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Ed. F. McFaddin, Associate Justice.
This is a workmen’s compensation case in which Mrs. J. R. Williams, and her children, as claimants, seek to recover from Central Flying Service compensation because of the death of Mr. J. R. Williams, who perished in an airplane crash. The Central Flying Service, as the alleged employer, denied liability, claiming that Mr. Williams’ death did not arise out of and in the course of his employment (§ 81-1305 Ark. Stats.).
Mr. J. R. Williams was a full-time police officer of the City of Little Rock, but was extremely interested in aviation; and sometimes when not on duty as a policeman, he was employed by the Central Flying Service (hereinafter called “Central”) on a part-time basis. Central paid him $5.00 per hour as an instructor; and when he served as a pilot on a charter plane he received 20% of' the gross revenue for the trip, plus $1.50 per hour for layover time. He had conducted a ground school for student flyers, but no charge for such appears on the books of Central. He held a commercial pilot’s license, a private pilot’s rating, an instrument rating, and an instructor’s rating. He wanted to qualify for a multi-engine rating, but had never done so.
On July 22, 1958 Mr. W. D. Hill, of the Civil Aeronautics Administration, was in Little Rock to examine James McClellan in a test flight with a multi-engine plane. The plane was owned by Central, but was loaned to Mr. McClellan for the test flight. Mr. Hill invited J. R. Williams and H. K. Gilbert to go on the test flight with him and James McClellan, since both Williams and Gilbert desired to eventually obtain a multi-engine rating. Mr. Hill requested Mr. Holbert, President of Central, for permission to take Williams and Gilbert on the flight, and such permission was granted. It was on this flight that the plane crashed, and all four of the occupants were killed. Mrs. Williams and her children claimed compensation from Central.
The Referee (Hon. J. R. Calhoun) held against the claimants; the Full Commission likewise held against the claimants; and the Circuit Court affirmed the Commission. At each stage of the proceedings there were briefs submitted, some of which are in the record before us. Also, the opinions of the Referee, the Commission, and the Circuit Court are in the record. Counsel for both sides have been diligent and thorough in researching the questions presented. On the appeal to this Court, appellants urge two points, which we will list, but treat together in our opinions:
“1. That the death of Jesse Ralph Williams arose out of and in the course of his employment, in that he was doing a thing which his contract of employment expressly or impliedly authorized him to do and that his presence upon the fatal flight was a concurrent or mutual benefit to the Appellee.
‘ ‘ 2. That facts, not being in dispute, create a question of law and the Court on appeal determines the legal question. ’ ’
The claimants insist: (a) that this particular flight was of substantial benefit to Central since by it Williams would gain information that could aid him in passing a test some time later for multi-engine rating; and (b) that because of this substantial benefit to it, Central is liable as an employer. Claimants cite our own cases of Fine Nest Trailer Colony v. Reep, 235 Ark. 411, 360 S. W. 2d 189; Frank Lyon Co. v. Oates, 225 Ark. 682, 284 S. W. 2d 637; and Robbins v. Jackson, 232 Ark. 658, 339 S. W. 2d 417. Claimants also cite many cases from other jurisdictions, some of which are: Wamhoff v. Wagner Electric Corp. (Mo.), 190 S. W. 2d 915, 161 A. L. R. 1454; Kimberly-Clark Co. v. Industrial Comm. et al., (Wis.), 203 N. W. 737; Tallent v. M. C. Lyle & Son (Tenn.), 216 S. W. 2d 7; Phoenix Indemnity Co. v. Industrial Accident Comm. (Cal.), 193 P. 2d 745; Owens v. Bennett Air Service (N. J.), 45 A. 2d 320; Blair v. Shaw (Kan.), 233 P. 2d 731; Garris v. Peoples Service Drug Stores, Inc. (Va.), 174 S. E. 665; Younger v. Motor Cab Trans. Co. (N. Y.), 183 N. E. 863; and Chicago, W. & F. Coal Co. v. Industrial Comm. (Ill.), 135 N. E. 784.
On the other hand, Central claims that Williams went on the flight as an invitee of Hill; that Williams was not on duty for Central at the time; and that Central received nothing for the flight. Therefore, Central insists that the death of Williams did not arise out of and in the course of his employment, but arose only because Williams accepted Hill’s invitation to accompany them as a guest on the flight. Central cites our own case of Woodmansee v. Frank Lyon Co., 223 Ark. 222, 265 S. W. 2d 521; and cases from other jurisdictions, some of which are: Young v. Dept. of Labor and Ind. (Wash.), 93 P. 2d 337; Carroll v. Western Union (Wash.), 17 P. 2d 49; Davlin v. Texas General Indemnity Co., 254 F. 2d 850 (C. A. 5, 1958); Dr. Pepper Bottling Co. v. Chandler (Miss.), 79 So. 2d 825; Taylor v. Taylor Tire Co. (Ky.), 285 S. W. 2d 173; McQuerry v. Smith St. John Mfg. Co. (Mo.), 216 S. W. 2d 534; Miller v. Greene Co. (Pa.), 90 A. 2d 262; Industrial Comm. v. Messinger (Colo.), 181 P. 2d 816; Stuhr v. State Ind. Accident Comm. (Ore.), 208 P. 2d 450; Texas Em ployers Ins. Assn. v. Stillwell (Tex.), 307 S. W. 2d 271; and Buttery. Nolde Bros. (Va.), 55 S.E. 2d 36.
It would unduly extend this opinion to analyze the eases cited by each side, or to undertake to differentiate, on the facts, the various cited cases from the case at bar. After a thorough review of all of the cases, and our own research, we hold that, from all the evidence and circumstances developed in this case, it was for the trier of the facts to draw the inferences and reach the conclusion as to whether the death of Mr. Williams arose out of and in the course of his employment; and we cannot say that such conclusion is without evidence to support it. We like the statement by Professor Larson in his splendid treatise on “The Law of Workmen’s Compensation,” Yol. 1, § 27.31 (a):
“When an employee, by undertaking educational or training programs, enhances his own proficiency in his work, he does in a sense benefit his employer. On the other hand, self-improvement is primarily the employee’s own concern. Obviously the ambitious clerk who is burning the midnight oil studying to become an accountant cannot expect workmen’s compensation if his lamp blows up.”
In the case at bar, Williams was a full-time paid employee of the Little Bock Police Department; and learning to fly an airplane might be of some advantage to the Little Bock Police Department; but it is not claimed that such outside activities of Williams could make the Little Bock Police Department liable under any theory of workmen’s compensation law. Likewise, if Williams obtained a license to fly a multi-engine plane, it might have benefitted Central, if Williams had remained with Central; but it seems to us that the connection between this particular flight and the benefit to Central is a question, the nearness or the remoteness of which rested with the trier of the facts, who found that the death of "Williams did not arise out of and in the course of his employment.
Affirmed.
Johnson, J., dissents.
Attention is called to the general discussion in 58 Am. Jur. 716 et seq., “Workmen’s Compensation” § 209 et seq.; to the annotation in 123 A. L. R. 1176, “Injury to employee while engaged in an effort beyond the scope of his duties to increase his value to employer as one arising out of and in the course of his employment”; and to comment note in 161 A. L. R. 1461, entitled: “Accidental injury to employee while doing private work for his own benefit, following a continued practice in that regard, in employer’s plant.” | [
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Paul Ward, Associate Justice.
This litigation calls for an interpretation of a will executed by one Gr. A. McLaren who died on August 7, 1952. The will was admitted to probate on August 27,1952.
The appellee, Zada Cross, (a beneficiary under the will) filed a petition on May 23,1953 in the probate court to have the will construed in order to determine (a) when she would receive a bequest of $5,000 and (b) when she would enter into a life estate of eighty acres of land. The probate court ruled it lacked jurisdiction to decide either issue (a) or (b). Upon appeal to this Court we held the probate court did have jurisdiction to adjudicate her claim to the $5,000 but not to her claim relating to the real estate. See Cross v. McLaren, 223 Ark. 674, 267 S. W. 2d 956, where many of the facts related to the issues in the present appeal are set forth, and which facts will not be repeated here.
Upon remand by this Court issue (a) was presented to the probate court and issue (b) was presented to the chancery court, and in both instances the issues were resolved in favor of appellee. By agreement of the parties, the two cases are consolidated on appeal for briefing and submission. The parties apparently now agree, and we find, that the issue is the same in both cases, and that the decision in one case controls the decision in the other case.
The Issue. The will in question consists of twenty-five separate items, and it is modified by three separate codicils. It is necessary first to point out (in general terms) that the will designates two persons as executrices, that it conveys the bulk of the property to them as trustees, and that the trustee-ship terminates on the more remote of two designated dates: one, thirty years after the death of the testator; the other, upon the death of his widow and daughter. It is not questioned by appellants that the will gives appellee $5,000 and also a life interest in the east half of the southeast quarter of Section 32, Township 7 North, Eange 18 West, 80 acres.
The only issue to be decided on this appeal is whether appellee (Zada Cross) gets the above mentioned properties at the death of the testator (as the trial courts held) or whether she gets them at the termination of the trusteeship (as appellants contend).
The portions of the will bearing primarily on the issue mentioned are • Item '24 and two codicils which modify said item. The first codicil deletes certain words from Item 24 while the second codicil adds certain words. To simplify and facilitate consideration of Item 24 as modified it will be copied below with the deleted words in capital letters' and with the added words in italics.
“After the full expiration of twenty years from my death and the' death of both my wife Florence and my daughter, Alta, either before or after the full twenty year period and whichever is latest to occur, then I declare the trust herein created to terminate and my Trustees shall thereupon execute their trustees deed to my granddaughter, Sandra Lee McLaren, and to the issue of her body, but if the said Sandra Lee McLaren, be dead, then said conveyances shall be made to her bodily heirs and if there be no bodily heirs of the said Sandra Lee McLaren living at the termination of this Trust as herein provided, then all property held by my said Trustees shall revert to my estate IN' THE EVENT OF SUCH REVERSION BY REASON' OF THE DEATH OF SANDRA LEE McLAREN AND FAILURE OF BODILY ISSUE OF HER, THEN IT IS MY WILL, AND I GIVE AND BEQUEATH TO MY COUSIN, ARNIE McLAREN, THE SUM OF FIVE THOUSAND AND NO/lOO ($5,000) DOLLARS; TO MY COUSIN TABITHA McLAREN FRONABARGER, OR IN THE CASE OF HER DEATH TO HER DESCENDANTS, ACCORDING TO THE LAWS OF DESCENT AND DISTRIBUTION OF THIS STATE, FIVE THOUSAND AND NO/lOO ($5,000.00) DOLLARS, to Zada Cross I give bequeath and devise Five Thousand and no/100 ($5,000.00) Dollars, in money, absolutely, and the East Half (E %) of the Southeast Quarter (SE %), of Section 32, Township 7 North, Range 18 West, in Pope County, Arkansas, for and during her life and under the same terms and conditions as her present lease. Provided, said Zada Gross complies with the terms and conditions in her lease; then neither my trustees or beneficiaries of my will, may dispossess her of the lands under her lease or disturb her in the peaceable possession of the lands so leased or willed to her.” (The twenty year period mentioned above was changed by a codicil to a thirty year period.)
The general rule in a case of this type, acknowledged by both parties, is that the intent of. the testator, as gathered from the entire will, is controlling. If, however, the intent cannot be determined with certainty from the language in the will, recourse must be had to judicial interpretation and construction. In the case of Park v. Holloman, 210 Ark. 288, 292, 195 S. W. 2d 546, 548, we find this rule forcefully stated in the following words:
“The polestar of the court, in construing a will, should always be the intention of the testator; and the will itself is ordinarily the only place to which the court should resort to find such intention. If it be in the Avill expressed in language that is clear and unmistakable the court should go no further, but should put in effect the intention of the testator, as thus clearly set forth in his will.”
In Prall v. Prall, 204 Ark. 1074, 1077, 166 S. W. 2d 1028, the court, quoting from Kelly v. Kelly, 176 Ark. 548, 3 S. W. 2d 305, said:
“ ‘The cardinal rule in construing a will is to ascertain and declare the intention of the testator. That intention is to be gained from reading the entire will and construing it so as to give effect to every clause and provision, therein if this can be done.’ ”
In Quattlebaum v. Simmons National Bank, Admr., 20S Ark. 66, 68, 184 S. W. 2d 911, the Court said:
“On the question of interpretation and construction of a will, the general rule, running through a long line of our cases, is that it is only where there is some ambiguity or doubt as to tbe meaning of the language used in the will that recourse to judicial interpretation or construction is justified.”
It is also well established that ordinarily, the law favors the early vesting of titles. See Hurst v. Hilderbrandt, 178 Ark. 337, 10 S. W. 2d 491, and Wallace v. Wallace, 179 Ark. 30, 13 S. W. 2d 810. Also, if there is any inconsistency between any portion of a will and the codicil, the latter will control. In the case of United States of America v. Moore, 197 Ark. 664, 124 S. W. 2d 807, the court quoted with approval the following language:
“ ‘ “ . . . the mere taking of a codicil gives rise to the inference of a change in intention, and such an inference does not arise in the case of a will standing by itself. When a will and codicil are inconsistent in their provisions, the codicil, being the latest expression of the testator’s desires, is to be given precedence.” ’ ”
After carefully studying the language in Item 24 of the will and the effect thereon of the language taken from the two codicils, and applying the rules of construction above mentioned, we have concluded it was the intention of the testator that appellee should come into use ajjixl possession of the subject properties immediately following the probation of his will, and that, consequently, the judgment and decree of the trial courts must be affirmed. It must be admitted that this result is not readily deducible from the language used in the original Item 24. In fact the language in that item strongly indicates the testator intended for appellee to wait (to enjoy said properties) until the trust terminated. On the other hand it is difficult to understand why the testator would have deleted the indicated words (by the first codicil) if he did not intend to change the date for the vesting of the property. It must be conceded the testator intended the properties to vest on one of the two designated dates since no other date is mentioned.
A careful study of the language used in the second codicil (shown as emphasized in Item 24 above) also tends strongly to support the conclusion already an notuieed. This language clearly implies the testator considered the trustees were to have some control over appellee as to how she managed the property “willed to her. ’ ’ This intended control by the trustees, however, is absolutely inconsistent with an intent for the life estate to vest after the trustees had been discharged—that is, after the trust terminated. As pointed out by appellee, if the life estate was not to vest until the trust terminated, it is highly probable that appellee (who is now advanced in years) would have an expectancy of less than two years left in which to enjoy it. It hardly seems reasonable to believe the testator intended to create a situation of this type.
Appellants ably and forcefully argue that an interpretation of the testator’s will which allows the gifts to become effective upon his death, violates other portions of the will. In support of this argument they point out that under Items 4 and 7 of the original will the testator “had already made a clear gift in trust of the same properties claimed by appellee under Item XXIV of the will.” For reasons presently set forth we do not feel compelled to agree with appellants’ interpretation of the meaning of the language in the two mentioned items.
The testator, after directing the payment of his debts and after making certain gifts to his wife, provided in Item 4 that ‘ ‘ all the rest and residue ’ ’ of his estate should go to his trustees “to hold . . . for the term, conditions and purposes hereinafter mentioned and set out...” By the use of the above language we think it is possible that the testator meant one of the “conditions” was that appellee should have the. two gifts. Item 7 of the will provides that the trustees should hold, for the life of the trust, certain lands which are described. Among these lands is the land in which appellee gets a life estate. Appellants ’ argument is that one fact contradicts the other; that is, the trustees could not “hold” a parcel of land while appellee had a life estate in the same land. We think, however, that the testator could have intended only that the trustees should not dispose of the fee simple title to the land. Support for this intent is found by reference to Item 21 of the will. There we find this language: “I declare it is not my intention that fee simple to any lands . . . shall vest in any beneficiary ...” (Emphasis added.)
It is our conclusion, therefore, based upon what we have heretofore said, that the judgment and decree of the trial courts should be, and the same are hereby, affirmed.
MoFaddin, J., dissents. | [
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Geobge Eose Smith, J.
The appellant, Minnie Lee Martin, was charged with first degree murder, convicted of second degree murder, and sentenced to twenty-one years in prison.
The proof would have sustained a verdict of guilty upon the more serious charge. The accused, a woman of 55, and the decedent, Eosie Lee Futrell, aged 26, lived across the street from each other in Texarkana. On the morning of the homicide the two women happened to meet in the home of two neighbors, Percy Williams and his wife. Minnie Lee had recently been reconciled with her husband, Charlie Martin, after an extended separation. Minnie Lee accused the younger woman of having “gone” with Charlie and insisted that in the future she leave Charlie alone. After a brief argument Minnie Lee drew a pistol from her pocket and fired three shots at Eosie Lee, inflicting fatal wounds.
The only real question for the jury was whether the appellant acted in self defense. There is no testimony supporting this defense except the accused’s own statement that Eosie Lee was moving her hand along her dress, which led the accused to think she might be about to reach into a pocket for a knife. The jury was justified in rejecting this explanation. The deceased was apparently unarmed, while the accused had a loaded pistol. Minnie Lee testified that she was carrying the weapon because there was no lock on the door of her home; she was afraid the gun might be stolen if she left it at home. Obviously this flimsy explanation did not account for the incriminating fact that the pistol was loaded.
There was testimony that immediately after the crime the appellant voluntarily admitted' to the arresting officers that she had shot the deceased. The only timely objection to this proof was based on the fact that the accused’s declaration did not amount to a detailed confession. Even so it was competent as an admission. Reed v. State, 102 Ark. 525, 145 S. W. 206. Later on there was a motion to strike all the testimony of both officers, on the ground that the accused’s statements were not shown to have been voluntary. Even though we think the voluntary nature of the admissions to have been a question for the jury, the point is actually immaterial. Most of the officers’ testimony was clearly admissible; so in any event the motion to exclude all their testimony was properly denied. Buchanan v. State, 214 Ark. 835, 218 S. W. 2d 700.
Minnie Lee at first told the officers that she had thrown the pistol into an outdoor toilet. "When the weapon was not found there the coroner, with the permission of Minnie Lee’s husband, searched the Martin home and found the gun in a chest of drawers. We find no reversible error in the court’s action in permitting the State to introduce the pistol in evidence. Even if the weapon had been inadmissible it does not appear that the appellant could have been prejudiced. Both Percy Williams and his wife, witnesses for the State, testified that Minnie Lee shot the deceased. The two arresting officers testified that Minnie Lee admitted the shooting. As a witness in her own behalf Minnie Lee stated without hesitation that she shot Rosie Lee. The fact that the decedent was shot by the accused with a pistol has been throughout the case an undisputed fact, established by the testimony offered both by the prosecution and by the defense. We are unable to see how the appellant could have been prejudiced in any manner whatever by the fact that the jurors were permitted to see the pistol.
After the case was submitted to the jury the jurors deliberated for about an hour before being excused for’ the night. The next morning the court gave an instruction urging them to reach a verdict if they could conscientiously do so. At that point the court correctly denied the defense attorney’s request for permission to make an additional argument to the jury. Such a request is properly granted when a supplemental instruction brings into the case a new rule of law for the jury to consider, Jackson v. State, 216 Ark. 341, 225 S. W. 2d 522, 15 A. L. R. 2d 484; but here the court’s additional charge did not have that effect.
We do not find any other issue of sufficient merit to require discussion.
Affirmed.
Holt, J., not participating. | [
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Ed. F. MoFaddin, Associate Justice.
The appellants seek to have nullified an order to punish them for contempt. The order was made by the Pope Chancery Court (Judge Wiley Bean presiding) on July 16,1962, and contained this language:
“IT IS THEREFORE BY THE COURT, ordered, adjudged, and decreed that the Defendants, Leo Casey and Ella Casey, shall comply with the decree of this Court dated 24th day of October, 1961 within 30 days of this date.
“ It is further ordered and directed that the Clerk of this Court issue a commitment to the Sheriff of Pope County to arrest said Ella Casey and Leo Casey, and hold them in the Pope County Jail subject to the further orders of this Court, should the said Leo Casey and Ella Casey fail and refuse to comply with the Decree of October 24, 1961.”
The point appellants now seek to urge is that the decree of October 24, 1961 was void and therefore they should not be required to comply with the order of July 16, 1962. The first time the appellants ever questioned the validity of the decree of October 24, 1961 was by a “Response” filed by them on June 22, 1962, which response reads:
“That the original judgment in this case entered on October 24, 1961, is void for the reason that the Act under which Honorable John G. Rye was appointed special Chancellor during the temporary absence of the duly elected Chancellor George 0. Patterson, is unconstitutional. ’ ’
Although there is no evidence of any kind in the record in this case, the appellants say in their brief in this Court:
“In September, 1961, Judge Patterson became ill and certified himself unable to perform his duties as Chancellor. On September 25, 1961, Honorable Orval E. Faubus, Governor of Arkansas, appointed Honorable John G. Rye, a member of the Pope County Bar, to serve as special chancellor. This appointment was made by virtue of Act 417 of 1941 which appears as Ark. Stat. 22-437 through 22-440. During the time the Honorable John G. Rye was serving as special chancellor, under his appointment by the governor, the evidence and testimony was transcribed and presented to Judge Rye for determination. Judge Rye rendered a decree of specific performance in favor of the plaintiff.”
In short, the appellants here insist that the decree of October 24, 1961 was void and therefore the appellants should not be required to comply with the order of July 16, 1962.
There are several answers to appellants’ insistence:
1. Whether John G. Rye was a de jure judge or a de facto judge of the Pope Chancery Court on October 24, 1961, is entirely immaterial on the present appeal. The Pope Chancery Court was a de jure court, and John G. Rye was presiding as Judge thereof when he rendered the decree of October 24, 1961. Appellants gave notice of appeal from that decree, but abandoned the appeal. So tbe decree of the Pope Chancery Court of October 24, 1961 is final. We held in Pope v. Pope, 213 Ark. 321, 210 S. W. 2d 319, that when the court was de jure and the judge presiding was merely de facto, nevertheless the judgments and decrees of the Court were valid. That case settles the validity of the decree of October 24,1961 in the case at bar.
2. Another reason why appellants cannot prevail on their argument in the present case is because the record here before us shows that on May 17, 1962, Judge Wiley Bean (whose status as a de jure judge of the Pope Chancery Court is not questioned by the appellants), while presiding over the Pope Chancery Court, reviewed the entire case on motion for citation and held that the decree of specific performance made on October 24, 1961, was in all respects valid and binding on the present appellants. An order was then entered by the Pope Chancery Court on May 17,1962, directing the appellants, present in Court at the hearing, to comply with the said order within ten days. There was no appeal from the order of May 17, 1962; and it is the refusal of the appellants to comply with that order by Judge Bean that brought about the citation for contempt here involved. In short, the order of May 17,1962 is final and binding on the appellants.
3. A third reason for holding against the appellants is the fact that they did not perfect an appeal from either the decree of October 24, 1961 or the order of May 17, 1962. Bather, the appellants elected to ignore those orders; and when brought before the Court for punishment for contempt, they sought to plead the invalidity of the previous orders. We held in Carnes v. Butt, 215 Ark. 549, 221 S. W. 2d 416, and again in Hickinbotham v. Williams, 227 Ark. 126, 296 S. W. 2d 897, that a party who violated an order of injunction could not test the validity of the original order when cited for contempt for its violation. Those cases are ruling here, and the appellants cannot resist the punishment for contempt by claiming invalidity of the orders of which they were contemptuous. The remedy of the appellants was to appeal from the orders which they considered erroneous; and they failed to prosecute such appeals.
Finding no merit in the appellants’ contentions, we afford them no relief, whether we treat this as an appeal or a certiorari proceeding. | [
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Sam Robinson, Associate Justice.
In 1942 Lula R. Toler established a home for aged negroes in Pine Bluff. In 1946 she organized a corporation named the Negro Relief Association and conveyed the property on which the home was located to the corporation. In 1956, while Lula Toler was an officer of the corporation, the Negro Belief Association executed a deed to the property to the Toler Convalescing Home. There was attached to the deed a resolution of the Negro Relief Association showing that the name of that organization was changed to that of the Toler Convalescing Home.
Lula Toler, the dominant party connected with the convalescing home, died in 1958. The home continued to be operated by a board of directors until the members of the board resigned after having filed this suit to enjoin William H. Toler from interfering with the operation of the home and requiring him to return certain records. This is an appeal from the decree of the Chancellor granting the relief prayed.
The Chancellor gave a great deal of consideration to this case and wrote an able opinion with which we are in accord and which we accept. The opinion is as follows:
“This is an action involving ‘an Old Folks’ Home’ for Negroes in Jefferson County. The Home was initiated by Mrs. L. R. Toler, who was a former Home Demonstration Agent for Jefferson County.
‘ ‘ Originally, the Home ivas financed by public donations. Mrs. Toler caused a charitable corporation to be formed which bore the name of ‘ The Negro Relief Association’. She then deeded some real property which she owned personally to this corporation.
“The Negro Relief Association, by resolution changed its name to the ‘Toler Convalescing Home’ and executed the deed on the real property it owned to the Toler Convalescing Home in August of 1956 by its purported president, T. B. Richards and secretary, Mrs. L. R. Toler. This deed with a copy of a resolution changing the name and authorizing the deed attached, were recorded in the records of Jefferson County. Hereafter the Negro Relief Association will sometimes be referred to as the Relief Ass’n. and The Toler Convalescing Home will be referred to as the Home. When money was borrowed from local banks a corrected deed with the signature of both T. B. Richards and L. R. Toler properly acknowledged was duly executed and recorded.
“L. R. Toler was the executive secretary-treasurer of the organization from its beginning in 1942 to her death in 1958; first, in the Relief Ass ’n. and then in the Home.
‘ ‘ Though the operation first was supported by public donations, it later qualified under state and federal law to receive help from the public welfare and other sources. Its revenues at the time of the beginning of this action Avere largely from state and federal sources.
“When Mrs. Toler died August 17, 1958, the board of the Home met and appointed Kathryn Player to take her place. William H. Toler, defendant, appeared at this meeting of the board which occurred just a few days after the death of Mrs. Toler.
“On October 30, 1958, William H. Toler caused a meeting to be held of what was alleged to be the original board of the Relief Ass’n. This board selected him as secretary-treasurer to fill the alleged vacancy caused by the death of Mrs. L. R. Toler. Thereafter he attemtped to take charge of the Home. The Board of the Home brought this action to stop his efforts and asked for a restraining order against him.
“It appears that after the commencement of the action that William H. Toler caused so much trouble with the various people involved with the operation of the Home that the members of the board — who were serving without salary — resigned at or prior to the first hearing of this cause. The funds which were being received from the state and federal authorities were not paid but were being held up by the authorities because of the confusion between the Home and William H. Toler. The sixty odd patrons of the- Home were dependent entirely upon the welfare funds.
“At the first hearing it was apparent that this action could not be disposed of at that time so the Court on its own motion appointed a receiver. William H. Toler was present and was represented by legal counsel. He was represented first by Mr. Harold Flowers, later by Mr. Joe Holmes, both of the Pine Bluff Bar and lastly by Mr. J. Edward Jones of the Chicago Bar.
“Numerous hearings have been held prior to the trial. Judge Mullis and Judge Dawson each made various orders. It is not believed necessary to set out all of the manifold orders in detail.
“It is sufficient to say that William H. Toler was cited on several occasions prior to the trial and was found guilty of contempt at one hearing before a prior judge. His sentence was withheld based upon his future compliance with the orders of the Court. At the trial he showed every willingness to comply with the former orders of the Court. He turned over to the Clerk a typewriter, property of the Home, this being the last of the personal property which he had taken into his possession.
“No minutes of the Belief Ass’n. nor of the Home were introduced other than resolutions adopted by the respective boards. It is admitted that William H. Toler took all of the records then existing of the Home and later delivered them to the Clerk of this Court. He testified that some of the records had been destroyed by Kathryn Player, a person who had been Mrs. Toler’s assistant for several years and who was designated in writing by Mrs. Toler to succeed her in the event of her death or retirement.
“At the trial it developed that William H. Toler had caused a private corporation to be organized in which he held 6500 shares of 10,000 authorized to be issued. He admitted that this private corporation was formed for the purpose of operating the Home when the Relief Ass’n. should recover it. He volunteered the statement that he expected the Negro Relief Ass’n. to pay him for every day that he had spent in Pine Bluff, including the time of trial.
“Many pleadings and motions were filed which are not necessary to be set out in detail. Many of these motions and pleadings were doubtless inspired by the fact that the defendant’s counsel at the trial was not familiar with our liberal practice. Probably these motions and pleadings would seem necessary to one trained in the more technical procedures of another state. William H. Toler abandoned at the trial any claim of personal interest and acted solely in his alleged capacity as secretary and treasurer for the Relief Ass’n.
“The primary issue in this action is whether or not the Negro Relief Ass’n may recover the real property from the Toler Convalescing Home which would carry with it the operation of the Home. Subordinate issues are:
1. Was the appointment of a reeciver by the Court on its own motion proper?
2. Was the restraining order against William H. Toler proper?
3. Was there fraud or duress in the execution of the deed and the authorizing resolution by the Relief Ass’n to the Home?
4. Was the action of the Relief Ass’n board proper and if so, did it take precedence over the act of the board of the Home?
“Both the Relief Ass’n and the Toler Convalescing Home were non-profit corporations organized in the Circuit Court of Jefferson County under our statutes. The Toler Home resulted from the adoption of a resolution by the Negro Relief. Ass’n changing its name to read ‘Toler Convalescing Home’ and which resolution adopted all of the articles of incorporation of the Relief Ass’n except its name, which resolution was duly recorded in the Jefferson County records. It is doubtful that this was tantamount to organizing a new corporation.
“Prior to the death of Mrs. Toler the Home had been receiving from the State Welfare Office payments that amounted to $75 per person monthly. There were in excess of sixty patrons of the Home when this action was instituted in 1958. At the time of trial in 1961, the monthly payments which were being paid to the receiver had been raised to $90'per person and the number of patrons had been increased to seventy-four. This monthly payment was in excess of $6,000.00.
‘ ‘ There can be no vested interest in these welfare payments regardless of whether the Relief Ass’n or the Home prevails here. The Welfare Department has the right to refuse payment if its requirements are not met. The fact is that it was withholding its monthly payments at the time of the first hearing. That fact was the reason that the Court appointed a receiver on its own motion because it desired to protect the patrons of the Home from the obvious difficulties which would follow further withholding of the funds.
WHICH CORPORATION SHOULD PREVAIL?
“It is doubtful whether there are two corporations. Rather it would seem to be one corporation with a changed name. However, under the assumption that a change of names meant a change of corporation, deeds for the real property owned by the Relief Ass’n were executed and recorded conveying the same to the Home. The deeds appear valid on their face except that one has a defective acknowledgment. The other deed was given to correct this defect.
“A contention is made that the original directors — A. A. Cooper and J. S. Smith — were still in office because the Eelief Ass’n constitution provides ‘. . . that the first board of directors . . . hold office until their successors are elected and qualified.’ It is contended that because there are no minutes showing the election of succeeding directors that A. A. Cooper and J. S. Smith are still de jure officers.
“To support this contention A. A. Cooper, the first president of the Eelief Ass’n testified that no election of a successor to him had been held. However, his testimony was so vague on details that a president should know and was manifestly wrong in some matters, the Court could give but little weight to his statements.
“The Eelief Ass’n adopted a resolution February 16, which resolution was duly recorded in the Circuit Clerk’s office on March 8, 1951. This resolution showed J. S. Smith was president and L. E. Toler was secretary. Other names appear as directors on this resolution but two of these names, J. S. Smith and L. E. Toler were a majority of the original board of the Eelief Ass’n. Under the Articles this constituted a quorum. Nowhere in this resolution is the name of A. A. Cooper.
“From the date of the resolution until October 30, 1958, A. A. Cooper made no assertion of record to his claim to be president of the Eelief Ass’n. No credible evidence was offered to show that he took any action which would evidence the fact that he still claimed to be president of the Eelief Ass’n prior to October 30, 1958. In addition Mr. T. X. Jones, a member of the Jefferson County Bar in good standing, testified that Mrs. Toler, executive secretary and treasurer, informed him when he was preparing a deed to convey the property from the Eelief Ass’n to the Home, that A. A. Cooper was not president, that he had been removed from the board. The Court does not believe that A. A, Cooper was either presi dent or a member of the board at or after the execution of the resolution in ’51 and above referred to.
“Whether it was necessary to execute deed after the change of the name is not important in this action because the defendant has not overcome the presumption of validity that follows an acknowledged deed which has been duly recorded. Oh the other hand, if it be one and the same corporation with a changed name then there could be no recovery. While the records of the corporate action under either name are scanty the actions of the Home as shown of record seems to be fuller than those of the Relief Ass’n and show some continuity of personnel and action. There were no records introduced showing that the Relief Ass ’n attempted to take any action or claim to exist as such, from the time of the name change until two and a half months after the death of Mrs. L. R. Toler. The Court accepts the recorded resolutions and other actions in writing of the Home board as being done in good faith and with no ulterior motives.
WAS THE APPOINTMENT OF A RECEIYER PROPER?
“If the Court had failed to appoint a receiver in 1958 in all probability the Home would have failed and its sixty odd patrons would have been thrown upon the community. Grasping for control of substantial monthly payments should not be permitted to injure patrons who were wholly dependent upon the welfare payments. The fact that the Home was indebted to the extent of $13,000, which has since been paid off by the receiver, was a strong circumstance indicating the necessity of a receiver.
WAS THE RESTRAINING ORDER PROPER?
“William H. Toler, evidently under the impression that if he made enough trouble that the physical properties of the Home would be turned over to him voluntarily, had seized the records and made himself so generally disagreeable that the officers and directors resigned rather than to endure his conduct. To have permitted him to continue this? conduct against the receiver would in all probability caused the receiver to have likewise resigned. Unless his conduct was restrained the appointment of a receiver would have been useless.
WAS THERE FRAUD OR DURESS IN THE EXECUTION OF THE DEED!
“The Relief Ass’n alleged fraud and duress in the execution of deeds and resolutions changing its name. The proof failed to substantiate these allegations.
WAS THE ACTION OF THE RELIEF ASS’N BOARD IN ATTEMPTING TO NAME WILLIAM H. TOLER SECRETARY-TREASURER PROPER!
! ‘ Since the Court does not accept the claim of A. A. Cooper that he was president or a member of the board on and after 1951 when the resolution of the Relief Ass’n was signed by J. S. Smith as president, it follows there could not be a legal meeting in 1958 of the board of the Relief Ass’n for the reason that only one member, J. S. Smith of the original board was present. The Court accepts the actions of the Home board as binding and taking precedence over the attempted action of the Relief Ass’n in October of 1958.
FINDINGS
“The Court finds the issues generally for the plaintiff and makes the following specific findings, to-wit:
“The Relief Ass’n may not recover from the Toler Convalescent Home. The title to the real property-described as
Lot Three in Block 10 of Geisreiter’s Subdivision of the West Fractional Half of Section 6, Township 6 South, Range 9 West, Jefferson County, Arkansas,
is in the Toler Convalescing Home and the said Home has the right and responsibility of operating the said property and the home thereon situated.
