalidity of the conveyance is not cured by the subsequent abandonment * *
The chancellor found that appellee was not entitled to have his title quieted for the reason that his deed was a forgery, and he dismissed the complaint and held that appellant’s mortgage was void because of nonjoinder of the wife, and he also refused to decree a lien in favor of appellant for the amount of his fee and liability on the bond, and the costs were apportioned in accordance with that finding, and we think that the law and the testimony warrant his finding, and the decree is accordingly affirmed. | [
-47,
105,
-72,
-51,
8,
96,
40,
-118,
115,
-126,
-92,
-45,
-23,
90,
76,
105,
45,
41,
-32,
121,
-32,
-77,
85,
66,
82,
-5,
-39,
-59,
-72,
-35,
-92,
-43,
89,
96,
74,
31,
-126,
-56,
-121,
-108,
-114,
-127,
9,
97,
-37,
64,
52,
47,
18,
78,
69,
-81,
-13,
47,
53,
72,
77,
46,
-17,
63,
-40,
120,
-66,
14,
-33,
7,
17,
103,
-72,
-59,
-56,
-102,
-112,
53,
64,
-24,
115,
54,
-122,
54,
88,
27,
44,
-94,
98,
42,
-35,
-17,
-96,
-120,
15,
62,
-99,
-89,
-122,
88,
18,
44,
-66,
89,
107,
-44,
7,
120,
-19,
5,
25,
104,
14,
-18,
-42,
-109,
29,
48,
-105,
3,
-13,
-116,
100,
112,
-51,
34,
109,
71,
114,
-101,
-114,
-71
] |
Kirby, J.
This appeal comes from a judgment of conviction upon an indictment for gaming. Appellant moved to quash the indictment because of the presence of á stranger in the grand jury room during the examination of the charge against him and plead former conviction on the trial. The testimony shows that Arthur Dun naway was employed by the prosecuting attorney of the district as a stenographer, and was present to take down the testimony of the witnesses before the grand jury, and report it to him, and instructed that he should not be present while the grand jury was deliberating or voting upon any charge. The statute provides that no person except the prosecuting attorney and the witnesses under examination are permitted to be present while the grand jury are examining a charge and no person whatever shall be present while the grand jury are deliberating or voting upon a change. Section 2211, Kirby’s Digest.
The testimony shows that Dunnaway was present in the grand jury room in the employ and under the direction of the prosecuting attorney, and took in shorthand, the testimony of the prosecuting witness, who stated that he saw the young man in the grand jury room, but that he did not hear him say anything or see him do anything but make notes of the testimony as a stenographer would do. He was not the deputy of the prosecuting attorney, but was present under his direction and acting for him, taking the entire testimony of the witnesses that the prosecuting attorney might be fully advised of the proof upon the charge. It is not contended that he was present when the grand jury were deliberating or voting on the charge, nor does it appear that anything was said or done by him calculated to in any way influence the grand jury.
If it is desirable that the testimony of witnesses beforé the grand jury be taken in shorthand and reported in full to the prosecuting attorney in order to further the ends of justice, it would be better be done by a stenographer authorized by law to take such testimony and acting under the sanctity of an oath not to disclose any of the secrets thereof, still, we do not think, under the circumstances of this case, that the court erred in overruling the motion to quash the indictment because of his presence in the grand jury room during the examination of witnesses in the capacity in which he was acting, it not appearing that he was present while the grand jury was deliberating or voting on tbe charge. Bennett v. State, 62 Ark. 535; Wilfong v. State, 96 Ark. 628.
It is next contended that the plea of former conviction should have been sustained. The indictment was returned on the 23d day of January, 1913, and charged the appellant with the offense committed as of about June 1, 1912. The plea of former conviction states that he was on the 15th day of December, 1912, convicted of the same offense before a justice of the peace, who had jurisdiction, and fined the sum of $10; a certified copy of the judgment of conviction being attached to the plea which further recited, “that on the same day he entered pleas of guilty for gaming eleven other times before said justice of the peace, and that the cases thereby made are now pending before him.” The testimony shows that appellant went to the justice of the peace and plead guilty, and paid the constable a fine of $10, that he was under the impression that he plead guilty for gaming twelve times, and said to the justice, “You fine us in the case in which you think we are guilty; we are not guilty in all of these, but will leave it up to you.” He stated further that he had understood that a certain man in the town was not friendly to him and would report him to the grand jury, and he went to the gentlemen that were implicated with him and said to them, the best thing for us to do is to plead guilty and settle this, and went to Mr. Gilbert, the justice, and told him he wanted to plead guilty to gaming.
The justice testified that the defendant entered a plea of gaming more than one game, and he told him he would let him off for one fine this time, but if he was before him again he would fine him for every offense, and would make it stick, too; that he had just been appointed justice of the peace, and did not have books for records, and did not enter the other pleas of guilty on the docket because he did not think there was room for them; that he had other cases pending and needed the space to enter up the judgments therein. No session of the court was held, no affidavits were filed, neither the appellant n«r Ms witnesses were sworn. The justice said further that the appellant entered the pleas of guilty to escape the grand jury indictment. There is only shown to have been one plea of guilty and conviction thereon, and it was evidently made with the intention of avoiding or escaping indictment by the grand jury for a similar charge, and it does not appear that tMs conviction was even regular. Bradley v. State, 32 Ark. 726.
The jury could well have found that the prosecution before the justice of the peace, if it can be called such, was under circumstances showing collusion and an intent to elude a prosecution by the State, and such a prosecution would be no bar to an indictment for the same offense, neither did the court err in giving instruction No. 4, relative thereto, said instruction being a copy of one approved in State v. Caldwell, 70 Ark. 74. The facts in this case are unlike the cases of State v. Nunnelly, 43 Ark. 68, and Bryant v. State, 72 Ark. 419, relied upon by appellant. In each of those cases, the defendant was charged with but one offense, and evidence relating to several different acts of like Mnd during the time for wMch he could have been convicted of such offense was introduced and no election made by the prosecuting attorney, and all the offenses having been before the jury, he could have been convicted of either upon the testimony, and a former conviction is a bar to all subsequent indictments for an offense of which the defendant might have been convicted under the charge and testimony in the first case.
Having interposed a plea of former conviction as a bar to the prosecution, the burden of proof was upon appellant to show that the offense charged in the indictment was the same as that for which he had been previously convicted, and this the jury found he failed to do. Jacobs v. State, 100 Ark. 595.
Finding no prejudicial error in the record, the judgment is affirmed. | [
48,
-18,
-84,
-98,
40,
96,
32,
-4,
-61,
-93,
-93,
81,
109,
74,
9,
51,
-77,
111,
85,
107,
-44,
-89,
63,
97,
-78,
-9,
81,
-57,
-77,
-49,
-84,
-11,
76,
-80,
66,
-107,
102,
74,
-57,
84,
-114,
32,
-117,
104,
96,
-60,
32,
55,
62,
31,
49,
-10,
-13,
40,
22,
-54,
73,
40,
75,
-85,
80,
41,
-114,
-113,
-21,
20,
-77,
52,
-102,
7,
-8,
46,
-102,
49,
1,
-24,
51,
-124,
-110,
-11,
107,
-103,
40,
102,
98,
32,
-91,
-95,
-84,
-119,
55,
46,
-99,
-89,
-109,
97,
75,
9,
-106,
-67,
123,
16,
-82,
-2,
-21,
85,
17,
108,
2,
-113,
-108,
-109,
-117,
117,
-98,
27,
-29,
1,
16,
113,
-51,
98,
93,
13,
49,
-37,
78,
68
] |
Kirby, J.
This suit was brought by the improvement district to enforce the collection of assessments on the property of Mrs. Susie Miller, for grading and improving the streets of the town of Pulaski Heights.
It will not be necessary to discuss any of the questions raised by appellant, since her appeal must be dismissed upon appellees’ motion.
It appears that the decree from which the appeal was taken was rendered on February 5, 1913, and that the transcript of the record was not filed in the office of the clerk of this court until April 8, 1913, more than thirty days thereafter. It is the purpose of the law to avoid delay, and it provides for great dispatch in the enforcement of the collection of assessments for improvements. It requires that when an appeal is taken from a decree in favor of the board for the condemnation and sale of the land to pay the assessments that the transcript shall be filed in the office of the clerk of the Supreme Court within twenty days after the rendition of the decree appealed from. (Sec. 5706, Kirby’s Digest.) And, “No appeal shall be prosecuted from any decree after the expiration of the twenty days herein granted for filing the transcript in the clerk’s office of the Supreme Court.” (Sec. 5709, Kirby’s Digest.)
These provisions of the statute are plain and mandatory, and, not having been complied with, and the transcript of the record lodged with the clerk of the Supreme Court within the time required, the appeal must be dismissed. Crandall v. Harrison, 105 Ark. 110.
It is so ordered. | [
-12,
-54,
-67,
-67,
-22,
64,
50,
-76,
64,
-79,
119,
83,
-17,
-46,
20,
105,
-45,
109,
85,
122,
-59,
-73,
122,
64,
-110,
-13,
-13,
87,
-79,
92,
-10,
-10,
76,
52,
-54,
-107,
-58,
72,
73,
88,
-122,
15,
11,
76,
89,
96,
60,
120,
120,
15,
49,
110,
-14,
44,
28,
-53,
-24,
41,
-55,
-87,
88,
-31,
-118,
29,
95,
6,
49,
84,
-98,
-123,
-24,
10,
-104,
53,
0,
-20,
49,
-90,
-122,
-12,
75,
-101,
8,
100,
34,
19,
-91,
-25,
-72,
-120,
38,
126,
-83,
-90,
-79,
104,
74,
-31,
-73,
-99,
108,
80,
39,
-2,
110,
-59,
93,
124,
14,
-57,
-110,
-109,
31,
48,
-126,
3,
-21,
3,
48,
113,
-57,
-46,
90,
-27,
49,
-101,
-34,
-40
] |
McCulloch, C. J.
The defendant, Odus Davidson, was convicted of the crime of murder in the first degree. He is accused in the indictment of murdering Ella Bar-ham, a young woman about eighteen years of age, who lived in Boone County, Arkansas, in the same neighborhood where defendant resided and where he had been reared.
There are several counts in the indictment, each charging the defendant with the crime of murder in the first degree, committed in different modes by killing Ella Barham. Each count of the indictment is legally sufficient as a charge of the crime of murder in the first degree, and the indictment concludes with the following clause, namely: “It being intended throughout each count in this indictment to charge the offense herein set out as having been committed in different manners and by different means, but all referring to one and the same transaction. ’ ’
The defendant moved the court to require the prosecuting attorney to elect upon which count of the indictment he would proceed. The court overruled the motion, and that ruling is assigned as error.