II
“'The appointment of a receiver was proper and necessary.,
III
"The restraining order against William H. Toler was proper and necessary.
IV
“There was no fraud or duress in the execution of the deed of conveyance by the Negro Belief Association to the Toler Convalescing Home nor in the execution and adoption of the resolution changing the name of the Belief Ass’n to that of the Home. The attempted act of the board'of the Negro Belief Ass’n in 1958 does not take precedence over its prior act and is a nullity.
“In the case of Bosson v. Women’s Christian National Library Association, 216 Ark. 334, 225 S. W. (2) 336, our Court made it clear that corporations of the type involved in this action are of the same nature as a charitable trust and said:
‘Being public utilities of a very high order, charities are intimately associated with the state which exercises over them full supervision so that their property, funds and revenues shall not be diverted to any improper purpose, and that trustees and agents shall perform the duties assigned to them with honesty and fidelity and for the best advantages of the charitable uses designated by the donor or donors. For these ends the Chancery Courts have an original and inherent jurisdiction.’
“The Court retains jurisdiction of this case. It extends to the parties herein at period of thirty days in which to make suggestions to the Court as to the method of securing a proper board for the Toler Convalescing Home to operate the home when the receiver shall have been discharged.
‘ ‘ Beceiver shall continue to operate said home until such a time as this litigation shall have been finally concluded, at which time the reeciver shall make a final accounting of her actions as such and when said accounting shall have been approved by the Court she shall be discharged from further responsibility as receiver,.
“Mr. Murray Claycomb will prepare the precedent, submitting copies to other counsel at the same time that it is submitted to the Court. If no objection be made within five days, the same will be entered of record. If objections are raised, the Court will set an early date for passing upon them. ’ ’
The attorney for the appellee convalescing home was appointed by the Chancellor and petitions this Court for the allowance of a reasonable fee for representing appellee on appeal. The petition is granted, and since the Chancellor is more familiar with the financial position of the parties, that Court is directed to allow such fee.
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G-eorge Rose Smith, J.
This is a suit by the appellant to quiet its title to certain land in Lee County, subject to the levee right-of-way of the St. Francis Levee District. The ultimate question is whether the district, as the holder of the dominant easement, or the lumber company, as the owner of the servient estate, is entitled to the proceeds derived from the cutting and sale of mature timber within the right-of-way. The chancellor awarded these proceeds, amounting to $3,270.14, to the levee district.
This 70-year-old district maintains 158.6 miles of main levee along the Mississippi River. For some years the United States Engineers have been in charge of new construction, while the district has been responsible for furnishing the right-of-way and maintaining the levee system.
That portion of the right-of-way now in question was acquired by the district, partly by purchase and partly by condemnation, from the appellant’s predecessors in title, between 1904 and 1942. In 1957 the Engineers decided to enlarge this part of the levee and to that end directed the district to remove the timber growing in the borrow pits on the river side of the levee. After this suit was filed the lumber company and the levee district cooperated in removing the timber and put the proceeds in escrow, subject to the final decision in the case.
The district contends that for many years it has kept a strip of growing timber next to the levee, as a protection against the washing action of flood waters, and that the proceeds from the sale of this timber should go to the district. The landowner replies that the protecting role of the trees came to an end when they were cut down, so that the money from selling the logs belongs to the landowner. We are of the opinion that the district has the stronger side of the argument.
That the levee ought to be sheltered behind a line of woods is shown by the weight of the evidence. This is an earthen levee, about 25 feet high and tapering from a 200-foot base to a 25-foot crown. No trees are permitted upon the levee itself, which is kept as pastureland to hold its topsoil in place. The directors have found it best to leave the borrow pits on the river side of the levee, for their location behind the structure would tend to weaken it by seepage and boils.
Since about 1940 the levee board has consistently maintained a growth of trees, mostly cottonwood, in the borrow pits. When flood waters rise against the side of the levee the trunks and foliage of this timber tend to obstruct the wind-driven waves and protect the levee by reducing the washing action of the river. For more than twenty years the district has kept signs posted along the levee, giving notice that the timber is reserved for wash protection and is not to be cut. The directors have guarded the timber against trespassers and, when possible, have collected the value of trees wrongfully cut. The district’s chief engineer testified that no timber had ever been sold (before this controversy) except some that had been damaged by fire or by storm.
Upon these facts the district is entitled to prevail. Even though it owns only an easement, there is no inequity in the recognition of the district’s claim. Under our law it is firmly settled that when a permanent easement is taken by eminent domain, depriving the owner of the use of the property, the compensation must equal the full value of the land, as if a fee were being acquired. Railway v. Combs, 51 Ark. 324, 11 S. W. 418; State ex rel. Pub. & Parks Comm. v. Earl, 233 Ark. 348, 345 S. W. 2d 20. Hence, with respect to the easements obtained by condemnation, the district is not receiving an undeserved windfall. With respect to the easements that were purchased, the district’s grantors did not insert in their conveyance any reservation of timber rights.
Even in the case of a permanent ea.sement the landowner retains timber rights to the extent that their assertion is not inconsistent with the rights of the condemnor. Patterson Orchard Co. v. Southwest Ark. Utilities Corp., 179 Ark. 1029, 18 S. W. 2d 1028, 65 A.L.R. 1446. Here, however, the timber was unquestionably needed by the district in its long-term program of levee protection. Its engineer testified that the trees in dispute were grown for the purpose of wave wash protection and were being sold only on account of the levee enlargement. For more than two decades the district invested its funds in safeguarding this timber. Under the district’s longstanding policy it is faced with the expense of planting and maintaining a new strip of woodland in front of the section to be built by the U. S. Engineers. In the circumstances the district has demonstrable property rights in the timber it has nurtured for twenty years. To turn the harvest over to the landowner, leaving the district to bear the expense of undertaking its program anew, would clearly result in unjust enrichment to the owner of the servient estate.
The holding in Nicholson v. Board of Mississippi Levee Com’rs, 203 Miss. 71, 33 So. 2d 604, relied upon by the appellant, is not in point. There the court, in holding that the levee district had an easement rather than a fee, awarded the landowner the timber that was cut from the right-of-way. But the distinguishing factor is that in the Ncholson case, unlike the one at bar, there was no contention that the timber had ever been needed for levee purposes. To the contrary, the court said: “Indeed, the bill states and the demurrer admits, that, the timber which is the subject of this controversy, is not needed or useful in the construction or repair or maintenance of levees.”
Affirmed.
Bobinson, J., dissents. | [
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Carleton Harris, Chief Justice.
This is an appeal by Granite Mountain Rest Home, Inc., from a judgment entered by the Pulaski County Circuit Court, following a jury verdict, wherein the rest home was held liable for the death of Harlejr L. Hall, Sr., a patient at the home at the time of his demise. Hall was admitted to the home, at the age of 89 years, in April, 1959. He was placed there by his children, who paid $50 per month of the charge made ($140 per month), while the State Welfare Department paid the balance of $90 per month. On July S, 1960, Hall became violently ill, was removed from the home to Baptist Hospital, and died the next day. Dr. M. D. McClain, a general practitioner of Little Bock, treated Hall, and was of the opinion that the death was dne to pneumonia, which was brought on by Hall’s consumption of kerosene. Suit was instituted against appellant by the administrator of the estate of Hall, alleging that,
“while the said Harley Lucian Hall, Sr., was in the exclusive care, custody and control of the defendant, the defendant did carelessly and negligently cause or allow the said Harley Lucian Hall, Sr., to consume a large volume of kerosene or similar substance, which resulted in his death on July 9, 1960.”
It was further alleged that Hall suffered horrible pain and mental anguish for a period of approximately 36 hours before his death. Damages were sought for the estate in the amount of $20,000, and the sum of $5,000 was sought for mental anguish by the eight surviving children. After the filing of an answer denying the allegations, and various motions, the cause proceeded to trial. The jury returned a verdict for appellee (for the estate) in the amount of $7,500. From the judgment so entered, appellant brings this appeal. For reversal, appellant relies upon three points, the first being that the court erred in not directing a verdict for the home, and the other two relating to two allegedly erroneous instructions which were given by the court.
We are unable, under our established procedure, to consider the first point for reversal, vis, that the court erred in not directing a verdict for appellant. A motion for directed verdict was made by appellant at the conclusion of plaintiff’s (appellee’s) testimony, and was denied by the court. Whether this action by the trial court was correct is of no moment, for upon the motion being-overruled, appellant proceeded to offer its evidence. We have held that when one proceeds, after the denial of such a motion, to introduce proof, he waives the error of the court in failing to grant same. Grooms v. Neff Harness Co., 79 Ark. 401, 96 S. W. 135, Ft. Smith Cotton Oil Co. v. Swift and Co., 197 Ark. 594, 124 S. W. 2d 1. This is the only motion that appellant can have reference to, for it did not renew the motion at the conclusion of all the evidence. As stated in Wigmore on Evidence, Volume 9, Third Edition, one “cannot take advantage of the judge’s original erroneous refusal to direct a verdict for insufficiency at the time of the first motion if he does not renew the motion at the close at all the evidence. ’ ’ The reasoning employed, is, of course, apparent, for if one has waived his original motion, and does not renew same, there is nothing to be passed upon by the court at the conclusion of the evidence. No error could have been committed by the court at this point — for nothing was presented.
There is yet another reason why this point cannot be considered. In Rock-Ola Manufacturing Corp. v. Farr, 226 Ark. 279, 290 S. W. 2d 2, this court said,
“Appellant’s abstract does not show that any proper motion or objections were presented to the trial court to raise, here, the question of the sufficiency of the evidence to support the jury’s verdict.
“No instructions or objections thereto and no motion for an instructed verdict at the close of the testimony were shown. Thus, appellant allowed the issues to be presented to the jury without making any objection. Not only did appellant alloiv the fact issues to be presented to the jury, but, by reference to the record [not abstracted], we find appellant reguested instructions [given by the court] on the questions of fraud and breach of warranty. By such action appellant waived the question of the sufficiency of the evidence.”
In the instant case, as pointed out, no request for directed verdict was made at the conclusion of all the testimony; appellant did request several instructions, and five were given, as requested, relating to the question of negligence. In Rock-Ola Manufacturing Corp. v. Farr, supra, this court, likewise, said,
“We note further however, it was held in the Clayton case, supra, and in Missouri Pacific Railroad Com pany et al., v. Lamb, 195 Ark. 974, 115 S. W. 2d 864, that even where no motion for an instructed verdict was requested, the point could be raised in a motion for a new trial which questioned the sufficiency of the evidence. That rule is of no avail to appellant in this case however because no motion for a new trial was made. Act 555 of 1953, Section 11, permits but does not require a motion for a new trial. Section 21 of said Act does require an aggrieved party to ‘. . . make(s) known to the court the action which he desires the court to take . . .’ This was not done by appellant in this instance.”
Nor was it done in this instance.
Appellant contends that reversible error was committed by the trial court in giving Plaintiff’s Instruction No. 6. That instruction reads as follows:
“You are instructed that the defendant nursing-home is under a duty to exercise such reasonable care for the protection and well being of the patients as the patient’s known physical and mental condition requires, and, must exercise such reasonable care as is required by the patient’s condition as should have been determined by such nursing home in the exercise of ordinary care, and such care to the patient must be in proportion to the patient’s inability to look after his own safety and well being. This duty of care extends to safeguarding patients from dangers due to his own mental incapacity.
‘ ‘ Thus, if you find the defendant, Granite Mountain Rest Home, Inc., knew that the plaintiff deceased, Harley Lucian Hall, Sr., was mentally defective, if at all, as to need close supervision and that the defendant failed in its duty to give such supervision and care, and that such failure, if any, constituted negligence and was the cause of Harley Hall, Sr., death, then you are instructed to find for the plaintiff.”
•The attack on the instruction is directed to the italicized portion. Appellant contends this phrase told the jury that the home did not exercise ordinary care in determining the patient’s condition, and further asserts that the instruction actually makes a finding of negligence on the part of appellant. We do not agree. It is true that the instruction is awkwardly worded, but no specific objection was made. Appellant made only a general objection, and the instruction is not inherently erroneous. We think the court was, in effect, saying, “and must exercise such reasonable care as is required by the patient’s condition as that condition should, in the exercise of ordinary care, have been determined by such nursing home.” In our view, this language means the same as that used by the trial court. At any rate, the complaint made cannot be reached by a general objection.
Error is also alleged in the giving of Plaintiff’s Instruction No. 9. Here, it is contended that there was no evidence to support the instruction, but again, only a general objection was made. The instruction is not inherently erroneous. Appellant’s contention (relative to the lack of evidence), would have been entirely suitable in arguing that a verdict should have been directed (if such a motion had been made at the conclusion of the evidence), but, in questioning the instruction, a specific objection was necessary.
For the reasons herein set forth, we find no merit in any of the points asserted by appellant for reversal.
Affirmed.
Mr. Justice Holt not participating.
Hall also received a personal welfare check of $5.00 per month for his personal use.
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Paul Ward, Associate Justice.
This litigation concerns the ownership of an undivided one-eighth interest in the mineral rights in forty acres of land described as the northeast quarter of the southwest quarter of Section 4, Township 17 south, Range 12 ivest. Set out below is a brief explanation of how the issue of ownership arose.
Appellant, Ellen P. Ketchum, is the daughter of H. R. Ketchum (hereafter referred to as Ketchum) and appellee, Ada Robinson, is the wife of J. F. Robinson (hereafter referred to as Robinson). In 1922 Ketchum, who lived in Tulsa, and Robinson, who lived in El Dorado, entered into an oral agreement whereby Ketchum was to furnish the money and Robinson was to obtain oil and gas interests, each to have half of the resulting profits. As per agreement, the leases were taken in the name of (or were transferred to) Ketchum who was then to assign to Robinson his proper share. When this joint enterprise terminated about 1924 or 1925, Robinson prepared for Ketcbum’s signature an instrument purporting to convey to Robinson his share of the interests. Ketchum signed the instrument (apparently) relying on its being fair and just. However, according to the record, Ketchum had previously deeded all his interest in this particular forty to appellee.
In 1937 Ketchum (evidently believing he had been deceived into deeding to Robinson more than his share of the mineral interests) filed in the clerk’s office a declaration of interest in several parcels of land, including the forty in question. Soon thereafter he filed a complaint in chancery court, alleging fraud, to recover part of the interests he had previously conveyed to Robinson. It is noted, however, that the questioned forty was not included in said complaint. That suit resulted in a default decree in favor of Ketchum, but again the questioned forty was not included in the decree. Ketchum admits (in this case) that he knew of the omission at the time. Consequently the result of the 1937 decree was to leave the record title of the questioned oil interest in appellee.
In 1951 Ketchum conveyed an oil interest in the questioned forty to appellant (his daughter) and that interest is the subject of the present litigation.
When oil and gas was discovered on the questioned forty, the production company filed an interpleader in chancery court, setting out the conflict of interest between appellant and appellee (together with other matters not pertinent to this appeal), asking for authorization to pay royalties into court for distribution to the persons found to be entitled thereto. The issue was joined by proper pleadings and submitted to the trial court upon certain exhibits and the testimony of only one witness— H. R. Ketchum.
The trial court entered a decree in favor of appellee, after making the following findings of fact: Ketchum kept no records of his dealings with Robinson and so could only testify from memory; the interest in the forty acres involved was acquired by Robinson about twenty months before he formed a partnership with Ketchum; the interest in the forty was conveyed to Ketchum on November 21, 1922 by Robinson and on the same day it was conveyed by Ketchum to appellee; and, the declaration of interest (in the said forty) filed by Ketchum was a self serving instrument. Some of the above findings are not challenged and all of them, we think, are in accord with the weight of the evidence.
Appellant presents a forceful argument to the effect that the questioned forty was part of the partnership assets; that Ketchum and Robinson were to share equally; that Robinson deceived Ketchum into deeding away the interest in the said forty; that it was merely an oversight on the part of Ketchum in leaving the forty out of the 1937 suit; and, that, in the face of all these things, Robinson was under a duty to explain his innocence, but failed to do so. In support, appellant cites extensively from 31 C.J.S. Suppression or Withholding of Evidence § 156 and from Smith v. Wheat, 183 Ark. 169, 35 S. W. 2d 335, to the general effect that the unexplained failure or refusal of a party to produce evidence exclusively within his knowledge gives rise to an inference unfavorable to such party. In our opinion the above announced principle has no application, and certainly is not controlling, under the facts of this case. In the 1937 suit, insofar as this particular forty is concerned, neither Robinson or appellee was under any obligation to defend the title because it was not involved. Nor do we think there was any obligation on appellee, in the present case, to divulge information to help appellant. Appellee held a clear record title to all the questioned mineral interest and the burden was on appellant (not appellee) to show it should be set aside. In the opinion of the trial court, appellant has not met that burden, and we agree. In fact there is no proof or contention that Robinson induced Ketchum to execute the deed to appellee on November 21, 1922.
The trial court also found that if appellant and her father had any interest in the property involved they waited too long to assert it. We find it unnecessary to discuss that particular finding, but this does not necessarily mean we disagree with it.
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Paul Ward, Associate Justice.
Appellee, Dalton O. Northern, operated a filling station at Benton for many years. In 1952 he entered into a written agreement with appellant, United States Rubber Company, to handle its automobile tires. Appellant guaranteed its tires against defective materials and workmanship. Under the agreement appellee was to make adjustments on tires when purchasers complained of defects. The way in which these adjustments were to be made is the real issue in this litigation.
Hoto this litigation arose. The written agreement under which the parties operated was renewed (by a new instrument) nearly every year from 1952 to 1958 but the agreement relative to adjustments is, in substance, the same in all the written agreements. During these years appellee purchased tires from appellant, resold them to his customers, and made a large number of adjustments.
When the parties dissolved their business relations in 1959, it was found that appellee owed appellant about $2,300 for merchandise purchased. Accordingly, appellee executed three notes — all payable in 1959. When appellee failed to make payment appellant filed suit on July 29, 1960. Since appellee, in effect, confessed judgment, that item is no longer an issue.
On October 28, 1960 appellee filed a counterclaim (to the above mentioned complaint) which, in effect, stated: (a) the written contract is admitted; (b) according to the written agreement the company “guaranteed unconditionally its tires and tubes against defective workmanship and material without limit as to time or mileage”; (c) according to agreement appellee was to adjust with his customers tires which were found to be defective; (d) after such adjustments the company was to reimburse appellee for all his costs and expenses in making the adjustments; (e) tires delivered to him by the company during 1955, 1956, 1957, 1958, and the first part of 1959 were for the most part defective in both workmanship and marterials and were of an inferior nature which resulted in appellee having to make numerous adjustments; (f) the cost to appellee in making these adjustments during said years was $27,533.95; and, demand for said amount had been made on and refused by the company. In reply, appellant denied every material allegation in the counterclaim.
A trial resulted in a jury verdict in favor of appellep (on his counterclaim) and against appellant for the sum of $12,600 (later, apparently, adjusted to $9,854.01).
At the close of all the testimony appellant moved for a directed verdict in its favor. The trial court denied the motion, which action, in our opinion, constituted reversible error.
The Issue. We set out below certain portions of the written agreements which are pertinent to the main issue in this case.
(a) The company’s guarantee reads:
“Every tire or tube of our manufacture, bearing our name and serial number is guaranteed to be free from defects in workmanship and material without limit as to time or mileage. If our examination shows such tire or tube has failed under the terms of this guaranty, we will either repair it or make a reasonable allowance on the purchase of a new tire or tube.” (Emphasis supplied.)
(b) Regarding adjustments the agreements provide that appellee:
“Would handle adjustments of the Company’s merchandise in accordance with the terms of its policy for adjustment in effect from time to time.
* * *
. shall refer, in accordance with the Company’s established procedure, all claims for adjustments or replacements of tires to the Company and shall await the Company’s approval and instructions before malcing any adjustment or replacement on behalf of the Company.” (Emphasis supplied.)
The agreements further provide:
“This contract constitutes the entire agreement between the parties and supercedes all prior or contemporaneous agreements, written or oral, of every sort.
“This agreement is not subject to change or modification by any verbal statements or agreements, or by trade customs of any kind, or by written communication of any kind except when signed by Sales Manager of the Company or other properly authorized person on his behalf.”
From the above it seems apparent that the written agreement invested appellant with the right to say when adjustments could or could not be made. In spite of this, however, appellee seeks now to recover from appellant for adjustments which appellant had admittedly rejected. As we understand appellee’s position he admits he cannot recover under the terms of the written agreement. We take this to be true because, at the close of his testimony, he asked the court for permission to proceed on the theory that the written agreement was changed by an oral agreement, and that such oral agreement gave him the exclusive right to make adjustments regardless of whether appellant approved or disapproved the same. There are two reasons why we cannot accept appellee’s contention.
One. Appellee bases his claim on adjustments made as early as December 14, 1955 and as recent as September 2, 1958, but he does not fix the date of the alleged oral agreement. It is apparent however that, in order to substantiate his earliest claim, the oral agreement must have been in existence prior to December 14, 1955. We find however that appellee signed a written agreement on November 25, 1957 which contains the following language:
“This contract constitutes the entire agreement between the parties and supersedes all prior or contemporaneous agreements, written or oral, of every sort.”
The same language also appears in the written contract signed by the parties on January 20, 1958. The case of Dunlop Tire & Rubber Corporation v. Fred E. Thompson, et al., (Ark. 1959) 273 F. 2d 396, is very similar both as to facts and issues to the case here under consideration, and is decisive against appellee’s contention here. Pertinent here is the following paragraph found in that opinion:
“ ‘When two parties have made a contract and have expressed it in a writing to which they have both assented as the complete and accurate integration of that contract, evidence, whether parol or otherwise, of antecedent understandings and negotiations will not be admitted for the purpose of varying or contradicting the writing.’ ”
Tioo. Aside from what we have said above, we find no substantial evidence in the record to support a finding that appellant orally agreed to waive its right to reject adjustments made by appellee. There is evidence that appellee did make adjustments without first submitting the tires to appellant for its approval or disapproval, but this in no way tends to prove appellant waived its right to reject adjustments already made by appel lee. The record is replete with evidence that appellant did, through the years 1955 to 1959, exercise its right to reject or disapprove adjustments previously made by appellee. Appellee could not deny but readily admitted that he knew appellant never ceased to exercise its right to reject. This was made clear by appellee’s own testimony as to how the claims for adjustments were made:
‘‘ Q. And in numerous instances the company would pay the claim and in numerous instances they would refuse the claim, is that correct?
“A. Right.
“Q. And the controversy that we are squabbling about today is the claims they did not pay, the claims the company refused, is that correct?
“A. Yes.
“Q. And that went on during the years ’57, ’56, and ’55, is that correct?
“A. Right.”
At another time appellee testified that each time he sent in an adjustment he had made and appellant declined to allow it, appellant “. . . would send me back a letter on each tire that was turned down”. In view of the above state of the record we are driven to the conclusion that the trial court should have directed a verdict in favor of appellant. The judgment of the trial court is reversed as to appellee’s counterclaim and said cause of action is dismissed.
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Paul Ward, Associate Justice.
Prior to July 21,1957 M. H. Pierce and Mary C. Pierce owned and operated, as partners, the M. H. Pierce Lumber Company. On the date above mentioned Mary C. Pierce died testate and Joe S. Pierce (her son) was duly appointed executor of her estate. Later M. H. Pierce (after operating the lumber company for an undisclosed period of time) died testate and his estate is now being administered by his wife as executrix.
On January 24,1961 Joe S. Pierce (as executor) filed a verified claim for $7,953.14 against the M. H. Pierce estate. The claim was itemized and explained as follows:
‘ ‘ 50 per cent of the truck and car account of M. H. Pierce Lumber Co., a partnership $1,092.94
“50 per cent of the undivided timber account of M. H. Pierce Lumber Co., a partnership 6,860.20
‘ ‘ Total $7,953.14
“This balance dne the Mary C. Pierce Estate is reflected by the books of M. H. Pierce Lumber Company, a partnership, and by the books of M. H. Pierce, an individual doing business as M. H. Pierce Lumber Company, and can be substantiated from same.”
The claim was disallowed by the executrix of the M. H. Pierce estate. It was then presented to the Probate Court and was there allowed by order dated May 12,1962. From that order comes this appeal.
The only witness to testify was Joe S. Pierce, the executor of the estate of Mary C. Pierce, and the only testimony material to the issue here raised is hereafter set out.
“Q. Have you had an opportunity to examine the records of the partnership of M. H. Pieree Lumber Company?
“A. Yes, sir.
‘ ‘Q. Are they in the courtroom?
“A. Yes, sir.
# # #
“Q. Mr. Pierce, I hand you here what purports to be a ledger and ask you if you can identify it?
“ (At this time the witness is handed ledger book to examine.)
“A. That’s a ledger of M. H. Pierce individual. M. H. Pierce Lumber Company and it is individual.
“Q. Will you examine that and see if you can find anything in there indicating any indebtedness owed by M. H. Pierce to the Mary C. Pieree estate?
“MR. ROWELL: Objection your Honor. The witness has stated that’s a personal journal of Mr. M. H. Pierce, and all those entries in that book as I understand it and my knowledge of the books are made in the handwriting of M. H. Pierce individually, and he can’t testify to that.
“THE COURT: Even though they were, these are not transactions the witness has had with the deceased.”
At the top of page 90 of the ledger appears the following :
“1957 Mary C. Pierce Estate
Acct. Payable5 ’
Just beneath the above appears these two lines:
“Aug. 3 Cars and Truck $1,092.94
“Aug. 3 Band Timber 6,860.20”
Referring again to the claim
“Q. Has it been paid?
“A. No.”
The point on which appellant places most emphasis for a reversal is that the court erred in allowing the ledger to be introduced in evidence. In support appellant relies on Section 2 of the Schedule of the State Constitution which, in material parts, reads
“. . . in actions by or against executors, administrators, or guardians in which judgment may be rendered for or against them, neither party shall be allowed to testify against the other as to any transactions with or statements of the testator, intestate or ward. ...”
It is first argued, and we agree, that the above statutes applies to a technical party such as an administrator. See: Smart, Administratrix, v. Owen, 208 Ark. 662, 187 S. W. 2d 312, where, in speaking of Schedule, § 2 of the Constitution, we said:
“We have held that this statute applies to those who are technically parties to the suit. ...” (Citing cases.) The technical party referred to there was the administratrix. It appears, however, to be the contention of appellant that the ledger (or the introduction of the ledger by the executor) in some way constituted a transaction with the testator — that is M. H. Pierce, deceased.
After careful consideration of this issue and of appellant’s contentions, we are forced to the conclusion that the ledger was properly introduced in evidence. We find nothing in the testimony of Joe S. Pierce (as previously set out) which refers to any transaction he had with M. H. Pierce during his lifetime. It is only testimony of such a transaction that the statute forbids. This was clearly stated in Strayhorn v. McCall, 78 Ark. 209, 95 S. W. 455 in these words: “It is only as to ‘transactions with . . .’ the deceased that the opposite party is rendered incompetent to testify.” This restrictive meaning of the words “transactions with” was impressively indicated in the early case of Giles, Adm’r. v. Wright, 26 Ark. 476. The Court there was called on to interpret the meaning of Article 7, Section 22 of the 1868 Constitution which is the same as Schedule § 2 of our present constitution. The court there said:
“It is plain that it is not the design to exclude the testimony of such parties, as to all matters in controversy, in which the testator, intestate or ward, had been interested, or in any manner connected with, but only in relation to strictly personal transactions, or such as were directly and personally with him, and where in the nature of the case, the privilege of testifying could not be reciprocal and of mutual advantage.” (Emphasis added.)
To put a more liberal interpretation on the statute involved would not seem to be in line with modern enlightened thinking. Robert A. Leflar, former Dean of the University of Arkansas School of Law, in an article published in 2 Ark- L. Rev. 26 at page 36 said:
‘ ‘ The ‘ dead man statute ’ is a relic of an almost bygone era in the law, and it may be confidently expected that it will be erased from the statutes in the not-far-distant future. In this respect it is like the disqualification of convicted felons as witnesses, which persisted in Arkansas until 1913. Under each disqualification there developed a great mass of cases, making learned distinctions and dwelling on minute differences. In each instance the courts were seeking to limit as narrowly as possible a rule which originally made some sense, but whose reasonable basis could better be cared for in modern times by letting' the jury consider the credibility of the evidence fully rather than by excluding it altogether. Both rules tended toward the concealment of the truth rather than toward its discovery.”
It is also contended by appellant that appellee failed to meet the burden of proof necessary to establish the claim. This contention is not tenable in view of the conclusion we have previously reached.
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Paul Ward, Associate Justice.
On June 4, 1957 appellant, Irene Reeves, executed a regular warranty deed conveying to appellees, Johnnie Miles and Susie Miles (husband and wife), a parcel of land (2.6 acres) described by metes and bounds. The deed recited a consideration of $270 paid by appellees and received by appellant.
After appelles had erected a house on the above described parcel of land, appellant filed a complaint in chancery court against appellees asking to have the said deed cancelled on the ground of fraud, in that appellees promised and failed to “look after and support” her during the remainder of her natural life. During the hearing on the above complaint the court permitted appellant to treat the same as amended to ask for a reformation of the deed. Under this amendment appellant attempted to show she intended to convey to appellees only one acre of land whereas she actually conveyed 2. 6 acres. At the close of appellant’s testimony the trial court sustained appellees’ written demurrer to the evidence. Appellant now prosecutes this appeal, asking for a reversal on three separate designated points.
We find it unnecessary to examine any of the points relied on since we have concluded the decree of the trial court must be affirmed because of appellant’s failure to comply with Rule 9 (d) of this Court. This rule, in substance, requires appellant to abstract such material parts” ... of the pleadings, proceeding, facts, documents, and other matters in the record as are necessary to an understanding of all questions presented to this Court for decisions.”
Although the record contains more than fifty pages of pleadings, exhibits, and testimony, appellant has presented us with no abstract of the same. The casual references in the argument to this testimony are not sufficient for us to formulate an informed opinion on the merits of the case. In such a situation this Court has heretofore uniformly affirmed the trial court’s decree or judgment. See: Ellington v. Remmel, 226 Ark. 569, 293 S. W. 2d 452; Porter v. Time Stores, Inc., 227 Ark. 286, 298 S. W. 2d 51; Farmers Mutual Ins. Company v. Watt, Et Ux, 229 Ark. 622, 317 S. W. 2d 285; and, Anderson v. Stallings, 234 Ark. 680, 354 S. W. 2d 21.
The fact that the appellant, in her reply brief, has abstracted the record does not, in our opinion, justify us in waiving the total failure to comply with Rule 9 (d) in the first instance. To do so would be manifestly unfair to the appellees. They were not required to supply the deficiency and were at liberty, if they thought the abstract to be insufficient, to proceed upon the assumption that the decree would be affirmed. To allow the appellant to supply the abstract in the reply brief would have the effect of trapping the appellees. We stress the fact that here the appellant’s omission was total; we do not intimate that an appellant would be penalized for a mere deficiency such as may result from inadvertence or from a failure to anticipate the appellee’s arguments.
Affirmed.
Harris, C. J., and McF addin, J., concur. | [
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Carleton Harris, Chief Justice.
Kenneth Dixon, appellee herein, instituted suit in the Chancery Court of Searcy County against appellant, Lester A. Heinen, seeking to cancel and set aside a clerk’s tax deed issued to appellant on February 23,1961. The lands had been sold on November 10, 1958, because of non-payment of taxes allegedly due for the year, 1957. At the time of the tax sale, the lands in question were listed in the name of E. R. Martin. Thereafter, appellant instituted suit in the Chancery Court seeking to quiet and confirm the title to said lands in him. Notice was published for four weeks
during the month of March, 1961. The complaint was supported by the affidavits of two persons (Annis M. Walsh and Gibson L. Walsh), who stated that they were residents of Searcy County, familiar with the property, and that they knew Lester A. Heinen was the owner of the lands, had been in possession for more than the last past three years, and there were no adverse occupants or claimants. No personal service was obtained upon any person, the county clerk certifying that E. R. Martin’s whereabouts were unknown, and that she had been unable to apprise Martin of the pendency of the action. On May 4, 1961, the Chancery Court entered its decree quieting and confirming title to the lands in question in appellant. In October of the same year, appellee instituted the present suit, alleging that he was the owner of said lands in fee simple; that Heinen had obtained a tax deed to the lands, purporting to convey same to appellant, but that the tax deed was of no effect because the sale was void. Appellee then alleged twenty-two grounds for voiding the sale, and, in addition, asserted, “The plaintiff delivered his list of lands on which he desired to pay tax to the collector, including the lands herein, and by oversight the collector failed to include the lands herein involved in the list and this renders the sale void.” The prayer of the complaint was that the tax deed be cancelled and held for naught, and that appellee be permitted to redeem the property. After the filing of various pleadings and Requests for Admissions, the cause proceeded to trial, and on March 27, 1962, the court entered its decree, find-in o’
“The records of the Quorum Court fails to disclose that proper levy of taxes for the year 1957 ivere made in Searcy County; the purported sale of lands were made for amounts that involved overcharges, even if the levy of taxes had been properly made and the tax sale was not advertised as required by law. ’ ’
The court held the tax sale, and deeds executed thereunder, void, and vacated the decree of confirmation which had been entered in May. Title to the lands was quieted and confirmed in Dixon as against appellant. Appellee tendered a sufficient amount to cover taxes and penalty, together with interest. From the decree entered, Heinen brings this appeal. For reversal, appellant asserts that the Chancellor erred in permitting evidence to be introduced as to facts and circumstances existing prior to the confirmation decree, and further, that appellee’s suit was a collateral attack upon the confirmation decree, and not permissible. It is also asserted that that decree was res judicata.
The facts show that Martin was the owner of the land in 1957, and during said year sold the lands to W. E. DeRamus. On October 10, 1960, DeRamus and wife entered into a contract to sell the lands to Dixon for $10,500. The contract provided for a cash payment of $1,500.00, the balance to be paid at the rate of $50.00 per month, except that commencing in April, 1967, an additional sum of $160.00 would be paid every six months. An executed deed was turned over to Ray Wheeler, agent in escrow, to be delivered to Dixon when the contract had been paid out. It appears from the evidence that Wheeler had been in charge of the lands for a long number of years, having served as agent for some of the prior owners.
The confirmation decree did not have the effect of a complete and final adjudication, i.e., appellant cannot avail himself of the plea of res judicata, for that decree was subject to attack. Section 34-1923, Ark. Stats., 1962 Replacement, provides that a confirmation decree ‘ ‘ shall not be valid for any purpose as against the owner of such land, his heirs or assigns, who was, at the time of such decree rendered in actual possession of the same, unless he be made a party to such action by personal service of motion therein. ’ ’ As heretofore stated, Dixon had entered into a contract to purchase the lands a year before the confirmation decree was rendered, and the proof is ample that he had been in possession of said lands. According to Wheeler, Dixon pastured cattle on the land from the time that he agreed to purchase same, and the entire property was under fence. In fact, Wheeler testified that, in behalf of prior owners, he had rented the property to other persons in 1957,1958,1959, and 1960 (until the purchase by Dixon), and that cattle were pastured on the lands in question for the greater part of the time during those years. Otis Jennings testified that he had pastured the cattle on the land until, and after, the property was sold to Dixon, and that he and appellee had erected additional fence posts as a matter of holding the cattle within the premises. As herein pointed out, though the tax records did not list Dixon as the owner of the lands, no service was obtained upon any person.
Heinen testified that he viewed the property in December of 1958 or January of 1959, and that he didn’t see anyone in the house, or notice any cattle on the place. He stated that a neighbor told him that no one had lived on the property for three years, and he did not observe cattle on subsequent visits. We think, however, that the preponderance of the evidence clearly supports the chancellor’s finding that Dixon was in possession of the lands, as we have defined that term. It follows that under the pertinent portions of Section 34-1923, heretofore quoted, the confirmation decree was void. A void decree is subject to collateral attack. Lambert v. Reeves, 194 Ark. 1109, 112 S.W. 2d 33, Laflin v. Drake, 218 Ark. 218, 237 S.W. 2d 32.
As a purchaser under a contract, in possession of the land, Dixon held the right to redeem, and was entitled to present any meritorious defense to the decree obtained by Heinen. Harrison v. Mobley, 211 Ark. 772, 202 S. W. 2d 756. That case also holds that the invalidity of a tax sale is a meritorious defense. The trial court found that the sale was void because no tax was levied; further, that even if a levy had been properly made, the lands were sold for an unlaAvful tax in that there were overcharges, and finally, that the tax sale was not advertised as required by law. There is actually no dispute that these facts are correct, and it follows that the sale was void. Plant v. Johnson, 208 Ark. 217, 185 S. W. 2d 711, Lumsden v. Erstine, 205 Ark. 1004, 172 S. W. 2d 409. See also 84-1103 Ark. Stats. 1960 Replacement.
Finding no error, the decree is affirmed.
The action was instituted under provisions of Chapter 19, Ark. Stats., 1962 Replacement, entitled “Quieting Title” (Sections 84-1918 through 34-1925). | [
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Hart, C. J.,
(after stating the facts). The warranty clause relied upon by the defendant is in writing and is set out in our statement of facts. It provides that, if within six days from the first starting of the machine, the purchaser is not satisfied that the machine can be made to operate and do work as well as any other machine of the same size, the purchaser shall notify the company by registered mail or telegram addressed to the Avery Power Manufacturing 'Company of Peoria, Illinois, clearly specifying his complaint, and the pur chaser shall forthwith discontinue the use thereof pending the remedying of such claimed defect.
Thus, it will be seen that the warranty was conditioned upon giving the notice of the defect within a specified length of time. The agreement of warranty, being in writing, is controlled by the language used. It has been held by this court that contracts of this sort are lawful and must be enforced as they have been made by the parties, and the test must be made within the time specified, and the notice given according* to the terms of the agreement. The condition that notice of defects must be given within a specified time is imperative; and if the buyer does not show a compliance therewith, he cannot enforce it against the seller. Where a purchaser of machinery has agreed that, if it proves defective, he will give notice thereof to the seller within a specified time, he will not be entitled to resist payment of the purchase money on account of imperfections of it if he did not give notice. Southern Engine & Boiler Works v. Globe Cooperage & Lumber Company, 98 Ark. 482, 136 S. W. 928; Heer Engine Company v. Papan, 142 Ark. 171, 218 S. W. 202; and Thomas v. Schaad, 170 Ark. 797, 281 S. W. 10.
It is claimed by the ■ defendant, however, that the agreement to give them, notice was waived by the seller. Of course, it was within the power of the seller, under a contract containing* warranties and conditions, to waive any or all the conditions, including* a requirement that the purchaser give notice of defects within a stipulated time. We do not think, however, that this principle of law has any application under the facts of • this case. The only thing to base it upon is the testimony of the defendant to the effect that Hunt, the salesman, came ‘out to his place where the machinery was being* operated day after day in an effort to adjust the machine and see that it would work properly. Hunt finally told him that he did not know what to do, and it then became the duty of the defendant to give the notice required by the con tract of warranty. He knew that Hunt was only endeavoring to see that the machine was installed properly, and there is nothing in the conduct of the parties to show that Hunt was endeavoring to. remedy any defect in the machine or to do anything* else hut to properly install it. The defendant continued to use the machine during the remainder of the fall of 1929 and never even made any demand upon the dealer at Stuttgart through whom he purchased it to remedy the defect. He did not attempt to give notice at the factory as required by the contract of warranty. He continued to use the machine during the season of 1930. Under these circumstances, we do not think that there was any waiver of notice on the part of the seller, and the contract between the parties must be enforced according to its terms.
The parties were competent to contract and must be bound by the language used by them. There is nothing to show that the seller had any knowledge that Hunt was trying to remedy any defect in the machinery or that lie was attempting to waive any of the conditions of the contract. It only appears that he was trying to properly install the machinery and get it ready to operate. It then became the duty of the defendant to give the notice as required by the contract, or he must be deemed to have accepted the machine.
Therefore we a.re of the opinion that the decree of the chancery court was correct, and it will be affirmed. | [
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Smith, J.
Appellants brought this suit in ejectment to recover from appellees the possession of a lot in the town of Yan Burén. Mrs. Emma B. Crowell, who was the mother of appellants, took an estate for life in the lot under the will of her father, with remainder over to her children. After the life estate had vested in Mrs. Crow-ell, she attempted to convey the fee title to B. J. Brown, and, by mesne conveyances, the title passed to the. father of appellees, from whom they inherited the lot.
It is conceded that Mrs. Crowell .owned only a life estate, and that appellees acquired such title as she owned. The cause was transferred to equity for an accounting, where the chancellor found that Mrs. Crowell’s successors in title had acquired her title in good faith, and that, believing themselves to be the true owners thereof, they had improved the property. Without discussing the testimony, we announce our concurrence in the finding of the court below that appellees and their predecessors in title had color of title to the lot, and, believing themselves to be the owners thereof, had peaceably improved it, thereby enhancing its value, and they are therefore entitled to recover this enhanced value, pursuant to the provisions of § 3703, Crawford & Moses ’ Digest.
As has been said, the cause was transferred to equity for an accounting as. to the value of the rents, on the one hand, and as to the amount of taxes and insurance paid and as to the enhanced value, on the other, and, without making special findings on any of these questions, the court found that appellants were entitled to judgment for the possession of the land, but rendered judgment against them'for $959.27, and ordered that no writ should issue for the possession of the lot until this sum had been paid pursuant to § 3704, Crawford & Moses’ Digest, and this appeal is from that decree.
The excellent briefs of opposing counsel review many of the cases which have dealt with the legal questions here involved, and which have definitely settled those questions, except only those relating to proper credits to be allowed for improvement taxes paid.
As we understand the decree, the court allowed appellees credit, not only for the enhanced value of the property, but also for the cost of certain repairs made for the convenience of a tenant who occupied the building which a predecessor of appellees in the title had built, and also allowed credit for certain insurance premiums paid by appellees, and also refused to charge appellees for certain rents for the reason that they had failed to collect them.
In the case of McDonald v. Kenney, 101 Ark. 9, 140 S. W. 999, the court said that the “Betterment Act” (act 69, Acts 1883, page 106), appearing as § 3703, et seq., Crawford & Moses’ Digest, had established an arbitrary standard to adjust the equities between persons who, having color of title to real estate, had in good faith improved it, and had later been evicted because of the failure of their title. That the true owner was allowed to recover rents for the limited period of three years only preceding the recovery of the lands, but that the statute “also arbitrarily allowed all rents issuing from the property during that period, both from the land and the improvements thereon during those three years,” and that “the rents are fixed upon a basis of annual periods, and the interest recoverable thereon should therefore be calculated according to such annual periods, beginning at the end of each annual period.”
The same case also held that, while the cost of making the improvements may be taken into consideration in arriving at their value, yet the cost is not necessarily controlling. The thing to be ascertained is value, and not cost. This subject was exhaustively considered in the opinion in the case of McDonald v. Rankin, 92 Ark. 173, 122 S. W. 88, and need not be here enlarged upon.
In that case it was said that the allowance for improvements was made upon the ground that they passed into the hands of -the person recovering them as a new acquisition, and are only a new acquisition by him to the extent of their value at the time he recovers or obtains possession of them, and their value at that time is to be allowed, and nothing more. Summers v. Howard, 33 Ark. 490; Greer v. Fontaine, 71 Ark. 605, 77 S. W. 56. It was there also said that “the value thereof is based upon the enhanced value which these improvements at the time of the recovery impart to the land. ’ ’
The cost of the repairs should not therefore have been allowed as a separate item, but should have been considered in conjunction with other testimony tending to show the extent to which the cost of these repairs had enhanced the value of the land.
In the case of McDonald v. Kenney, 101 Ark. 9, 140 S. W. 999, it was said that, “If the vacant lots had a rental value, the defendants are chargeable therewith also, because they were withholding same from the true owner.” We therefore hold that appellees’ failure to collect portions of the rent from their tenants in possession does not relieve them from liability therefor. They are liable for such rental value as the property possessed, whether rents were collected or not, for the reason stated in the McDonald case, supra, to-wit: “because they were ■withholding the same from the true owner.”
The case of McDonald v. Rankin, supra, is decisive of appellees’ claim for insurance paid. It was there held (to quote a headnote) that: “Where the purchaser of the land at a judicial sale which was subsequently held void insured improvements thereon and collected the insurance money after the. property was destroyed by fire, she will not be held to account therefor to the owner of the land, as the insurance contract was a personal one.” In the instant case no fire occurred, and the insured buildings stand undamaged by fire, but that fact does not affect the legal principles which control. The insurance contract for which appellees paid was a personal contract for their own benefit, and they therefore have no right to charge the premiums paid to appellants. See also Roesch v. Johnson, 69 Ark. 30, 62 S. W. 416; Langford v. Searcy College, 73 Ark. 211, 83 S. W. 944.
The most difficult question .presented on this appeal is that of the allowance to be made appellees on account of improvement district taxes paid. The property is in several different improvement districts, in all of which the betterment assessments were distributed over a period of years payable in annual installments.
In the case of Hicks v. Norsworthy, 176 Ark. 786, 4 S. W. (2d) 897, we said that “the assessments for permanent improvements must be ratably and equitably apportioned between the life tenant and the remainder-man,” and that holding was reaffirmed in the case of Kory v. Less, 180 Ark. 342, 22 S. W. (2d) 25, where we said that “no rule could be laid down that would of itself determine the proportion or percentage that each party should pay in all cases.” We there cited 21 C. J. 958, and 17 R. O. L. 639, where rules of apportionment were announced which had been arrived at in the construction of statutes peculiar to the jurisdictions in which the cases had originated, but none of which, so far as we were advised, are identical with our own statute. In some of these jurisdictions the special taxes are not based upon enhanced value, while we have uniformly held that our special taxes have no other basis. The thing’ assessed with us is not the value of the property, but the estimated enhancement in value which will result from the construction of the proposed improvement. While these improvements, theoretically at least, are permanent in character, they usually require maintenance and replacement. The theory of our law is that the improvement, by enhancing the value of the use of the property, will enhance its market value, and it is this enhanced value which we tax in our improvement districts. For instance, a drainage canal makes land more arable and tillable; a sidewalk or a street makes property more accessible; sewerage and water make property more sanitary, and the value of the property which has acquired these facilities is enhanced, and the life tenant, during his possession, enjoys these benefits, and what could be more just and equitable than that he should pay for these benefits ratably while he is enjoying them. It is a matter of eommon knowledge that these improvements are paid for with the proceeds of bonds. Onr reports are full of such cases, and these bonds are usually payable over a period of twenty years, and but few of them bear interest at a rate less than five per cent. It does not appear equitable to allow the life tenant to enjoy the benefit of the improvement and pay interest only on the annual installments of benefits, thereby imposing upon the remainder-man the burden of paying the principal debt, when the improvement, lacking maintenance, might, and in many cases would, be destroyed by age and use.
We are therefore of the opinion that, when the payments for the improvement are distributed over a considerable number of years, as we understand the facts to be in the instant case, a ratable and equitable distribution of this burden requires the life tenant to discharge the annual assessments during each year of his occupancy. A case might arise where, under facts peculiar to it, this would not be equitable, but, in the absence of special equities, we announce this as the rule to be generally applied. This rule appears to us to be equitable in ordinary cases,-and possesses the quality of simplicity. There should be a general rule for the determination of such questions, and we think the rule announced will work justice in ordinary cases.
The recognition of the necessity for a general rule to determine the relative rights of the true owner of land and those of an occupant who, believing- himself to be the owner thereof and having color of title thereto, has improved it, and thereafter been evicted, led to the enactment of the Betterment Statute under which this case arose. This statute has been referred to in cases construing it as arbitrary, yet it.has been consistently upheld and enforced as a fair means of determining conflicting- interests of parties litigant, under the conditions stated to which the statute applies, depriving no one of any constitutional rights.
r The decree of the court below will therefore be reversed, and the cause will be remanded, with directions to state the account between the parties in accordance with the views herein expressed.
Hart, C. J., dissents in part; Kirby, J., dissents. | [
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Butler, J.
This is a suit to recover the purchase price of a hill of material amounting to $118.51, alleged to have been sold by appellee to appellant, who defended upon the ground that the material had not been sold to him, and that he had not agreed to pay for it. Appellee testified, and he was corroborated in this testimony by other witnesses, that he sold the building material to appellant, but had delivered it, at appellant’s direction, to "W. S. Birt, who testified that the lumber had been sold to him and upon his credit, and that Colum did not buy it or agree to pay for it.
This issue of fact was submitted to the jury, and is concluded by the verdict of the jury in appellee’s favor.
The defendant asked an instruction, which the court refused to give, reading as follows: “No. 1. The jury are instructed that no contract for the sale of goods, wares and merchandise for the price of $30 or upward shall be binding upon the parties unless first, there be some note or memorandum signed by the party to be charged; or second, the purchaser shall accept a part of the goods so sold and actually receive the same; or third, shall give something in earnest to bind the bargain or in part payment thereof. ’ ’
This instruction is, of course, a correct declaration of the law; indeed, it is a copy of § 4864, Crawford & Moses’ Digest, but no error was committed in refusing to give it, for the reason that the instruction is not applicable to the controlling issue of fact. According to the undisputed evidence, there was. a sale, pursuant to which there was an actual delivery of the goods sold, and the material was used for the purpose for which it was bought. Chalfant v. Haralson, 176 Ark. 375, 3 S. W. (2d) 38.
The controlling question in the case is the one of fact: To whom was the sale made? The plaintiff did not contend that he sold the material to Birt upon Col-um’s promise to see the debt paid. A contract of sale of that character could not be enforced against Colum unless the agreement to pay Birt’s debt had been evidenced by a writing signed by Colum. Section 4862, Crawford & Moses’ Digest. It is unnecessary to review any of the numerous cases which have construed this statute and defined the difference between original and collateral promises. The plaintiff’s testimony was to the effect that Colum and Birt came together to his place of business ; that he did not know Birt, and that no credit was extended to him; that he did know Colum and knew him to be responsible, and made the sale directly to Colum, and charged the material, at the time of the sale, to Colum, and made no charge against Birt. It is true the material was delivered to Birt, but plaintiff testified that this was done pursuant to the contract of sale and under Colum’s direction. If this was true, the sale was to Col-um, and the statute of frauds does not apply. As we have said, this issue of fact was submitted to the jury, and is controlled by the verdict returned in the case in appellee’s favor.
The judgment must be affirmed, and it is so ordered. | [
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Smith, J.
This case involves the construction of a certain deed, which reads as follows:
“Know all men by these presents: That I, Albért W. W. Brooks, of the county of Randolph, and the State of Arkansas, have this day, for and in consideration of the sum of one dollar to me in hand paid, the receipt of which is hereby acknowledged, and for the further con sideration of the natural love and affections that I have for my daughter, Ellen Rogers, have granted, bargained, sold and given, and by these presents do grant, bargain, sell and give, unto my daughter, Ellen Rogers, the following described lands lying and being in Randolph County. Arkansas,
“To have and to hold during her natural life and then to her bodily heirs, to-wit:
“The west half (W%) section two (2); northeast fractional quarter (NE Frl. %) east °f river, section three (3); northeast quarter (NE1/^) of southeast quarter (SEi/4) of section three (3); south half (S1/^) of southeast quarter (SE%) section three (3); southeast quarter (SE%) of southwest quarter (SW14), section fifteen (15), all in township eighteen (18) north, range two (2) east.
“To have and to hold the same unto the said Ellen Rogers and unto her heirs and legal assigns forever. This deed however is made on this condition, that I hereby reserve unto myself the full control and authority and all the rents and profits which may accrue on said lands during my natural life.
“Witness my hand and seal this the 3d day of October A. D., 1893.
(Signed) “Albert W. W. Brooks.”
The chancellor was of opinion that this deed.from Brooks to his daughter conveyed only a life estate to her, and that the deed which she executed to the ancestor of appellants conveyed only that estate, and that upon her death appellees, her heirs at law, took the fee title by way of remainder. The correctness of this construction of the deed is the question presented for decision on this appeal.
A comparison of the deed set out above with the deed construed in the case of McDill v. Meyer, 94 Ark. 615, 128 S. W. 364, shows that the deeds in the two cases are substantially identical down to the habendum clause, and'what was said in the construction of that portion of the deed in the McDill case is applicable here. The rules of construction there stated were that, if the granting-clause conveys a fee simple .a repugnant provision in the habendum clause which diminishes the estate thus conveyed is void. Carl-Lee v. Ellsberry, 82 Ark. 209, 101 S. W. 407, 12 L. R. A. (N. S.) 956, 118 Am. St. Rep. 60. That at'common law a fee could not be granted by deed without words of inheritance, but by force of our statute (§ 1497, Crawford & Moses’ Digest) “* * * all deeds shall be construed to convey a complete estate of inheritance in fee simple, unless expressly limited by appropriate words in such deed,” but that this statute has no application where appropriate words are used in the deed expressly limiting the grant. It was further said that, while the habendum is the appropriate place in the deed for such limitations, it may appear elsewhere in the deed, and that such limitations or reservations are held to be void only when they are repugnant to or in conflict with the recitals of the interest conveyed in the granting clause; that it was the function of the habendum clause to explain or define the extent of the grant, and that such explanation would be rejected only where there is a clear and irreconcilable repugnance between the estate granted and that limited in the habendum.
It was pointed out in the McDill case that the granting clause there construed did not define the estate granted, and that fact is true here also. It was therefore held in that case, as it must be held here, that there was no repugnancy in the definition of the estate conveyed between the granting clause and the habendum clause, and the interpretation of the deed in that case was arrived at by a construction of the habendum clause. We must resort to the same means here to interpret this deed. There is here not only no conflict between the granting and the habendum clauses, but only in the habendum clause does the grantor define the estate conveyed.
The similarity 'between the two deeds ceases however with the granting clause. In the McDill case it was recited in the habendum clause that if the grantee “ shall die without children'lawfully begotten, then the title to the property herein granted shall revert to one, the said O. F. McDonald, (the grantor) to my heirs, etc.; otherwise to his lawful children. ’ ’
It was held that the language of the habendum clause did not bring it within the rule in iShelley’s case so as to convey an estate in fee simple to the grantee, but that he took only an estate for life. The court found it unnecessary to decide whether the limitation in the habendum clause set out above created an estate tail at common law, which, by force of our statute (§ 1499, Crawford & Moses’ Digest), was effective as conveying a life estate with remainder over in fee simple to the “person to whom the estate tail would first pass according to the course of the common law,” or whether the deed conveyed a contingent remainder to the children of the grantee who survived at the time of his death, as the result would be the same in either case, inasmuch as the grantee was survived by children lawfully begotten.
Here however there appears two clauses, either of which, if it stood alone, would be treated as the habendum clause. These clauses are not void as being in conflict with the granting clause, for the reason which has been stated that the granting clause is silent as to the extent or character of the estate conveyed.
It is true, of course, that, if there were no habendum clause, the deed would be construed as conveying' an estate in fee simple. This by virtue of § 1497, Crawford & Moses’ Digest, quoted from above. But there is an habendum clause; the doubt is whether there are not two.
The first of these clauses contains the recital: “To have and to hold during her natural life and then to her bodily heirs.” If the language just quoted is to be given effect as the habendum clause, then only a life estate was granted to Mrs.- Rog’ers, and her bodily heirs take the fee title, subject to her life estate and subject also to the life estate reserved by the grantor. Wilmans v. Robinson, 67 Ark. 517, 55 S. W. 950.
It is apparent that this deed was written by an untrained hand, and it is a. matter of common knowledge that nearly all persons authorized to take acknowledgments write deeds, and that blanks of all kinds are used for this purpose.
It is significant that this clause does not appear in the part of the deed where habendum clauses are usually found, although that fact is not of controlling importance. It appears in connection with the description of the land conveyed, and following this description another clause appears where the habendum clause would be expected to be found and which reads as follows:
“To have and to hold the same unto the said Ellen Rogers and unto her heirs and legal assigns forever. This deed however is made on this-condition that I hereby reserve unto myself the full control and authority and all the rents and profits which may accrue on said lands during my natural life.”
It must be admitted that these clauses conflict, as one is to the heirs special, whereas the other is to the heirs general, but we have concluded that the second clause is, in fact the habendum clause, and the one to be given effect as such.
We are led to this conclusion, not only from the reasons stated, but from the additional reason that the habendum clause is the appropriate place in the deed where limitations and reservations are expressed, and it is in this second clause that the grantor recites the condition upon which the deed was made, the condition being that, subject to the conveyance to the grantee and her general heirs and legal assigns forever, the grantor had reserved to himself “the full control and authority and -all the rents and profits which may accrue on said lands during my natural life.” If the grantor intended to convey to his daughter only an estate for her life, he made that subject to the life estate reserved in himself; in other words, a life estate to begin upon the termination of another life estate. The deed does not recite the grantor’s intention that his daughter’s life estate shall begin at the expiration of his own life estate there reserved, but such is its necessary effect if only a life estate was conveyed to lier. If such had been his intention, this second clause was the place in which that intention would be expressed, because it was here that he undertook to state the condition upon which the deed had been executed.
We conclude therefore that this second clause should be given effect as the habendum clause, and not the first, and, if this be the proper construction of the deed, it follows that an estate in fee simple was conveyed to the grantee named, subject only to the life estate reserved by .the grantor in himself.
The decree of the court below will therefore be reversed, and the cause will be remanded with directions to enter a decree conforming to this opinion.
Kirby, J., dissents. | [
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Butler, J.
Appeal from a decree allowing claim of intervener, appellee, as a prior claim.
The facts in this case, about which there is no dispute, are as follows: On November 15, 1930, appellee company was the owner of certain drafts with bills of lading attached aggregating the sum of $1,836.42, the drawees of which were all customers and depositors of the American Exchange Trust Company. On that date the appellee transmitted these drafts to the American Exchange Trust Company for collection and remittance, taking from the trust company a trust receipt therefor. During banking hours on that day the trust company collected all of the items and surrendered them to the respective drawee, together with the documents thereto attached. After banking hours on said day the trust company issued to the appellee a check drawn upon itself for the amount of the proceeds of said collections. The trust company would have paid the cash to the appellee had the same been demanded, but it was the custom of banks doing business in Little Bock to remit the proceeds of collections in the form of a check, as was done in this case. The check was delivered to the messenger of the appellee between 1 and 1:30 o’clock in the afternoon, and, bji the messenger, delivered to the appellee about 1:30 the same afternoon. At that time the banks in Little Bock Closed on Saturdays at 1 o’clock. Be- for opening time on the following Monday, November 17th, the American Exchange Trust Company suspended business, and, at the expiration of five days, the bank commissioner took charge of it on the ground of insolvency.
At the time of the foregoing transaction the appellee company did not maintain a deposit account with the trust company. It is admitted that the entire transaction was in the usual course of business, and that nothing was done or intended by either the trust company or the appellee company to do anything for the purpose of giving appellee preference in the assets of the trust company, but that each step in the transaction was made and accepted in entire good faith, and with no thought of giving or obtaining a preference.
It is the contention of the appellant that the action of appellee’s messenger in accepting the check of the trust company, when the cash could have been demanded and received, created merely the relation of debtor and creditor between the two, that therefore the claim of appellee is only that of a general creditor, and, as authority for this, cites a number of decisions from the courts of other States and the recent decision of this court in the case of Taylor v. First National Bank of DeQueen, 184 Ark. 947, 43 S. W. (2d) 1078. The facts in that case bear no similarity to those presented in the case at bar. We there held that the transactions out of which the claim for preference arose created no preferential claim for the reason that the draft, the basis of the claim, did not represent the proceeds of a collection, ¿but was in payment of che. ks received in the ordinary course of business and not for collection, and we stated that, if the checks received were for collection merely, then the hank handling them would have acquired no title to their proceeds, but would have held them in trust for the appellee. Darragh v. Goodman, 124 Ark. 532, 187 S. W. 673.
We agree with the contention of the appellee that the court properly adjudged its claim a prior one under subdivision 7 of § 1 of act 107 of the Acts of 1027, and that we may look no further than to the statute itself for a justification of the decree of the trial court. That act defines the classes of creditors of an insolvent bank, among which is “the owner of a remittance of the said bank, the proceeds of a collection made by said bank by honoring a check or other order upon itself, or 'by a charge against the account of its depositor, although the said collection has not had a distinctive identity in the hands of said bank, has not actually increased its cash assets, and has resulted in merely shifting its liability upon its books from one of its creditors to another or new creditor, in instances where the said remittance has been presented with due diligence for payment to said bank or its drawee and is not paid, and where the instrument collected cannot be returned by the commissioner to the person who had transmitted the same to said 'bank for collection, the said instrument having been surrendered by said bank upon its collection in such manner prior to the commissioner taking charge, * *
These are the conditions under subdivision 7 of § 1, supra, when a preference will arise, and these are the facts in the instant case except that the remittance was not presented for payment to the American Exchange Trust Company. This, however, would have been a futile act on the part of the appellee. It received the remittance after banking hours on 'Saturday, and, as the American Exchange Trust Company did not open for business thereafter, presentment for payment was impossible. Under the statute presentment was not necessary until within a reasonable time after the remitting bank opened again for business, so that, under any just and reasonable interpretation of the statute, under the facts in this case, the presentment for payment was not a necessary prerequisite to the claim for preference. That the cash would have been paid to the messenger had he demanded it does not change the right of appellee under the act above quoted. Nor did the acceptance by him of the cheek create merely the relation of debtor and creditor, as claimed by the appellant. The proceeds of the collection were never the property of the collecting bank. It only held the same in trust for the appellee, and the check delivered to the messenger of the appellee was nothing more than the symbol of the cash so held, , issued according to the custom of banks and accepted, not in lieu of the money, but only as a token of it, and by a presentation of which the cash might be obtained. In other words, it was the vehicle of the transfer of the cash spoken of in subdivision 7, supra, as “a remittance of the said bank,” and as it represented the proceeds of - a collection made by the collecting bank by charging the different items collected against the accounts of the depositors — drawees of the drafts — it created a preferred claim although the transaction did not increase its cash assets, because the drafts with the documents attached had been surrendered to the drawees upon their collection, and therefore could not be restored to the appellee and it be placed in the same condition with respect thereto as it had been before. As stated by the appellee, it is just this state of case where the security could not be restored that the Legislature gives as a substituted security a preference in the assets of the insolvent institution.
The conclusion reached finds support in the recent cases of Taylor v. Corning Bank & Trust Co., 183 Ark. 757, 38 S. W. (2d) 557, and Taylor v. Dermott Grocery & Commission Co., 184 Ark. 947, 45 S. W. (2d) 23, and the case of Taylor v. First National Bank of DeQueen, supra.
Let the decree be affirmed. | [
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Hart, C. J.,
(after stating the facts). The court instructed the jury as follows: “The policy having been introduced, and it being admitted that all the premiums were paid at the time of the death of the deceased, and due proof made, the burden then shifts to the defendant to show that the deceased, in her application, knew that she was in unsound health, or that she accepted the policy while in unsound health; and if you find that the application was made or that the policy was delivered while the deceased was in unsound health, she knowing the same to be true, and made application knowing she was in unsound health, or accepted the policy knowing she was in unsound health, that would constitute fraud on the insurance company, and the beneficiary would not be entitled to recover.”
It is earnestly insisted by counsel for the defendant that the court should have instructed a verdict in its favor because, under the undisputed evidence, the insured was not in sound health when the policy was delivered to her, and this was a condition precedent to the policy becoming effective.
Counsel for the defendant claims that the case is governed by American National Insurance Company of Galveston, Texas, v. Lacey, 182 Ark. 1158, 34 S. W. (2d) 757. We do not think so. In that case, the beneficiary knew that the insured took sick on the 27th day of February, 1929, and the policy was 'delivered to her for her brother on the 4th day of March, 1929. Her brother was taken to the hospital on February 27, 1929, and was confined to his bed with pneumonia until his death from that disease on March 14, 1929. Hence there was no liability under the policy.
Here the facts are essentially different. The policy was issued on the 10th day of March, 1930, and the insured did not die until the 7th day of January, 1931. At the time the agent of the insurance company took her application, she was working in a store, and he testified that she appeared to be in sound health. It is true that the physicians testified that they had been treating her from time to time for diabetes in a chronic form for several years; but the fact that she lived for several years after she was treated, and was able to pursue her daily vocation of working in a store tended to show that she regarded herself, as did the agent of the company, as apparently being in sound health. The court properly submitted this question to the jury because the policy, by its own terms, provided that the representations in her application should not be considered as warranties.
The case falls within the principles of law decided in Modern Woodmen of America v. Whitaker, 173 Ark. 921, 293 S. W. 1045. In that case it was held that, in an action by the beneficiary to recover on a life insurance policy, nonexpert witnesses may state their opinions as to the physical condition of deceased on the day when he took the fraternal insurance certificate and stated that his health was good.
It was further held that, in an action by the beneficiary to recover on a life insurance policy, the jury’s finding that deceased was in good health when he received the policy and stated that his health was good, was conclusive in view of the evidence where the issue was submitted on instructions that plaintiff must prove that no misrepresentation was made and that defendant must prove that deceased was sick when he received the policy. See also United States Annuity & Life Insurance Company v. Peak, 122 Ark. 58, 182 S. W. 565; Id. 129 Ark. 43, 195 S. W. 392, 1 A. L. R. 1259.
This is an application of the well-settled rule that forfeitures are not favored and will not be enforced unless the provisions of the policy are so plain and unequivocal as to admit of no other construction.
The court properly submitted to the jury whether the insured knew that she was in sound health when she applied for the policy or whether she accepted the policy while in unsound health, knowing that to be a fact. The jury was justified in finding, under the evidence introduced, that, although she may have suffered from diabetes, she believed that she was well at the time she applied for the policy. The fact that she was pursuing her daily vocation of working in a store, and that her outward appearance indicated that she was in sound health, justified the jury in finding in her favor.
No other assignment of error is urged for a reversal of the judgment, and the judgment will therefore be affirmed. | [
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•Hart, C. J.,
(after stating the facts). It is first sought to uphold the judgment on the theory that the insurance company had funds in its hands belonging to the insured which would have paid the next quarterly premium, and, that being true, it was its duty to apply the amount thereto. Inter-Ocean Casualty Company v. Copeland, 184 Ark. 648, 43 S. W. (2d) 65. The amount referred to was a canceled check for the sum of $23.68, sent by the insured to the company. According to the testimony of Mrs. Holcombe, this represented payment of interest in advance in the sum of $14.88, due on the loan note of $248 remaining unpaid on March 7, 1930,' and a balance of $8.80, representing cash payment on the annual premium of $58.80, due on March 7,1930. The check was applied to these purposes. Hence there were no funds on hand belonging to the insured with which to pay the next premium, due March 7, 1931.
The next contention of the plaintiff is that the company waived the forfeiture under the principles of law decided in Home Life & Accident Company v. Scheuer, 162 Ark. 600, 258 S. W. 648. On this branch of the case, Mrs. Holcombe testified that they saw in a newspaper a notice that a receiver would be applied for, and that in December, 1930, they wrote to the company with respect to its financial condition. They received a reply that the company would notify them as soon as it was reorganized, and the company did not notify them. She admitted that the letter had been lost and, further on in her testimony, stated that she thought, when they got the company re organized, they would let them know to whom to pay the premium. She admitted that she knew that the premiums were due annually on the 7th day of March, and that they had a grace period of thirty days. She also admitted that she knew that, under the terms of the policy, it would be forfeited if they did not pay the annual premium when due, and that the forfeiture would take place under the terms of the policy without any notice thereof. It will be noted that the insured wrote to the company to know about its financial condition, and there was no definite promise made by the company to waive the forfeiture under the terms of the policy, and the insured had no right to rely upon the general statement which plaintiff says was in the letter to the effect that the company would notify the insured when they got reorganized. Plaintiff admits that they were moving around the country at that time and did not stay in one place long.
It is next insisted that there was a waiver of the forfeiture by the letter dated April 7, 1931, which was not received until the 17th day of April, the date on which the insured was fatally burned, and died therefrom sometime that night. This letter appears to have been a form letter, signed “Conservation Department.” It was written about the premium loan of $300, which had been placed against the policy, covering the note due March 5, 1931. The letter also notified the insured that the arrangement was to help continue the policy in force, and that the loan might be paid in part or in full at any time during the continuance of the policy. In conclusion, the insured was reminded in the letter that premium notices would be sent, and that all future premiums should be paid promptly in order to maintain the valuable protection that the policy offered. She admitted that she knew the date the premiums were due, and that the policy would be forfeited under its own terms if the annual premium was not paid within the thirty days’ grace extension after it became due. This court has held that, under a policy of life insurance providing that it should become void on failure to pay premiums when due, the nonpay ment of a premium when due ipso facto caused a forfeiture of the insured’s rights under the policy. Home Life & Accident Company v. Haskins, 156 Ark. 77, 245 S. W. 181; and Home Life & Accident Company v. Scheuer, 162 Ark. 600, 258 S. W. 648.
The result of our views is that, under the undisputed evidence, the court should have directed a verdict for the defendant. For the error in refusing to do so., the judgment must be reversed; and, inasmuch as the cause of action has been fully developed, it will be dismissed here. It is so ordered. | [
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Butler, J.
F. O. Stobaugh, in his lifetime, became indebted to Dr. A. J. 'Brittian, the appellee, and executed certain notes to evidence the indebtedness. It is not disputed that Stobaugh owed the appellee, and that the amount represented by the notes was the true sum of the debt due. Stobaugh died intestate and R. E. Hill was appointed administrator of his estate. The appellee’s claim was duly probated and became a lien on all the lands belonging to the estate and on the proceeds arising therefrom. Other debts had been probated prior to the probate of the claim of the appellee, and at the instance of the administrator a sale was ordered by the probate court of the lands of the intestate, which sale was duly had, the purchaser executing a bond for the payment of the purchase price. Payment falling due and not having been made, the administrator brought suit in the chancery court asking judgment against the purchaser, and that a lien be fixed on the lands sold to satisfy the judgment. A decree was entered ordering the land sold as prayed by the administrator, and at the sale said administrator became the purchaser bidding the amount of the judgment. The land was struck off to him by the commissioner, and the sale was duly- reported to the court with the deed which was approved by the court.