The indictment presents a clear instance of charging the same offense committed in different modes. It does not charge the commission of more than one offense and it is, therefore, not open to the objection that different offenses are named therein. Corley v. State, 50 Ark. 305.
The next assignment of error is that the trial was vitiated on account of the verdict of the jury being received by the court in the absence of the defendant.
The record entry of the trial and judgment recites the presence of defendant in person and by his attorneys, but the circuit judge has certified in the bill of exceptions that the defendant was not present in person when the verdict was returned and that his attorneys were present and entered into a written stipulation for him consenting that the verdict might be returned in his absence. The recital on this subject in the bill of exceptions reads as follows:
“Two or three hours after the jury had retired in the charge of the officers, under the instructions of the court to consider their verdict, and on the same day, there was a consultation between the attorneys for the defendant and the court in the absence of both the defendant and the prosecuting attorney, and upon the request of the attorneys for the defendant, and upon the specific understanding that the agreement be reduced to writing, waiving the presence of the defendant, if a verdict was returned in his absence, the court and the attorneys for the defendant believing there was danger of a mob, and such action being in the interest of the defendant, the court ordered the sheriff, without the agreement of the prosecuting attorney, and over his objections, to convey the defendant to the jail at Berryville, Carroll County, Arkansas. The defendant was present at all' times, either in person or by attorney. Such agreement and waiver was prepared by defendant’s'counsel, and signed by the said E. Gr. Mitchell and B. B. Hudgins and other counsel in the case, which written waiver was in words as follows.” (Here follows copy of the written stipulation.)
Where there is a conflict between the recitals of the record entry proper and those in the bill of exceptions, the former must prevail; but inasmuch as the circuit judge has certified the facts in the bill of exceptions and defendant’s counsel have asked for á postponement of the case here until the circuit court convenes again and an opportunity can he given for an amendment of the record, we would not dispose of the question adversely to defendant’s contention without giving him an opportunity to have the record amended if an amendment in accordance with his contention would bring about a different result in the disposition of the case. We will, therefore, treat the record as amended so as to show his absence by consent as recited in the bill of exceptions, and will test his right to a reversal of the judgment on that state of the record.
The Constitution (art. 2, § 10) provides that “In all criminal prosecutions the accused shall enjoy the right to a speedy and public trial by an impartial jury * * *; and to be informed of the nature and cause of the accusation against him, and to have a copy thereof; and to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to be heard by himself and his counsel.”
A section of the Code of Criminal Procedure reads as follows:
“If the indictment be for a felony the defendant must be present during the trial. If he escapes from custody after the trial has commenced, or, if on bail, shall absent himself during the trial, the trial may either be stopped or progress to a verdict, at the discretion of the prosecuting attorney, but judgment shall not be rendered until the presence of the defendant is obtained.” Kirby’s Digest, § 2339.
It is insisted on behalf of the State that the constitutional provision quoted above does not guarantee the right of an accused person to be present when the verdict is returned, and that the judgment should not be reversed on account of the absence of the defendant when the verdict was rendered unless it appears that his absence operated to his prejudice.
We do not think, however, that that contention is sustained by the decisions of this court.
The language of the Constitution, “to be heard by himself and his counsel,” is a guarantee that an accused shall have the privilege of being present in person and by counsel whenever any substantive step is taken by the court in his case. Bearden v. State, 44 Ark. 331. Chief Justice Cockrill, speaking for the court in the case just cited, said:
“Under this rule it is not necessary that the accused shall show that he was actually prejudiced by the proceeding had in his absence. It is sufficient to annul the verdict against Mm if it appears that he may have lost an advantage or been prejudiced by reason of a step taken in Ms absence. The reason of the rule is to secure to the accused full facilities for defense. However, while he can not be deprived of his right to be present at all stages of Ms trial, it does not follow that he must be. The statute provides that certain proceedings may be had in the absence of a defendant who absconds, or is on bail and absents Mmself. Where, also, no prejudice could by any possibility result from the action- of the court, there is no reason for requiring the presence of the defendant.”
The Constitution does not provide that the defendant must be present, but that he may be present. It is a privilege which is conferred and does not relate to the power of the court to conduct the successive steps in the trial.
The statute referred to reads that the defendant “must be present during the trial.”
The statutory provision is, however, not for the benefit of the accused, but for the State. Martin v. State, 40 Ark. 364.
The list of authorities cited by counsel for appellant discloses decisions to the effect that in capital cases the accused can not waive his presence when the verdict is received or at any other substantive step in Ms trial; and there are a few decisions to the effect that, even in felony cases other than capital, the accused can not waive Ms presence at any step in the progress of the trial.
It may be said here, however, without further dis cussion, that according to the great weight of authority, in felony cases other than capital, the accused may waive his presence. 12 Cyc. 527.
In a recent decision of the Supreme Court of Mississippi, the court held that, where the defendant was charged with a capital offense (murder in the first degree), but was convicted of the lower offense of manslaughter, the trial was vitiated by the fact that the accused was absent. Sherrod v. State, 93 Miss. 774, 47 So. 554, 20 L. R. A. (N. S.), 509. The recital of facts in that case shows that the defendant was on bond and voluntarily absented himself at the time it was announced that the verdict of the jury would be received; but the court held that he could not waive his presence when that important step in his trial was taken.
The Supreme Court of the United States also held that a person accused of a capital offense can not waive his presence at a substantive step in the proceeding. Hopt v. People, 110 U. S. 574. The grounds of the decision were stated for the court by Mr. Justice Harlan as follows :
“We are of the opinion that it was not within the power of the accused or his counsel to dispense with the statutory requirement as to his personal presence at the trial. The argument to the contrary necessarily proceeds upon the grounds that he alone is concerned as to the mode by which he may be deprived of his life or liberty, and that the chief object of the prosecution is to punish him for the crime charged. But this is a mistaken view, as well of the relations which the accused holds to _ the public as of the end of human punishment. * * * The public has an interest in his life and liberty. Neither can be lawfully taken except in the mode prescribed by law.- That which the law makes essential in proceedings involving the deprivation of life or liberty can not be dispensed with or affected by the consent of the accused; much less by his mere failure, when on trial and in custody, to object to unauthorized methods. The great end of punishment is not the expiation or atonement of the offense committed, but the prevention of future offenses of the same kind. 4 Bl. Com. 11. Such being the relation which the citizen holds to the public, and the object of punishment for public wrongs, the Legislature has deemed it essential to the protection of one whose life or liberty is involved in a prosecution for felony, that he shall be personally present at the trial, that is, at every stage of the trial when his substantial rights may be affected by the proceedings against him. ’ ’
It will be thus seen that that court based its conclusions on the ground that the accused could not waive bis presence for two reasons; one, that the power of the court to act depended upon the presence of the accused; and, next, that the public interest in the result of the trial deprived bim of the power to give his consent to his absence.
These grounds are, we think, far from tenable, and neither of the cases quoted from above appeals to us as stating sound conclusions; nor are the conclusions reached there in accordance with the decisions of this court.
The power of the court to proceed does not depend upon the personal presence of the accused. Only his right to be present is guaranteed by the Constitution and laws of this State. Any other construction of the constitutional provision would render invalid the statute which provides that if the accused escape from custody after the trial has commenced, or, if on bail, the accused shall absent himself, the trial may progress to a verdict notwithstanding his absence.
This court has declared that statute to be a valid one. Gore v. State, 52 Ark. 285.
The fact that the statute permits the accused, by his voluntary absence, to waive his presence at the trial, demonstrates that the power of the court to act does not depend upon the presence of the accused, and that it is only where steps are taken in the absence of the latter without his consent, that his rights are violated.
The converse necessarily is true that, where he vol untarily absents himself, the court may proceed with the trial in Ms absence.
Other constitutional guaranties of equal importance and dignity may, according to our decisions, be waived by an accused person.
The Constitution guarantees to the accused the right to have a copy of the indictment; but that may be waived. McCoy v. State, 46 Ark. 141; Powell v. State, 74 Ark. 355; Hobbs v. State, 86 Ark. 360.
It provides that the accused shall be “informed of the nature and cause of the accusation against Mm;” that is to say, he shall be arraigned. The statute also provides that he shall be arraigned before trial. But tMs court held that it is a right which can be waived. Ransom v. State, 49 Ark. 176; Moore v. State, 51 Ark. 130; Hayden v. State, 55 Ark. 342.
In Hobbs v. State, supra, the court held that, even without a formal waiver of arraignment, a judgment would not be reversed “if the record shows that the defendant received every right wMch he would have received had he been duly arraigned.”
The Constitution also provides that the accused has the right “to be confronted with the witnesses against Mm,” but who can doubt for a moment that the accused, even in a capital case, may waive the production of a witness and agree what his testimony will be and consent that it shall go to the jury. The following decisions by other courts settle that question: Rosenbaum v. State, 33 Ala. 354; Butler v. State, 97 Ind. 378; State v. Polson, 29 Iowa, 133; State v. Fouks, 65 Iowa, 452; State v. Harnsby, (La.) 41 Am. Dec. 305; People v. Ulunay, 52 Mich. 288;; State v. Wagner (Mo.), 47 Am. Rep. 131; Williams v. State, 61 Wis. 281; Hancock v. State, 14 Tex. App. 392; Allen v. State, 16 Tex. App. 237. Now, if those privileges, wMch are. equally guaranteed by the Constitution, may be waived, why may not the accused waive his own presence at some step of the trial?
This court in a number, of cases has decided that the defendant in a felony case may waive Ms presence.
In Polk v. State, 45 Ark. 165, it was held that it was not error for the trial court to make an order in the absence of the defendant for a- change of venue. The court said, in disposing of the question, that the trial court did nothing in the premises except to grant the request of the defendants, and that they could not possibly have been prejudiced by their absence. •
In Bond v. State, 63 Ark. 504, the court held, as in the Polk case, supra, that it was not reversible error to make an order for a change of venue in the absence of the defendant.
In Baker v. State, 58 Ark. 513, it was held that the defendant could in person waive the presence of his counsel when the verdict was returned.
In Darden v. State, 73 Ark. 315, we held that the defendant, if on bail, could not complain of the examination of witnesses during his voluntary absence.