The administrator caused to be inserted in the granting clause of the deed a clause conveying the lands to “R. E. Hill, Administrator, for the use and benefit of the heirs of F. O. Stobaugh, deceased. ’ ’ All of the heirs of F. O. Stobaugh were adults, and, shortly after the aforesaid deed to Hill, he conveyed parts of these lands to some of the heirs.
This case was instituted by the appellee against the administrator and the heirs-at-law of F. O. Stobaugh, charging that the administrator fraudulently procured the deed from the commissioner of the court to himself as “administrator for the use and benefit of the heirs of F. O. Stobaugh, deceased”; that he had conveyed these lands, or a part of them, to certain of the heirs, and that his procurement of the deed and his conveyance to the heirs was with the fraudulent purpose of attempting to defeat the creditors of F. O. Stobaugh and especially the appellee. It was further alleged that these deeds constituted a cloud upon the title to the lands to the injury of the appellee and other' creditors having judgment liens thereon. The prayer of the complaint was that the above-mentioned deed executed by the commissioner to R. E. Hill, administrator, and the order of the court approving and confirming the same, be corrected so as to omit the words “for the use and benefit of the heirs of F. 0, Stobaugh, deceased,” and that the deeds made by Hill to the heirs be canceled, and the lands subjected to the payment of all probated claims. To this complaint an answer was filed and evidence was heard on the issues joined. The court, on the 10th day of September, 1931, rendered a decree finding the facts to be as alleged in the complaint and granting the prayer thereof.
Proceedings in the instant case are the sequel to protracted litigation between the parties, branches of which have been before this court on two previous occasions. The facts disclosed in these lawsuits make interesting reading, but they are unimportant, and a statement of them is unnecessary.
The order of the court approving the sale and deed to the appellant as administrator, etc., was made in 1928, and the decree to correct it was made in 1931 in a suit filed in that year. On appeal counsel for the appellant contends that the court was without jurisdiction to render the decree in the instant case because the order sought to be reformed was made at a term of court which had lapsed, and the court was therefore without power to correct the order made at a subsequent term.
It is next contended that the court, on November 2, 1931, without any proof made an order appointing a receiver to take charge of the assets of the estate and directing the administrator to deliver the same to the receiver.
On the first contention, it is sufficient to say that it is apparent that the decree in the instant case was in its nature a proceeding for an order nunc pro tunc to make the record of the order entered at the previous term of the court correctly reflect what was actually done, the court finding that the sale was in reality made to Hill as the administrator of the estate of P. O. Stobaugh and for the benefit of said estate. The court further found that neither Hill not the heirs paid anything to the commissioner, but that the said administrator fraudulently caused to be inserted into the deed the clause “for the use and benefit of the heirs of P. O. Stobaugh, deceased,” and that this was for the purpose of attempting to defeat the creditors of the estate in the collection of their claims against it.
The decree recites that evidence was introduced at the hearing, and the parties stipulate that the case was heard on the exhibits and depositions of S. E. Mciteynolds. This deposition is not abstracted, and a search we have made of the transcript fails to disclose it therein. We must therefore assume that the finding of the chancellor was in accord with the evidence introduced and supported by it.
The appellant invoked the aid of the chancery court for a judgment against the purchaser at the sale made under the order of the probate court and to affix a lien on the lands sold for the payment of the purchase price bid by him. The chancery court therefore had jurisdiction to correct this record in a subsequent proceeding and to proceed to administer complete relief. DuVall v. Marshall, 30 Ark. 230; Rhinehart v. Gartrell, 33 Ark. 727; Sorrels v. Trantham, 48 Ark. 386, 3 S. W. 198, 4 S. W. 281.
Counsel for appellant allege error of the court in the appointment of a receiver to take charge of the assets of the estate. We are unable to understand this assignment of error, as we cannot find where any receivership was prayed for or ordered in the instant ease. But, if any such order had been made, .we think the record before us and the history of the other proceedings of which we have knowledge and with which the chancellor was familiar justified the proceeding. DuVall v. Marshall, supra.
It is stated by counsel for the appellees that Glenna Cain intervened in the court below, and that she acquired an interest in the lands of decedent by a deed, regular on its face, purporting that the conveyance to her was for a valuable consideration. The decree recites that Glenna Cain appeared by her solicitor, and proceeds to quiet title in the estate of Stobaugh, declares the probated claims a lien, orders a sale to satisfy the same, and retains jurisdiction for further orders. We are un able to find where Glenna Cain has appealed from the order and decree of the chancery court, although counsel insist that she has done so.
The record before us presents no reversible error. The judgment of the trial court therefore is correct, and it is affirmed. | [
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McHaney, J.
Appellant and appellee became partners in the general insurance business at Helena, Arkansas, under the name of the E. M. Allen Company, in May, 1919, and continued as such until July, 1927, when appellant purchased appellee’s interest. On July 12,1927, they entered into a preliminary sale and purchase agreement in which it was stipulated that it was to be replaced with a formal contract of sale signed by both partners. Appellant owned a 45 per cent, interest in the partnership, and appellee, 55 per cent. The purchase price of appellee’s interest was $13,500, of which $6,000 was paid in cash and $7,750 was evidenced by a promissory note due October 1, 1928, with 6 per cent, interest. The purchase price was fully paid, in accordance to the terms of the contract, and on October 17, 1928, 17 days after the payment of the $7,750 note representing the balance of the purchase price, appellee filed this suit against appellant to recover 55 per cent, of renewal commissions on premiums of life insurance which he alleged appellant had collected during the period of the partnership, and for which he had not accounted, which amount was alleged to be $4,800’. Prior to the formation of the partnership appellant represented the Mutual Life Insurance Company of New York as its agent, and under his contract with it he was entitled to receive certain commissions on renewal premiums on policies written by his agency. On the formation of the partnership in 1919, it was agreed that all commissions on life insurance business, whether renewal or original commissions on policies thereafter to be written, should accrue to the partnership, but renewals on policies previously written Avere not to become an asset of the partnership. Appellant defended on two grounds: (1), that he had accounted to the partnership for all life insurance commissions on premiums, both original and renewals, collected from life insurance written during the life of the partnership; and (2), that, under his contract with appellee by which he purchased appellee’s interest, he had acquired all the assets of the partnership of every kind and description, except the accounts and notes receivable that were due on or before July 1, 1927, and that the purchase price was not based on inventory, but was a lump sum offer including any differences that had arisen between them regarding life insurance commissions, and that both parties fully understood that the purchase price paid was a full and final settlement covering all disputes between them.
The coürt found that appellant had failed to account for certain commissions and entered a judgment against appellant fdr $2,289.11, being 55 per cent, of the amount for which tíre court found appellant had not accounted. Wherefore this appeal.
We do hot discuss the issue as to whether appellant had accounted to the partnership for the commissions on life insurance premiums, as, in view of the decision we make on the other defense of appellant, it becomes unnecessary to do so. The formal contract of sale between them was dated October 26, 1927. This was the agreement contemplated by the preliminary agreement of July 12, 1927. In the formal contract it is provided: “It is specifically hnderstood and agreed that Allen is selling all of his interest in the assets of the E. M. Allen Company of every Hnd and character, except the accounts and notes receivable that were due on or before July 1, 1927, and also his good will for a period of five years from the date of the signing of this instrument, and also agrees not to enter into the insurance business in Phillips County, Arkansas, indirectly or directly, for a period of five years.”
The undisputed evidence shows that no inventory of the assets was made,.and that the purchase of appellee’s interest by appellant was made on a lump sum basis. The undisputed evidence further shows that, at the time of the execution of said formal contract, and for some time prior thereto, he was contending that appellant had not properly accounted for renewal commissions on life insurance business. Several letters passed between them prior to the execution of the contract of October 26,1927, and in one of them, dated September 25, 1927, written by appellee from Chicago, Illinois, to appellant’s attorney in Helena, he used this language: “Furthermore, if we are to become technical, then I must insist upon adding to the agreement my proportion of the renewal commissions on life insurance business for the years 1919 to 1926, inclusive, which commissions have never been credited, although I frequently called the matter to Mr. Hudson’s attention. I am not willing to believe that he intended to defraud me in connection with these commissions, but certain it is they have not been credited to my account, although statements sent me indicate that settlements were made regularly during that time. Reference to your copy of partnership agreement will convince you regarding these commissions.”
We are therefore of the opinion that the final contract of sale of October '26, 1927, was a full and final settlement between the parties, including the claim now In question, and that appellee is in no position now to maintain such action. He signed the contract which specifically stated that he was selling “all of his interest in the assets of the E. M. Allen Company of every kind and character, except the accounts and notes receivable, ’ ’ etc. The commissions on life insurance business became an asset of the partnership, whether accounted for or not. He sold said assets, believing at the time that appellant had not accounted for same, and must be held to have included this asset in the purchase price received by him. Betts v. Brundidge, 182 Ark. 830, 32 S. W. (2d) 818; People’s Savings Bank v. Howson, 171 Ark. 680, 286 S. W. 865. In this respect this case is unlike that of Wright v. Lake, 178 Ark. 1184, 13 S. W. (2d) 826, where one partner sued for profits fraudulently concealed and after-wards discovered. Other courts have had occasion to construe this same contract between the same parties. See Allen v. Hudson, 35 Fed. (2d) 330. This claim being an asset of the partnership, one which appellee thought he knew, at the time of signing the contract, had been concealed, if he desired to take action thereon, he should have reserved it in the contract, as he did the accounts and notes receivable. This not having been done, it must be held to have been included in the broad language of the contract and passed to appellant as the purchaser.
The decree of the chancery court is therefore reversed, and the cause dismissed. | [
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Hart, C. J.,
(after stating the facts). The.decree of the chancery court was based upon a holding by the court that the plea of res judicata of the defendants should be sustained. It is elementary that all questions which might be litigated in an action of which the court has jurisdiction are res judicatae as to all parties thereto and their privies. The doctrine of res judicata is based on public policy, reason and experience. If all questions that have been decided by the court are to be regarded as still open for discussion and revision between the same parties and their privies, there would be no end of litigation until the ingenuity of counsel and the financial ability of the parties had been exhausted.
Then, too, the decision of the court in .the mandamus suit on the former appeal became stare decisis and we are bound by it on the present appeal. It was there held that, after the sufficiency of a referendum petition was duly certified by the proper officer, a signer was not entitled to withdraw his signature in the absence of fraud. The court also said that the correctness of the city clerk’s determination of the sufficiency of the petition for referendum could only be made in the chancery court. Southern Cities Distributing Company v. Carter, 184 Ark. 4, 41 S. W. (2d) 1085. This holding was based upon the court’s construction of amendment No. 7 relating to the initiative and referendum. The amendment itself specifically provides that the sufficiency of all local petitions shall be decided in the first instance by the county clerk or city clerk, as the case may be, subject to review by the chancery court.
Under our statute, a defendant, when sued at law, must make all the defenses he has, both legal and equitable. If any of his defenses are expressly cognizable in equity, he is entitled to have them tried as in equity proceedings, and, for this purpose, to a transfer of the case to the chancery court. The principle of res judicata extends not only to the questions of fact and of law which were decided in the former suit but also to the rights of recovery or defense which might have been but were not presented. In short, the uniform rule adopted by this court is that the judgment or decree of a court of competent jurisdiction operates as a bar to all defenses, either legal or equitable, which were interposed or which might have been interposed in the former suit. Taylor v. King, 135 Ark. 43, 204 S. W. 614, and cases cited; Howard-Sevier Road Improvement District v. Hunt, 166 Ark. 62, 265 S. W. 517; Tri-County Highway Improvement District v. Vincennes Bridge Company, 170 Ark. 22, 278 S. W. 627; Newton v. Altheimer, 170 Ark. 366, 280 S. W. 641; Stevens v. Shull, 179 Ark. 766, 19 S. W. (2d) 1018; and Blackwell Oil & Gas Company v. Maddox, 182 Ark. 1152, 34 S. W. (2d) 450.
Mandamus only lies to compel a person to do that which it is his duty to do without it, and cannot be used to compel the performance of that which is not lawful. A party, to be entitled to the writ, must show that he has a clear, legal right to the subject-matter, and that he has no other adequate remedy. Arkansas State Highway Commission v. Otis & Company, 182 Ark. 242, 31 S. W. (2d) 427; and Shackleford v. Thomas, 182 Ark. 797, 32 S. W. (2d) 810.
The doctrine of res judicata applies to the issues that might have been litigated in proceedings to obtain a writ of mandamus. 18 R. C. L., § 318, p. 358; Kaufer v. Ford, 100 Minn. 49, 110 N. W. 364.
In Sauls v. Freeman, 24 Fla. 209, 4 So. 525, 12 Am. St. Rep. 190, a writ of mandamus was granted ordering the county commissioners to call an election for a change of county seat. An injunction was later asked for against the removal of the county records to the new county seat because there had been no legal examination by the county commissioners of the petition for the election and because certain parties whose names were on the petition were not qualified signers. The court held that these questions could have been litigated in the mandamus suit, and that the award of the mandamus adjudicated the legality of the petition in all respects and settled the question of the duty of the commissioners to call the election.
In State v. Sparrow, 89 Mich. 263, 50 N. W. 1088, a land commissioner, by ‘writ of mandamus, was required to set off for the petitioner certain lands to which he claimed to be entitled under a contract. Subsequently, the State sought to cancel the patents issued, and it was, held that the State could not cancel on the ground that the land had not been patented to the State or offered at public auction, because this ground could have been set up by the State as a defense to the petition for mandamus..
The same principle was recognized and applied by the Supreme Court of North Dakota in a county seat election in Dimond v. Ely, 28 N. D. 426, 149 N. W. 349. The reasoning of all these cases is that the writ of mandamus does not issue as a matter of absolute right, and it would be an improper use of the writ to issue it when it is clearly apparent to the court to which application is made that it would serve no purpose and would be useless when issued. See also Murphy v. Scott County, 125 Minn. 461, 147 N. W. 447; and Southern Pacific Rd. Co. v. United States, 168 U. S. 1, 18 S. Ct. 18.
The Southern Cities Distributing Company was allowed to be made a party defendant in the mandamus -suit, and all other interested parties, including the plaintiff in this action, might have been made parties to that suit. If they thought that the principles of law decided in the case of Townsend v. McDonald, 184 Ark. 273, 42 S. W. (2d) 410, applied to petitions for referendum on-local measures, such as the one under consideration, they should have set up that as a defense to the mandamus suit and have asked that the case be transferred to the chancery court in order to have that issue determined. Not having done so, all interested parties are concluded, not only by the issues decided in that case, but by all issues which came within the purview of the pleadings and might have been decided in the case. If the contention-now made by the plaintiff is correct, this would have constituted an equitable defense in tbe mandamus proceeding, and the court, upon such defense being interposed, would have transferred the case to the chancery court, or the defendants might have appealed to this court from an adverse holding of the chancery court and have obtained the relief now sought. The plaintiff in the present action, and all other parties interested, knew then as well as now the grounds upon which the referendum was sought to be held invalid. At least, by the exercise of ordinary diligence, they could have been put in possession of all the facts on the subject of which they now have knowledge.
Having failed to set up this defense to the mandamus proceeding, the parties to that suit and their privies are barred by the judgment in that case from seeking to further adjudicate the matter in this case. Therefore the decree will be affirmed. | [
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McHaney, J.
Appellant prosecutes this appeal from a judgment for $8,642.50 against him for personal injuries sustained hy appellee hy reason of a cave-in or slide of gravel in the gravel pit of appellant some distance out of Jonesboro. Appellee was employed hy appellant as fireman on a steam shovel used hy appellant in digging gravel from a gravel pit known and operated as Cotton Belt Gravel Company, and his right leg was crushed when a large slide of gravel caught him on the running hoard of the steam shovel on which he was standing at the time, having gone out on the running hoard to advise the operator of the shovel that the water was low and that it would he necessary to cease operations to get a sufficient head of water in the boiler. Appellee and the shovel operator, Whittington, were engaged in dig ging gravel from a large pit by scooping it np as it caved in from the bank or by scooping into the bank with the steam shovel and undermining it so it would cave in, and loading it on cars by an operation of the steam shovel. It was all done mechanically. Neither the operator, Whittington, nor appellee were in any danger caused by slides of gravel from the bank when in the cab of the machinery. The bank of gravel was estimated by the witnesses to be from 25 to 50 feet high, but by actual measurement was shown to be 30 feet high. On August 19, 1929, the accident occurred, causing serious and permanent injuries to appellee. He was immediately taken to a hospital, treated for his injuries, and on January 10, 1930, appellant settled the claim for $1,000 plus hospital and doctor’s bills of $357.50, on the representation of the physician that he had recovered, with a good union of the broken bones, and would be well again.
Appellant requested a directed verdict in his favor, which was refused. We think this request should have been given, and that appellee was not entitled to recover in this action for two reasons: 1st. that appellant was not guilty of any actionable negligence; and, 2nd, that if there were any negligence shown, it was the negligence of a fellow-servant, Whittington, for which no recovery can be had. This view makes it unnecessary to discuss other questions argued by the parties.
The undisputed evidence shows that appellant was mining gravel by use of a steam shovel; that it is the universal custom or proper method to operate the shovel by scooping into the bank of the gravel bed, filling the scoop or shovel, and, by an operation of the machinery, the shovel or scoop is then turned to a car and dumped into it. The same process is then repeated, and the gravel loaded into cars. The scoop or shovel operates from the bottom of the bank upwards, and in this way the bank is undermined, and the gravel bank caves in, causing slides. It frequently happens that the gravel slides in around the machine which is only the length of the boom or arm away from the bank, and often covers it up. The machine then hacks out, scoops up the loose gravel, and digs into the hank again for another slide. It is not customary or good practice to dynamite a hank no higher than this was, hut the universal practice is to undermine it with the shovel and let it cave in. Appellant was proceeding in the usual, customary and proper way to remove the gravel when the injury complained of occurred. The machinery was being frequently changed to bring it closer to the bank as gravel was removed or to back up, if necessary, to get out of a slide and pick up the cave-in, and working conditions were changing as the necessity arose.
Where the conditions under which a servant works are constantly changing, so as to increase or diminish his safety, it is his duty to make his place of work safe, and no duty in that regard rests upon the master, the servant assuming the risk arising from the use of the working place and appliances. Moline Timber Co. v. McClure, 166 Ark. 364, 266 S. W. 301.
Appellee had been working in the capacity of fireman for two or three months, and during all that time they had been doing the work in exactly the same way. No dynamite had been used. Under these circumstances, we think there was no negligence shown on the part of the master.
But, conceding negligence, it was the negligence of Whittington, a fellow-servant. Both appellee and Whittington were engaged in a common purpose under a common foreman, Thorpe. Neither had any control or direction over the other, and neither could hire or discharge the other. So, if there be any negligence shown, such as failing to warn, or turning the machinery to the right instead of the left, or in failing to notice the trickling or spitting of the gravel and failing to move the machinery to a place of safety, it was the negligence of Whittington, a fellow-servant. Appellant, although present on the job, was not exercising immediate supervision over appellee or Whittington, nor directing personally how the- work should be done.
We are therefore of the opinion that there was no substantial evidence to take the case to the jury, and that appellant’s request for a directed verdict should have been granted. The case will be reversed, and, as same seems to he fully developed, the cause will be dismissed. It is so ordered. | [
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Mehappy, J.
-On July 6, 1931, George Kilpatrick, Jr., seven years of age, was severely injured inside the substation of the Arkansas Power & Light Company in Lonoke, Arkansas. Suit was brought against the Arkam sas Power & Light Company for the minor by his father as next friend, and suit was also brought by George Kilpatrick, Sr., for the loss of services of the child, and for medical and hospital expenses.
There is no dispute about the injury to the child, nor the extent thereof. He was badly injured and suffered the loss of his right arm below the elbow; he was severely burned about his feet, and suffered the loss of part of three toes.
It was alleged that the appellant was engaged in the electric power business, furnishing electricity to the town of Lonoke, and, as such distributor of electricity, it negligently maintained a substation within the corporate limits of the town of Lonoke, said substation being connected with high-power tension wires of more than 1,300 volts. Appellant’s substation is located a short dis-' tance west of the 'Bransford gin, and appellee alleged that appellant negligently inclosed the substation by a light net and barbed-wire fence on property upon and about which children are accustomed to play, its surroundings being attractive to children, and that this fact was well known to the appellant; that on the sixth day of July, 1931, George Kilpatrick, Jr., in passing said property, was attracted to same, and the fence surrounding the substation was inadequate, insufficient, and negligently constructed, and enabled the said George Kilpatrick, Jr., to climb through same and into said inclosure, where the transformers and high-tension wires were located, said property being unguarded; that George Kilpatrick, Jr., was seven years of age, and unaware and unwarned of the danger concealed in the wires; he, childlike, climbed upon said transformers, and came in contact with said uninsulated high-tension wires, and was severely injured.
It is unnecessary to describe the injuries or the extent thereof, because there is no dispute about the extent of the injuries.
The appellant answered admitting that, as a distributor of electricity, it maintained a substation within the corporate limits of Lonoke, and that the substation was connected with a transmission line, and that the substation is a short distance west of Bransford’s gin. It denied all the allegations of negligence, and alleged that its substation was properly and carefully maintained, so built as to render it impracticable for people to climb over and into the inclosure; that the gate was kept securely fastened, and that George Kilpatrick, Jr., climbed over a seven- or eight-foot fence, and through ■barbed-wire over into the inclosure, and then, by means of a board or plank, elevated himself sufficiently high to come in contact with the transmission line of appellant, which was charged, and which caused the injury.
The substation was located within the corporate limits of the town of Lonoke, and near it there were dwelling housés where families and children lived. There was also located near the substation the gin and a rock pile, and east of the station, a light pole. There was also in the vicinity of the station an old water tank, a sawdust pile, and a cottonseed hull pile. Just west of the station was a handle factory.
When the boy was injured, John Hastings heard his scream and ran to the place and rescued him. When Hastings got to the substation, the gate was not locked, and had no hinges on it, but was supported by two wires, one at the top and one at the bottom. He pushed the gate down to get in.
Witnesses testified that they had seen neighborhood boys playing around the tile pile ■ that they played around there all summer. They also played on the hull pile. There was a trail down alongside the substation to the hull pile, and the sawdust pile was just northwest of the hull pile. The fence wire was loose, and there were four loose wires on top of the hog wire, which could be separated two feet by pulling them apart. The hog wire at the bottom was fastened to posts, but was loose.
After the accident signs of danger had been placed on the tank. There is also a willow tree between the gin and substation. During tbe summer children played on the sawdust, cotton bales and hull pile.
On the morning of the accident there were two boys at the substation, Kilpatrick and Grubbs. It was a common thing for children to play in the territory around the substation.
One witness had prepared a map from which he testified, showing the location of the switch track, substation, willow, etc., but the map was not introduced in evidence.
Witnesses for appellant testified that they had never seen any children playing around the substation, but they had seen them around the old mill shed and willow trees. There was a bird’s nest in the pole in the northwest corner of the substation. The wires carrying 1,300 volts were not insulated.
There was a verdict and judgment for $10,000 in favor of George Kilpatrick, Jr., and verdict for $2,000 in favor of George Kilpatrick, Sr. The case is here on appeal.
Appellant contends, first, that the substation was not attractive to children, and that it'was error to try the case on the theory of an attractive nuisance.
In support of this contention, it cites and relies on 20 R. C. L. 83, 84 and 89. It is contended that, to render an instrumentality an attractive nuisance, it must appear, first, that the instrumentality must be of such a character as to render it attractive to children; second, it must be shown, that appellant knew or should have known that a child would make use of the instrumentality; and, third, it must be shown that the defendant failed to provide guards of protection to the instrumentality.
The sections referred to state the rule to be that it must ordinarily appear that the instrumentality was alluring to youth, appealing to childish instincts of curiosity and amusement, and that it was situated in a place open to and frequented by children; that it was easily accessible to children, and that it constituted a peril.
It is, however, stated in the same sections referred to by appellant that children, wherever they go, must be expected to act upon childish instincts and impulses; and others who are chargeable with a duty of care and caution toward them must calculate upon this'and take precautions accordingly.
So far as we know, no authorities hold that the instrumentality must necessarily, of itself, attract children to the place. If it is such an instrumentality as that small children, because of their curiosity or for their amusement, would be likely to be injured when attracted to the place by the situation or by other things in the immediate locality of the instrumentality, then children injured by the instrumentality are entitled to recover, although they might not be attracted to the place by the dangerous instrumentality alone.
The general rule is well stated in C. J. as follows:
“It has been held that one who maintains on his premises a dangerous instrumentality which is not itself attractive, but is placed in such immediate proximity to an attractive but not dangerous situation or condition as to form with it an attractive and dangerous whole, is liable for injuries to a child thus attracted to the danger. ’ ’ 45 C. J. 766.
The undisputed evidence in this case shows that the dangerous instrumentality, the substation, was within the corporate limits of the town of Lonoke; that in the immediate vicinity of the substation was a rock pile, a hull pile, willow trees and cotton bales; that near the substation were a number of homes, and that the children frequently played around these places, and the appellant was. bound to know this.
Appellant calls attention to a number of other cases, biit, so far as we know, none of the recent cases are in ■conflict with the rule above quoted from Corpus Juris.
Appellant contends that it is thoroughly established that Kilpatrick, the injured boy, and the Grubbs boy climbed over the fence at the northeast corner of the substation.
The evidence does not show how the boy got inside the inclosure and came in contact with the electric wire. The evidence shows that the fence wires were loose, could easily be separated so as to leave a space of two feet between them, and the boy may have gotten through the fence or he may have climbed over it.
Nothing would be more natural than for children, the age of the injured boy to get inside the fence of the station, either out of curiosity for amusement, or to get at the bird’s nest, which the evidence shows was in a post in the corner of the fence. Children the age of the injured boy, going on to other’s property, are not trespassers. Adult persons would be trespassers, but, even where adults are on the property of others by invitation and are injured by the dangerous instrumentality maintained by the owner of the land, they may recover.
It is the general rule that the maintenance of a dangerous instrumentality that is attractive to children, or the maintenance of such instrumentality at a place made attractive to children, is an invitation to children to come upon the premises, and they are not trespassers in so doing; in other words, the children attracted to the place are in the same situation that adult persons are in gping on the premises by invitation.
The Iowa court said: “This brings us to the question, What constitutes an invitation? These authorities hold that one who maintains upon his place, and permits to remain exposed, something dangerous when approached or used, and of such an attractive character that he knows, or, as a reasonable prudent man should know, will invite the attention of children and draw them to it, because of their sportive and playful natures, impliedly invites them to come; that in exposing such an instrumentality, with the knowledge that it will attract children, he occupies the same position when they come as if he had beckoned them and they followed. We are not here discussing the question of contributory negligence on the part of the child. We will assume the child is too young to be chargeable with negligence. We are not dealing with a trespassing child, for no one is a trespasser who comes by invitation of the owner. As the cases of attractive nuisance seem to rest upon the thought that, exposing anything of a character that appeals to children’s nature, and by appealing draws them to it, is, in its very nature, an implied invitation to them to come. It is not material in an inquiry of this kind whether the children had been accustomed to come or not; whether it had remained a long time or a short time.” Wilmes v. Chicago, Great Northern Ry. Co., 175 Iowa 101, 156 N. W. 880, L. R. A. 1917F, 1024.
“By common knowledge, very young children are liable to trespass, and be wholly ignorant of wrong-doing, or substantially so. Is there not a duty owing to such children as to such situations — a duty even within the broad lines of the principle stated — though they be wrongdoers, which may be actionably breached, and especially so in a case of their being where they have a right to be, as in this case? The common instincts of mankind suggest that. Sound policy would seem; to demand it, and the courts in general, and this court in particular as to situations analogous to the one in hand* uphold it.
“Conservation of child-life and safety as to artificial perils is one of such importance that ordinary care may well hold every one responsible for creating or maintaining a condition involving any such, with reasonable ground for apprehending that children of tender years may probably be allured thereinto.” Kelly v. Southern Wisconsin R. Co., 152 Wis. 328, 140 N. W. 60, 44 L. R. A. (N. S.) 492.
It is next contended that George Kilpatrick was injured as a result of his own act in climbing over the fence into the substation. As we have already said, the evidence does not show how he got into the substation; whether he climbed through the wires or over the fence, but no matter how he got there, a child of his age could not know that there was any danger in going where he did.
Danger from electricity is different from danger from a pond or -other things which children know about. Elec trie force cannot be seen, and, for that reason one who handles a deadly agency like electricity must exercise care commensurate with the danger.
“When one, through the instrumentality of machinery, can accumulate or produce such deadly force as electricity, he should be compelled to know that the means of its distribution are in such condition that those whose business or pleasure may bring them in contact with it may do so with safety.” Maysville Gas Co. v. Thomas, (Ky.) 75 S. W. 1129; Thomas v. Maysville Gas Co., 108 Ky. 224, 56 S. W. 53, 53 L. R. A. 147; Ark. P. & L. Co. v. Cates, 180 Ark. 1003, 24 S. W. (2d) 846.
“The plaintiff’s right to recover is predicated on the doctrine, so often announced by the courts, that, where an owner permits anything dangerous which is attractive to children, and from which injury may be anticipated, to remain unguarded on his premises, he will be liable if the child attracted to the place is injured thereby. That doctrine has been discussed in numerous decisions of this court, and several of them have applied it so as to allow recovery for damages.” Foster v. Lusk, 129 Ark. 1, 194 S. W. 855.
This court has had the question of attractive nuisance before it many times, and has uniformly held that whether the dangerous instrumentality was attractive to children was a question for the jury. Nashville Lbr. Co. v. Busbee, 100 Ark. 76, 139 S. W. 301; St. L., I. M. & S. R. Co. v. Waggoner, 112 Ark. 593,166 S. W. 948; Central Coal & Coke Co. v. Porter, 170 Ark. 498, 280 S. W. 12; Brinkley Car Works v. Cooper, 75 Ark. 325, 87 S. W. 645.
This court has many times held that the questions of negligence and contributory negligence are for the jury. Every one knows that children seven or eight years old are not only likely to go onto the premises of another, where there is anything attractive to them, but will climb and go to places like this substation, and that they would not know there was any danger.
Appellant calls attention to numerous cases, but the doctrine of attractive nuisance has been before this court so many times, and the rule is so well settled, that we do not deem it necessary to review or discuss the authorities referred to.
It is finally contended that the court erred in giving appellee’s requested instruction No. 1, which reads as follows: “The court instructs the jury that, if you find from the testimony in this case that the defendant maintained a substation for receipt of electricity, which it knew to be dangerous, and said defendant was guilty of negligence in not maintaining a proper fence around said substation, and same was located on premises about which children would congregate and play, which the defendant knew, or by exercise of reasonable care should have known, that children would congregate and play around and about the premises, and would likely be attracted onto said premises and injured by electricity received at said substation, if not properly inclosed; and if you further find that said plaintiff was attracted to said substation • and injured by electricity conveyed through defendant’s wires at said substation, and in doing this he exercised such care and prudence as may be reasonably expected of a boy of his age, intelligence and maturity, then this would be such negligence on the part of the defendant as would render it liable to plaintiff for damages by reason of the injuries sustained.”
The appellant argues, first, that the instruction does not require the negligence of defendant to be a contributing or proximate cause of the injury. The instruction, we think, is not open to this objection.
It is stated by appellant that the instruction submitted the question of appellee’s attraction to the station without évidence to support it. We think the evidence is ample to show that the children were in the habit of playing in the immediate locality of the substation, and the appellant knew this, and, as we have already said, it was a question for the jury, not only whether the appellant was guilty of negligence, but as to whether the substation was such as to attract children.
There are some other objections pointed out to the instruction, but we have carefully considered the instruction and all of appellant’s objections to it, and have reached the conclusion that the court did not err in giving this instruction. St. L., I. M. & S. R. Co. v. Waggoner, 112 Ark. 593, 166 S. W. 948; Brinkley Car Works & Mfg. Co. v. Cooper, 75 Ark. 325, 87 S. W. 645.
Our conclusion is that the evidence was sufficient to sustain the verdict, and that there was no error committed by the court in instructing the jury.
The judgment is therefore affirmed. | [
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Smith, J.
This appeal is from a judgment sentencing appellant to life imprisonment upon a conviction for the crime of murder in the first degree, alleged to have been committed by killing Walter Harris, who at the time he was ¡killed was the sheriff of Miller County.
At the time of the killing, appellant, who was nineteen years of age, was engaged in the manufacture of intoxicating liquor, in violation of the law. He had been previously convicted of a violation of the National Pro hibition Law in the United States District Court, and was under probation by order of said court to Sheriff Harris.
Having information that appellant had resumed the making of liquor, the sheriff, with three deputies, went to appellant’s still to arrest him on the afternoon of July 28, 1931. When the officers came to within a hundred yards of the still, they could hear the persons there employed about the still, and the officers separated. The sheriff and one deputy came up to the still on one side, while the other two officers approached the still from the opposite side. The still was in a thicket, through which a branch or small creek ran. A negro man, who apparently was acting as- a lookout, came out of the thicket, and was ordered by the sheriff to halt. This command was repeated, when the negro began to run, and the sheriff shot him, but no other shot was fired by the sheriff, according to the testimony on behalf of the State.
The officers entered the thicket, and as the the sheriff got to the edge of the thicket near the still, appellant opened fire upon him, firing four times, and one of these shots killed the sheriff. The officers could not see the man who was firing, as he was crouched and concealed in the foliage of the thicket.
Appellant admitted firing the shot which killed the sheriff, but he testified that he did not know that the parties who had come upon him and his associates were officers. He testified that he heard shooting, and saw the negro fall, and, when he looked to see where the shot came from, he saw a stooping man pointing a gun at him through the bushes. The man fired, and the shot from the gun knocked his hat off, whereupon he drew his pistol and commenced firing, and continued to do so until the man fell. He then ran away without knowing that he had shot an officer.
At appellant’s request, the court gave an instruction numbered 6%, which reads as follows: “You are instructed that, if you believe from the evidence that the defendant was placed in the position, at the time of the killing, in which his life was imperiled by the deceased, and he slew him without having any notice of his official character, and the killing was apparently necessary to save his own life, or to prevent his receiving a great bodily injury, then the killing of deceased was homicide in self-defense; nor does it matter that deceased was legally seeking to arrest defendant, if the defendant had-no notice of the fact, or reasonable grounds to know that he was an officer; and, if you so find, it is your duty to acquit the defendant.”