It is true that none of these was a capital case; but we do not perceive any difference when it comes to the question of the power of the accused to waive some of the privileges that are guaranteed to him by the Constitution and laws. It is the duty of trial courts, in that class of cases, to guard more carefully the rights of accused persons and to see that their rights are not prejudiced; but, after all, the test of the power of the court in a capital case with respect to the presence of the accused is the same as in any other felony cases. Our laws make no distinction. This court has held that one accused of the crime of murder may enter a plea of guilty, but that, on account of the statutory limitation upon the powers of the court, a jury must be empaneled to pass upon the degree of the offense. Lancaster v. State, 71 Ark. 100.
In McVay v. State, 104 Ark. 629, where the defendant was convicted of murder in the first degree, we held that he had the power to waive the presence of the trial judge during the progress of the argument of the case and to consent to the argument being proceeded with .in the absence of the judge.
Powell v. State, supra, is a case where, the defendant was convicted of murder in the first degree, and we held that the defendant could waive his right to service of a copy of the indictment.
Our conclusion is' that the accused may, even in a capital case, after the trial has commenced, waive his personal presence at a step in the progress of the trial such as receiving the verdict, and that where his presence has been duly waived, this.court should not reverse a judgment on account of his absence upon his own consent, unless it appears that he was prejudiced in some way by such absence.
In this case the court did no more than grant the request, conveyed to the court through defendant’s counsel, that he be removed from the court and from the county for his own safety from threatened mob violence. If he and his counsel conceived it to be necessary for his own safety that he should be absent from the county during the further progress of the trial, he can not now complain that the verdict was returned in his absence.
It is next contended that the defendant himself did not waive his presence at the trial and that his counsel could not waive it for him.
It may be conceded that counsel, in the absence of the defendant and without authority from him, can not waive a personal privilege guaranteed to him by the Constitution.
That, however, is not the case before us. The record shows that his counsel acted for him and in his name consenting to the verdict being returned in his absence. The presumption must be indulged, in the absence of a showing to the contrary, that the attorneys had authority from him to enter into the stipulation waiving his presence. Martin v. State, supra.
“The general presumption;” says Judge Elliott in his work on Appellate Procedure, section 718, “is that the judgment of a judicial tribunal is supported by whatever is essential to its validity and effectiveness.”
Such, is the view of this court expressed iu the case of Bond v. State, supra.
It is not essential to a valid waiver that the defendant should make the agreement in his own person. He may do so through his counsel, and, as before stated, in the absence of a showing to the contrary, authority to perform an act in the progress of the trial, which counsel assume to do, will be presumed.'
Counsel for defendant rely upon the case of Osborn v. State, 24 Ark. 629, as sustaining their contention that the defendant can not waive his presence, if he can do so at all, except by his own act, and can not do so through his counsel.
The case does sustain that contention. It appears from the opinion that the court reversed the judgment simply because the transcript failed to show that the defendant was present when the time for service of a copy of the indictment was waived.
We think that decision is in conflict with subsequent decisions of this court, just cited, and that it has, in effect, been overruled.
- The defendant filed with the motion for new trial his affidavit, in which he stated that he did not authorize his counsel to enter a waiver of his presence and that he did not know that it had been done until after the verdict was rendered, and did not know that the verdict was to be rendered in his absence. The affidavit did not however, establish conclusively the truth of the statement that he did not consent to the waiver. Under all the circumstances the court was justified in finding that, notwithstanding the defendant’s affidavit to the contrary, he did authorize his attorneys to take this step.
Many questions are raised as to the admissibility of testimony, and it is necessary to refer to the facts of the case, which we will do as briefly as possible.
Defendant and deceased lived in the same neighborhood in Boone County, where the crime is alleged to have been committed. Defendant lived with his father, who was a farmer in that locality. Deceased lived with her parents a few miles distant. Deceased met her death on Thursday, November 21, 1912, while she was returning from the home of a neighbor. 1 She left home about 9 o’clock in the morning, and went over to the home of a Mrs. Briant, for the purpose of procuring the services of the latter in making a hat. She rode horseback, and in making the trip it was necessary for her to pass the house of defendant’s parents. She stopped there on her trip over to Mrs. Briant, and conversed with defendant’s mother. The evidence tends to show that she reached Mrs. Briant’s home between 9 and 10 o’clock in the morning, and after remaining there for a while she started on her return home about 11 o’clock. She was never seen again after she passed the Davidson’s home on her return from Mrs. Briant’s house. The members of her family became alarmed late in the afternoon at her failure to return, and they, together with other neighbors, instituted a search for the body. They first found the horse which she had ridden, and later found her dismembered body in the woods a few hundred yards distant from the defendant’s home. The body was horribly mutilated. The face was mashed and bruised, the nose being mashed in, the skull fractured in several places and the flesh mashed away from the teeth. The head was completely severed from the neck, having the appearance of being cut off with a sharp instrument; the body was cut in two completely at the waist line; the bowels were gone, and both legs were severed about the middle of the thighs. There was a cut in the left hand and the wrist of that hand was fractured. There was also a cut in the left thigh which apparently was inflicted with the blade of a sharp axe. The dismembered parts were found, under a bluff, scattered about over a space of twenty feet square or more. A witness who testified as an expert, examined the remains and, according to his testimony, deceased was a virgin, in good health, and the hymen had been ruptured not more than a few hours before death and too short a time for repair to begin; that semen was found in the culdesac at the mouth of the womb, showing sexual intercourse shortly before or after the murder was committed. Between 11 and 12 o ’clock on the day of the murder an elderly lady, partially deaf, who was at work at a spring a few hundred yards from the place where the first blood was found, heard a single scream of distress in that direction.
The theory of the State is that the defendant dragged the deceased from her horse, or compelled her to dismount, and after perpetrating the crime of rape, murdered her.
The body was found about 9 o ’clock on the night of the same day that the young lady disappeared. The next day a search of the locality was made, and the first evidences of blood were discovered 683 yards from deceased’s home. At that place there was a tree-top which had been cut down in the road and the trunk of the tree removed; there was found among the leaves in this treetop impressions as if a body.had lain, and blood was scattered in two directions. The trail of the blood led from there a short distance to a point where a rock, weighing a hundred pounds, or more, was found, on which there appeared blood, and also a smaller rock on which there was blood and also hair which corresponded in color and otherwise with the hair of the dead girl. Near that spot the shoes and stockings of deceased were found secreted, and also a back comb used by deceased. From there the searchers traced the course of the murderer across Crooked Creek, a very small stream, where they detected tracks made by bare feet in the water and sand, and across this creek a short distance in the direction of an abandoned mine shaft they found the body as before described.
This was all within a few hundred yards of the home of deceased, in a sparsely settled locality.
Three days later there was found, among the leaves near the fallen tree top, a loaded revolver, which was identified as one owned by the defendant.
Defendant was arrested on Friday night, at the home of his father, after the murder was committed on Thursday. The sheriff carried to the place a posse, which was assembled around the house when the officer went in to make the arrest. When the sheriff informed defendant’s father that he had a warrant, the latter called to defendant, who, it appears, was in an upstairs room. About the time that his father’s voice called to defendant, those on the outside heard a window raised in the room above and a hand protruded and dropped something, which was found to be a pair of men’s socks, containing some sand and red pepper, a pod or pods of red pepper having been crushed up and placed in one of the socks. The sheriff had stated publicly that he was going to get bloodhounds, and it is the theory of the State that the defendant placed the pepper inside of his socks believing that it would prevent the hounds from following his track.
On Saturday morning those who were searching for evidences of the crime, found an axe near the woodpile at defendant’s home, and blood was discovered in and about the eye of the axe. An expert chemist who analyzed the blood, declared it to be human blood. There also appeared on the handle, about the eye of the axe, a sliver upon which had caught what appeared to be a small thread or piece of cloth.
The testimony shows that the defendant was absent from home during the middle of the day; in fact, it is undisputed that he admitted to the sheriff of Carroll County, where he was confined in jail, that he left the house about 12 o ’clock and went down on the creek. His brother testified that he saw him during the morning take this axe and go to the barn for the purpose of doing some work, and that he left home about 4 o ’clock in the afternoon to go down to look after his fish traps on the creek.
There is also testimony to the effect that defendant had attempted to pay social attentions to deceased, but that his attentions had been rejected, and that he had expressed irritation and animosity towards the deceased on account of her conduct in rejecting his attentions.
The ease against appellant is built up on circumstances, but we are of the opinion that the circumstances were' sufficient to warrant the jury in finding that the defendant committed the crime. Learned counsel for defendant insist very earnestly that the evidence is not sufficient to sustain the conviction; but a careful consideration of all the circumstances compels the conclusion that the jury were correct in deciding that the defendant committed the crime.
The first assignment urged upon our attention as an error of the court in ruling upon the admissibility of testimony is that concerning the testimony of Alexander Davidson, the brother of defendant. He was called as a witness by the prosecuting attorney, and testified that he saw the deceased pass by his father’s house on her return from Mrs. Briant’s about 11 o’clock in the morning, and that some time during the morning he saw the defendant go towards the barn with an axe, and that he saw the defendant leave home to go down to the creek to set his traps about 4 o ’clock in the afternoon. He was asked if he had not testified, before the grand jury and the coroner’s jury, that he saw his brother, the defendant, go up towards the barn with the axe about half-past 12 o’clock; and he admitted that he had made that statement, but said that he was mistaken about it, and that his brother went up towards the barn with the axe earlier in the morning.
The defendant asked the court to let this statement only go to the jury for the purpose of contradicting the witness, and not as substantive evidence of the facts related in the contradictory statement.
The court overruled this request, and told the jury that they might consider the testimony for all purposes, for what it was worth.
Now, the ruling of the court was undoubtedly incorrect, for the testimony was not admissible for any other purpose than that of contradicting the witness; but we are of the opinion, considering the other testimony in the case, that the error was not prejudicial. This witness testified that the defendant went towards the barn with Ms axe some time in the morning, and that be left borne about 4 o’clock in the afternoon for the purpose of going-down to tile creek to set Ms traps. In Ms contradictory statement be said that Ms brother went towards the barn with the axe about half-past 12 o’clock. The fact which the State sought to establish was the time that defendant went off, and, according to the undisputed evidence, he left there about 1 o’clock. The sheriff of Carroll County testified that the defendant admitted to Mm that he left home about 1 o’clock and went down to the creek. Other witnesses corroborated tMs, and showed that the defendant was not at home in the middle of the day. Now, these are undisputed facts, and the contradictory statement of the witness, Alexander Davidson, was not important in fixing the time that defendant went away. It was testified by the witness that he went away and that he had an axe with Mm when he went off towards the barn, and the only question is as to the time that tMs occurred. The time is fixed by the testimony of the sheriff, and it is undisputed; so it is impossible to discover any prejudicial effect from the admission of the contradictory statements of tMs witness.
The next assignment relates to the refusal of the court to allow defendant’s counsel to interrogate a witness introduced by the State, one Matlock, concerning his prejudice against the defendant.
It was, of course, competent for the defendant to show that fact in order to affect the credibility of the witness, and the court ought to have allowed the questions to be asked. McIlroy v. State, 100 Ark. 344.
The testimony of this witness related, however, to facts and circumstances which were thoroughly established by the testimony of several other witnesses and wMch are uncontradicted.- All of the witnesses introduced on that subject, including Matlock, testified to discovering the evidences of the crime and the situation of different objects in the locality, and also to the fact of defendant dropping Ms socks out of the window. These facts were, as before stated, established beyond dispute by testimony of other witnesses who were not impeached, and, therefore, must be taken as undisputed facts. It would not have aided defendant’s, case in the slightest for him to have broken down the testimony of Matlock by the method of impeachment which he attempted. No prejudice, therefore, resulted from this erroneous ruling of the court, and it does not call for a reversal of the case.
Objection is made to the introduction of testimony concerning the finding of the pistol, which was found near the scene of the killing on Sunday after the killing.
We think this testimony was competent, as the evidence tended to show that the pistol was owned by the defendant and that it was secreted under the leaves and brush near the scene of the killing. The State was entitled to have this fact go to the jury as a circumstance indicating defendant’s presence there on that occasion.
s A similar objection was made to the introduction of testimony concerning the finding of the axe two days after the killing, and the testimony as to the chemical analysis of the blood on the axe.
The State proved by the testimony of an expert that it was human blood on the axe, and, considering defendant’s opportunities for having the axe in his possession and the fact that he was the last person seen with it, and, in fact, the only person who was seen with it in his possession on the day of the killing, it was competent for this testimony to go to the jury. The State adduced proof tending to show that the axe, from the time it was found at the woodpile on Saturday, was carefully preserved by the sheriff in-the condition in which it was when found until delivered to the chemist.
Another objection was to the testimony of Miss Gertrude Barham, a sister of deceased, to the effect that defendant offered to escort her sister home from a party, but that after she refused to accept his attentions he used some language about her which the witness expressed a desire not to repeat. After relating the incident, she was asked to repeat the language which defend ant used, and her reply was, "I rather not.” Counsel for the State then asked why, and an objection was interposed, which was overruled, and she gave as a reason that the language was of such a nature that she (witness) did not want to repeat it.
Now, it would have been improper for the court to refuse to require the witness to state what the language was, but counsel for the defendant did not ask the court to require the witness to state what the language was. The manner in which the exception appears in the record shows that they were objecting to any statement on the subject at all. Doubtless, if it had been suggested to the court, the witness would have been required to state what the language was.
We think that under those circumstances the defendant is not in any position to ask for a reversal because the witness was allowed to state that she preferred not to repeat the language.
There are two or three other exceptions to the rulings of the court in regard to admissibility of testimony; but we do not find them to be of sufficient importance to call for discussion.
Our conclusion is, that the court committed no prejudicial error in that regard.
The record shows that during the argument, the prosecuting attorney referred to the testimony of Miss Barham and used this language:
"You have a right to consider this conversation with Miss Barham in presence of her sister, gentlemen of the jury, so unexplained by any one and unexplained and undenied by any one, and I call on them now to explain this conversation, if untrue.”
It is urged that this amounted to a comment on the failure of the defendant to testify.
We do not think that that is the proper construction to place on the language of the prosecuting attorney. It is not a comment or criticism on the defendant’s failure to testify in his own behalf, but was the expression of the opinion of counsel that the testimony had not been re butted and it should be accepted as true. Davis v. State, 96 Ark. 7; Culbreath v. State, 96 Ark. 177.
The objections pointed out by counsel to the instructions of the court are not of sufficient importance to discuss.
Upon an examination of the whole record, we are convinced that the case was fairly tried below and that the evidence was sufficient to sustain the conviction. The judgment is, therefore, affirmed.
Wood and Smith, JJ., dissent. | [
-80,
-6,
-40,
-68,
58,
98,
40,
-72,
-111,
-125,
-12,
115,
111,
-33,
0,
97,
-85,
121,
84,
105,
-92,
-73,
7,
67,
-94,
-77,
7,
-57,
55,
-53,
-1,
-1,
12,
-32,
-54,
81,
-58,
106,
-31,
28,
-126,
8,
-24,
-32,
98,
10,
48,
59,
12,
15,
113,
-114,
-69,
42,
23,
-53,
105,
40,
72,
-81,
80,
-80,
-118,
13,
95,
19,
-93,
38,
-103,
3,
74,
60,
-40,
61,
8,
-8,
115,
-106,
-126,
84,
109,
27,
12,
98,
34,
1,
77,
-17,
40,
-120,
55,
62,
-99,
-89,
24,
97,
73,
78,
-98,
-99,
118,
-44,
14,
-12,
-31,
-41,
17,
108,
-127,
-33,
-108,
-79,
-17,
116,
22,
19,
-53,
5,
48,
81,
-50,
-30,
92,
87,
91,
-37,
22,
-105
] |
McCulloch, C. J.
The plaintiff, Rebecca E. Wallace, instituted this action in the circuit court of Garland County against the defendant, Arthur J. Edwards, to recover, upon open account for borrowed money, the sum of $1,057.50, and exhibited with her complaint various paid checks as evidence of the correctness of the items for the money loaned at various times. There were thirty-four checks, ranging in amount from $2 to $300, and aggregated the sum of $1,057.50, the amount sued for.
Defendant filed his answer, denying that he had borrowed money from the plaintiff or that he was indebted to her in any sum. He also pleaded, as a bar to the plaintiff’s right of recovery, a former adjudication, in another case pending between these parties, of the same question involved in this case.
The trial before a jury resulted in a verdict and judgment in favor of the plaintiff for recovery of the sum of $500, and defendant appealed.
The plaintiff was the wife of the defendant at the time the alleged liability accrued, but the parties were divorced by decree of the chancery court before the commencement of this suit.
The question of plaintiff’s right to sue at law has not been raised, and we need not determine whether it is proper for the plaintiff to sue at law. If her remedy was in equity, defendant waived the point by not moving to transfer.
There is a sharp conflict in the testimony as to whether or not the defendant borrowed the sums named, or any sums of money, from plaintiff. That issue must be treated as settled by the verdict of the jury.
We are of the opinion, however, that, according to the undisputed testimony, the defendant’s piea of former adjudication should have been sustained.
Before the parties were divorced, the plaintiff sued the defendant in equity to cancel a deed which she had executed to him conveying certain interests in real estate, and to recover possession of an automobile, a diamond ring, and certain articles of household furniture. ■ The chancery court rendered a decree in plaintiff’s favor in that case, granting the relief which she prayed, but decreed a lien in favor of the defendant for a certain amount of money alleged to have been paid by defendant to plaintiff for the conveyance. The court also allowed the plaintiff a credit of certain amount of money which she claimed to have loaned to defendant, or turned over to him to take care of.
The defendant in the present case introduced testimony establishing the fact beyond dispute that in the former litigation between them the plaintiff introduced testimony as to all of the checks upon which she relies for recovery, and the decree of the chancery court is brought into the record, and it shows conclusively that the court passed on the question of the plaintiff’s right to recover anything on those checks or to assert them as a set-off against, or in extinguishment of, the defendant’s right to recover the sum of money which he had paid for the price of the land. The decree in the former suit, after reciting the defendant’s claim for reimbursement of the amount paid in consideration of the deed and the testimony with reference to the money paid by plaintiff to defendant upon checks involved in that case and in this, reads as follows:
“The evidence fails to show an actual promise on the part of the defendant to repay each and all of them (the amounts represented by the checks) and the court is unable from the evidence and circumstances surrounding said payments to say, that some of these items were upon a contract to repay, and were not in the nature of advancement; * # # but do find that the plaintiff gave defendant on February 10, 1910, a check for $114, February 2, 1910, a check for $42, and February 28, 1930, a check for $75, making a total of $231, which she says was a part of the $800 and not being otherwise satisfactorily explained by defendant, * * * he should have a credit of $569 received by her from the defendant on account and as a consideration for same.”
This part of the decree shows a distinct finding and adjudication by the court that the plaintiff is not entitled to assert a claim against the defendant for the amounts now set up in this suit. It is true the pleadings in the former suit are not set out in this record, but enough of the record of the former suit is brought into this record to show conclusively that the questions now presented were adjudicated in that case.
In the ease of Kraft v. Moore, 76 Ark. 391, we said: “Where the issues in a former and a pending suit were, not the same, and different relief was sought in the two suits, a plea of res judicata is unavailing. ’ ’
And in McCombs v. Wall, 66 Ark. 336, the court said: “To render a judgment in one suit conclusive of a matter sought to be litigated in another, it must appear, by the record or by extrinsic evidence, that the particular matter sought to be concluded was raised and determined in the prior suit. ’ ’
All of the issues in the former suit were not the same as those in this, but it does appear from the testimony adduced and the record that the question of the plaintiff’s right to assert a claim against the defendant based upon the money drawn upon these checks was made an issue in that case.
In the case of National Surety Co. v. Coates, 83 Ark. 545, we quoted with approval the following statement of the law made by the Supreme Court of the United States in Southern Pacific Ry. Co. v. U. S., 168 U. S. 1:
“A right, question or fact distinctly put in issue and directly determined by a court of competent jurisdiction, as a ground of recovery, can not be disputed in a subsequent suit between the same parties or their privies; and even if the second suit is for a different cause of action, the right, question or fact, once so determined, must, as between the same parties or their privies, be taken as conclusively established, so long as the judgment in the first suit remains unmodified.”
We also quoted with approval the language of that court in the case of New Orleans v. Citizens’ Bank, 167 U. S. 371:
“The estoppel resulting from the thing adjudged does not depend upon whether there is the same demand in both cases, but exists, even although there be different demands, where the question upon which the recovery of the second demand depends has, under identical circumstances and conditions, been previously concluded by a judgment between the parties or their privies.”