This instruction presents the law as favorably to appellant as he had the right to ask, but it is insisted that it was nullified by another, numbered 17, which was in conflict with it. This instruction reads as follows: “If you find from the evidence in this case, beyond a reasonable doubt, that the defendant was engaged in operating a still, and that deceased, as sheriff, went to such still for the purpose of arresting such person or persons as were operating the same, and that, while advancing on such still for such purpose, he was shot and killed by the defendant, at a time when he had not fired on the defendant ; and if you further find from the evidence, beyond a reasonable doubt, that the defendant intentionally shot and billed the deceased under such circumstances for the purpose of preventing his arrest by the deceased, you will find the defendant guilty of murder in the first degree. And if you find these things to be true from the evidence, beyond a reasonable doubt, then you are told that it is not necessary that the defendant should have known the particular identity of the deceased at the time.”
We think there was no conflict in these instructions. The one declares the law applicable to the facts as appellant contends them to be; the other announces the law applicable to the case which the State’s testimony tended to establish. It was appellant’s contention that a murderous assault was made upon him and his associates by persons who did not disclose their identity as officers, and who were not known to be officers, and that appellant fired the fatal shot to repel this unlawful assault. On the other hand, it was the theory of the State that the negro was shot to prevent him from escaping, and that appellant immediately thereafter commenced firing at a man known by him to be the sheriff, and that his purpose in firing was to prevent an arrest being made.
As tending to show that appellant could have seen and did know at whom he was firing, testimony was offered to the effect that an officer stood at the place where the sheriff fell, and another at the place where appellant stood when he fired, and that persons thus placed could have seen and recognized each other. The admission of this testimony is assigned as error, and the case of Vance v. State, 70 Ark. 272, 68 S. W. 37, is cited to sustain this assignment.
The facts in the two cases are not similar. In the Vance case one attorney for the 'State, representing the deceased, and another attorney for the State, representing the defendant, gave, under the direction of a State’s witness, “a sort of dramatic representation of the tragedy.” It was there said: “We can very easily see that a defendant might be irreparably injured by having his actions presented in that way before the jury by unfriendly actors not under oath and paid to prosecute him, and if the record fully presented a case of that kind it would certainly be a serious question as to whether it would not call for a reversal and a new trial. But, though the record is a little vague on that point, we conclude from it that the court only permitted the witness to illustrate the relative positions and the distance between the parties at the time of the shooting. We are not certain that it shows more than this, and we cannot therefore say that there was error. We, however, call attention to this point, for it seems to us that there is room enough for all needful display of the dramatic powers of counsel in the regular walks of the profession, and that it is unnecessary, and even unsafe, to go further, and tread more or less on the domain of the witness.”
Here the point at issue was whether appellant could have seen the man who shot, and therefore have known who the man was, and that this man was an officer, the sheriff, and well known to appellant as such. To establish this fact, a witness was permitted to testify that, standing where appellant stood when he fired, he could have seen and recognized a man standing where the sheriff fell. We think this testimony was competent.
An objection somewhat similar was made to the admission in evidence of a plat showing the location of the scene of the tragedy and of the participants therein. This plat was drawn by one who was not present at the time of the shooting but who had later visited the scene, but,the accuracy of the plat was established by witnesses who were present, and we see no objection to its use in enabling witnesses who were present to better illustrate their testimony.
Testimony was offered over the objection of appellant, to the effect that he stated that he had once been shot by officers who raided a still which he was operating, and that he did not intend for this to happen again, and that, if officers came down upon him again, he would fight it out with them. The witness so testifying stated that appellant had reference to prohibition enforcement officers. In oúr opinion, this testimony was competent. The defense was predicated upon the proposition that appellant did not fire to resist arrest, but to repel an assault, and that he had ¡been fired upon by persons not known by him to be officers. It is true' appellant’s threat was not directed against the sheriff specially, or against any other particular officer. But it was a threat against any and all officers who might attempt to arrest him, and tended to show his intention in firing the fatal shot, and that it was fired pursuant to his intention to resist officers attempting to arrest him.
In the case of Stoddard v. State, 169 Ark. 598, 276 S. W. 358, we quoted from 28 A. & E. Enc. of Law, 145, as follows: “No particular words are necessary to convey a threat. Any language which shows this, either on its face or in connection with the circumstances under which it was spoken or written and with the relations of the parties, is sufficient, though it consists merely of innuendoes and suggestions. ’ ’
In the case of Tolliver v. State, 183 Ark. 1125, 40 S. W. 421, we said: “At page 732 of Underhill’s Criminal Evidence (3d ed.) it is said: ‘Under certain circumstances the vague and uncertain threats of the accused may be shown to prove the condition of his mind at the time.of the crime. The rule is applied to his declarations that he is going to kill somebody, without mentioning any names, or that he is going to make trouble, or that he is going to shoot some one, or similar indefinite threats which indicates that he is in an ugly frame of mind and disposed to commit some crime, though not the particular crime for which he is on trial.’ The numerous cases cited in the note to the text quoted fully sustain the law as stated, among these being an Arkansas case, which does not appear as having been published in our official reports.”
Appellant insists that such remarks as he made in this connection did not refer to the sheriff or to any other officers except Federal officers Quillian and "Weaver, who had shot him on a previous occasion. But we think this was a question of fact for the jury.
The court refused to admit testimony to the effect that the deceased sheriff had killed more than one man in making arrests, but the court admitted testimony concerning the general reputation of deceased as being a violent and impulsive man. There was no error in this ruling. The reputation of the deceased for violence could not be properly proved by specific acts of violence to third persons. Underhill’s Criminal Evidence (3d ed.), page 724. In the ease of Hardgraves v. State, 88 Ark. 261, 114 S. W. 216, it was held (to quote the headnot'e in that case) that, “In a prosecution for murder, it is not competent to show the violent and dangerous character of the deceased by evidence of isolated facts or particular acts of violence.” That holding was reaffirmed in the later cases of Shuffield v. State, 120 Ark. 458, 179 S. W. 650; Biddle v. State, 131 Ark. 537, 199 S. W. 913, and Jett v. State, 151 Ark. 439, 236 S. W. 621.
Objection was also made to the testimony of a witness, who had been engaged with appellant in making the liquor, that appellant constantly carried his pistol while employed about the still. But we think this testimony was competent as bearing upon appellant’s mental attitude in regard to not being rearrested for his illegal conduct.
Appellant offered to prove .by the physician who attended the negro that the wound inflicted upon the negro by the sheriff was of a dangerous character, and, when asked by the trial judge what the purpose of the question was, appellant’s counsel answered: “It shows the wantonness of the assault by the officers on the defendant, and that the attack upon the negro was made regardless of the consequences to him, and shows that the sheriff used no caution and was impulsive in shooting him, and I think it is material. ’ ’ The prosecuting attorney remarked that “the sheriff had a right to shoot the negro under the circumstances detailed in evidence.” Appellant’s counsel remarked: “Well, now, the defendant thinks he did not have such a right; so, there you are. ’ ’ The judge then stated: ‘ ‘ The court holds the sheriff did have a right to shoot the witness, Joe Watson, under the circumstances, and the objection is sustained.”
Objection was made to this remark, and the court was asked to withdraw it, whereupon the judge said : “I will do that gentlemen. I will qualify the statement by saying that the sheriff had the right to shoot the witness, Joe Watson, if, under the circumstances as outlined by the witness, Joe Watson, and as outlined by the other witnesses, the sheriff was undertaking to arrest him, and if it occurred or appeared to the sheriff, in the reasonable exercise of his duty as sheriff, that it was necessary to shoot him to arrest him.”
We think it would have been better for the court to have excluded the testimony as to the character of the negro’s wound without comment, but the amended statement of the court is not an incorrect declaration of the law. The sheriff had the right to shoot an escaping felon “if it occurred or appeared to the sheriff, in the reasonable exercise of his duty as sheriff, that it was necessary to shoot him to arrest him.” Section 2377, Crawford & Moses’ Digest; Carr v. State, 43 Ark. 99; Thomas v. Kinkead, 55 Ark. 502, 18 S. W. 854, 15 L. R. A. 558, 29 Am. St. Rep. 68; Green v. State, 91 Ark. 510, 121 S. W. 727; Jett v. State, 151 Ark. 439, 236 S. W. 621.
The cause was submitted to the jury upon the conclusion of the argument at about 7:30 p. m. on December 10, 1931, but, on account of the lateness of the hour and of the illness of a juror, the consideration of the case was not taken up by the jury that night. The condition of the juror became more serious, and a doctor was called to attend him. Upon being advised of the juror’s illness, the trial judge called at his room on the following morning, but it affirmatively appears that the judge’s visit was intended solely to ascertain the juror’s condition and his ability to proceed in the case, and there was no discussion whatever of the merits of the case between the judge and the juror. We think there was no error in this.
When the court was convened, the judge made a statement in open court concerning the juror’s condition, and no request was made that the jury be discharged. On the contrary, it was agreed that the other members of the jury should repair to the room of the sick juror, and that if a verdict was agreed upon it might be received in the juror’s room. The jurors met and deliberated upon the case in the room of the sick juror, and, when it was announced that a verdict had been reached, the court and its officers and the counsel in the case, together with appellant, went to the room where the sick juror was in bed in a house two blocks away from the courthouse, where the verdict was received and the jury was discharged. The juror’s illness developed into pneumonia, and he died a few days later.
It is insisted that this was prejudicial error calling for the reversal of the judgment pronounced upon the jury’s verdict, although appellant had consented to the court’s action in the matter.
In the case of Mell v. State, 133 Ark. 197, 202 S. W. 33, L. R. A. 1918D, 480, the court adjourned, over the objection of the defendant, to a hotel to hear the testimony of a witness who was too ill to be present in court. We there said that there were jurisdictions in which it had been held that this might be done unless prohibited by statute, but that it was not permissible under our practice when objection was made, and we reversed the judgment in that case on that account.
The case of Carter v. State, 100 Miss. 342, 56 So. 454, Ann. Cas. 1914A, 369, was cited among other authorities, as having so held. It was said in that case that: “If the defendant had consented to the proposition to go with the court and jury to the place where the witness was, and there take her testimony, and if her testimony had in this manner been taken, we do not think the defendant could have objected to the irregularity. 'But that is not the question before us. In this case the defendant’s application for a continuance was refused; one of the grounds of the refusal being that he declined to accept the proposition of the court to go with the jury to the place where the witness was confined by sickness, and there take her testimony. Such a proposition was, we think, no answer to his application for a continuance, and should not be considered in determining his right to a continuance.”
It thus appears that the Supreme • Court of Mississippi would have held that the irregularity in the proceeding was not prejudicial, had the defendant consented, as the record in the instant case shows was done.
In the case of Jackson v. State, 102 Ala. 76, 15 So. 351, it was held by the Supreme Court of Alabama that a verdict was void which had been, delivered to the judge outside of the courthouse, but it was not there shown, as it was here, that the defendant had consented that this should be done.
It was held by this court, in the case of McVay v. State, 104 Ark. 629, 150 S. W. 125, that a defendant who was convicted of murder in the first degree 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.
In the case of Davidson v. State, 108 Ark. 191, 158 S. W. 1103, Ann. Cas. 1915B, 436, which was also a capital case, it was held that the defendant had the right to waive his presence in court upon the return of the verdict, and that the verdict might be returned in his absence with his consent.
We therefore hold that, having consented, appellant was not prejudiced by the reception of the verdict at a place other than the courthouse.
It is insisted that it was error to permit the jury to proceed after one of its members became ill, as he was entitled to have his case considered and decided by jurors in normal condition. This objection was not made at the trial; indeed, it appears that appellant consented that it should be done.
The physician who attended the juror was interrogated by counsel for appellant concerning the juror’s condition, and testified as follows: “Q. A man as sick as he was, in your opinion was he capable and competent of deliberating upon serious and important matters? A. Yes, sir. Q. You think he was? A. Yes, sir.”
It is also assigned as error that the trial judge interviewed the sick juror in the absence of his fellows, and in the absence of appellant and his counsel. But there is incorporated in the record a statement by the trial judge to the following effect. When he was advised of the juror’s illness, he called at his room to inquire- as to the juror’s condition. He told the juror that unless he felt perfectly able to continue to serve as a juror he would be discharged, but he was assured by the juror that he felt able to continue his duties as a juror in the case. The judge further stated: “At that time the jury had not commenced its deliberations, and upon being assured by both the nurse and the doctor, in addition to the statement of the juror, that the juror was rational, and that for him to stay in that room in the bed and deliberate, take part in the deliberations of the jury, was not detrimental to his chance for recovery, and upon the appearance of the juror to me at that time, and the statement of the juror that he was able and willing to proceed, the jury was told to commence its deliberations whenever they saw fit to begin their deliberations.”
It would, of course, have been improper, under these circumstances, for the trial judge to have discussed with the juror any question of law relating to the verdict to be returned, but this he did not do. Wacaster v. State, 172 Ark. 983, 291 S. W. 85; Shue v. State, 177 Ark. 605, 7 S. W. (2d) 315; Phares v. State, 158 Ark. 156, 249 S. W. 551.
The judge’s conversation with the juror related only to the physical and mental condition of the juror, for the purpose of ascertaining whether the jury should be discharged. We conclude therefore that there was no prejudicial error in this incident. Spence v. State, 180 Ark. 1123, 24 S. W. (2d) 331.
It is also insisted that prejudicial error was committed in refusing appellant a preliminary trial. This feature of the case was inquired into in a habeas corpus proceeding brought to require a preliminary hearing, which the court refused to order.
It appears that at this time the defendant had been indicted, and that he was immediately thereafter put to trial. It also appears that there had previously beenl no preliminary trial for the reason that appellant’s father had requested that, pending appellant’s trial, he be re moved from the county and confined elsewhere on account of the inflamed condition of the. public mind arising out of the killing, and it does not appear that appellant or his counsel had demanded a preliminary examination prior to his indictment.
It was held in the ease of Ex parte Anderson, 55 Ark. 527, 18 S. W. 856, that one who has been committed to jail by a coroner for the crime of murder, upon an inquisition conducted in his absence, was not entitled to be taken' before a magistrate for preliminary examination.
The purpose of the preliminary examination is to determine whether an accused person should be held to' await the action of the grand jury, so that he may not in the meantime be unlawfully deprived of his liberty. No useful purpose would have been served by holding a preliminary examination. It is provided by statute that: “If, however, the magistrate is of opinion, from the examination, that there are reasonable grounds to believe the defendant guilty of the offense charged, he shall be held for trial and committed to jail, or discharged on bail if the offense be bailable.” Section 2932, Crawford Moses’ Digest.
Section 2934, Crawford & Moses’ Digest, provides that: “Justices of the peace shall have no power to admit to bail in capital offenses, murder or manslaughter.”
A justice of the peace would have been without authority to admit appellant to bail upon an examining trial before indictment returned, if there were reasonable grounds to believe he was guilty, even of manslaughter, and he had already been indicted for the crime of murder in the first degree. A justice of the peace would therefore have had no jurisdiction of the case. Ex parte Kittrell, 20 Ark. 499; Bass v. State, 29 Ark. 142; Ex parte Graham, 150 Ark. 236, 234 S. W. 176.
A motion was filed to quash the indictment upon the ground that the jury commissioners who selected the grand jury which returned the indictment and the petit jurors who tried the case were not sworn, and that there was no affirmative showing that § 6344, et seq., Crawford & Moses’ Digest, relating to the manner in which jury commissioners shall perform their duties, were complied with. The record does not affirmatively show that the jury commissioners were sworn or that the statute defining the manner in which their duties shall be performed was complied with, but there was no showing to the contrary, and the presumption must be indulged that the statute was substantially complied with.
Similar contentions were made in the case of Brewer v. State, 137 Ark. 243, 208 S. W. 290, but in overruling them it was there said: “It is true that the record in the present case does not contain the orders of the court showing these facts, but, as we have just seen, the presumption is that the grand jury was organized in accordance with the requirements of law unless the contrary shall be made to appear affirmatively by the record. It may have been in the present case that the docket of the circuit judge showed that he had appointed jury commissioners, and that he had selected the grand jury in the manner prescribed by the statute, but that these orders had not been entered of record.” It was there said that, under our system, there are two modes by which a grand jury may be selected. One is pursuant to the provisions of the statute; the' other in the exercise of the court’s inherent power; so that juries may be impaneled, even though the jury commissioners wholly fail to perform their duty.
Certain other errors are assigned, but they relate to matters which have been definitely decided adversely to appellant’s contentions and require no further discussion.
Upon the whole case we find no error prejudicial to appellant, and the judgment must be affirmed. It is so ordered. | [
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Smith, J.
Appellant alleged in his complaint that he was the owner of certain lands, therein described, which were in Road Improvement Districts Nos. 1, 2 and 7 in Grant County, Arkansas, respectively, and that he acquired his title through a foreclosure sale of a mortgage duly assigned to him, which had been executed by Benton B. Moore. He alleged that these lands had been sold to the respective districts for the nonpayment of the road improvement district taxes due and delinquent thereon for the year 1925, and that, after the sale thereof to the respective districts, they were sold by the districts to W. K. Jones, who was the business partner of Moore, and that such purchases were in legal effect mere redemp tions. Testimony was offered as to the business relations of Jones and Moore, but we find it unnecessary to determine whether Jones purchased the lands from the districts for the benefit of Moore.
Plaintiff alleged that these tax sales were void for various reasons, and, among others, that the decrees of sale were rendered upon insufficient notice; were defective in character; that no jurisdiction was conferred upon the court to render the decrees of sale, and the sales were therefore alleged to be void. Plaintiff made a tender of the amount paid for the lands by Jones, the same being the amount for which the lands had been sold by the commissioner of the court to the respective improvement districts.
The decrees of sale under which the lands were sold to the districts were rendered November 14, 1925, but by reason of certain statutes extending the period of redemption, no deeds were made by the commissioner to the improvement districts until 1930, and soon thereafter the districts executed the deeds to Jones here attached.
Plaintiff alleged that the decrees pursuant to which these deeds had been made were void for the reasons hereinafter discussed, and he prayed their cancellation, and that he be permitted to redeem said lands. The court denied the relief prayed and dismissed the complaint as being without equity, from which decree is this appeal.
Road Improvement District No. 1 was created by special act 48 of the Acts of 1915 (Acts 1915, page 136). Districts Nos. 2 and 7 were organized under the provisions of act 338 of the Acts of 1915 (Acts 1915, page 1400), which appear as § 5399 et seq., Crawford & Moses’ Digest.
Section 16 of special act 48, creating District No. 1, provides the procedure for enforcing the payment of delinquent assessments of benefits. It directs the board of commissioners to enforce such payment by chancery proceedings, and requires that they give notice of the suit filed for that purpose by the publication of a notice of the pendency of such suit “by publication weekly for four weeks before judgment is entered for tbe sale of” delinquent lands, etc., in some newspaper published in Grant County. This section also contains the form of the notice so to be published, and there provides that: “All persons and corporations interested in said lands are hereby notified that they are required by law to appear within four weeks and make defense to this suit, or the same will be taken for confessed, and final judgment will be entered directing’ the sale of said lands * * *.”
Act 338, under which Districts Nos. 2 and 7 were created, provides a procedure similar, in the essential respects hereinafter discussed, for the collection of delinquent assessments of betterments in these districts, except that the notice of the suit is to “be given by publication weekly for two consecutive weeks before judgment is entered for the sale of said lands in some newspaper in said county having a general circulation therein. ’ ’ Act 338 contains a form of notice in practically the identical language employed in act 48, and recites, as does the last-named act, that: “All persons, firms or corporations interested in said property are hereby notified that they are required by law to appear within four weeks and make defense to said suits or the same will be taken for confessed, and final judgment will be entered directing the sale of said lands for the purpose of collecting said taxes, * # *.”
It thus appears that both acts require that notice for four weeks be given landowners of the pendency of the suit by the publication of the notice of delinquency. .
The decree of sale under which the delinquent lands in District No. 1 were sold recites that notice of the pendency of the suit was given by publication as follows: “The first publication thereof was made on the 22d day of October, 1925, the second on the 29th day of October, 1925, the third on the 5th day of November, 1925, and the last on the 12th day of November, 1925.”
In the decree rendered in the suit brought by the commissioners of District No. 2 it is recited that the notice was published on October 22, 1925, on November 5, 1925, and on November 12, 1925.
In the decree rendered in the suit brought by the commissioners of District No. 7 it is recited that the notice was published October 22,-1925, October 29, 1925, November 5, 1925, and November 12, 1925.
It thus appears, from the face of each of these decrees, that the four weeks’ notice required by law had not been given in any case when the decree of sale was rendered. Pope v. City of Nashville, 131 Ark. 429, 199 S. W. 101.
It is true, of course, that the instant case is a collateral attack on these decrees of sale, and it is insisted that these decrees of a superior court of record cannot be thus collaterally attacked.
We are cited to numerous cases in which it has been held that, after the confirmation of a sale has been made by the court ordering the sale, all defects and irregularities in the conduct of the sale are cured, and every pre- • sumption will be indulged in favor of their regularity.
Among the numerous cases to this effect is that of Fiddyment v. Bateman, 97 Ark. 76, 133 S. W. 192, where it was held (to quote a headnote): “Where an overdue tax decree recited that due notice was given by publication of warning order as required by law, it will be presumed on collateral attack that due notice was given, though the proof of the warning order was defective in failing to show that the newspaper in which the publication was made had a bona fide circulation in the county and had been regularly published therein for one month before the date of the first publication of the warning order, and was also defective in failing to show the date of the second insertion of the warning order.”
There was offered in evidence in that case an affidavit of the proof of publication of the warning order, pursuant to which the decree had been rendered, according to the recitals of which the notice given did not conform to the requirements of the law under which the proceeding was had. It was there said: “No statute forbids the introduction of parol testimony to prove the publication of notice in cases of this kind, and the decree recites: ‘And it further appearing to the satisfaction of this court that the clerk of this court caused the said order to be published as required by law, and did give the notice required by law, and that the proof of which notice, verified and proved as required by law, was filed, ’ etc. Such recital that notice has been given is evidence of that fact. Section 4425, Kirby’s Digest. And, as the court said in Clay v. Bilby, 72 Ark. 408, 78 S. W. 749, 1 Ann. Cas. 917: ‘If the decree or judgment does not exclude the conclusion, the presumption is that sufficient and competent evidence was before the court to sustain its findings as to the publication of notice. McLain v. Duncan, 57 Ark. 49, 53, 20 S. W. 597; Scott v. Pleasants, 21 Ark. 364; Porter v. Dooley, 66 Ark. 1, 49 S. W. 1083; 1 Bailey, Jurisdiction, § 1728, and cases cited.’ The law only required a copy of said order to be published for two insertions, and a like omission in an affidavit in a case of this kind except as to date of second insertion has been held to be a mere irregularity which did not affect the jurisdiction of the court or the validity of the decree. The omission in this affidavit could not amount to more than an irregularity, within the meaning of the decision in Clay v. Billy, supra, and cases cited.”
But it is to be remembered that, while the sales were confirmed by the court in the instant case, they were made pursuant to a special statutory power prescribing the conditions upon which the decrees of sale might be rendered, and the decrees do not recite merely that proper notice of the proceedings had been given. On the contrary, the decrees affirmatively recite the notice which was given in each case, and it appears, from the face of each decree, that the notice required by law was not given. There is therefore no presumption that legal notice was given, because the decrees themselves exclude that presumption.
In the case of Crittenden Lbr. Co. v. McDougal, 101 Ark. 395, 142 S. W. 836, it was said: “This is a collateral attack upon a domestic judgment of a court of general jurisdiction. It is well settled that every presumption will be indulged in favor of the jurisdiction of such court, and the validity of the judgment which it enters. Unless it affirmatively appears from the record itself that the facts essential to the jurisdiction of such court did not exist, such collateral attack against the judgment rendered by it will not prevail. A judgment or decree entered upon constructive service by publication will be given the same» conclusive effect and will be entitled to the same favorable presumptions as judgments on personal service. It is true that a judgment may be attacked collaterally where, by the record, it is shown that there was want of jurisdiction in the court rendering it, either of the subject-matter or of the person of the defendant.”
In the instant case, as we have said, it is shown by the record of the decrees themselves that there was a want of jurisdiction of the court rendering them, and they may therefore, as was held in the case last cited, be collaterally attacked. Boyd v. Roane, 49 Ark. 397, 5 S. W. 704; Price v. Gunn, 114 Ark. 551, 170 S. W. 247, L. R. A. 1915C, 158; Oliver v. Routh, 123 Ark. 189, 184 S. W. 843; Jones v. Ainell, 123 Ark. 532, 186 S. W. 65; Simpson v. Reinman, 146 Ark. 417, 227 S. W. 15; Road Imp. Dist. No. 4 v. Ball, 170 Ark. 522, 281 S. W. 5
Inasmuch as the decrees here attacked show, upon their face, that they were rendered without giving the notice required by law, they are subject to collateral attack, and were void as having been rendered upon an improper notice. The decree of the court below will therefore be reversed, and a decree will be entered permitting appellant to redeem the lands as prayed. | [
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Humphreys, J.
The issue involved on this appeal is which of three claimants is entitled to a reward of $500 offered by the Special Protective Rewards Committee of the Arkansas Bankers’ Association for the arrest and conviction of any one implicated in the robbery of the Bank of Alma on or about the 14th of September, 19'26.
The committee brought this suit in the chancery court of Crawford County, admitting its liability in the sum of $500 for the arrest and conviction of Ky Coatney for' complicity in the crime, alleging that appellant, its coappellees, and W. S. Chastain each claimed all the reward, and praying that the court determine to whom the reward should be paid.
Each of the three intervened and claimed to have earned the entire reward.
The cause was submitted to the court upon the pleadings and testimony, which resulted in a finding and consequent decree adjudging that the reward be divided equally between appellant and A. B. Maxey and his deputies, to which all parties exempted, and from which is this appeal and cross-appeal.
Appellees contend for an affirmance of the decree because the bill of exceptions was not filed within sixty days first allowed to file same. Nineteen days after the time elapsed, the court allowed additional time and signed and filed same. The original time given and the additional time allowed was given and allowed during the same term of court, so there is no merit in appellee’s contention for the reason that a court has absolute control over all orders and decrees rendered during the term, and may modify, change, or set them aside at any time before final adjournment.
An inspection of the record discloses that the salient and controlling facts necessary to a determination of the issues involved are undisputed.
On the day of the robbery, W. S. Chastain discovered suspicious circumstances in the conduct of Ky Coatney which convinced him that Coatney was implicated in the crime, and immediately went to J. C. Alexander, the cashier of the looted bank, who was the person in charge of the investigation and prosecution of the guilty parties, and told him of Coatney’s suspicious conduct and urged that he be arrested. The next day after the robbery, A. D. Maxey, sheriff, aided by his deputies, arrested Ky Coatney without a warrant and placed him in jail. J. C. Alexander informed the prosecuting attorney and A. D. Maxey of the information obtained from Chastain, whereupon Chastain appeared before the grand jury and gave testimony, upon which the indictment was rendered charging Coatney with the crime of robbery. Coatney gave -bond for his appearance in the circuit court and absconded. A forfeiture was taken on the bond, which was set aside by the Governor at the instance of appellant. J. C. Alexander obtained information that Coatney was living with a brother in New York and imparted this information to appellant, who had, in the mean time, been elected sheriff of Crawford County to succeed A. D. Maxey. A requisition was procured for him, and appellant proceeded to New York as agent or representative of Arkansas, paying his own expenses, apprehended and returned Coatney to the Crawford County jail. At the succeeding term of the circuit court, Coatney pleaded guilty to the charge in the indictment returned on the evidence of W. S. Chastain and was adjudged to serve a term in the State penitentiary as a punishment therefor. Within thirty days after his conviction, appellant notified the rewards committee that he claimed the reward. The others failed to notify them of their claim, but, having heard that there were three claimants for the reward, they filed the instant suit and offered to pay the reward into the registry of the court to be paid to the party entitled thereto. There is a dispute in the testimony as to whether they sent it to appellant as a payment or whether they sent it to him through mistake. According to the weight of the evidence, they intended that it should he deposited in the registry of- court, and through mistake sent it to him instead of the circuit clerk. Although ordered by the chancery court to deposit the money in the registry of the court, appellant was permitted to retain same during the pendency of this appeal upon the execution of a supersedeas bond.
The law is that officers acting within the scope of their duties, and those called to aid them in the performance of their official duties, shall not receive rewards or other compensation not allowed by statute. The reason for the rule is based on public policy and is in accord with the weight of authority. Chambers v. Ogle, 117 Ark. 242, 174 S. W. 532, and numerous eases cited therein.
This, rule precludes A. D. Maxey and his deputies from claiming the reward. They were acting within their official duties when they arrested Ky Coatney. Their contention is that they were not acting within the scope of their official duties because they made the arrest without a warrant and because the offense was not committed in their presence.^ On account of suspicious conduct on the part of Ky Coatney, it was believed that he was implicated in the robbery, and his arrest was based upon this belief. In other words, the officers who made the arrest did so upon the belief that Ky Coatney was one of the guilty parties. Section 2904'of Crawford & Moses’ Digest provides: “A peace officer may make an arrest: * * * without a warrant, where a public offense is committed in his presence or where he has reasonable grounds for believing that the person arrested has com-. mitted a felony.”
The reward was offered for the arrest and conviction of any unknown person implicated in the robbery of the bank, and not for following and recapturing one who had already been indicted for the offense and who had forfeited his bond. Appellant did not procure the indictment and conviction of Ky Coatney, and hence did not bring himself within the purport and intent contained in the terms of the offer of reward, In following and recapturing Ky Coatney, he did so as an agent or representative of the State and not as an individual. The State could not participate in the reward, and it follows .that its agent could not do so where he was acting for the State and not for himself.
The first information disclosed to the cashier of the bank relative to Ky Coatney being a participant in the offense came from W. S. Chastain. He not only disclosed his suspicious conduct to the cashier, but urged his arrest. It is true that A. D. Maxey testified that he received information from some other sources that caused him to arrest Ky Coatney. After the arrest, the cashier notified the prosecuting attorney and A. D. Maxey of the information disclosed to him by W. S. Chastain, and he subsequently appeared before the grand jury and procured an indictment against Ky Coatney upon his own testimony. After the return of the indictment, Ky Coatney gave bond and absconded. When apprehended and returned to the Crawford County jail, he was held under the original indictment until court convened, whereupon he pleaded guilty to the charge preferred in the indictment. We think it may well be said that W. S.. Chastain procured the indictment and continued incarceration or arrest of Ky Coatney until he obtained his liberty under bond. There can be no question that his conviction was the direct result of the testimony given by Chastain before the grand jury. W. S. Chastain brought himself clearly within the rule announced in the case of Railway Company v. Dickinson, 78 Ark. 483, 95 S. W. 802, 115 Am. St. Rep. 54, and earned the reward. In the case referred to, Dickinson swore out a warrant before a justice of the peace against the criminal and later appeared against him as a witness and procured his conviction. In that case, the offer for the reward was a general one, for the arrest and conviction of the unknown offender. We think the instant case is ruled by the Dickinson case, supra.
Appellant cites the case of Chambers v. Ogle as authority for eliminating W. S. Chastain as a claimant for the reward. In the 'Chambers case, Mrs. Ogle did nothing except to give a torn envelope with an address on it which led to the whereabouts of the criminals. She did not become a prosecuting witness either before a magistrate or a grand jury, and the conviction was not obtained upon her testimony. The Ogle case is not analogous to the instant case.
On account of the error indicated the decree is reversed, and a judgment is directed to be entered here against appellant and his bondsmen in favor of "W. S. Chastain in a sum of $500 and interest thereon from the date appellant received same together with costs incurred in the trial and appeal of the case.
Hart, C. J., and Smith and McHaney, JJ., dissent. | [
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MoHaney, J.
This lawsuit involves an attack on the will of the late B. F. Johnson, of Washington County (who died April 20, 1929,) on account of the alleged undue influence of his second wife, Mrs. Lydia Johnson, who predeceased her husband nearly four years, she having died December 25, 1925. By his first marriage B. F. Johnson had two children, J. O. Johnson and Vicie (Johnson) Arnett, both now deceased, and both leaving several children, appellant, Mrs. J. L. Lavenue being one of five children of J. O. Johnson the others being parties to this litigation. A paragraph in the testator’s will reads as follows: “Item 6. I have heretofore made advancements out of my property to my sons Bert B. Johnson and to J. O. Johnson, now deceased, which advancements have been fully equal to their respective interests in all of my estate, and because of such advancements so made by me, neither the said son, Bert B. Johnson, nor the heirs of the said J. O. Johnson, are to receive any interest in or share of my estate. ’ ’ Item 7 makes the same reference to the heirs of Hugh L. Johnson, another deceased son. Bert B. Johnson and Hugh L. Johnson were children of the testator by his second wife. At the conclusion of the testimony for appellants the court directed a verdict for appellees, upon which judgment was entered and this appeal followed.
The only question presented is whether the evidence was sufficient to take the case to the jury on the ground of undue influence of Mrs. Lydia Johnson. Mrs. Lavenue testified over objections that her father, J. O. Johnson, had received as advancements from her grandfather, the testator, only $1,000, and that he had not received his share of the estate. This evidence was incompetent under the rule stated in LeFlore v. Handlin, 153 Ark. 421, 240 S. W. 712. In that case similar testimony was held to be incompetent, the court stating: “The above testimony therefore was wholly incompetent, because it cannot be proved that the testatrix was mistaken in ‘a fact which she clearly stated in the will for the purpose of showing that her intention was really different from that which her language plainly expresses. Nor is such proof competent for the purpose of showing that, but for the mistake of fact, her intention would have been different and expressed in a different manner. ”
“The first great rule in exposition of wills (to which all other rules must bend) ” said' Chief Justice Marshall, in Smith v. Bell, 31 U. S. 68, “is that the intention of the testator expressed in his will shall prevail, provided it be consistent with the rules of law.” Over and over again we have said, the same thing in substance in cases too numerous to mention. “Every man,” said Judge Wood in Taylor v. McClintock, 87 Ark. 243, 112 S. W. 405, “has the untrammeled right to dispose of his property by will as he pleases, with only such limitations as the statute may impose. ’ ’ So here, the testator had the right to disinherit the J. O. Johnson heirs for the reason as signed in the will, or for any other reason, or without assigning any reason.
Although the testator was about 90 years of age at the time the will was executed, it is conceded that he had the mental capacity to make it, and his testamentary capacity is not questioned. Only the undue influence of the wife is charged. In McCulloch v. Campbell, 49 Ark. 367, 5 S. W. 590, the rule in this regard is thus stated: “As we-understand the rule, the fraud and undue influence which is required to avoid a will must be directly connected with its execution. The influence which the law condemns is not the legitimate influence which springs from natural affection, but the malign influence which results from fear, coercion, or any other cause deprives the testator of his free agency in the disposition of his property. And the influence must be specifically directed toward the object of procuring a will in favor of particular parties. It is not sufficient that the testator was influenced by the beneficiaries in the ordinary affairs of life, or that he was surrounded by them and in confidential relation with them at the time of its execution.” The above was quoted by Judge Battue in Smith v. Boswell, 93 Ark. 66, 124 S. W. 264, as was also the following from 3 Elliott on Evidence, § 2696: ‘ ‘ The influence of the husband over the wife, that of the wife over the husband, of the parents over the children, and of the children over the parents, are legitimate, so long as they do not extend to positive dictation and control over the mind of the testator.”