Our conclusion is, as before stated, that, according to the undisputed evidence, the claim asserted by the plaintiff was adjudicated in the former action between the parties and that it can not be again adjudicated in this action. The judgment is, therefore, reversed and the cause dismissed. | [
-78,
108,
-128,
-20,
-54,
-96,
42,
-118,
72,
-85,
-73,
-41,
-87,
78,
4,
105,
-32,
75,
101,
106,
127,
-94,
5,
99,
-6,
-77,
-71,
71,
-79,
-49,
-12,
87,
76,
50,
-62,
85,
66,
-126,
-57,
60,
-114,
-124,
-88,
68,
-7,
8,
48,
57,
68,
13,
113,
-98,
-13,
47,
53,
75,
105,
44,
-21,
61,
-48,
-16,
-117,
5,
127,
3,
-111,
86,
-100,
7,
-38,
42,
-112,
61,
1,
-88,
122,
-106,
-122,
84,
73,
-103,
12,
38,
98,
48,
37,
-51,
-103,
-72,
7,
-65,
-115,
-90,
-46,
73,
-117,
9,
-74,
-100,
124,
80,
6,
-44,
120,
-51,
24,
108,
7,
-17,
-42,
-77,
13,
116,
-35,
3,
-22,
-77,
20,
81,
-51,
-96,
92,
71,
57,
-101,
-114,
-9
] |
Kirby, J.,
(after stating the facts). Appellant contends that the court erred in not directing a verdict in its favor and that the damages recovered are excessive.
The telegraph company was under no obligation to do anything further, after it sent the message, in accordance with its contract, to its agent at Hot Springs and discovered that there was no such person as the addressee living there and would have incurred no liability if it had stopped its efforts and failed to deliver the telegram, but, having undertaken to deliver it to the addressee at Little Bock, upon the direction of his brother-in-law at Hot Springs, at the usual additional charge for forwarding, it became liable for negligence in failing to deliver it promptly. No reason is shown for failure to deliver this telegram for four hours after its receipt at Little Bock at the office of appellant, and, unquestionably, if it had reached the home of appellee before noon, or before his leaving after noon, for his place of work, it would have been received in ample time for him to have reached the place of burial of his mother on the morning of the day she was to be buried in the afternoon. Neither will it be questioned, that a delivery of the telegram to his wife, at his residence, the place to which it was addressed at 1:10 o ’clock was a delivery of the message and he, himself, testified that his wife was authorized to receive it. W. U. Tel. Co. v. Trissal, 98 Ind. 566.
Appellee’s wife did not testify in the case on account of her condition, expecting shortly to be confined, and if she made any further effort to notify her husband of the arrival of the message than to call for him over the phone at the office of the plumbing company for which he was at work and leave directions for him to call her immediately upon his return, it is not shown.
The telegraph company was grossly negligent in failing for four hours to deliver this telegram to the addressee, within sixteen blocks of its office, who had advised it beforehand that he expected a death message and had its agents to write down his address that there ■might, be no unnecessary delay in the delivery thereof. The message on its face, apprised the company of the relationship existing between the parties and that damage might result from the delay in its delivery.
It was through no fault of appellee that the message did not reach him sooner and the question of whether he was chargeable with such contributory negligence as would bar his recovery after the message was in his absence delivered at his home to his wife at 1:10 p. m. in not being able to reach and take the 3:40 train thereafter, was a question for the jury.
Of course, he might have had ample time to have done so if, upon the phone call of his wife for him at the plumbing office, after the delivery of the telegram to her, a messenger had been sent to the place he was at work to notify him of the contents of the telegram and it may be that the wife was negligent in not notifying the man in charge of the plumbing office, under whose direction he was at work, of the contents of the message, and requesting him to send a messenger for her husband, instead of leaving directions upon not finding him in that he call her upon the phone immediately upon his return. Such procedure might have resulted in the receipt of the information by appellee in time for him to have taken the train and attended the funeral of his mother, but it might not have been practicable for the plumbing office to send a messenger for appelee and it might have refused to do so, and we can not say, as a matter of law, that this was such negligence, chargeable to him as would bar his recovery. Neither will this court say, as a matter of law, that appellee was guilty of such negligence after receiving information of the receipt of the telegram upon his return to the plumbing office, forty minutes before the departure of the train in not reaching the station in time to take the train and arrive at the funeral, under the circumstances of this case. He was a poor man, accustomed to traveling upon the street cars, and concluded, knowing the schedule of the street cars as he did, that he would not have time to reach home, change his clothes, get his ticket, stop at the bank and draw his money therefrom and reach the depot in time. It, of course, could have been done, if he had resorted to the use of an automobile or taxicab, but he was not accustomed to this method of rapid transit, and this court can not say, as a matter of law, that he was negligent in failing to employ it under the circumstances and in the emergency and under the shock of the realization of the death of his mother, which, although expected, was necessarily a shock; it was properly a question for the jury under all the circumstances, as to whether or not he was guilty of such negligence in failing to reach' the train after he received the information of the contents of the message in time for arrival at the place of his mother’s funeral before the interment and the jury have decided the question in his favor, upon instructions which we do not find erroneous.
The court, however, is of the opinion that the verdict is grossly excessive. The burial was not to take place at the home of the man’s dead mother among his relatives and the family friends, but in a distant town in another State away from the place of death, where the body was taken for burial and little opportunity could be afforded for consolation by being with the members of the family and friends. W. U. Tel. Co. v. Garlington, 101 Ark. 487, 142 S. W. 854.
If a remittitur is entered within fifteen days, reducing the judgment to $500, it will be affirmed; otherwise, it is reversed and the cause remanded for a new trial. | [
-112,
124,
-8,
-65,
40,
96,
58,
-102,
113,
-79,
-89,
83,
-55,
-63,
-103,
115,
50,
59,
-16,
107,
-11,
-89,
47,
104,
-38,
-109,
115,
-108,
-79,
108,
-4,
-2,
76,
32,
-54,
85,
102,
90,
77,
-36,
-58,
0,
1,
-11,
89,
19,
36,
123,
24,
71,
113,
-50,
-29,
42,
25,
-58,
40,
58,
105,
-67,
-54,
113,
-70,
5,
123,
2,
-128,
39,
-39,
-89,
-24,
28,
-104,
49,
0,
-88,
112,
-89,
-125,
124,
11,
-87,
-128,
98,
99,
32,
13,
97,
-20,
-120,
38,
-66,
63,
-89,
20,
40,
11,
37,
-105,
29,
34,
52,
39,
-6,
-2,
-99,
29,
124,
9,
-113,
-112,
-121,
47,
102,
-100,
-97,
-17,
-75,
48,
112,
-50,
-96,
92,
69,
51,
27,
-98,
-13
] |
Smith, J.
The General Assembly of 1909 passed an act creating Levee District No. 1, of Crawford County, Arkansas, which act described the boundaries of a district to be protected from overflow, by the construction of a levee therein provided for, and authorized the board of directors to borrow money, and issue bonds in payment of the work not to exceed $100,000. Later, at the same session of the General Assembly, this act was amended in several respects, and authorized a total bond issue of not exceeding $250,000. The board of directors, named in and provided for by the act, organized and advertised for bids for the construction of this improvement, and the contract was let to A. M. Morrow on the 7th day of July, 1909. Morrow commenced the actual construction of the levee in the latter part of July, and a formal contract was later entered into between him and the levee district.
It appears that Morrow had neither the individual means, nor the personal credit to perform this contract, ]but lie succeeded in enlisting the interest and support of the -Pine Bluff Trust Company, a banking institution located at Pine Bluff, and of which one D. C. Bell was the executive officer.' This trust company deposited with the officers of the levee district a certified check for $9,600, which accompanied Morrow’s bid, and the levee, officials were assured by Bell that Morrow would be amply able to comply with the contract, if it was let to him; that the trust company had the means to finance the enterprise, and could and would do so, by taking the bonds of the levee district, if no other disposition of them was made. Morrow entered into a written contract with the levee district under date of August 17,1909, whereby he agreed to build the levee, and to construct certain concrete work, embraced in the engineer’s specifications, and to accept in pay therefor the first mortgage bonds of said district at par, and it was provided in said contract that said bonds should be placed in trust in the hands of the Pine Bluff Trust Company, and by it sold at a price of not less than 90 per cent on ’ the dollar, and the proceeds from such sale to be held by the trust company, and paid out by it to the builder on monthly estimates of the district engineer on signed orders of the directors of the. district. It was further agreed that the proceeds of all bonds should be deposited with the said trust company, which should pay to the levee district 2 per cent per annum upon the monthly balances of the funds arising from the said sale until the same were expended, as per the terms and conditions of the contract, it being there expressed that the sum of $210,000 was but an approximation of the whole cost of the construction of the said lev.ee under the builder’s contract.
It was evidently contemplated by the parties in interest, that the levee district would soon be prepared to issue its bonds, and Morrow put a large force of men at work on the construction of the levee and entirely completed one part of the concrete work, which was embraced in the specifications, and -received pay therefor. At the time Morrow received his estimate from the engineer for his first month’s work, the district had made no sale of the bonds, and Morrow did not have funds with which to pay his subcontractors, and various complications arose which interfered with the bond issue; and the bonds were never issued under the act which .authorized the issuance of $250,000 of bonds, and under which the parties were then proceeding. Morrow continued the construction of the levee, and received from the engineer estimates for the work done both in September and in October, and borrowed from the trust company large sums of money, which he used to meet his obligations to his subcontractors. During all of this time the trust company and others were expecting the levee district to get in shape to issue its bonds.
On the 6th day of November, 1909, Morrow and the trust company entered into a written contract, which contained the following recitals, among others: That a verbal agreement had been entered into between Morrow and the district whereby the trust company had agreed to exert its influence to aid Morrow in procuring the contract for building the Crawford Oounty Levee, and put up the certified check called for by the instructions to bidders issued by said levee district in advertising for bids, and had acted as agent for Morrow in selling the bonds which, under his contract with the levee district, should be paid to him for the construction of said levee, and had procured a contract of sale for the said $210,000 of bonds at 92 per cent of their face value; and that as the trust company had furnished Morrow certain sums of money, and might, at its optioh, advance other sums of money, it was agreed that for the purpose of securing the payment of any sums of money which were then, or might thereafter, be owed by the said Morrow to said trust company until the completion of the building of the said levee, the said Morrow set over, assigned and transferred to the trust company all his interest in the proceeds of said bonds, and authorized the trust company to collect and apply the same to the payment of such indebtedness, and it. was stipulated that for such sums as were advanced to said Morrow by the trust company, before final settlement of all the accounts between him and the trust company, that the company should have the right to apply the proceeds of said bonds to such indebtedness the same as if made before the completion of said levee work.