When considered in the light of these rules, the evidence wholly fails to show any undue influence of the kind the law recognizes. No doubt Mrs. Lydia Johnson had a great influence over her husband, the testator, and justly so. She had lived with him more than a half century at the time of her death, helped him to accumulate a fortune of nearly $100,000, bore him fourteen children, and, so far as this record discloses, made him a loving and lovable wife. Certainly she had an influence over him, but not an “undue influence,” within the meaning of that term in the law. • There was nothing wicked or malign about it, but, on the contrary, was just and proper, springing from that holy relation of husband and wife. Even though it may be said the evidence tends to establish the fact that she preferred her own children to those by a former wife and sought to influence * the testator’s benevolence in their favor, still it fails to show that she accomplished this end, as two of her own children were placed in the same category with the appellants, and one of them appearéd to be her favorite son. She was not present when the will was prepared by an eminent lawyer in Fayetteville, and there is nothing to show that she dictated its terms or had any control over the mind of the testator. Moreover, the testator made no change in the will after her death, although he lived and was mentally competent nearly four years thereafter.
We do not review the evidence as no useful purpose could be served thereby. The court properly directed a verdict for appellees, as there was no substantial evidence of undue influence in the making of this will.
Affirmed. | [
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Humphreys, J.
This is an appeal from a judgment of the circuit court of Polk County setting aside an order of the county board of education entered on July 2d, revoking its previous order of May 15, 1931, dissolving Ozark School District No. 56 and annexing the territory thereof to the Wickes School District.
The order consolidating the two districts was made at a called meeting of the board with only three out of five members present. The record reflects that the two absent members were not notified, and had no knowledge, of said meeting. Section 35 of act 169 of the Acts of 1931 of the General Assembly relative to special or .called meetings of the board of education is as follows:
“The county board of education shall meet on the third Tuesday in March, June, September and December of each year, and at such other times as meetings may be adjourned to, or on call of its chairman, county superintendent of schools, or any two members of the board; Notice of such call meetings to be given in writing to each member of the board.”
The statute is mandatory, and its provisions must be strictly obeyed in order to give validity to a called meeting or acts performed by a board of this character at such meeting. The statute was not followed, and therefore the order consolidating the districts on May 2, 1931, was void. School District No. 42 v. Bennett, 52 Ark. 511, 13 S. W. 132; Burns v. Thompson, 64 Ark. 489, 43 S. W. 499; Dierks Special School District v. Van Dyke, 152 Ark. 27, 237 S. W. 428.
The board had inherent authority at any subsequent valid meeting to expunge from its record void orders theretofore entered by it, even on its own motion. The power or authority to enter an order necessarily implies power or authority to vacate a void order.
The trial court took the view that the board of education was without authority to set aside upon motion an order once made by it. We think to the contrary, and have no doubt whatever that a board of education may set aside one of its void orders and thereby clear its erroneous record.
On account of the qrror indicated, the judgment is reversed, and the cause is remanded with directions to the trial court to affirm the order of the county board of education setting aside its order of May 15, 1931, consolidating said districts. | [
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Butler, J.
The appellee, as trustee in succession,brought suit against the appellant and a number of other defendants for judgment on a note executed on the 7th day of June, 1911, and for foreclosure of a mortgage on certain lands in Washington County, to secure payment of the same. The appellant, Trent, demurred to the complaint, and, his demurrer being overruled, filed an answer in which he raised the defense of the statute of limitations and of laches.
The court, sitting as a jury, heard the case upon an agreed statement of facts, overruled the appellant’s plea of limitation and laches, entered a decree foreclosing the mortgage, and rendered a personal judgment against the appellant, from which judgment is this appeal.
The facts as agreed upon are as follows:
“1st. That A. L. Trent borrowed the sum of $1,250 on June 7, 1911, from M. F. Croxdale, cleric and trustee, and executed his note therefor due and payable five years after date and bearing eight per cent, interest from date until paid, and, to secure said note, the said A. L. Trent and wife executed and delivered to said payee in said note their certain real estate mortgage upon certain lands in Washington County, Arkansas, sought to be foreclosed herein.
“2d. That the said A. L. Trent sold and conveyed said lands to J. M. Hamilton, who died more than one year before the institution of this suit, said lands hav- ■ ing been sold to the said J. M. Hamilton, by warranty deed, December 31, 1913, and in said deed the said J. M. Hamilton assumed and agreed to pay said mortgage indebtedness sued on herein; that thereafter the said J. M. Hamilton sold said lands to Finis L. Trimble, on the 16th day of September, 1914, who assumed and agreed to pay said mortgage indebtedness, and that thereafter said lands changed hands many times, and that the grantees in most of the deeds assumed and agreed to pay said mortgage indebtedness.
“3d. That A. L. Trent had no further connection with said note or mortgage nor said lands after he conveyed the same to Hamilton on December 31, 1913, and that, at the time Trent conveyed said lands, he owed no delinquent interest. That all interest due and payable on said note and mortgage was kept paid by various owners of said lands from and after the date Trent sold it until and including June 7,1929. That the interest due June 7, 1930, was unpaid, and that this suit was brought to foreclose after the failure of'the interest, payment due on June.7, 1930, for the preceding year.
“4th. That the said A. L. Trent did not make any payment of interest after he sold said lands in 1913, and that he knew nothing whatever about said interest payments, and did not know that said note and mortgage were still running or that said interest payments were being made each year after he sold said lands in 1913.
“5th. That said note became due according to law June 7, 1916, and would have become barred by law.as to Trent on June 7, 1921, unless the acts of the various grantees in the various deeds, the owners of said lands, in paying the interest thereon through all these years up to and including June 7,1929, served to toll the statute of limitations as to A. L. Trent.
“6th. That the first A. L. Trent knew said mortgage and note had not been paid and satisfied was in the year 1930, at or about the time the foreclosure suit was filed herein.
“7th. That said mortgaged lands have depreciated in market value since the year 1921, and would not sell for near as much money now as they would have brought had said mortgage been foreclosed and the land sold prior to June 7, 1921.”
The question raised by the appellant’s plea of the statute of limitations is whether or not the payments by the grantee will interrupt the running of the statute as to the personal liability of the mortgagor. This question has never before been presented to this court for decision. It may be said, first, that it is well settled that the assumption by a grantee and the agreement by him to pay the mortgage debt does not, within itself, change the relationship of the mortgagor and the mortgagee nor release the mortgagor from payment of the mort gage debt, and its collection may be enforced as long as tbe debt remains unpaid or until barred by limitation or laches.
It is also the settled rule that partial payments will &eep alive the lien as between the parties and also as to third parties when the memorandum; thereof is indorsed upon the record in the manner provided by the statute. However, the theory on which partial payments keep alive the debt is that these imply a new promise to pay the debt. Consequently, to bind the mortgagor the payments must have been made by him in person or by some one authorized by him to make a new promise in his behalf. Abbott v. Johnson, 130 Ark. 7, 195 S. W. 676; Chase v. Carney, 60 Ark. 491, 31 S. W. 43; Johnson v. Spangler, 176 Ark. 328, 2 S. W. (2d) 1089, 59 A. L. R. 899.
It is the contention of the appellee that by the agreement to pay the mortgage debt the grantee became the agent of the mortgagor, and therefore. the payments by him will be imputed in law to be that of his principal, the mortgagor, and these payments be effectual to suspend the statute as if made by the mortgagor himself. He argues that this is the effect of our decision in Felker v. Rice, 110 Ark. 70, 161 S. W. 162, and in the cases of Walker v. Mathis, 128 Ark. 317, 194 S. W. 702, and Farrell v. Steward, 135 Ark. 617, 204 S. W. 423, which approve the doctrine announced in Felker v. Rice, supra. A critical examination of those cases does not warrant the contention made. In Felker v. Rice, supra, it was held that the grantee assuming the mortgage “stood in the position of surety for the debt.” It is evident from the context that the court merely intended to hold that, not only was the mortgagor primarily liable because of his promise to pay the debt, but by the assumption of the grantee of the mortgage debt and his promise to pay he became also liable personally for its payment, and therefore the mortgagee had, in addition to the security of the mortgage lien and the promise of the mortgagor, the security created by the promise of the grantee; and in those cases where the court said that the grantee became the surety of the mortgagor the word “surety” was not used in its proper and technical sense, but to mean that the mortgagee, in addition to the liability of the mortgagor, had as a security for the payment of his debt the promise of the grantee to which the law imputes the same force as if made directly to the mortgagee.
This view is strengthened by an examination of the cases of Kirby v. Young, 145 Ark. 507, 225 S. W. 970; Wallace v. Hammond, 170 Ark. 952, 281 S. W. 902; Boone v. Trezevant, 181 Ark. 504, 26 S. W. (2d) 582. Those cases but reiterate the well-settled doctrine in this State that the grantee of mortgaged lands who assumes and agrees to pay the debt secured by the mortgage becomes personally liable to the mortgagor for its payment; and where default is made by' the grantee, the mortgagor, upon paying the debt assumed by his grantee, may recover it from him and be entitled to be subrogated to the rights of the mortgagee in the lien on the property contained in the mortgage.
On the question as to whether an acknowledgment of the continuance of the mortgage debt by partial payments made on it by the grantee of mortgaged premises who has assumed and agreed to pay the debt interrupts the running of the statute of limitations as against the liability of the mortgagor, the authorities are in conflict. The weight of authority, however, is to the effect that no act of a grantee who has assumed a mortgage will toll the statute of limitations as to the mortgagor. 17 R. C. L., p. 916-917; 18 A. L. R., note IIIa, p. 1033; Fitzgerald v. Flannigan, 155 Iowa 217, 135 N. W. 738, Ann. Cas. 1914C, 1104; Regan v. Williams, 185 Mo. 620, 84 S. W. 959; Ann. Cases, 1914C, p. 1113, note; Cottrell v. Shepherd, 86 Wis. 649, 57 N. W. 983, 39 Am. St. Rep. 919. We are of the opinion that the better reason supports the view taken in the authorities above cited. The grantee is personally liable to the mortgagee because of his assumption and agreement to pay the debt se cured by tbe mortgage, the payments are made by the grantee for his own benefit and not as the agent of the grantor, as their liabilities are separate and distinct. Old Alms-House v. Smith, 52 Conn. 434. Therefore, the' grantee cannot, by any act of his, impute to his grantor the effect of his act or subject him to a new liability. Hence we adopt the prevailing view and hold that the trial court erred in overruling the appellant’s plea of the statute of limitations. As more than seven years elapsed since the debt became due, we hold that the statute bar attaches. As the grantee was personally liable for the debt secured by the mortgage, his payments of interest interrupted the running of the statute, the debt remained enforceable against him, and therefore the lien remained in existence, and the trial court correctly decreed its foreclosure, but erred in rendering a personal judgment against the appellant.
For these reasons the decree of the trial court rendered against the appellant is reversed, and the cause remanded with directions to dismiss the complaint as to him. | [
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Humphreys, J.
This is an appeal from the circuit court of Washington County dismissing the petition of appellants to the county board of education to change the. boundary lines of Winslow Special School District No. 9 so as to bring within its boundary all of the territory in Common School Districts Nos. 37, 129 and 145 under the provisions of act No. 156 of 1927 (page 549).
The record reflects that notices of the intention to file the petition for consolidation of said school districts with the county board of education were not posted thirty days before but thirty days after filing the petition. The statute governing the notices to be posted is found in § 8821 of Crawford & Moses’ Digest, and is as follows:
“When a change is proposed in any school district, notice shall be given by parties proposing the change by putting up hand-bills in four or more conspicuous places in each district to be affected, one of said notices to be placed on the public school building in each affected district. All of said notices to be posted thirty days before the convening of the court to which they propose to present their petition. Said notices shall give a geographical description of the proposed change.”
This court has construed the statute with reference to the time of posting the notices in the recent case of Texarkana Special School District v. Consolidated Special School District No. 2, ante p. 213, to mean that same must be posted before, and not after, the filing of the petition in order to give the county board of education jurisdiction to hear and determine the application. It is argued in appellants ’ reply brief very earnestly that the court should recede from the interpretation placed upon the statute in the case'referred to, but the court is of opinion that it correctly construed the statute and adheres to the construction placed upon it in that case.
This case is therefore ruled by the case cited.
No error appearing, the judgment is affirmed. | [
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Meuaffy, J.
The Blytheville Feed & Coal Company was an Arkansas corporation. J. W. Adams was president and owned 98 shares of the stock. His wife, Love B. Adams, owned 2 shares of the stock. Gaines jasper was secretary-treasurer and owned 99 shares of stock. His wife, Pauline D. Jasper, owned 1 share of stock.
Insurance policies in the sum of $10,000 each were carried on the lives of J. W. Adams and Gaines Jasper. J. W. Adams died October 31,1926, and shortly thereafter the insurance company paid to the Blytheville Feed & Coal Company $10,000.
Love B. Adaims was appointed administratrix of the estate of J. W. Adams, deceased.
In order to ascertain the value of the stock, an audit and an appraisement was made on November 19, 1926. The audit and appraisement showed the net worth of the company to be ’$14,559.09. The liabilities of the Blytheville Feed &• Coal Company at that time were $10,328.44 and the assets $24,887.52. $2,559.09 was deducted to cover depreciation and loss on collections, leaving a balance -of $12,000 as the net value of the property of the corporation, and this was the basis used to determine the value of the stock.
The capital stock was $20,000, and Jasper purchased the stock belonging to the estate of J. W. Adams and the 2 shares belonging to Mrs. Adams, paying therefor $60 a share, and the stock was transferred to Gaines Jasper. This sale and transfer of the stock was authorized and approved by the probate court of Mississippi County. The order of the probate court was December 9, 1926.
Gaines Jasper thereby became the owner of the entire capital stock of the corporation, and the corporation, in the early part of January, surrendered its charter as provided for in § 1823 of Crawford & Moses’ Digest.
Thereafter Gaines Jasper continued the business as an individual, but using the same name of the corporation.
On September 17, 1927, Gaines Jasper filed a petition in bankruptcy, and Max Reid was appointed trustee and brought this suit against Gaines Jasper, Love B. Adams, and Blytheville Feed & Coal Company.
The suit was filed February 3, 1928. The complaint alleged that Max Reid was the duly elected and qualified trustee for Gaines Jasper, bankrupt; that the Memphis Coal Company, which was joined as a plaintiff, was a corporation with its principal business at Memphis, Tennessee; that the Blytheville Feed & Coal Company was an Arkansas corporation; that the .¿Etna Life Insurance Company, after the death of J. W. Adams, paid $10,000 to the Blytheville Feed & Coal Company; that prior to December 11, 1926, the stock of the Blytheville Feed & Coal Company was owned by Gaines Jasper and wife and Love B. Adams personally and as the administratrix of the estate of J. W. Adams, deceased; that Love B. Adams and Gaines Jasper knew that the insurance money was a trust fund; that the Blytheville Feed & Coal Company owed various creditors and owed the Memphis Coal Company $1,547.45; that said insurance ¡money was appropriated-by Love B. Adams and Gaines Jasper for their personal use, and that they knew this would render the Blytheville Feed & Coal Company insolvent.
It was alleged that Gaines Jasper attempted to pay Love B. Adams the sum of $6,000 of the funds of the Blytheville Feed & Coal Company for stock in said company; that said Love B. Adams then undertook to pay Gaines Jasper $2,000 of said insurance money for an undivided interest in lots 1 and 2 in block 1 in Davis’ 2d Addition to Blytheville, Arkansas; that, at the time the trust funds were misappropriated, Love B. Adams and Gaines Jasper were officers of the Blytheville Feed & Coal Company; that Gaines Jasper assumed the liabilities of said company and attempted to dissolve the corporation on the theory that he owned all of the stock; that he continued to operate said business as Blytheville Feed & Coal Company and that said Blytheville Feed & Coal 'Company was never dissolved, but still exists as a corporation; that Gaines Jasper dissipated the funds of the corporation in fraud of his creditors and the creditors of said corporation, and that Jasper filed a petition in bankruptcy in September, 1927, and he is liable now for misappropriating the funds of the corporation; that Love B. Adams is liable for misappropriating the funds to the extent of any portion of the insurance money which she received; that the $2,000 paid by her to Jasper was a part of the insurance fund, and that she holds the real estate as trustee for the corporation and its creditors.
The prayer of the complaint was that Max B. Reid be appointed receiver for the Blytheville Feed & Coal Company with authority to take charge of the undivided half interest in the above described real estate and such other assets as he might locate; that he collect rents and profits and distribute same as directed by the court; that plaintiffs have judgment against Love B. Adams and G-aines Jasper for the sum of $10,000; that a trust be impressed upon the real estate, and that the same be sold to satisfy the judgment herein rendered.
The Memphis Coal Company prayed that it be paid the sum of $1,547.45 and for general relief.
Love B. Adams filed answer denying the allegations of the complaint and alleging that she sold the stock, but was not guilty of any fraud in its sale.
After hearing the evidence the chancellor entered a decree that the plaintiff have and recover of and from Love B. Adams, (now Love B. Atkinson), and Gaines Jasper the sum of $6,000 with interest thereon at the rate of 6 per cent, per annum from December 11,1926, for the use and benefit of the creditors of the Blytheville F,eed & Coal Company as of that date. A list of such creditors is contained in the audit report of Neville Audit Company, covering a period from January 1, to November 19,1926. The decree also said: “Whether the money of the corporation, converted by the parties, was used in the purchase of property belonging to Love B. Atkinson, is reserved.”
There is practically no dispute about the material facts. The appellees contend, and the court found, that G-aines Jasper and Mrs. Atkinson became liable to all the creditors of the_ Blytheville Feed & Coal Company to the extent of money taken from its treasury. And it is contended that the corporation was never dissolved. The appellee does not say why it was not dissolved, but makes the contention that it was not.
Section 1823 of Crawford & Moses’ Digest reads as follows: “Any corporation may surrender its charter by resolution adopted by the majority in value of the holders of the stock thereof and a certified copy of such resolution filed in the office of the Secretary of State and a copy thereof filed in the office of the county clerk of the county in which such corporation is organized shall have effect to extinguish such corporation.”
After Gaines Jasper became the owner of all the stock, he complied with the above statute, and the corporation was thereby extinguished. It is said that a corporation is an entity, irrespective of and entirely distinct from the persons who own its stock. All of the shares of stock in a corporation may be held by a single person, and yet the corporation continue to exist, and if the charter or bylaws should require certain acts to be done by imore than one shareholder, the sole owner may transfer a portion of his shares so as to conform to the letter of the rule, and the fact that one person owns all the stock in a corporation, does not make him and the corporation one and the same person.
A corporation does not lose its legally distinct and separate personality by reason of the ownership of the whole of its stock by one person. Commonwealth ex rel. Atty. Gen. v. Monongahela Bridge Co., 216 Pac. 108, 64 Atl. 909; Parker v. Bethel Hotel Co., 96 Tenn. 252, 34 S. W. 209; Newton Mfg. Co. v. White, 42 Ga. 148; Re J. D. Belton, 47 La. Ann. 1614, 18 So. 642, 30 L. R. A. 648.
This court said: “And when from death or disfranchisement so few remain that by the constitution of the corporation they cannot continue the succession, to all purposes of action át least, the corporation itself is dissolved. As long,' however, as the remaining corporators are sufficient in number to continue the succession, the body remains; as though all the -monks of an abbey died, yet, if the abbot was aliye, the corporation was not determined, since the abbot might profess others.” Blackwell v. State, 36 Ark. 178.
Gaines Jasper became the owner of all the stock of the Blytheville Feed & Coal Company, but this did not either dissolve the corporation or make him and the corporation the same person. He had a right to comply with the law and dissolve the corporation; and, when he did this, the corporation no longer existed. It could neither' sue nor be sued, nor hold nor convey property. In fact, as said by the statute above quoted, such corporation is extinguished. Of course, this could not pre vent a suit by the proper parties against the stockholders for misappropriating funds which belonged to it before its dissolution.
The Blytheville Feed &' Coal Company did not go into bankruptcy. In fact, the appellees contend that the corporation was never dissolved, and that it is still in existence, but it is not contended that it was in bankruptcy, or that any trustee in bankruptcy was ever appointed for its creditors. Max B. Beid was appointed in the bankruptcy proceedings of Gaines Jasper, and this would give him no authority to sue for the benefit of the creditors of any one except Gaines Jasper. He therefore had no authority to bring or maintain a suit for the creditors of the Blytheville Feed & Coal Company.
It is also alleged by appellees and not disputed that, when Gaines Jasper surrendered the charter of the corporation, he assumed the debts of the corporation. He would be liable for the debts, of course, whether he assumed them or not, to the extent of the value of the property he received.
The undisputed evidence shows that the Memphis Coal Company knew all about the facts; it knew that Gaines Jasper was operating as an individual, and was attempting- to pay the prior debts of the corporation. The undisputed evidence shows that there was an effort made to form a new corporation, and that the articles were actually signed. One of the officers of the Memphis Coal Company was a party to this, and the Memphis Coal Company agreed to it. This corporation, however, was not perfected, and the Memphis Coal Company continued to sell to Gaines Jasper, individually, although he was operating- under the name of the old corporation.
Mrs. Atkinson and Jasper, if they misappropriated the funds of the corporation, as found by the court, would be liable to the creditors of the Blytheville Feed & Coal Company, but not liable to the creditors of Gaines Jasper.
The undisputed evidence also shows that more than the amount due the Memphis Coal Company at the time of the surrender of the charter of the Blytheville Feed & Coal Company was paid to it after the surrender of the charter. There is no dispute about this, and/if "the Memphis Coal Company’g debt owed by the Blytheville Feed & Coal Company had been paid, it could not collect a debt against G-aines Jasper, either from Mrs. Atkinson or from the property of the corporation. Its remedy would be against Gaines Jasper.
The payments made to the Memphis Coal Company should be applied to the oldest items, unless there is some reason for making a different application, and the evidence shows none in this case. The evidence does not show the application of the payments; that is, there is no evidence tending to show whether either the debtor or creditor gave any directions as to how the payments were to be applied.
“Subject to some limitations, the general rule is that, in case of a running account, where fhere are various items of debt on one side, and various items of credit on the other, occurring at different times, and no special appropriation of payments has been made by either party, the successive payments are to be applied in discharge of the items of debit antecedently due, in the order of time in which they stand in the account. In other words, each item of payment is applied in extinguishment of the earliest items of debit until the payment is exhausted.” 48 C. J., 657; 30 Cyc. 1243; Jones v. Dowell, 176 Ark. 986, 4 S. W. (2d) 949.
Applying this rule, the debt due from the Blythe-ville Feed & Coal Company to the Memphis Coal Company was paid before this suit was brought, unless it is shown by the evidence that a different application was made by the parties.
If the creditors knew nothing’ about the surrender of the charter, and did not know that Caines Jasper had acquired all the stock, but still extended credit with the belief that they were selling to the corporation, they would be entitled to recover, and, if the funds had been misappropriated by Jasper and Mrs. Atkinson, they would be entitled to recover against them.
The suit, however, could not be maintained by Reid, as trustee for the creditors of Gaines Jasper, but the suit would have to fee brought fey the creditors.
Jasper and 'Mrs. Atkinson could not appropriate or dispose of the property belonging to the corporation without being liable to the creditors of the corporation to the extent of the value of the property appropriated by them.
The court decreed that the plaintiffs were entitled to recover for the use and benefit of the creditors of the Blytheville Feed & Coal Company as of the date December 11, 1926.
The only showing about creditors of the corporation is the audit report of the Neville Audit Company, which was from January 1, to November 19, 1926. There is no showing whether payments were made after this time on behalf of the corporation, and in a retrial of the case it will be necessary to show the indebtedness, if any, due each one.
A recovery may be had in a suit by proper parties against Gaines Jasper and Mrs. Atkinson for the debts of the Blytheville Feed & Coal Company, due at the time of the beginning of this suit, not exceeding the sum misappropriated by them.
The pleadings show that there was a prayer for a receiver, but the abstract does nof show whether a receiver was appointed. But the suit for the benefit of the creditors of the corporation would have to be brought, not against the corporation which has been dissolved, but against the parties misappropriating the funds of the corporation.
The decree of the chancery court is reversed, and the action in favor of Max B. Reid, trustee, is dismissed, and the cause of action by the Memphis Coal Company is remanded with directions to permit proof to be taken as to the application of payments, and to determine the amount of indebtedness, if any, due from the Blythe- ville Feed & Coal Company to the Memphis Coal Company at the time this action was begun. | [
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'Smith, J.
The General Assembly, at its regular 1931 session, passed an act, No. 235, entitled, “An act to amend § 9968 of Crawford & Moses’ Digest for the purpose of raising additional revenue in order to meet requirements and accept benefits from the Federal Government and Other Agencies, for Public Health Purposes.” Acts 1931, page 721.
Section 9968, Crawford & Moses’ Digest, imposed a tax of two per cent, on the gross premium receipts of certain named insurance companies, in lieu of all other taxes based on such receipts. The amendment of this section effected by act No. 235 was to increase this tax from two per cent, to two and one-half per cent. The remaining portions of act No. 235 appropriate this increase to the uses therein specified.
The Continental Life Insurance Company, an insurance company affected by the provisions of this act, brought this suit in the Pulaski Chancery Court to enjoin the Insurance Commissioner, whose duty it was to collect the tax, from attempting to enforce its collection against its gross premium receipts for any part of the year 1931 at the increased rate. A tender of two per cent, under the original statute was made. A demurrer to this complaint was filed, which was overruled, and the Insurance Commissioner was ordered to permit the insurance company to pay at the rate provided by § 9968, Crawford & Moses’ Digest.
Act No. 235 was approved by the Governor on March 27, 1931, and, as its emergency clause was insufficient to put it in effect upon its approval by the Governor, it is conceded that it did not take effect as a law until ninety days after the adjournment of the legislative session, which was in June, 1931.
The act requires the insurance companies named to file a sworn statement with the Insurance Commissioner of their gross premium receipts in this State for the year ending the 31st of December next preceding the report, and to pay into the State Treasury, on or before the 1st day of March of each year, the tax imposed, the same being in lieu of all other taxes based on such gross premium receipts.
The insistence is that this act is not retroactive in its operation, and that, as practically one-half the fiscal year of 1931 had expired before the act became a law, it has no application to the premium receipts of that year. The chancellor was of opinion that this position was well taken, and granted the relief prayed, and directed that the tax be paid on the two per cent, basis in accordance with the provisions of § 9968, Crawford & Moses’ Digest, and this appeal is from that degree.
The power of the General Assembly to pass a tax act retroactive in character is not questioned. The existence of this power was expressly upheld in the case of Stanley v. Gates, 179 Ark. 886, 19 S. W. (2d) 1000, where the authorities upon the subject were reviewed. The court there quoted from Stockdale v. Atlantic Insurance Co., 20 Wall. (U. S.) 331, as follows: “The right of Congress to have imposed this tax by a new statute, although the measure of it was governed by the income of the past year, cannot be doubted; much less can it be doubted.that it could impose such a tax on the income of the current year, though part of that year had elapsed when the statute was passed. * * * ”
It is pointed out, however, that the act construed in Stanley v. Gates, supra, expressly provided that it should be retroactive, whereas act No. 235 contains no such express declaration, and we are cited to numerous cases in which this court, in conformity with the general rule prevailing everywhere, has held that a statute should have a prospective operation only, unless its terms show clearly a legislative intention that it should operate retrospectively.
The question for decision is therefore whether the General Assembly has clearly shown a legislative intention that act No. 235 shall operate retrospectively, and has sufficiently declared that intention to overcome the presumption that there was no snch intention.
Upon this question we are cited to the case of Jefferson Standard Life Insurance Co. v. King, 163 S. E. 653, decided by the 'Supreme Court of South Carolina March 22, 1932. The Supreme Court of South Carolina there construed an act of the General Assembly of that State to require an additional license fee to be paid by the insurance companies doing business in that State. The relevant portion of that act is contained in § 1 thereof, and, as quoted in the opinion, is as follows: “Section 1. * * * The Insurance Commissioner of South Carolina is hereby authorized and directed to require all insurance companies doing business in this State * * * and not incorporated under the laws of South Carolina, to pay, in addition to the annual license fee now provided by law, a graduated license fee in an amount equal to one (1%) per cent, on the total premiums collected in this State. & * * 3 J
Other portions of the South Carolina act direct the Insurance Commissioner to collect the fee and require that the act shall be construed as intended to provide for the payment of a fee in addition to other fees required to be paid under existing laws.
In construing* this act it was said by the. court that: “We have not’been able to find, from a careful reading and study of the act in question, any express words requiring that, in the collection of the license fees provided for by it, the statute be given effect and operation prior to the date it was approved by the Governor and became a law — June 16, 1931.” In other words, the act was construed as being prospective only because the contrary intention had not been declared by the Legislature. The principle announced in the South Carolina case is not applicable to the act here under review, because of the manifest difference between the South Carolina act and act No. 235.
It is elementary that in the construction of a legislative act we must read it in its entirety, and, when act No. 235 is so read, we are led to the conclusion that, under the ■ test herein stated, it was the legislative intent that the act should apply to the gross premium receipts for the entire year 1931.
We know its legislative history. The first act on the subject was passed in 1913 (Acts 1913, act No. 159, page 675), and levied a tax of one and one-half per cent, on gross premium receipts. It was approved on March 12, 1913, and contained provisions similar to act No. 235 relative to the payment of the tax. Pursuant to the act of 1913 the tax was collected on premiums paid for the entire year in which the act was passed up to December 31st. The reports required by that act were filed on January 1st, or within sixty days thereafter.
The act of 1913 was amended by act 264 of the Acts of 1917 (vol. 2, Acts 1917, page 1362), which increased the tax to two per cent., and the same provisions appeared as to reports of receipts and the payment of the tax thereon, pursuant to which taxes were paid at the increased rate for the entire year in which the act was passed.
This history is entitled to some weight in determining the legislative intent in amending § 9968, Crawford & Moses’ Digest, by the act of 1931, which section was amended only by increasing the tax from two to two and one-half per cent. But, disregarding this legislative history, the legislative intent otherwise sufficiently appears to lead to the conclusion which we have reached that act No. 235 applies to the receipts for the entire year 1931.
The State Board of Health was constituted as the agency to put the provisions of the act into effect, and it was contemplated that this should be done as soon as the act became a law. An appropriation was made for this purpose for the fiscal year ending June 30, 1932, and a like appropriation was made for the fiscal year ending June 30, 1933. The money thus appropriated was to be derived from the additional one-half per cent, provided by act No. 235. The fiscal year ending June 30, 1932, began, of course, June 30,1931, on which last-named date the act was in full force and effect. While the fiscal year of the board of health for which appropriations were made begins and ends on June 30th, the fiscal year for which insurance companies must make reports begins and ends on December 31st. Section 5979, Crawford & Moses ’ Digest. Both § 9968, Crawford & Moses’ Digest, and the amendatory act, No. 235, require reports of gross premiums “for the year ending the 31st day of December next preceding, ’ ’ and the tax thereon is payable on or before the 1st day of March following.
We think the provisions of act No. 235 in regard to the appropriation there made for the fiscal year ending June 30, 1932, during afi of which year the act was in full force and effect, clearly manifest the intention that the act was retroactive to the extent of requiring the insurance companies named in the act to report gross premium receipts for the entire year 1931 and to pay the tax thereon at the increased rate.
The decree of the court below will therefore be reversed, and the cause will be remanded with directions to sustain the demurrer. | [
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George Rose Smith, Justice.
On the night of March 2, 1969, two riding horses and two ornate saddles, with some bridles and other tack, were stolen from three separate premises in the Fayetteville area. Charges of burglary and grand larceny were filed against the appellants, Terry Pitts, 27, and his brother Larry, 20. The jury found the defendants guilty on all counts and imposed minimum sentences of one and two years, to run concurrently. On appeal the controlling issue is whether the testimony of an asserted accomplice, Paul Vanderboom, 18, was sufficiently corroborated.
The evidence must be examined in some detail. The Pitts brothers formerly lived with their father in Springdale, across the street from young Vanderboom and his mother. At the time of the offenses, however, Larry Pitts was living with his father in Houston, Texas, and Terry was living with his wife and child in Houston.
About a week before the night in question Terry and his wife Cheryl had some sort of dispute that led to a brief separation. Larry, at his sister-in-law’s request, took her and her belongings to Oklahoma City, using a new pick-up truck and a four-stall horse trailer that were both owned by the Pitts brothers. On Tuesday, February 25, Larry took tbe horse trailer to Siloam Springs, Arkansas, and parked it at the home of friends, the Buchanans, because Cheryl would not let him leave it at her place in Oklahoma City.
Later in the week Terry went to Oklahoma City, as did Paul Vanderboom, who was a friend of Larry’s and who had visited Larry in Texas. On Saturday night, March 1, the three youths drove to Fayetteville in the pick-up and spent the night at a motel. Larry signed the register as Larry Tyler. At the trial he was not asked why he used that name, but apparently it was because his brother made his living as a singer un<|er the professional name Terry Tyler. On Sunday afternoon the three checked out of the motel, drove to Siloam Springs, and visited with Mrs. Buchanan and her daughter until about six o’clock. The three young men then drove off in the truck, leaving the trailer still parked in the Buchanans’ yard.
Here the testimony for the State and that for the defense diverge completely. Terry and Larry say that Paul Vanderboom had asked to borrow the pick-up so that he could have a date in Springdale and then visit his father in Monett, Missouri. Terry, having agreed to lend the truck to Paul, telephoned an aunt in Oklahoma and asked her to meet him and Larry at the Arkansas line — about a mile from Siloam Springs — and take them to Oklahoma City so that Terry could try to patch things up with his wife. The Pittses say that when they left the Buchanans’ house Paul drove them to the State line, where their aunt mqt them. Larry testified that in changing to clean trouser|s-h‘e'inadvertently left his billfold in a pair of trousers that remained in the truck. Both the aunt and Cheryl corroborated the appellants’ statement that they accompanied their aunt to Oklahoma City.
Paul — unquestionably an accomplice if his testimony was true — gave a wholly different account. Ac cording to Paul, the Pitts brothers had promised to pay him $50 a day to help them steal horses and riding gear. He says that upon leaving the Buchanan home in Siloam Springs he was instructed to drive to Fayetteville, where he successively dropped the Pitts boys at two different places to enable them to steal saddles. He says that on the second occasion they took a pair of bolt cutters with them. Paul next dropped the Pitts brothers and the saddles at a third place, where they were to steal horses. At their direction Paul drove back alone to Siloam Springs to get the horse trailer.
Paul testified that upon returning to Fayetteville to rejoin Terry and Larry he first parked behind a small church, but he was observed there by a group of teenagers in a passing car. Paul then drove to Agri Park, with the teenagers following him. One of the teenagers testified that he and his friends telephoned the police, thinking that Vanderboom might be about to burglarize the church.
In answer to that call Officer Wood went to Agri Park, where he found the pick-up truck, locked and unattended, and the trailer. The officer observed some boots and blue jeans in the cab of the truck, with a billfold on the dashboard. He also saw a pair of bolt cutters in the front stall of the trailer. In a few moments Vanderboom appeared and stated (falsely) that the truck and trailer were his. Officer Wood became suspicious and took the boy to police headquarters for questioning. There he was found to be in possession of his own billfold and also one belonging to Larry Pitts. On the witness stand Paul testified that he did not know why Larry’s billfold was in his pocket.
Officer Wood left Paul at headquarters and returned to the park, where he found that the truck had been broken into during his brief absence. There were horse hoofprints around the truck that had not been there a few minutes earlier. The boots, blue jeans, and billfold were missing from tbe cab, and the bolt cutters were missing from the trailer. The stolen horses and saddles were recovered the next day.
There is no dispute about the applicable rules of law. Under the statute a conviction for a felony cannot be had upon the testimony of an accomplice “unless corroborated tby other evidence tending to connect the defendant with the commission of the offense; and the corroboration is not sufficient if it merely shows that the offense was committed and the circumstances thereof.” Ark. Stat. Ann. § 43-2116 (Eepl. 1964). In construing the statute we have held that the test of the sufficiency of the corroboration is whether, “if the testimony of the accomplice is eliminated from the case,” the other evidence establishes the required connection of the accused with the commission of the offense. Froman v. State, 232 Ark. 697, 339 S. W. 2d 601 (1960). Corroborating evidence which merely raises a suspicion of guilt is not enough. Underwood v. State, 205 Ark. 864, 171 S. W. 2d 304 (1943).
Here the corroborative proof falls short of establishing the necessary connection between the appellants ' and the commission of the offenses. We mention only ’ the salient points. The Pitts brothers owned the truck and trailer, but ownership of a vehicle used in the commission of larceny does not sufficiently corroborate the testimony of an accomplice. Thompson v. State, 207 Ark. 680, 182 S. W. 2d 386 (1944). That Larry registered at the motel on Saturday night under an assumed name might certainly be regarded by the jury as a suspicious circumstance, but that fact obviously does not suggest either directly or by inference that Larry and his brother were guilty of stealing horses and saddles on the following night.
Vanderboom’s possession of Larry’s billfold shows nothing more than the admitted fact that the two had been together. It throws no light whatever upon the vital question: Who stole the horses and saddles?
It is reasonably certain that young Yanderboom had help from someone in the commission of the crimes. It may fairly be inferred that his accomplices broke into the pick-up truck while he was being taken to the police station and spirited away evidence that might have led to their identification. But there is no basis except suspicion for saying that those confederates were Terry and Larry Pitts. Indeed, it is a striking fact that of the thirteen witnesses who testified for the State young Vanderboom was the only one who claimed to have seen the Pitts brothers anywhere in the State of Arkansas during the several hours involved in the perpetration of the crimes.
Finally, the bolt cutters. The owners of the two tack rooms that were burglarized testified that the entries were effected by the cutting of a chain in one instance and of a hasp in the other. Officer Wood testified positively that a pair of bolt cutters was in the horse trailer when he first inspected it. Larry Pitts admitted his ownership of the bolt cutters, explaining that he had gotten them several weeks earlier to build a fence with. If that were all the proof it might be said that the State had established a positive connection between the accused persons and an item of equipment used in the commission of the crimes. See Shipp v. State, 241 Ark. 120, 406 S. W. 2d 361 (1966).
That, however, is not all. Officer Wood actually eliminated the bolt cutters as a factor in the case when he testified positively that they were in the front stall of the horse trailer when he first examined it and that they had been taken from the horse trailer when he returned to Agri Park. Yet Yanderboom says that the bolt cutters were used in the thefts at a time when the horse trailer was thirty miles away in Siloam Springs. He does not suggest that he himself transferred the bolt cutters from the pick-up truck to the trailer when he went back to Siloam Springs for the latter vehicle. To the contrary, he testified that he thought the bolt cutters were in the truck when he was detained and taken to police headquarters for questioning. Thus Officer Wood’s unequivocal testimony, far from corroborating Paul’s accusations, actually demonstrates that the Pitts brothers could not have used the bolt cutters at the time and place specified in Paul’s testimony. It will not do, of course, to say that Officer Wood may have been mistaken, for in that case the required corroboration would be lacking.
Needless to say, we do not pass upon the veracity of any of the testimony heard in the court below. We are convinced, however, by our study of the record that the State failed to adduce sufficient evidence to satisfy its burden of corroborating Yanderboom’s testimony.
.Reversed and remanded.
Harris, C. J. and Fogleman and Jones, JJ., dissent. | [
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George Rose Smith, Justice.
This claim for death benefits under the workmen’s compensation act was filed by the appellants as the surviving parents of Johnny F. Vines, who was killed in the course of his employment. The Commission found that the claimants had been partly dependent upon their son’s earnings and awarded each of them $1.00 a week for 450 weeks, which was ordered to be paid at the rate of $10 a week for 45 weeks. The circuit court affirmed the award. For reversal the claimants insist that the award should be fixed at $10 each for the full term of 450 weeks.
The Commission determined that the decedent’s average earnings had been $25.00 a week, of which he had contributed about $15.00 to the support of his parents. That contribution represented about 16% of their total income. A wholly dependent parent is entitled to an award of 25% of the decedent’s average weekly wage. Ark. Stat. Ann. § 81-1315 (c) (4th) (Repl. 1960). In this case each parent was only 16% dependent; so the Commission reduced the award to 16% of 25% of the $25.00 weekly wage, or $1.00 a week for each parent. There is ample substantial testimony to support the Commission’s findings of fact; so the appeal involves issues of law only.
The claimants make two contentions. First, it is argued that the statute makes no distinction between total dependency and partial dependency. Therefore, it is said, the Commission should not have reduced the award in the ratio of dependency. That argument would have been sound under our original compensation law, which referred merely to dependency without reference to its extent. Act 319 of 1939, § 15 (c) (5); E. H. Noel Coal Co. v. Grilc, 215 Ark. 430, 221 S. W. 2d 49 (1949). But, as we shall explain in a moment, the 1948 revision of the law contains provisions with respect to partial dependency. Hence the authorities cited by the appellants are no longer controlling.
Second, the claimants insist that a 1965 amendment to the compensation act fixed the minimum compensation at $10 a week. Ark. Stat. Ann. § 81-1310.1 (Supp. 1967). Hence it is contended that the Commission should not have reduced each claimant’s award to $1.00 a week for 450 weeks.
This second point is the more difficult of the two. In determining the effect of the 1965 act, fixing minimum compensation at $10.00 a week, we must first examine the law as it existed at the time of the amendment.
Section 15 of the 1948 statute fixed the amount of compensation in death cases. Ark. Stat. Ann. § 81-1315. Subsection (c) contained a graduated scale of compensation for persons “wholly dependent” upon the deceased employee. With respect to partial dependency the 1948 revision added this new subsection:
(1) Partial dependency. (1) If the employee leaves dependents who are only partially dependent upon his earnings for support at the time of injury, the compensation payable for such partial dependency shall be in the proportion that the partial dependency bears to total dependency.
(2) In any claim for partial dependency where the average weekly contributions for support were not such as to entitle all dependents to compensation in the aggregate sum of seven dollars per week, such dependents shall receive compensation for a period not to exceed 450 weeks, in an amount not to exceed the amount of average weekly contributions of the deceased employee for the support of such dependents.
It will be seen that such section 15 (i) (2), just quoted, the legislature contemplated that partial dependents might receive less than the basic minimum compensation of $7.00 a week, with a proviso that the amount should not exceed the decedent’s weekly contributions to the support of his partial dependents. That the minimum compensation for partial dependents might be less than $7.00 was made absolutely clear by section 10 (b) of the same statute, which fixed the overall minimum of $7.00 —subject to the exception that we have italicized in this quotation from the statute:
(b) Death. Compensation payable to the dependents for the death of an employee shall not exceed sixty-five per centum of the employee’s average weekly wage at the time of the accident, and shall not be greater than thirty-five dollars per week, nor less than seven dollars per week ( except as provided by section 15 (i) (2) ). Ark. Stat. Ann. § 81-1310 (b).
Thus the explicit statement of an exception to the seven dollar minimum shows that the minimum was not intended to apply to a case in which the calculation of' compensation for partial dependency produces an award of less than seven dollars a week.
"VVe now turn to the 1965 amendment, which increased the overall minimum compensation from seven dollars a week to ten dollars a week. Act 54 of the First Extra Session of 1965; Ark. Stat. Ann. § 81-1310.1 (Supp. 1967). As we read that act, its sole purpose was to increase the maximum and minimum benefits under the workmen’s compensation law. That is what the title of the act says.. That is what the body of the act provides. That is what the emergency clause declares. The Commission so held.
We are unable to read into the 1965 act any legislative purpose to repeal that part of section 15 (i) (2) which makes it possible for partial dependents to receive less than the overall minimum compensation per week. To the contrary, the only effect of the 1965 statute upon section 15 (i) (2) was to substitute, by necessary implication, the sum of ten dollars per week for the preexisting sum of seven dollars per week.
Our interpretation of the 1965 act is confirmed by the practicalities of the situation. If the $10.00 minimum were applied inflexibly in every case, demonstrable inequalities would unavoidably occur. A partially dependent parent who had received only $1.00 a week from his son would be entitled to just as much compensation as another parent who had received ten times that much support from his son. Moreover, the minimum award of $10 a week might well exceed the decedent’s contributions to the support of his partial dependents, despite the express provision in section 15 (i) (2) that the award is not to exceed those contributions. We conclude that the appellants’ contentions cannot be sustained by even the most liberal construction of the. statute. | [
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Carleton Harris, Chief Justice.
This is a workmen’s compensation ease. Appellee, Henry Simpkins, received injuries to his skull and left eye on May 23, 1968, when he was struck by a fellow employee while at work for the Lofland Company of Arkansas, one of the appellants herein. A claim was filed for compensation, which was controverted by the company and its insurance carrier. The referee held that the claim was not compensable, and this holding was affirmed by the full commission in a 2 to 1 vote. On appeal to the Pulaski County Circuit Court (Second Division) the order of the commission was reversed, and the cause was remanded to the commission for further adjudication with regard to the amount of disability benefits due, together with.medical expense incurred. From this judgment, appellants bring this appeal. For reversal, it is simply asserted that:
“The Circuit Court erred in reversing the Commission since the employee’s injury did not arise out of the course of employment but as a result of ‘horseplay’ which was unrelated to his employment.”
The facts giving rise to the filing of the claim are succinctly and correctly stated by the commission, as follows :
“Briefly stated, claimant and another man, by the name of Robert Young, were both employed by the respondent employer. On May 23,1968, while the men were at work, Young temporarily ceased work and threw a piece of wire at claimant, all in a friendly manner.' There w,as no dispute or controversy between them as to the work or job, and the throwing of the wire had nothing to do with their employment or duties. After Young threw the piece of wire at claimant, claimant threw a rock at Young, although it does not appear that he meant any harm, or threw a rock of such size or force as to be calculated to produce physical injury. Young then got claimant’s hat and threw it up to Dobbins, a crane operator, and Dobbins threw the hat down on the floor. Claimant then asked Young to pick up the hat, but he would not do it. Thereupon, claimant went over to where Young was and got his hat off his head and held it in his hand until Dobbins came down off the crane and took Young’s hat out of claimant’s hand and put it back on Young’s head. Dobbins then picked up claimant’s hat and restored it to claimant. This is claimant’s explanation of how it started. It appears that during this time, either before or after Dobbins came down off the crane and restored the hats to the proper owners, that Young got a hammer and shoved claimant a couple of times, but Young did not otherwise use the hammer on claimant. He did, however, start to shove claimant the third time; but claimant, who was sweeping the floor, drew a broom on Young and told him that he had better not do it. Young then gave the hammer to another employee by the name of Isaiah Ranson. When claimant walked away and bent over, Young struck claimant on the head with an iron pipe, thereby inflicting the injuries forming the basis of this claim.”
The commission stated the question, which is presented in this litigation as:
‘ ‘ * * * whether disabilities arising out of an assault, which began in friendly horseplay, but which had no relation to the work in the sense that they did not concern the work in any manner, and the assault was not over the work, are compensable. There is no contention-made that the work, or the performance of it, had anything to do with the assault in which claimant was injured. The only connection between the work and the assault was that the assault occurred at a time and place where the parties thereto were in close proximity to each other for the purpose of doing their work. In fact, they had actually begun their work, but had laid aside the performance of their duties for a short time in order to engage in some friendly horseplay, which horseplay terminated in a criminal assault by one of the parties.”
The commission pointed out that Southern Cotton Oil Division v. Childress, 237 Ark. 909, 377 S. W. 2d 167, the case relied upon by the claimant, was entirely a horseplay case, and not an assault; also, the airhose, which was used to inflict the injury during the horseplay, was being used by Childress in his employment. It is pointed out that, in Childress, the employer had, on prior occasions, acquiesced in horseplay between employees, but that in the case before us, these employees had been previously warned by the employer not to engage in horseplay, and both were acting in disregard of these warnings. Referring to the case of Johnson v. Safreed, 224 Ark. 397, 273 S. W. 2d 545, also relied upon lby appellee, the commission distinguished that case by saying that, even- though the claimant was the aggressor,
“* * * the assault did .arise over the work, an element which is lacking in the present case.”
The commission, and also appellant, mention the case of West Tree Service, Inc., et al v. Hopper, 244 Ark. 348, 425 S. W. 2d 300, which we will subsequently discuss.
We agree with the trial court that the commission’s order should be reversed. While the facts in the case before us are somewhat different from those in Childress, Safreed, and Hopper, we think they more nearly conform to Childress. We see no similarity between this case and Hopper. In the first place, the men were not at work in Hopper, the opinion very clearly stating that the incident of firing the rifle occurred following lunch, but at a time when the foreman had not ordered the men back to work. The rifle used in firing (which occasioned the loss of Hopper’s eye) was the personal property of the foreman, and had never been used in any manner by the members of the crew, either for recreation or while engaged in their work; there was nothing in the record to suggest that the company should have expected such an event to occur. In the case before us, the men were already at work, including Simpkins. As found by the commission, Young temporarily ceased work and threw a piece of wire at claimant, Simpkins responding by throwing a rock at Young, though there is no dispute but that both acts were “horseplay.” The hat-throwing incident cited in the recitation of the facts then took place, and Dobbins, a fellow employee, ceased his work on the crane, and restored the hats to their respective owners. Thereafter, Young, angry, struck Simpkins while the latter was preparing to put the broom back on the handle, preparatory to going back to his task of sweeping. Morris Holmes, the foreman, testified that the sweeping being performed by Simpkins was a necessary job, which had to be done at regular intervals.
It is true that the instrument (the iron pipe) with which Simpkins was assaulted, was not being used in the work being performed at the time, though it did belong to the company, and was used in other types of work, and in this respect, the facts are different from Childress, where claimant was injured by an airhose which was being used in the work being performed before the horseplay commenced. It is also true that in Childress, horseplay had been tolerated, while in the instant case, the employees had been repeatedly warned to refrain from such acts; however, the testimony of the various employees made it very clear that, despite the warnings, horseplay continued, and was engaged in practically every day by some of the workers. Simpkins had been previously fired, though it appears that his dismissal was because of remarks made to his foreman, rather than because of engaging in horseplay on the job. Be that as it may, he was re-hired, irrespective of past conduct.
We agree with the logic employed by the dissenting commissioner, Harrell Gr. Mays, who, after pointing out that the law is well settled in this state that injuries resulting from horseplay are compensable, said:
“In this case the claimant and a fellow employee were engaged in horseplay which led to an assault. The evidence reflects that the assault was a direct consequence of horseplay which the employer knew that his employees engaged in. The employment brought the employees together and because of the employment association they engaged in horseplay which is a reasonable activity that is expected of men working together. When they are thrown together by reason of their employment ,and engage in horseplay, it is also reasonable to expect that fights or assaults will ensue from some cases of horseplay. It seems unreasonable and inconsistent to say that an injured employee may be compensated for his injuries resulting from horesplay but that he cannot be compensated for injtiries resulting from an assault arising out of the horseplay where the chain of causation remains unbroken.’
As pointed out in the italicized language, the chain of causation remained unbroken; the occurrence under discussion turned in a “split second,” from horseplay into anger — but was Simpkins any less injured because Young lost his temper? "Was Simpkins more guilty of disregard for his duties because he was criminally assaulted, rather than being accidentally injured? To ask these questions is but to answer them, and, in fact, it is •established that Simpkins did not commence the horseplay, and further, it also definitely appears that he had returned to work, or was preparing to do so, when the injuries occurred. In this respect, he stands, in an even better light than the claimant in Childress, the latter having been the instigator of the horseplay, and actually being injured by the very instrument he was endeavoring at the time to use on a fellow .employee. We can see no logical reason why Simpkins should be denied compensation simply because his assailant had become angry during the horseplay that had previously ensued. In either instance, the company’s interests are not being advanced, but this last argument was held to be without merit in Childress. In that case, this court quoted with approval the remarks of the trial court, as follows:
“The important question which poses itself to this court appears to be whether or not the injury which caused the death of Childress arose out of the employment. In reading Johnson v. Safreed, 224 Ark. 397, 273 S. W. 2d 545 (1954), it is crystal clear that the Arkansas Supreme Court is no longer using as the test in Workmen’s Compensation cases, ‘whether the parties here were acting in the furtherance of the employer’s business,’ as stated in the Opinion of the Commission in the instant case. In the Johnson v. Safreed case the Arkansas Supreme Court declared that the more modern rule and the more humanitarian doctrine of ‘arising out of the employment’ would be the applicable yardstick . . .
“Therefore, it is the opinion of this court that Hughes v. Tapley, supra, is not now the law in this State; that in the instant case the question whether or not the decedent was the instigator is insignificant; that the conditions of employment did induce the horseplay; that tne employer had knowledge of the fact that horseplay was engaged in by employees; and that the injury which caused the claimant’s death arose out of the employment. Therefore, this case is held to be compensable.”
We think the thin line of distinction drawn by the commission majority is unwarranted, and the injury suffered by Simpkins, as surely as the injury to Childress, arose out of the employment.
Affirmed.
The commission used the nicknames of the persons involved, but we use the actual names.
The sweeping portion of the broom had come off the handle, possibly during the horseplay.
Isaiah Ranson testified relative to horseplay: “Well, that’s an every day habit. Everybody in the shop mostly. We have been told a hundred times ........ Q. Have you been told not ........ A. We have been told. That’s an every day habit. Even I ........ I’m assistant shop foreman and even I play and that’s an every day habit. It still goes on. After this accident happened it still goes on.”
Both Simpkins and Young were fired after the present altercation.
Our emphasis.
The Circuit Court, in its memorandum opinion, stated:
“* * * To deny recovery, in my opinion, would require a finding that there was a deliberate and conscious deviation from employment; that the alleged injury did not result from a spontaneous and unpremeditated impulse. Here, I find that there was no willful, deliberate and total departure from the duties for which claimant was employed and that his claim is compensable.” | [
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J. Feed Jones, Justice.
This appeal by Mrs. Ashley is from a summary judgment in favor of her former attorney, G. Thomas Eisele, and grows out of litigation commenced in the Pulaski County Circuit Court wherein Mrs. Ashley alleged excessive attorney’s fee and damage because of wrong legal advice intentionally given her by Mr. Eisele in connection with her property rights in a divorce action.
The divorce action out of which the present litigation arose was concluded in 1964, and the pertinent background facts of that litigation are these: In 1962, Mrs. Ashley employed Mr. Eisele to represent .her in a divorce action against her husband. Mr. Eisele filed a petition in chancery court for Mrs. Ashley alleging general indignities as grounds for divorce and praying for the custody of, the four minor children; for a determination and award of property rights; for an award of attorney’s fee and court costs. Immediately after the petition was filed, Mrs. Ashley also engaged the services of attorney H. B. Stubblefield, who associated with Mr. Eisele and they both represented Mrs. Ashley throughout the litigation. Mr. Ashley counterclaimed for a divorce and alleged adultery as one of his grounds.
A property settlement and separation agreement was executed by Mr. and Mrs. Ashley on February 17, 1964, and was approved by the chancellor in a divorce decree entered on Mrs. Ashley’s complaint on February 19, 1964. Under the agreement and decree, Mrs. Ashley was paid $15,000 in cash, together with real and personal property valued by her attorneys at $15,000 but valued by Mrs. Ashley at less than half that amount, and Mrs. Ashley was awarded custody of their four minor children. Mrs. Ashley paid her attorneys $6,000 as attorneys’ fees and an additional fee of $3,000 was awarded against Mr. Ashley.
On January 31, 1968, Mrs. Ashley filed her complaint against Mr. Eisele in the case at bar alleging that she had only recently learned that Mr. Eisele had wrongfully and intentionally advised her as to her property rights in the divorce action; that she was entitled to a property settlement in the amount of $100,000, rather than the $15,000 awarded to her; that she only agreed to accept the $15,000 in property settlement because of the willful, intentional, wrongful and erroneous legal advice given to her by Mr. Eisele while he represented her and while he knew that there was a conflict between her interest and the interests of other parties with whom Eisele became involved. Mrs. Ashley also alleged that the $6,000 fee charged by her attorneys, and paid by her, was unconscionable, exorbitant and excessive. She prayed judgment for $6,000 paid in attorneys’ fees, for $85,000 damages she suffered because of the property settlement and for $25,000 punitive damages. Eisele filed an answer admitting his employment and representation, along with Stubblefield, as alleged in the complaint. He admitted that a written property settlement agreement was entered into between Mr. and Mrs. Ashley and a divorce was granted to Mrs. Ashley. He denied the other allegations.
Interrogatories were directed to, and answered by, Mrs. Ashley. The depositions of Mrs. Ashley, Mr. Ashley and Mrs. Ashley’s sister, Mrs. Earline Keltner, were taken and on August 26, 1968, Eisele filed a motion for summary judgment on the pleadings, depositions, answers to interrogatories, and the affidavit of Eisele in support of his motion. On September 5, 1968, the circuit court entered an order setting Eisele’s motion for hearing on September 9, 1968, and on the date of hearing Mrs. Ashley filed a response to the motion for summary judgment stating that justiciable issues did exist and that Eisele was not entitled to a summary judgment. No counter-affidavits were filed on behalf of Mrs. Ashley, but at the hearing on the motion her attorney offered her oral testimony in lieu of affidavits. The trial court refused to hear Mrs. Ashley’s oral testimony in lieu of affidavits and on this issue the record recites as follows:
“THE COURT:
Mr. Jones, for the purpose of the record*do you have any affidavits or other type of pleadings that you want to file?
MR. JONES:
We could file an affidavit for the plaintiff but we brought the plaintiff in person so that her testimony could be taken. Now, the plaintiff has a sister in the hospital in Memphis in a critical and terminal state and she has been over there and off in Memphis with this ill sister at the time of serving of the notice and filing of the Motion for Summary Judgment and has not been back very long in the county and is actually under emotional strain and duress at this time.
MR. SHULT'S:
For this record this case was filed in February of this year. We served Interrogatories on the plaintiff in March of this year. It took us three and a half months to get these Interrogatories answered. They were only answered when the Court so ordered it. A pre-trial was held on July 29, 1968. Certain things were directed to be done within ten days by the plaintiff. They were not, in fact, done until twenty-three days after that date. As soon as those things were done and all witnesses were listed we prepared and filed our Motion for Summary Judgment. The case has been set for trial since April 2nd of this year. There has been ample time for the plaintiff to take whatever depositions she may have desired to take.
THE COURT:
When is the ease set for trial?
ME. SHULTS:
Sir?
THE COURT:
When is the case set for trial?
MR. SHULTS:
This Thursday, September 12th. It is necessary that the Motion for Summary Judgment be disposed of. It has been pending for more than two weeks and the only response received was that received today. We think the motion is timely filed. The delivery of it having been presented no earlier was no fault at all on the defendant. The defendant presented it as soon as discovery was completed on his part. We ask the Court to rule on it today and we earnestly ask that the motion be granted.
MR. JONES:
Due to the fact that the notice of this hearing, I believe dated August (September) 5th, I believe my letter bears that date that the hearing would be today and I assume that I got that Friday or Saturday. I know that upon receipt of it I attempted to get ahold of Mrs. Ashley. We did not state that the proper time was not complied with — the ten days notice. Our statement was that the notice of the hearing was rather a brief one and for the purpose of preparing any depositions and for that reason we have the plaintiff here in person for the taking of any testimony that the Court feels should be taken under oath rather than by affidavit.
MR. SHULTS:
Her testimony is in the record by deposition which we feel is the only appropriate way.”
The trial court granted Eisele’s motion for summary judgment and Mrs. Ashley relies on the following points for reversal:
“The trial court erred in refusing to allow appellant to testify at hearing on appellee’s motion for summary judgment.
The trial court erred in granting defendant below summary judgment upon a verified complaint alleging willful, deliberate and intentional misconduct on the part of appellee as appellant’s attorney.”
We have examined the entire record and we have had no difficulty at all in arriving at the conclusion that the trial court was correct in finding that there was no justiciable issue presented as to Eisele willfully, intentionally, wrongfully or erroneously giving Mrs. Ashley bad legal advice. We also agree that there was no justiciable issue that Eisele acted in bad faith or misinformed, or misrepresented to Mrs. Ashley her rights under the laws of Arkansas, or that Eisele had any conflict of interests in his representation of Mrs. Ashley. As a matter of fact the record is to the contrary.
Both parties were represented by competent counsel in the divorce action, and it is obvious from the record that the attorneys on both sides were thoroughly familiar with the provision of Ark. Stat. Ann. § 34-1214 (Bepl. 1962), which provides as follows:
“In every final judgment for divorce from the bonds of matrimony granted to the husband, an order shall be made that each party be restored to all property not disposed of at the commencement of the action, which either party obtained from or through the other during the marriage and in consideration or by reason thereof; and where the divorce is granted to the wife the court shall make an order that each party be restored to all property not disposed of at the commencement of the action, which either party obtained from or through the other during the marriage and in consideration or by reason thereof; and the wife so granted a di vorce against the husband, . . . shall be entitled to one-third [1/3] of the husband’s personal property absolutely, and one-third [1/3] of all the lands whereof her husband was seized of an estate of inheritance at any time during the marriage for her life, unless the same shall have been relinquished by her in legal form. . .”
In the light of this statute and with the' issues joined on petition and counter petition, the record is clear that Mrs. Ashley’s attorneys settled down to negotiate with Mr. Ashley’s attorneys for an agreed property settlement on the best terms possible. They threatened to prove assets and income far in excess of that reported for income tax purposes and Mr. Ashley’s attorneys countered all proposals with the assurance that Mr. Ashley had ample grounds for a divorce on his counterclaim, and that thev would have no difficulty in presenting proof which would entitle him to a divorce.
The attorneys were still deadlocked in their negotiations on January 5, 1967, when Mrs. Ashley, according to her own deposition, was arrested, along with a nineteen year old young man, while both of them were naked in the young man’s automobile parked on a dead-end road off No. 10 Highway. She contended that she had been drugged and “framed” and there are no indications that her attorneys did not believe her. There are indications, however, that her attorneys were not so sure that the chancellor would believe her, for on January 30, 1964, Mr. Eisele wrote to Mrs. Ashley, in part, as follows:
“Mr. Stubblefield and I have reviewed your case thoroughly, and we have concluded that you should settle same prior to the giving of your deposition at the best offer obtainable. By this we mean we should even accept the offer previously made if we can do no better. In other words, our advice i& that we should take what we can get because we feel that it is very likely, in fact almost certain, that if the case is tried, you will get nothing either by way of alimony or property from Mr. Ashley. By this we do not mean to suggest that your fault is greater than that of your husband, but rather the circumstances and the anticipated testimony simply weigh too heavily against you. * * * ”
Mrs. Ashley was represented by two attorneys, but Mr. Eisele is the only defendant in this lawsuit. Both attorneys advised Mrs. Ashley as to her rights under the laws of Arkansas, and it is obvious that her property rights under the record in this case, would depend upon whether she was granted a divorce on her alleged grounds or Mr. Ashley was granted a divorce on his own allegations. From the uncontroverted facts in the record before us, including Mrs. Ashley’s own admissions on interrogatories and her testimony on deposition, it would appear that Mrs. Ashley’s attorneys may have given her very good advice in the property settlement they recommended, and certainly there is no evidence that Mr. Eisele gave her bad advivce, or that she sustained any damage by following the advice given.
In Mr. Eisele’s affidavit for summary judgment he stated that he had not even met the parties involved in the alleged conflict of interest at the time his representation of Mrs. Ashley was concluded and this statement is not controverted.
The alleged excessiveness of the attorneys ’ fee gives us more difficulty. The complaint alleges that the attorneys’ fee of $6,000 was excessive and unconscionable. Mrs. Ashley testified on her deposition as follows:
“Q. Do you recall whether at the time you employed Mr. Eisele you had any discussion with him about fees to be charged in this case?
A. Yes, I do.
Q. What was that discussion?
A. That the Court would determine the fee.
Q. Did he tell you at that time that he would charge you an additional fee other than that which the Court allowed?
A. No, not at that time.
Q. At the time you employed Mr. Stubblefield did you discuss the fee arrangement with him?
A. Yes.
Q. What did—
A. With Mr. Eisele and Mr. Stubblefield.
Q. What did they advise you?
A. The fee would be thirty percent of the property other than the home and child support and then, of course, whatever the Court awarded that would he subtracted from what I would pay them.
Q. Were you agreeable with that fee arrangement?
A. I didn’t have much choice.
# # #
Q. I ask you again, did you agree at that time on the fee arrangement?
A. Yes, I did.
Q. What was the total fee paid to Mr. Eisele and Mr. Stubblefield in this case?
A. $9,000.00.
Q. How did they arrive at that figure?
A. I haven’t the slightest idea.
Q. How much of the fee was paid by Mr. Ashley?
A. $3,000.00.
Q. Was the balance of the $6,000.00 paid by you?
A. Yes.
Q. You have alleged in the complaint that the fee was exorbitant how did you arrive at that conclusion?
A. Mr. Lester, I was in a state of shock for months, and I think anyone would know that I was charged a fee in excess of what it should have been.”
This testimony is not controverted but is more or less confirmed bv Mr. Eisele in his affidavit for summary judgment, as follows:
“In one of the first meetings between Mrs. Ashley, Mr. Stubblefield and me, Mr. Stubblefield pointed out that we could not be expected to represent her solely upon the basis of such legal fees as might be awarded by the court. We pointed out that in a proceeding of this type more work was required of the attorneys, when compared to the results anticipated, than in other types of legal proceedings. At that time Mrs. Ashley urged us to seek a quick settlement, but Mr. Stubblefield pointed out that if this failed and if the case then required the effort which we expected, Mrs. Ashley would be expected to pay a fee representing somewhere between one-fourth and one-third of her recovery, although she would be given credit for any fee allowed by the court.”
Mr. Stubblefield was one of Mrs. Ashley’s attorneys and shared in charging the fee as well as collecting it. He is not a party to this lawsuit, but his affidavit that the fee was reasonable does not take that item out of the realm of justiciable controversy.
The appellee argues on appeal that the statute of limitations, Ark. Stat. Ann. § 37-206 (Eepl. 1962), bars the causes of. action set out in the complaint and that summary judgment is appropriate under our decision in Norwood v. Allen, 240 Ark. 232, 398 S. W. 2d 684. The statute of limitations was specifically pleaded in Nor-wood and was not pleaded at all in the case at bar.
In the early case of Western Union Telegraph Co. v. State, 82 Ark. 309, 101 S. W. 748, this court said:
“The general rule established by the decisions of this and most other courts is that in all civil actions the statute must be pleaded in some way, otherwise it is deemed to have been waived as a defense. The Encyclopedia of Pleading and Practice (vol. 13, p. 282) states the rule of practice to be that in actions to recover penalties either a plea of the general issue or a special plea of the statute of limitations is sufficient to render it available as a defense. This statement is sustained by adjudged cases. Moore v. Smith, 5 Me. 490; Frohock v. Pattee, 38 Me. 103; Pike v. Jenkins, 12 N. H. 255; Gebhart v. Adams, 23 Ill. 397.”
The statute of limitations is not mentioned in the pleadings in the case at bar, but was only first mentioned in Eisele’s memorandum in support of motion for summary judgment. It appears from that memorandum that if the statute of limitations was relied on at all, it was expressly waived as to part of the cause of action in the following language:
“The defendant does not have to and does not rely on the statute of limitations in regard to this claim of deliberate giving of wrong advice.”
The nearest Mr. Eisele comes to pleading the statute of limitations as to the claim on attorneys’ fee is also contained in his memorandum in support of motion for summary judgment in the following language:
“The cause of action asking for a recovery by Mrs. Ashley of the legal fees she paid to Mr. Eisele and Mr. Stubblefield was filed almost four years after the payment was made and the employment of Messrs. Stubblefield and Eisele terminated. This cause of action, based on either a contract or unjust enrichment theory, was filed more than three years after it accrued and is therefore barred by Ark. Stats. 37-206. Summary judgment for the defendant on this cause is therefore appropriate and just. Norwood v. Allen, 240 Ark. 232, 398 S. W. 2d 684.”
It would appear from the face of the record that the statute of limitations might have been a good defense had it been pleaded and nothing offered in the way of evidence that the statute had been tolled or its operation suspended. If Eisele did not rely on the statute of limitations, a justiciable issue was presented on the attorney fee issue. If the statute was relied on, it was not pleaded and Mrs. Ashley had a right to assume that it was waived. If the statute had been pleaded and relied on in support of a motion for summary judgment, then Mrs. Ashley would have had a right to plead in controversion any facts or circumstances which might have tolled the statute of limitations.
The appellant poses two questions under her first point:
“May a party offer testimony at a hearing on a motion for summary judgment in lieu of a counter-affidavit?
Under the facts in this case was it an abuse of discretion by the trial court to refuse to allow Appellant to testify in opposition to a motion for summary judgment in lieu of counter-affidavits?”
We do not answer the first question as a hard and fast rule of law to be applied in all cases, but we answer the second question in the negative and that also disposes of the first question under the facts in this case. Our summary judgment statute, Ark. Stat. Ann. §§ 29-201 — 29-211 (Repl. 1962), is an adoption of federal rule of civil procedure, Rule No. 56, and its provisions will not be set out again here. The object of procedure for summary judgment is not to determine an issue, hut to determine whether there is an issue to he tried (Byrnes v. Mutual Life Ins. Co. of N. Y., 217 F. 2d 497). One of the objects of the summary judgment is to dispose of litigation on motion when the facts are not disputed and the law can be applied to them, thus avoiding the expense and time of hearing witnesses at a formal trial. Consequently, to permit oral testimony in lieu of the more convenient affidavit would tend to defeat one of the purposes of summary judgment.