This contract further recited that the trust company should have, as its compensation, a commission of $1,050, and all interest which had accrued or might thereafter accrue on said bonds, before their delivery to the purchaser. This compensation was in lieu of the original agreement between Morrow and the trust company, wherein he had agreed to pay a commission of one per cent on the bonds and a certain percentage of the contract price, which the levee district was to pay for the work.
A firm of lawyers in Chicago, 111., had been employed to pass upon and approve the bond issue, but they made a number of requirements which were never complied with, and it was afterward agreed that the firm of Bose, Hemingway, Cantrell & Loughborough of Little Bock should be employed to pass upon this bond issue, and to direct all the legal steps essential to their validity. This employment was suggested in a letter, written for the Pine Bluff Trust Company to the president of the levee district, in which the recommendation was contained that that firm also represent the levee district in certain litigation then pending, which involved the constitutionality of the act itself, and the validity of the assessments made under it. This firm had fixed its fee at $1,000, and Bell proposed to share its payment equally with the levee district, if that firm was given entire control of that litigation, and of the district’s bond issue. This proposition was accepted, and that firm was employed and represented the district in said'litigation. But for various reasons, these bonds were never issued.
The trust company was unable to handle these bonds, or to find a purchaser for them, and Judge James Could was employed for that purpose. The contract therefor was made on the 18th of August, 1909, at Pine Bluff, Ark., by which, Morrow and the trust company assigned and transferred to the said Gould all interest and profits which they had in the sale of the $210,000 of Crawford County levee bonds over and above the price of 92 per cent on the dollar and accrued interest; in other words, Gould agreed to pay to Morrow and the trust company 92 per cent and accrued interest for said bonds, and the rights which Gould seeks to enforce in this litigation grows out of this agreement. The levee district was advised of this contract and assented to it.
Morrow was compelled to shut down his construction of the work, which he did about the 1st of December, because the trust company declined to make him any fur-there advances of money, and because he was unable to secure and sell the bonds of the levee district. The proof shows that Bell had made a number of visits to Van Burén in connection with this work, and ordered the work closed down, and directed the settlement, which was finally made, and out of which this litigation grows.
The Legislature of 1911 changed the boundaries of this levee district and excluded therefrom a considerable part of it, and authorized a bond issue of not exceeding $175,000, which bonds were sold, and out of the proceeds of this bond sale, the levee district has undertaken, both to complete the Morrow contract, and to discharge the obligations of that contract, in its partial performance. When the work under Morrow’s contract was suspended, the levee district issued certificates of indebtedness to Morrow’s subcontractors, and the material and supply furnishers in the sum of $47,277.25, and the engineers’ estimates given Morrow for the work done by him amounted to $57,422. The court found that these certificates of indebtedness were so issued under the direction of Bell. Prior thereto, and on the 18th of September, 1909, Morrow had given to the Pine Bluff Trust Company an order to the levee district for all this income arising out of the contract to build the levee, and this order was presented to the president of the levee board and by him endorsed “Accepted,” and upon this order the Cotton Belt Savings and Trust Company, and the Pine Bluff Trust Company, which had been succeeded by the Cotton Belt Savings and Trust Company, brought this suit jointly to distribute the money in the treasury of the levee district due on the Morrow contract, claiming priority and attacking the payments made by the levee district to Morrow’s subcontractors and material and supply furnishers.
There were a large number of interventions filed in this suit by some of the subcontractors, with whom Morrow did not settle, and gave orders on the levee district, and some material and supply furnishers who did not receive orders from Morrow to the levee board, and who were not paid by the levee district for that reason.
The trial court found the issues against the plaintiffs, and ordered the fund distributed, first, to the interveners, and the balance to the plaintiffs, and dismissed the intervention of James Could for the want of equity, and the trust companies and Could appeal from that decree.
The chancellor prepared a written opinion in which he made certain findings of fact, and, among others, that the agreement before referred to, dated September 18, 1909, between Morrow and the trust company, which was called an assignment of Morrow’s right under the contract to receive money in payment of the work due thereunder, was an assignment of the net profits due Morrow by the levee district, and not the gross amount which was earned. The part of the contract which received this construction reads as follows: “For a valuable consideration, I have sold and assigned to the Pine Bluff Trust Company all of my income arising out of the construction contract I have with this board, * * * including retained percentage, etc.;” and this contract further authorized and directed the levee board to furnish to the Pine Bluff Trust Company, from month to month, estimates of the work done,'when prepared by the engineer, and to deliver checks to the Pine Bluff Trust Company, taking its receipt therefor. The court also found the facts to he that Bell was clothed with the full authority to act for the trust company in all matters relating to this contract, and that while so acting, he directed the levee district to issue its interest-bearing certificates of indebtedness to the subcontractors and material furnishers. But, whether Bell had the express authority from the trust company to direct that this action be taken by the levee district or not, the fact is clearly established by the evidence that he did direct the issuance of these certificates, and that they were issued in obedience to his directions. But we think the chancellor’s construction of the contract is correct, and that it is supported by the action which the parties to it took under it. Bell was thoroughly familiar with this transaction, and he acted both for himself and Morrow, from its inception down to the time of his death, which occurred before the trial of the cause below, and his deposition was never taken.
The contract between Morrow and the levee district for the construction of the levee contains the following section:
“And when all the Avork embraced in this contract has been completed agreeably to the specifications, and according to the directions and to the satisfaction and acceptance of the chief engineer, there shall be a final estimate made of said work, agreeably to the terms of this agreement, when the balance appearing due to the said party of the first part shall be paid to him in bonds as above upon his giving, under seal, a release to the said board of directors, from all claims or demands whatsoever groAving in any manner out of this agreement. ’ ’
The bond which Morrow was required to execute in the sum of $53,000, contained the covenant that Morrow should be responsible for, and pay all liability incurred, in the prosecution of the work for labor and'material, and that his bond should be void only when that had been done. The provisions quoted from the contract and bond were evidently inserted, not to protect the levee district from any claims of liens in favor of these subcontractors, but this language was evidently-employed for the purpose of protecting the subcontractors, who had no liens under the law. Goyer v. Williamson, 107 Ark. 189, 154 S. W. 525. It was known that Morrow was not personally able to pay the large sums of money which would necessarily become due to his subcontractors and material furnishers, and the action taken by the parties to this transaction sustain the interpretation of the court below given to the various contracts in evidence, that the trust company should receive for Morrow only the net profits derived by him from the performance of the contract. Morrow could only assign to the trust company what belonged to him and the officer acting for the trust company knew what these rights were, for this officer had represented to the officials of the levee board that Morrow would be able to meet his obligations, if the contract was awarded to him, and when this official closed down the work and declined to make further advances for the trust company, and there had been no sale of the bonds to provide a fund for the payment of these obligations, Bell authorized what must have been in the contemplation of the parties, when the contract was made, that Morrow’s obligations be first paid. This view of the contract between Morrow and the levee district is strengthened by a consideration of another section of it, which provides that Morrow should furnish all the labor and material necessary to complete the levee, and that when completed according to the contract, he should give a release to the board of directors for all claims or demands whatsoever growing in any manner out of that agreement, and he should then receive final payment.
The stopping of the work on Bell’s order was an end of the contract, so far as Morrow was concerned, and to be entitled to full pay for the work done, including the retained percentage of 15 per cent, which the levee district was authorized to withhold until a full compliance with the contract, required that Morrow should settle with these subcontractors and material men. And, as Bell was not willing to advance for the trust company any more money, and as the bonds had not been sold, these settlements conld be made only by the issuance of certificates of indebtedness. And certainly it was not in the contemplation of the parties, and is not fair that when this had been done, that the levee district should be compelled to pay these demands a second time, or to pay such part of them a second time, as would enable the trust company to collect all of its advances to Morrow, and enable Gould to collect his commission on the bond sale which he had negotiated. The chancellor dismissed the claim of Gould for his commission of 8 per cent upon this bond issue, or even that per cent upon the sum due Morrow from the levee district, and we think that finding was correct. These bonds were never sold nor issued, and the act which authorized their issuance was repealed, and if Gould has any remedy, it is not against this levee district, and can not be enforced in this proceeding.
The chancellor found from the evidence before him the sum due upon the various interventions, and no complaint is made here of the correctness of any of these findings, it being objected only that he decreed that they should have priority in payment, but as has been stated, we approve his action in that respect, and affirm his order.
The levee district filed a counterclaim against the trust company for one-half of the fee paid the firm of Bose, Hemingway, Cantrell & Loughborough, and the chancellor found that it should have judgment against the trust company therefor, and we think that finding is not against the preponderance of the evidence.
Upon the whole case, we think the chancellor’s finding and decree is not contrary to the clear preponderance of the evidence, but that, on the contrary, equity has been done and the decree of the court below is accordingly affirmed. | [
118,
68,
-36,
111,
-54,
68,
24,
-118,
-46,
-112,
-27,
90,
-19,
15,
69,
65,
-58,
-71,
81,
105,
-12,
-109,
49,
120,
-110,
-101,
-1,
-57,
58,
127,
-84,
-107,
76,
80,
72,
-103,
-122,
96,
-35,
-100,
79,
-63,
-117,
-19,
89,
64,
59,
111,
51,
-116,
101,
61,
-13,
-84,
50,
107,
-35,
47,
-47,
47,
81,
-14,
-72,
-36,
-1,
21,
-127,
-31,
-110,
17,
-64,
30,
-112,
53,
-60,
-8,
102,
38,
6,
70,
5,
89,
40,
114,
34,
1,
-27,
-49,
40,
-84,
22,
-109,
-119,
-122,
-106,
121,
2,
76,
-65,
-40,
-38,
16,
-122,
-14,
-89,
-59,
95,
108,
-125,
-18,
-10,
35,
13,
-3,
-100,
15,
-29,
-118,
32,
100,
-124,
-74,
71,
-17,
71,
27,
-113,
-15
] |
Kirby, J.,
(after stating the facts). It is insisted for appellant that the rule of law, devolving the duty upon the master to exercise ordinary care to provide the servant with reasonably safe instruments and appliances for the performance of his work and to exercise ordinary care in the inspection thereof, has no application to the facts of this case, which, it is insisted, comes vdtliin the exception to the rule, relating to simple tools and appliances, and that the court should have directed a verdict in its favor.
The instrument complained of in this instance ivas; a common ordinary stick or strip about six feet long and one inch square, pointed at the end, and its structure and grain were obvious and as easily comprehended by the servant as the master and by one man as another. The sticks were not manufactured for the particular use except the sharpening at one end, and were selected from another department of the mill on account of their length and size adapting them to the use to which they were put. .There was no dangerous machinery in the chute, in the cleaning out and unchoking of which the sticks were to be used, with which the person using it could come in contact, and the sticks were not expected to last permanently or long, and were likely to be broken or split and destroyed in the using, as ivas apparent from the number supplied. Appellee acted upon his own initiative, and without direction from any one, and could consume as much time in unchoking the sawdust chute as was necessary without hurry or haste, and when the chute choked up, walked around the machine to where the pile of sticks lay, some' six or eight feet away, and picked up one of them for that purpose while his brother went downstairs to assist from below. The stick ivas an instrument or appliance as simple as any that can be used in the performance of any kind of work.
Thompson on Negligence, says (vol. 4, sec. 4708 2 ed.) : “A servant assumes the risk of injuries from simple and ordinary appliances aud methods, the nature of which he understands, or which is easily understood. It is a part of this doctrine that the duty of inspection by an employer of the appliances used by his employees does not extend to the small and common tools of every day use, of the fitness of which the employees using them may reasonably be supposed to be competent judges.”
In Labatt on ‘ ‘ Master and Servant, ’ ’ vol. 1, sec. 154, p. 331, it is said: ‘ ‘ That the duty of inspection does not extend to the small and common tools of every-day use, of the fitness for use of which the employees using them may reasonably be supposed to be competent judges.”
In Masich v. American Smelting & Refining Co., 118 Pac. 764, a case where the plaintiff was injured by getting his hand caught between rollers in a rock crusher about which he had been employed for some time; his work required him to shovel ore into the breakers, and when a rock became lodged in the crushers or rollers, to push it through with a stick, for which purpose the company furnished sticks cut from rough pine boards. While attempting to push some rock through the rollers with a pine stick three feet long, one inch vide and half an inch thick, his hand and arm were drawn between the rollers and crushed. It was alleged that the smelting-company was negligent in furnishing him a defective stick, the surface of which was rough and splintered at the point where plaintiff took hold of it, and that by reason of its condition, his glove on his right hand became fastened to the stick, and was held by it so that he could not withdraw his hand from the glove or turn the stick loose, by reason of which his hand and arm were drawn between the rollers and crushed.
The court held that the stick was a simple appliance, and that no negligence could be imputed to the master for the failure to inspect it, and quote in support of the decision from the opinion in Longpre v. Blackfoot Milling Co., 99 Pac. (Mont.) 131, as follows:
“Among the practical duties incumbent upon him (the master) is that of inspection of the machinery and appliances to discover defects in them, both at the time of furnishing them and during the course of the employment ; for this is the only means by which he may guard the safety of those employed by him in the use of them. '* * * But it is not always absolute. It is not the duty of a railroad company or other persons engaged in great industrial enterprises, to inspect, much less to test, every tool or appliance put in the hands of an employee; this duty arises only when the appliance is of such character that a man of ordinary prudence would, under the same circumstances make the inspection as a precaution against injury to his servant. The master is not required to inspect simple appliances, such as hammers, saws, spades, hoes, lanterns, push sticks, and the like, the character and use of which are understood by all alike. A tool of this class is so simple in its construction, so well understood by men of ordinary intelligence that it would seem absurd to say that the master should make careful inspection of it before he commits it to the hands of his servant, who has the same capacity to understand its character and uses that he, himself, has.” Continuing, it said:
“The cases cited and relied upon by this court in the Longpre case above, fairly illustrate the exception to the rule, which requires that the master shall inspect the appliance which he furnishes to his servant. So long as it is the rule of law that the master is relieved from the duty of inspecting simple tools and appliances, and that burden is imposed upon the servant, the rule must be susceptible of application, or it becomes a protection to the master in theory only, and is without practical value. =* * * rp]ie compiete description of the instrument as given in the record is a pine stick three feet long, an inch wide and one-half inch thick. If it was not a simple tool or appliances, then we are unable to imagine what application the term “simple” can have when used to characterize the instrumentalities of any occupation.”
In Ry. v. Larkin, 82 S. W. (Tex.) 1026, a case where a brakeman complained of the railroad’s failure to inspect a lantern furnished him, which, by reason of some defect not patent,to ordinary observation, exploded and injured him, the court said:
“It is not the duty of a railroad company to inspect every implement and tool that it furnished to its employees. That duty arises whenever the machinery or implement is of such character that a man of ordinary prudence will, under the same circumstances, inspect the machinery or implements as precaution against injury to the servant. * * * A master is not required to inspect the common tools and appliances which are committed to the custody of a servant who has the capacity to understand their character and uses. * * * If this requirement were sustained, then every farmer or housekeeper who furnished an ax to his or her servant with which to cut wood for use on the premises, or for other purposes, must use that care which would here be required with regard to the lantern by inspection to discover the condition of the axe before he purchased it, and during the use of it by his servant, he must keep up the order of inspection in order to insure safety. * * * Likewise, it is a matter of common knowledge that a .lantern globe is one of the simplest appliances that can be furnished to a servant for use as well as being in common use; and the court knows, as a matter of law, that it does not require special knowledge or skill to understand the lantern; nor is there any reason why the servant who handles it should not be fully acquainted with its condition, especially when, as in this case, it is committed to his exclusive control and care. There may be, and doubtless are, cases, in which it is a question of fact that should be submitted to the jury, as to whether the machinery or implements, tools and the like were of such character as to require inspection and safeguard against the injury; but there was no reason for submitting the question to. the jury in this case. ’ ’
See also Sterling Coal Co. v. Fork, 141 Ky. 40, 131 S. W. 1030, 40 L. R. A. (N. S.) 837, and case note on page 832 thereof; Vanderpoole v. Partridge, 112 N. W. 318, 13 L. R. A. (N. S.) 668, and authorities in case note; Sheridan v. Gorham Mfg. Co., 66 Atl. 576; 13 L. R. A. (N. S.) 687.
The defect or cross grain in the stick, selected by the servant from the number supplied, was obvious and patent, and 'as easily discovered by the servant as it could have been by the master, and, it being.a simple tool, no duty devolved upon the master to inspect it, and appellant assumed the risk attendant upon its use.
In Marcum v. Three States Lumber Co., 88 Ark. 36, the court said:
“Where the servant is engaged in ordinary labor with tools of simple construction, which are used by himself alone, and where the facts are undisputed, reasonable minds must inevitably come to the same conclusion, hence, there is nothing to submit to the jury. ’ ’
See also St. Louis, I. M. & S. Ry. Co. v. Goins, 90 Ark. 392; Henry Wrape Co. v. Huddleston, 66 Ark. 238; Fullerton v. Henry Wrape Co., 151 S. W. 1005.
It may be that if appellee had adopted a different method of unchoking the chute with the stick used, that no injury would have occurred in any event. If, instead of bearing down with his whol^ weight upon the stick to push it through, he had worked in unchoking it by prizing and lifting the obstruction therein from the side or end of the chute, he might have accomplished the purpose as well, and if the stick had broken, there would have been no throwing him forward nor upon the saws. The method of doing the work was entirely under his own control, as well as the selection of a stick from those furnished with which to do it.
In Chicago, R. I. & P. Ry. Co. v. Smith, 107 Ark. 512, we said: “There is no hard and fast rule that may be laid down as governing the liability of an . employer for defects in common tools. In view of this condition, we do not undertake to say what state of facts the rule of liability should embrace, and what it should not. ’ ’
In that case, the servant was not permitted 'to make his own selection of the tool to he used by himself alone.-
It follows, from the principles announced that no negligence was shown upon the part of the master, and that the injury occurred from an ordinary risk incident to the employment, which was assumed by appellee, upon engaging therein.
The court erred in not directing a vérdict for appellant, and its judgment'is reversed'and the cause dismissed. | [
-112,
120,
-40,
-99,
24,
96,
58,
-102,
65,
-75,
39,
-13,
-51,
-109,
-99,
98,
-9,
125,
48,
43,
-35,
-93,
22,
75,
-58,
91,
-47,
-36,
-71,
106,
-10,
124,
76,
48,
-118,
-43,
103,
72,
77,
-48,
-122,
13,
42,
-21,
121,
18,
56,
46,
-76,
75,
113,
-106,
-77,
14,
29,
-49,
-86,
46,
107,
52,
112,
120,
-70,
13,
95,
16,
-77,
37,
-116,
37,
-40,
44,
-104,
25,
0,
-24,
115,
-76,
-127,
92,
47,
-87,
9,
98,
98,
34,
25,
103,
-8,
-16,
47,
-18,
-97,
-89,
-112,
120,
-85,
43,
-65,
-99,
98,
20,
62,
126,
-29,
85,
31,
100,
3,
-121,
-12,
-125,
-115,
36,
-108,
-88,
-17,
-113,
18,
81,
-36,
-86,
94,
5,
83,
31,
-98,
-102
] |
Kirby, J.,
(after stating the facts). It is not contended that there was any express agreement between Martin and appellant that it should be subrogated to the rights of the prior mortgagees upon the payment of their debts out of the money which it loaned for that purpose, but, it is insisted that since it made the loan with the expressed understanding and agreement that its security upon the property therefor should constitute a first lien, the other mortgage debts having been paid off with its money, and that it is entitled to subrogation to the rights of said mortgagees as against the judgment lien of appellee, of which it was ignorant when it made the loan and took its security. It was not a volunteer in the payment of these other mortgage debts, the loan having been negotiated from it by the mortgage debtor for the express purpose of paying them. “One who pays a debt at the instance of a debtor is not a volunteer.” Rodman v. Sanders, 44 Ark. 504.
The doctrine of subrogation is an equitable one, having for its basis the doing of complete and perfect justice between the parties without regard to form, and its purpose and object is the prevention of injustice. Cyc. also says, “And generally, where it is equitable that a person, not a mere stranger, intermeddler, or volunteer, furnishing money to pay a debt, should be substituted for or in the place of the creditor, such person will be so substituted.” 37 Cyc. 371.
In Chaffe & Bro. v. Oliver, 39 Ark. 542, this court said: “Subrogation, in its literal and equitable significance, is the demanding of something under the right of another, to which right the claimant is entitled for the purposes of justice to he substituted in place of the original holder. Its phases are various, but it preserves its characteristic features throughout. It is the machinery by which the equity of one man is worked out through the legal rights of another. It rests upon the maxim that no one shall be enriched by another’s loss, and may be invoked wherever justice and good conscience demand its application in opposition to the technical rules of law, which liberate securities with the extinguishment of the original debt. This equity arises when one not primarily bound to pay a debt, or remove an incumbrance, nevertheless does so; either from his legal obligation, as in case of a surety, or to protect his own secondary right; or upon the request of the original debtor, and upon the faith that, as against the debtor, the person paying will have the same sureties for reimbursement as the creditor had for payment. And this equity need not rest upon any formal contract or written instrument. Like the vendor’s lien for purchase money, it is a creation of a court of equity from the circumstances.” The theory of equitable assignment, as laid down by Pomeroy is: “In general, when any person having a subsequent interest in the premises, and who is therefore entitled to redeem for the purpose of protecting such interest, and who is not the principal debtor, primarily and absolutely liable for the mortgage debt, pays off the mortgage, he thereby becomes an equitable assignee thereof, and may keep alive and enforce the lien so far. as may be necessary in equity for his own benefit; he is subrogated to the rights of the mortgagee to the extent necessary for his own equitable protection. The doctrine is also justly extended, by analogy, to one who, having no previous interest, and being under no obligation, pays off the mortgage, or advances money for its payment, at the instance of a debtor party and for his own benefit; such a person is in no true sense a mere stranger and volunteer.” Pomeroy, Equity Juris.,, vol. 3, § 1212.
In Capen v. Garrison, 193 Mo. 335, 92 S. W. 368, 5 L. ít'. Á: (N. S.) 838, the court said: “Equity will not in-graft this doctrine on the transaction in the face of á contract' that negatives the idea. of subrogation. In other words, the contract may be silent on the subject, yet not inconsistent with the idea of subrogation; or, on the other hand, it may be silent on the subject, yet its terms expressly or by implication forbid the application of the doctrine. So it may be said that equity may apply the doótrine, although the contract does not either expressly, or by legal implication, call for itbut it will not apply if the contract either expressly or by legal implication forbids it. The parties may not have had subrogation in their minds at all when they made the contract; but that fact (alone would not control in a question of application of the doctrine. Equity will apply it, though the parties may never have thought of it, if it is not inconsistent with the contract or in violation of any one’s legal rights, and if justice demands it. * * * The usual application of this principle occurs where a person, at the request of the debtor, pays the mortgage debt, or where one interested in the property pays an encumbrance to protect his own interest, or where he stands in the relation of surety to the debt. ” It is undisputed that both the mortgagor, Martin, and the mortgagee, appellants, understood when the mortgage was executed that the debt secured by the two prior mortgages were to be paid with the money advanced on this mortgage, and that it would be a first lien against the property for the money so advanced. It was not agreed, and it was not the intention of the parties that said other mortgages should be assigned to appellee upon, the payment of the debts secured by them with money advanced by it, it is true, but it would have had the right to insist upon such assignment, and since its security failed to constitute a first lien because of the judgment of appellee, of which appellant was ignorant at the time of taking its mortgage, we see no reason why equity should not treat it as an assignee of the first mortgages, discharged with, the money advanced by it 'and under its doctriné of equitable assignment and effec tóate the agreement with the lender that its security should be a first lien. It had the right after its morfi gage was made to apply the money advanced in payment of the other mortgages and take an assignment thereof to protect itself, and in holding that appellant became the equitable owner of said mortgages upon their payment with the money so advanced by it, and in applying the doctrine of subrogation the appellee company is in no worse position than it would have been if said mortgages had not been paid and no injustice is done it, for it can not complain that the subrogation makes its position less favorable than it would have been if appellant company had not made the loan and advanced the money to pay off said mortgages. It can, by a proper procedure for the payee to have the credit or satisfaction of the judgment set aside, if it has been entered, and the said judgment will continue and remain a binding obligation against the judgment-debtor constituting a lien against his property as though no such credit or satisfaction was entered. Having made the payment, it was entitled to the benefit of the doctrine of subrogation, and became the assignee of the claims paid, and not being a volunteer or stranger, it is immaterial that a release instead of an assignment was made. No rights of innocent third persons having intervened the release does not prevent the person making the payment or furnishing the money therefor from becoming the equitable assignee of the claims paid. Sidener v. Parey, 77 Ind. 241 ;Loan Assn. v. Sparks, 111 Fed. 652; Rachel v. Smith, 101 Fed. 159; Wilkins v. Gibson, 38 S. E. 382. See also 5 L. R. A. (N. S.) 3 div. ease-note to Capen v. Garrison, p. 845. Appellees insist that the case should be affirmed as controlled by the decision in Cohn v. Hoffman, 50 Ark. 108. In that case á person furnished the money to pay the remaining note due for purchase money of the land, and there was no agreement' nor understanding that he was to succeed to the vendor’s lien, ■qnd no assignment of the note was taken by him. Nor was there any element of mistake therein as in this case, and the court said: “No circumstance connected with the transaction manifested an intention to keep the lien alive for his protection.” Here the parties expressly agreed that the appellant, mortgagee, was to have a first lien upon the premises, and while it is true they thought that the record of its mortgage and the payment of the debt secured by the two prior mortgages and their release would effectuate that purpose; it failed to do so because of the lien of the judgment of appellee intervening, of which appellant was ignorant and should not be charged with negligence in failing to discover it since an examination of the index to the record of judgments would not have disclosed it.
It follows from the principles announced that under the doctrine of equitable assignment and subrogation, appellant, the Southern Cotton Oil Company, was entitled to subrogation to the rights of the prior mortgages to the amount of their claims paid by the money advanced by it, and to the satisfaction therefor out of the property prior to the payment of the lien of appellee, which must be postponed to such payment. The decree is reversed and the cause remanded with directions to enter a decree in accordance with this opinion, subrogating appellant to the right to foreclose liens against said property for the amount so paid the prior mortgagees; and, if the same is not paid, that the property shall be sold and that amount of the proceeds thereof paid to said The Southern Cotton Oil Company free from the lien of the judgment.
Hart and Smith, JJ., dissent. | [
-48,
104,
-48,
-20,
-22,
96,
43,
-104,
88,
16,
-89,
91,
123,
-54,
20,
45,
-11,
105,
100,
10,
117,
-94,
7,
72,
-46,
-109,
-15,
85,
-79,
-52,
114,
127,
12,
48,
98,
-43,
102,
-101,
-91,
-46,
14,
7,
56,
69,
-8,
0,
52,
59,
16,
15,
1,
-74,
-77,
40,
17,
78,
8,
41,
93,
125,
-48,
56,
-97,
-123,
123,
1,
51,
101,
-36,
99,
-6,
-116,
0,
29,
1,
-24,
91,
-74,
-126,
-43,
-53,
25,
40,
114,
102,
-112,
108,
105,
-116,
-103,
42,
-50,
31,
-90,
-75,
121,
11,
73,
-73,
-97,
110,
37,
38,
-34,
-30,
-107,
29,
109,
26,
-113,
-42,
-77,
-116,
116,
-102,
-53,
-41,
83,
48,
116,
-52,
-80,
93,
-25,
123,
-101,
-114,
-37
] |
Smith, J.,
(after stating the facts). Article 7, § 46, of the Constitution provides: ‘ ‘ That the qualified electors of each county shall elect one treasurer, who shall be ex-officio treasurer of the common school funds of the county.” Section 3509 of Kirby’s Digest provides: “He (the treasurer) shall be allowed as commissions on the aggregate amount of all school funds of the county that come into his hands in any one year, the rate of two per cent and no more, provided that if any county treasurer shall have taken commissions from any part of the school funds, the same shall not be subject to the commission in the hands of his successors in office.” Appellee contends that he is entitled to the commission sued for under the Constitution and statute above quoted. “The common school fund of each county” and “all school funds of the county” as used in the Constitution and statute quoted mean funds raised by the annual levy and collection of the taxes for school purposes and other sources such as that prescribed by section 7486 of Kirby’s Digest. The Constitution and laws provide for State taxes which shall not exceed three mills on the dollar and for a per capita tax of one dollar, and also for school district taxes not to exceed seven mills on the dollar. Section 7486 of Kirby’s Digest provides for common school funds derived from certain other sources. These funds together with the funds raised by annual taxation under the Constitution and laws, constitute the “common school funds of each county,” referred to under the constitutional provision and statute, supra, under which appellee claims. But the special funds obtained by mortgaging the property of the special free school district for the purpose of erecting and equipping a school building under the authority of section 7696 of Kirby’s Digest are not a part of the common school fund or the school funds of each county, in the sense that these terms are used in the Constitution and statute, under which appellee claims. The funds obtained for the special purpose named and in the manner named in the statute are not realized from the taxes or from the other sources by which the common school funds of the county are raised. They are not, as stated, a part of the ‘ ‘ common school funds,” or “the school funds” of each county, but belong to the special school district raising them in a special manner for the special purposes designated. See Honey v. Greene County, 102 Ark. 106. There must be some specific statutory authority for the allowance of the commission or fee to an officer. See Honey v. Greene County, supra.
The appellee admits that he had received his commission on all moneys paid out as interest and all moneys of the Helena Special School District No. 1, which had come into his hands. The treasurer being entitled to and allowed commissions on the funds raised by taxation, set apart for the purpose of paying the interest and principal of the bonds as this sum passed through Ms hands, can not be allowed, in addition to tMs, a commission on the principal of $100,000, obtained by mortgaging property. To allow a commission on the latter sum would be to give him double commissions. This is not contemplated. The judgment, therefore, is reversed and the cause dismissed. | [
52,
-20,
-12,
124,
26,
-96,
59,
2,
65,
-95,
103,
83,
127,
-54,
20,
127,
-77,
109,
69,
106,
-43,
-73,
99,
64,
18,
-77,
-7,
-33,
-73,
79,
-68,
-43,
76,
-76,
-54,
-35,
70,
66,
101,
-44,
-114,
-118,
43,
65,
121,
-32,
40,
-26,
122,
15,
49,
-58,
-13,
44,
24,
99,
73,
46,
-39,
-87,
67,
-85,
-50,
-123,
125,
5,
17,
103,
-101,
-61,
72,
40,
-104,
57,
0,
-24,
122,
-90,
2,
-43,
13,
-119,
-120,
96,
98,
16,
-92,
-19,
-68,
-119,
30,
-41,
61,
-26,
-105,
-71,
114,
11,
-73,
30,
117,
-112,
11,
118,
-30,
5,
-97,
124,
43,
-98,
-42,
-77,
-115,
100,
-118,
3,
-25,
27,
16,
97,
-52,
-10,
95,
-57,
50,
91,
78,
-8
] |
Subsets and Splits
No community queries yet
The top public SQL queries from the community will appear here once available.