The trial court did not abuse its discretion in refusing to hear the testimony of Mrs. Ashley in lieu of her affidavit, because Mrs. Ashley had. already verified her complaint, answered interrogatories and given her deposition under oath. All this was in the record and was the basis for the motion in the first place.
In 49 C. J. S., § 225, beginning on page 420 is found the following:
“The general requirements of an affidavit filed in opposition to a motion for summary judgment are no different from those necessary in support of a summary judgment. * * *”
In MacLean v. Parkwood, 247 F. Supp. 188, the court did permit oral testimony in lieu of affidavit- in support of a motion for summary judgment, but in doing so the court said:
“Parkwood attached certain depositions to- its motion and at the hearing offered testimony of witnesses and documentary evidence tending to show ownership- of the land in question. The Court permitted Parkwood’s counsel to proceed in this manner, in the interest of saving time and on the basis that testimony is as reliable as affidavits. However, the Court desires to note at this time that it is preferable on summary judgment motions to proceed by way of affidavit.. The summary judgment procedure is not to be used as preliminary trial, or demonstration of ‘conclusive proof’ of certain facts. Bather it is a mechanism for showing that as to certain facts there is no genuine dispute and that on these facts the moving party is entitled to judgment as a matter of law. The Court’s role in summary judgment proceedings is not to resolve issues of fact, but merely to pinpoint those facts which are not at issue. Presentation of affidavits, rather than testimony, would have permitted the Court to perform its task more efficiently.”
Mrs. Ashley was not required to file affidavits at all under the statute and it was not her failure to do so that entitled Eisele to the summary judgment. It was the lack of a justiciable issue on the facts, including those established by the affidavits that were filed that entitled Eisele to the summary judgment. The only effect of Mrs. Ashley’s failure to file counter-affidavits was to leave the facts set out in Mr. Eisele’s affidavit uncontroverted, and to be accepted as true, for the purposes of his motion.
The office of counter-affidavits in summary judgment proceeding has been recited in many cases as set out in the annotations in U. S. C. A., Title 28. Rule 56, p. 366, some of which are as follows:
“Failure of opposing party to file counter-affidavits does not necessarily mean that party moving for summary judgment is entitled to judgment. Rohlfing v. Cat’s Paw Rubber Co., D. C. Ill. 1952, 17 F. R. D. 426. Failure of resisting party on motion for summary judgment to file counter affidavits does not entitle movant to summary judgment if there otherwise exists in the record an issue of material fact to be tried. Dulansky v. Iowa-Illinois Gas & Elec. Co., D. C. Iowa 1950, 10 F. R. D. 566.
If no counter affidavits are filed in resistance to a motion for summary judgment, the facts contained in affidavit in support of such motion must be taken as true. Id.
On defendants’ motion for summary judgment, in absence of counter affidavits denying facts in defendants’ affidavits, court was required to accept such facts as undisputed and true. Seward v. Nissen, D. C. Del. 1942, 2 F. R. D. 545.
On defendant’s motion for summary judgment in unfair competition case, claim that plaintiffs were not given enough time to gather and submit affidavits was properly denied in trial court’s discretion, where plaintiffs had reasonably full opportunity to produce affidavits and the further affidavits sought were merely cumulative. California Apparel Creators v. Wieder of Cal., C. C. A. N. Y. 1947, 162 F. 2d 893, 174 A. L. R. 481, certiorari denied 68 S. Ct. 156, 332 U. S. 816, 92 L. Ed. 393. Where averments of complaint were refuted by plaintiff’s own deposition, no issue as to any material fact remained and summary judgment was properly granted. Bennett v. Flanigon, C. A. Ill. 1955, 220 F. 2d 799.
Party opposing motion for summary judgment must be diligent in countering motion and mere general allegations which do not reveal detailed and precise facts will not prevent award of summary judgment. Liberty Leasing Co. v. Hillsum Sales Corp.. C. A. Fla. 1967, 380 F. 2d 1013.
()nly facts which are such as to be admissible in evidence, facts based on personal knowledge, may be set forth in affidavit in opposition to motion for summary judgment. Feldman v. Birger, D. C. Mass. 1962, 205 F. Supp. 87.”
It is true, as argued by Mrs. Ashley under her second point, that her verified complaint alleges that Mr. Eisele willfully, intentionally and deliberately gave erroneous legal advice to Mrs. Ashley, but this allegation is of little assistance to her on motion for summary judgment for the simple reason that facts upon which the allegation is predicated and as brought out and established by answers to interrogatories, depositions, and affidavits, are not in dispute. They simply do not sustain the allegation that the legal advice given Mrs. Ashley was erroneous or that Mrs. Ashley suffered any damages because she acted upon it.
The summary judgment of the trial court is affirmed except as it relates to the alleged excessiveness of the attorneys’ fee. This cause is remanded to the trial court for further proceedings on that issue consistent with this opinion. It may well be that the issue can be determined upon the basis of the defense of limitations if it be found that this defense has not been waived or that it was not tolled during the period prior to the filing of this action. If not waived, Mrs. Ashley should be given an opportunity to show facts which would toll the statute.
Affirmed in part and remanded.
Byrd, J., disqualified.
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John A. Fogleman, Justice.
Appellant took 11.01 acres from a 262-,acre tract owned by appellees for the construction of Interstate Highway 40, a controlled-ac cess highway. It appeals from a judgment awarding appellees $12,000 as just compensation, .asserting only two grounds for reversal. The first is the refusal of the trial court to strike that portion of the testimony of Charles L. Ormond, one of the landowners, relating to values based on use of the land for commercial catfish farming. The other is that there was no substantial evidence to support the verdict.
We agree that appellant’s motion to strike that portion of Ormond’s value testimony of which it complained should have been sustained. He had fixed a value of $102,114 on the whole tract before the taking and a value of $17,240 on the remaining lands, consisting of 92.5 acres north of, and 158 acres south of, the new highway. Thus, his difference between before and after values was $84,874.
Ormond, a realtor and farmer, demonstrated his familiarity with real estate values in Conway County. He testified that the highest and best use for the lands was for catfish farming, and that he had commenced operations to devote the lands to that purpose before the taking. According to him, he had constructed a preliminary pond in 1963 or 1964 and had constructed a dam on the north part of the land which had not been completed when the condemnation suit was filed. Ormond stated that he acquired the land several years before the taking after having studied the entire county to find land suitable for flooding. He felt that this land had these attributes and a terrain such that adjoining lands would not be flooded from dams necessary for his purposes. This taking destroyed accessibility to the north residual, so that there was no way to proceed with catfish farming plans.
On cross-examination, it was revealed that Ormond had made extensive investigation as to markets, prices, demands, methods, yields and costs he might anticipate when his plans were implemented. He admitted that his before taking value was based entirely on income he anticipated upon the basis of his own estimates of market prices, yields and costs. Ho also admitted that prices would fluctuate and that one could not say as much as a year in advance what the price would be when the crop was yielded. His estimate of costs included 6c for fingerling minnows, even though he acknowledged a current range of 4%c to 7c.
There is nothing whatever in the record to indicate that Ormond had any experience in this business or anything related thereto. Appellant’s objection was that the value based upon his anticipated future profits was highly speculative. Thus, appellant met its burden of showing that there was no reasonable basis for Ormond’s opinion of the value of the entire tract before the taking. Even if we should consider that evidence of income and production from commercial catfish farming is admissible under the recognized exception in cases of agricultural property, as appellees urge, there is no exception which permits such values to be based on pure speculation, as must be the case when the testimony is given by one without experience or expertise in the undertaking about which he. testifies, when there is no history as to the particular land upon which to base anticipated income or production. See Little Rock & Ft. S. Ry. Co. v. Alister, 62 Ark. 1, 34 S. W. 82.
Even though the value testimony. of Ormond was improper, this does not require reversal, if other evidence is sufficient to sustain the verdict. Owen v. Jones, 14 Ark. 502; Jones v. Malvern Lumber Co., 58 Ark. 125, 23 S. W. 679. It is only when there is no other evidence to sustain the verdict or when it is manifest that appellant was prejudiced by the incompetent evidence that a reversal is proper under circumstances existing here. See Owen v. Jones, supra; Fordyce v. McCants, 51 Ark. 509, 11 S. W. 694, 4 L. R. A. 296, 14 Am. St. R. 69. We have held that error will not require reversal where it is manifestly not prejudicial,. or where it is evident that the error did not affect the verdict. Insured Lloyd’s v. Mayo, 244 Ark. 802, 427 S. W. 2d 164; Keathley v. Yates, 232 Ark. 473, 338 S. W. 2d 335; Street v. Shull, 187 Ark. 180, 58 S. W. 2d 932; Lamden v. St. Louis Southwestern Ry. Co., 115 Ark. 238, 170 S. W. 1001.
We must determine, then, whether, in view of other evidence in the case, this error was prejudicial to appellant or whether it affected the verdict. In doing so we must also determine the other question posed, i. e., whether there was substantial evidence to support the jury verdict. We find that there was and that the error in relation to the Ormond testimony does not require reversal.
It must be remembered that only Ormond’s opinion as to the land value before the taking would have been stricken. This would leave for the jury’s consideration, not only Ormond’s opinion as to the value of the remaining lands, but his testimony as to the characteristics of the land and as to a much disputed point — its highest and best use. This was appropriate. Ormond was entitled to show every advantage that his property possessed, present and prospective, in order that the jury might satisfactorily determine what price it could have been sold for on the market. Arkansas State Highway Commission v. Carder, 28 Ark. 8, 305 S. W. 2d 330; Arkansas State Highway Commission v. O. & B., Inc., 227 Ark. 739, 301 S. W. 2d 5; City of El Dorado v. Scruggs, 113 Ark. 239, 168 S. W. 846; Little Rock Junction Ry. v. Woodruff, 49 Ark. 381, 5 S. W. 792, 4 Am. St. R. 51; Kansas City Southern Ry. Co. v. Boles, 88 Ark. 602, 115 S. W. 375. He could state and have his witnesses state any and every fact concerning the property which he would naturally be supposed to adduce in order to place it in an advantageous light if he were selling it to a private individual. Little Rock Junction Ry. v. Woodruff, supra; Stuttgart & R. B. R. Co. v. Kocourek, 101 Ark. 47, 141 S. W. 511. An owner is entitled to show the availability of his property for any and all purposes to which it is plainly adapted, or for which it is likely to have value and induce purchases. Arkansas State Highway Commission v. Brewer, 240 Ark. 390, 400 S. W. 2d 276: Arkansas State Highway Commission v. Griffin, 241 Ark. 1033, 411 S. W. 2d 495; Gurdon & Ft. Smith R. Co. v. Vaught, 97 Ark. 234, 133 S. W. 1019. The same considerations are to be regarded as in a sale between private parties. Ft. Smith & Van Buren Bridge District v. Scott, 103 Ark. 405, 147 S. W. 440; Little Rock & Fort Smith Railway v. McGehee, 41 Ark. 202.
Appellees also offered the testimony of Lloyd Pearce, a realtor with 14 years’ experience as a real estate appraiser. He described a 10-acre lake on the property and a dam which held water on some 35 to 40 acres thereof. He recognized that these lakes had a potential for fish farming. He considered that the highest and best use of the lands was for agricultural purposes with a potential for rural homesites and commercial fish farming. His opinion was that the fair market value of the whole tract Avas $52,400 and of the remaining lands, $35,300, leaving a difference of $17,100 or $5,100 more than the jury verdict.
Appellant’s argument that Pearce’s value testimony is not substantial is difficult to follow. He was the first witness called. Our attention is not directed to any objection to his testimony or the basis therefor made during the trial. Apparently appellant did not consider his testimony to be without any reasonable basis at the time it was given. As we interpret the argument, appellant contends that Pearce based his valuation of the Ormond land before the taking substantially on two sales, one of which Avas not comparable, and the other based on incorrect information, but ignored a sale which was comparable. It is also argued that there was no basis for his difference in values before and after the taking.
Pearce said that he used market data in making his appraisal. He used a sale of ,a tract by one Isley to Walls on June 18, 1966. This was a 66-acre tract, and Pearce stated that he confirmed a sale price of $18,000, or $290 per acre, with the real estate man who handled the sale, hnt not with the seller or purchaser. Federal revenue stamps on the deed also indicated an $18,000 consideration. Appellant argues that Pearce was wrong because one of its witnesses, a highway department staff appraiser, testified that he confirmed this sale with the purchaser Walls and found that the consideration was $12,-000 or $182 per acre. It has been recognized that a value expert may rely upon hearsay in determining market values in the vicinity of the lands in question. Arkansas State Highway Commission v. Russell, 240 Ark. 21, 398 S. W. 2d 201.
It has never been recognized that one person who has firsthand knowledge of a real estate sale as a party is a source of information superior to another participant. Apparently, no one made any effort to contact the seller. An interesting question would be posed if he had given another witness still a third figure as the true consideration. The jury was not required to accept the version of either of the witnesses. Buyers and sellers of real estate are often reluctant to disclose true prices. A question of credibility and weight was presented for jury determination on this point, at least in the absence of direct and uncontradicted evidence on the subject.
Appellant contends that this sale and another could not be considered as comparable because the lands involved in those transactions fronted upon, or were near, Highway 64,’while the property in question was accessible only by an unimproved dirt road, which may not have been used for some time, or by a permissive access to a county road which intersected with a dirt road from Highway 64, one-fourth to one-half mile away. The Ormond property was 1% miles east of the city limits of Morrilton. Its characteristics were fully described by Pearce, Ormond, and by appellees’ witness Hayes. No effort was made by appellant to show dissimilarity of these tracts in any respect other than the means of access. We have said many times that no two tracts of land are identical and that reasonable latitude must be allowed in considering comparability of sales. Arkansas State Highway Commission v. Duff, 246 Ark. 922, 440 S. W. 2d 563; Arkansas State Highway Commission v. Sargent, 241 Ark. 783, 410 S. W. 2d 381; Arkansas State Highway Commission v. Clark, 247 Ark. 165, 444 S. W. 2d 702. We also have repeatedly said that there are many factors to be considered in determining comparability, but that reasonable resemblance is all that is required. Arkansas State Highway Commission v. Witkowski, 236 Ark. 66, 364 S. W. 2d 309; Arkansas State Highway Commission v. McAlister, 247 Ark. 757, 447 S. W. 2d 649. We cannot say that the one element of dissimilarity was sufficient to require that the sales, as a basis for opinion evidence, be held not comparable as a matter of law.
Appellant contends that Pearce should have considered the sale of a tract near the Ormond land to Nash by one Wallenjohn at $125 per acre just three months prior to the date of taking. Pearce admitted he did not investigate this sale. This tract may. or may not have been comparable to the subject property. This failure on the part of Pearce was a matter to be considered by the jury in testing Pearce’s credibility and weighing his testimony. It did not render his testimony insubstantial, as a matter of law.
Appellant’s contention that there was no basis for Pearce’s difference in values is premised largely upon the argument that he based his damages to the north residual of 92.62 acres upon the fact that it was left without any access after the taking. This position is not really justified, because Pearce also pointed out that the tract was severed into two separate and distinct tracts, with resulting alterations in size and shape, and with no means of communication between them. He did consider this north residual to be isolated, because he said, as did both of appellant’s witnesses, that while the south residual had the same means of access it always had, the north tract was left without any means of access because of the location of the highway right-of-way.
There were jury questions as to the potential use of the property and as to values. The highest and best use of a landowner’s property is for the jury’s determination. Arkansas State Highway Commission v. Griffin, 241 Ark. 1033, 411 S. W. 2d 495. We also held in Griffin that it is proper to allow evidence of all potential uses of a landowner’s property. The fact that one is not an expert pertaining to some use to which the property may be put goes only to the weight to bo given to his testimony. In Ft. Smith & Van Buren Bridge Dist. v. Scott, 103 Ark. 405, 147 S. W. 440, we said:
“The sole question here was the market value of the land, and the witnesses gave their opinions as to that value, basing them on different facts and reasons in support thereof. It is true, some of them had no knowledge of the sale of lands under like conditions for bridge site purposes, nor information as to the prices realized at such sales, nor were they expert engineers, but -all who testified were intelligent men, long familiar with the lands taken and the locality and neighborhood where they were situated, knew their value for some purpose, and in giving their opinion as to the most valuable purpose for which they were adapted and could be used, they stated their reasons for so doing. Their knowledge of the facts upon which their opinions were based and the reasons therefor and the value and weight thereof could have been and were ‘readily and satisfactorily tested by cross-examination,’ as said in Railway v. Kirby, 44 Ark. 106.”
In that case we held that the question as to who was competent to give an opinion is one which must be left largely to the discretion of the trial court. This further statement in that opinion is also applicable here:
“The jury were capable of and it was within their province to determine the weight that should be accorded to the opinions of the witnesses, and we do not think there was any abuse of the discretion of the trial court in permitting the estimates of the witnesses and the reasons therefor submitted to the jury, or that any prejudicial error was committed in the introduction of the testimony.”
The case most nearly similar to this is Little Rock & Fort Smith Railway v. McGehee, 41 Ark. 202. The court faced the question as to whether there was support for the actual amount of the damages. The property involved fronted on the river for a quarter of a mile and consisted of a rock bluff entirely unfit for cultivation or human habitation. The estimate of damages on behalf of the landowner was based upon the susceptibility of the property for use as a ferry landing. No ferry had ever been established or operated on the land and no license had been granted by the county court for such a ferry. It was said to be an eligible site by reason of the deep water at that point. The land was less than one mile distant from a licensed ferry at Van Burén which had been in operation since territorial times, but which was said to labor under disadvantages. There was no public highway reaching any point in the land, but it was shown that one could be constructed from Van Burén or Fayetteville .at a moderate expense. The tract consisted of 76 acres, only three or four of which were actually taken. The evidence showed that the landowner had destined the land for this use and had once leased it with the condition that the lessee obtain a license and establish a ferry or surrender the premises. No other use for the property was suggested. The condemnor had moved to exclude all evidence relating to the feasibility of establishing a ferry from the land owner’s property to the opposite bank of the river. The court said that although no ferry may have ever been established there it was possible and maybe probable that a change of circumstances or the development of the country might require one in the near future. It was held that the jury had not placed an exaggerated estimate upon the injury inflicted upon the owner’s tract of land.
"We have always held that a jury verdict will not be disturbed if there is any substantial evidence to support it. Arkansas State Highway Commission v. Sargent, 241 Ark. 783, 410 S. W. 2d 381; Arkansas State Highway Commission v. Jelks, 203 Ark. 878, 159 S. W. 2d 465. To do otherwise would invade the province of the jury. Washington County v. Day, 196 Ark. 147, 116 S. W. 2d 1051.
Here the Ormond value testimony was manifestly not prejudicial, and obviously disregarded by the jury. The verdict was only a fraction of the damages he stated. It was substantially less than Pearce’s assessment. We have heretofore entered remittiturs when the owner’s value testimony was without reasonable basis down to the amount that was shown by his other value witnesses. See City of Harrison v. Moss, 213 Ark. 721, 212 S. W. 2d 334. The logic applied in such cases requires affirmance of this judgment, where the error obviously did not enhance the award and the verdict is less than the amount for which there is substantial evidentiary support.
George Hose Smith, Jones and Byrd, JJ., dissent. | [
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J. Fred Jones, Justice.
Lemuel E. Clayton was tried twice in the Randolph County Circuit Court on the charge of possessing an illicit whisky still and worm. On the first trial the jury was unable to agree on a verdict and on the second trial Clayton was found guilty and sentenced to one year in the Arkansas State Penitentiary. On appeal to this court Clayton relies on the following points for reversal:
‘ ‘ The verdict is against the evidence of the case and the court erred (1) by not directing a verdict for appellant on appellant’s motion, and (2) by refusing to grant appellant’s motion for a new trial.
The court’s instructions, admonitions and statements to the jury subsequent to the submission of the case to the jury for deliberation induced a verdict which was not a fair expression of opinion of the jurors.”
James Thomas and Tracy Cowan were Negro men who lived in Memphis, Tennessee. They were arrested in September, 1966, while operating a whisky still near Janes Creek on a vacant farm in northern Randolph County, Arkansas. They both implicated Clayton in the ownership of the still. Clayton had previously lived just over the state line in Mississippi where he had operated an oil products business. Clayton owned a farm in Randolph County near where Thomas and Cowan were arrested. Thomas and Cowan were convicted of manufacturing untaxed whisky and they testified as witnesses for the state at Mr. Clayton’s trial.
Thomas testified that Clayton had lived over the state line in Mississippi about two and one-half miles from where Thomas lived on the outskirts of Memphis. He testified that he had purchased oil and grease for tractors from Clayton and had known him for some time. Thomas testified that he had been sentenced to two years in federal prison for making whisky and was released in 1965; that in the spring or summer of 1966 Mr. Clayton proposed to Thomas that they go into the whisky making business and that he agreed. He testified that Clayton proposed to furnish the still and all materials and equipment and Thomas agreed to build the still, set it up and operate it for $25 for each “run.” He says that Clayton drew him a map of how to reach Clayton’s home in Randolph County, Arkansas, and that by prior arrangement he drove his .automobile to Clayton’s home in Randolph County. He says that Clayton drove his pick-up truck from his home, eight or nine miles, to his farm in Randolph County, and that he followed Clayton in his automobile. He says that he .and Clayton and Eugene Potts cleaned off a place to set a still on a creek near the barn and vacant house, or cabin, on Clayton’s farm, and that he, while working in Clayton’s barn, with tools furnished by Clayton, built a still, a worm or condenser and two vats out of sheet tin and copper furnished by Clayton; that a few days later he and Clayton set up the still on the spot they had cleaned off for that purpose and that they filled the vats with mash. Thomas says that he then returned to Memphis and after a few days, when the mash in the vats had fermented, he returned to the still on Clayton’s farm and made whisky. He says that he made several “runs” on Clayton’s place and made several gallons of whisky for Clayton. He says that they ran out of water at the Clayton farm location and that Mr. Clayton decided to move the still to the Janes Creek location. He says that he brought Tracy Cowan from Memphis with him and he and Tracy and Mr. Clayton moved the still and set it up at the Janes Creek location. He says that Mr. Clayton hauled the still and equipment in his truck to the new location, previously selected by Clayton, and that he and Tracy followed in his automobile. He testified that they re-established the still at the new location and he made several gallons of whisky at the new location before he and Tracy were arrested. He testified that Mr. Clayton purchased and furnished all the materials, including charcoal and sugar, and delivered the materials to the still site in his truck. He testified that he and Mr. Clayton called each other several times by long dis tance phone, and that he was with Mr. Clayton on one occasion when Mr. Clayton purchased sugar and charcoal at Shoult Grocery in Memphis and paid Shoult with a check for $58.
When Thomas was arrested at the Janes Creek location, he told the police officers about the original setup on Clayton’s farm and showed them the original location of the still. Cowan corroborated Thomas’ testimony as to Clayton’s participation in moving the still and both Thomas and Cowan described in detail the house, barn and creek layout on the Clayton farm and where the key to a lock on a gate entering the place was kept under a rock at the base of a tree near the gate. There is no question that the testimony of Thomas and Cowan is more than sufficient to sustain the conviction, but neither is there any question that Thomas and Cow-an were accomplices and the conviction cannot be sustained on their testimony unless corroborated. Ark. Stat. Ann. § 43-2116 (Repl. 1964). So the question on this appeal, as it relates to appellant’s first point, is whether there is sufficient other evidence to corroborate the testimony of Thomas and Cowan. We are of the opinion that there is.
Eugene Potts testified that he was out of work in Memphis and that Thomas asked him about doing some work in Arkansas. He says that he went with Thomas to a shopping center in Memphis where they met Mr. Clayton, and that he agreed to work for Mr. Clayton in Arkansas. He testified that the nature of the work he was to do was not explained to him, but that he rode with Mr. Clayton in Clayton’s pick-up truck from Memphis to Clayton’s farm in Randolph County. He says that before they left Memphis they went by a place where Clayton purchased some “white” and “brown” tin which they loaded onto the truck and then unloaded into a shed behind Clayton’s house on his farm in Arkansas. He says he had never been in Arkansas, and that in entering Clayton’s farm they went through two gates and that the first gate was locked. He says that at Clayton’s direction he took a key from under a rock near the gate, unlocked the gate and he and Mr. Clayton drove to a cabin near a barn on the farm. He says that he and Mr. Clayton did some work that afternoon in cleaning off a place near a “branch” under the hill near Clayton’s house. He says that he spent the night in the three room house on Clayton’s farm, and that the next morning Mr. Thomas arrived in his own automobile and Mr. Clayton arrived in his pick-up truck; that the three of them finished cleaning off the place under the hill near the branch. He says he returned to Memphis with Thomas that afternoon and that the following day, at the shopping center in Memphis, Mr. Clayton paid him $20 by check which he cashed at the shopping center.
Edna Thomas, the wife of James Thomas, testified that she knew that James was working for Mr. Clayton in Arkansas, but did not know that he was making whisky. She testified that Thomas had left Clayton’s Arkansas telephone number with her through which she could reach Thomas in case of emergency. She testified that when Thomas failed to return home on the night of his arrest, she called Mr. Clayton and was advised by him that he had heard that Thomas was in jail. She testified that Clayton requested that she not call him again, but that Clayton promised to check out the rumor he had heard and call her back. She says that Clayton did call her hack and confirmed the fact that Thomas was in jail and advised her to retain counsel.
Bill Rapert testified that he was sheriff of Randolph County in 1966, and with other officers arrested Thomas and Cowan in the act of loading whisky into a trailer at the whisky still on Janes Creek. He testified that Thomas showed him an old still site on Clayton’s farm; that the site was near the house and barn and near a creek that had gone dry. He testified that the site included a hole in the ground where the furnace had been and that the hole had some leaves and some old mash in it. He testified that he also found a box containing a small hammer and four empty one-gallon jugs within a few yards of the still site. The sheriff confirmed Thomas’ testimony as to the gates entering the place and as to the physical layout of the roads and buildings.
Scraps of tin were found on the farm by the sheriff and placed in evidence as exhibits to his testimony. Thomas identified some of the scraps as being discarded by him in Clayton’s barn when he cut the parts for the cooker, vats and worm from the sheets of metal while building the still in Clayton’s barn.
Mr. Clayton testified in his own defense and denied that he even knew Thomas, Potts, Cowan or Edna Thomas. He admitted the locked gate, hidden key and the physical set up on his farm, but denied knowledge of any whisky still or whisky still site on his farm. He denied that the creek on his farm ever went dry and denied that he ever, to his knowledge, talked to Thomas or his wife by telephone. He denied that he ever purchased tin, charcoal or sugar and denied that he ever paid Potts any amount for working on his farm. Clayton explained the scraps of tin through his own, and other testimony, that bread warmers, dog or hog feeders and other items, utilizing similar tin, had been manufactured on his farm. He explained the empty jugs found on the farm by testimony that he hauled drinking water in jugs. A $10 check from Clayton to Potts was offered in evidence and Clayton explained it as a check he gave an unknown Negro man who had pulled his automobile out of a ditch. Potts denied that he ever pulled Clayton out of a ditch. The only explanation Clayton had for Thomas, Cowan and Potts being so familiar with the physical layout of his farm was that he had advertised the farm for sale and on one occasion had shown it to three Negro men from Memphis who had answered the advertisement. Mr. Clayton made no effort to explain the old still site with some old mash in it as testified by Mr. Rapert, he denied knowing any thing about a still or still site. A check from Mr. Clayton to Shoult Grocery in the amount of $56 was offered in evidence but Mr. Clayton testified that it was given for groceries and cash and not for sugar and charcoal.
Three of Thomas’ home telephone bills were introduced into evidence which showed long distance calls made from Thomas’ home number in Memphis to Clayton’s home number in Arkansas on July 8, 1966, July 11, 1966, July 17, 1966, July 24, 1966, August 30, 1966, and September 17, 1966. The September bill also showed that on September 17, 1966, a collect call from Pocahontas, Arkansas, the county seat of Randolph County, was made to Thomas’ home number in Memphis. Thomas’ home telephone number in Memphis was evidenced by the name, address and number appearing on the bills, and Clayton’s Arkansas number was evidenced by a business card the officers found in Thomas’ wallet at the time of his arrest and by Clayton’s own admission. Clayton was unable to explain these calls at all. He denied that they pertained to whisky making and his only explanation was that they could have been in connection with the advertisement of his farm for sale or pertaining to oil and supply company business which he conducted from his home. Clayton did not attempt to explain the two calls on September 17, 1966, one being from Thomas’ home number in Memphis to Clayton’s home number in Arkansas, and the other being an accepted collect call from Pocahontas, Arkansas, the county seat of Randolph County, to Thomas’ home number in Memphis. Both calls were made the day following Thomas’ arrest and he was in jail in Pocahontas on the day the calls were made. Clayton denied receiving a call from Mrs. Thomas on September 17 inquiring about Mr. Thomas and he denied calling Mrs. Thomas back and advising that Thomas was in jail.
Eugene Potts was never arrested or charged with any offense in connection with the whisky operation. He denied that he even knew that a whisky still was to be set up on Clayton’s farm, or that one ever was set up or operated on the area he cleaned off under the supervision of Clayton and Thomas while he was working for Mr. Clayton. Potts ’ status as an accomplice was submitted to the jury under proper instructions and we cannot say, as a matter of law, that Potts was an accomplice. See Paul Burke, Jr. v. State, 242 Ark. 368, 413, S. W. 2d 646, and the cases there cited.
Certainly Potts’ testimony was ample corroboration of the testimony of Thomas and Cowan to sustain the conviction. Even if the jury considered Potts an accomplice and disregarded his testimony under the court’s instructions Nos. 11 and 12, we are still of the opinion that the testimony of Sheriff Rapert as to the old still site with old mash in it and the unexplained telephone calls from Thomas’ number in Memphis to Clayton’s number in Arkansas are substantial corroborating evidence especially when Clayton denies that he even knows Thomas. Certainly the telephone call from Thomas’ number in Memphis to Clayton’s number in Arkansas and the collect call from the county seat of Randolph County to Thomas’ number in Memphis on the day after Thomas was placed in jail, corroborate Mrs. Thomas’ testimony as to her conversation on September 17 with Clayton.
We conclude that the above evidence, together with the proven .and admitted accuracy of Thomas’ testimony as to the location of the gate key and the physical layout on the Clayton farm; together with the scraps of tin, the canceled checks, the empty jugs found near the still site, and the still site itself with old mash in it, on Clayton’s farm, as testified by Sheriff Rapert, was sufficient to corroborate the testimony of Thomas and Cow-an and to sustain the conviction.
We find no merit in appellant’s second point. Certainly we agree that the jury desired that Mr. Clayton be given a suspended sentence but this court has no au thority to render such judgment as we might have rendered had we been sitting as trial judges. Neither was the trial judge under any duty or legal obligation to follow the recommendation of the jury as to whether the sentence they imposed on a verdict of guilty should be carried out or suspended. This was made very clear to the jury before the verdict of guilty was rendered and the penalty was assessed by the jury. The question of guilt or innocence is a question of fact for the jury and a jury may render a general verdict as provided in Ark. Stat. Ann. § 43-2145 (Repl. 1964), or a special verdict as provided in § 43-2146. The court alone has authority to postpone the pronouncement of a sentence under Ark. Stat. Ann. § 43-2324 (Repl. 1964) or suspend the execution of a sentence under § 43-2326; and the exercise of the court’s authority under either section addresses itself to the sound discretion of the court. Suit v. State, 212 Ark. 584, 207 S. W. 2d 315.
Finding no error, the judgment of the trial court is affirmed.
George Rose Smith, J., dissents. | [
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Carretón Harris, Chief Justice.
This appeal questions the sufficiency of the evidence to sustain a conviction on a charge of burglary and grand larceny; it is also contended that the testimony of an accomplice was not corroborated. Quincy T. Moore received a sentence of eight years upon the two charges, five for burglary, and three for grand larceny, the sentences to run consecutively. Evidence on the part of the state consisted of the testimony of Theopolis T. Green, the accomplice, Sheriff Courtney Langston, M. B. Brannon, a deputy sheriff, L. A. Gannon, Thomas Ishmael, Willie Reeves, and Glen McLendon. The burglary apparently took place on Sunday, April 30, around 10:00 or 10:30 A.M. Green testified that he and Moore went into the home of Ishmael, after Moore stated that the people were away from the house, and took several articles. Green took a shotgun, rifle, and two silver dollars. He did not see Moore take a pistol, but the two went to the home of Gannon, and pawned one of the guns for $10.00. Gannon said that Green and another man came to his house for the purpose of pawning the gun, and he “believed” that Moore was the person accompanying Green. Willie Reeves, a grocery store operator, living about 2Va miles from Ishmael, testified that he saw the two between 9:30 and 9:45 A.M. on Sunday morning at his store, and that they were riding in a Ford automobile with a racing stripe down the side of it. Ishmael stated that he left home on April 30, and when he returned from Sunday School, he found his house ransacked, and the two guns and a pistol missing. Glen McLendon, about 10:00 A.M. on the Sunday morning, observed a Ford with black marks on the side parked between two houses near Ishmael’s home. After the arrest of Moore, appellant’s father brought the pistol to the sheriff’s office.
Moore denied going into Ishmael’s house, but admitted that he was with Green when the two went to Gannon’s home. Appellant said that Green unlocked the trunk of his ear, got out a gun, and they went to the house where Green pawned it. After his arrest, Moore told the sheriff that the pistol was at his (appellant’s) house, and appellant told his father to deliver it to the sheriff. Appellant said that he told the officer that Green had left it at his (Moore’s) home. The evidence was clearly sufficient to sustain a conviction.
As to the contention that Green’s testimony was not corroborated, it might first be said that there was no request by appellant for an instruction concerning the evidence of Green, and we have held that it is the duty of a defendant to make such a request of the court, if he desires an instruction of the law as to an accomplice, and, if no request is made, the matter cannot be complained of on appeal. Slinkard v. State, 193 Ark. 765, 103 S. W. 2d 50.
Be that as it may, Green’s testimony was sufficiently corroborated. Appellant’s presence in the vicinity of the burglary, and with Green, at the approximate time of the burglary, has already been mentioned. Mainly, Moore was in possession of the stolen pistol, and, after being arrested, asked his father to deliver it to the officers. These facts were entirely independent from Green’s statement, and they connected Moore with the crime.
We find no merit in appellant’s contentions.
Affirmed.
The pistol is referred to in the record, both as a .32 caliber, and as a .38, but it is clear that these references are to the same pistol.
Gannon testified that it was pawned for $11.75. | [
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John A. Fogleman, Justice.
This is a sequel to Arkansas State Highway Commission v. Dean, 244 Ark. 405, 425 S. W. 2d 306. On that appeal we reversed because of the failure of the trial court to give an instruction relating to the duty of appellees to minimize dam ages sustained by reason of a partial taking of their lands. Although that issue was not before the court on retrial, we find reversible error in the limitation imposed by the trial judge upon appellant’s cross-examination of C. Y. Barnes, an expert witness on real estate values. Barnes was the first witness called by appellees to establish the amount of compensation due them in this eminent domain action. He detailed impressive qualifications. He related the results of extensive investigations pertaining to this property, the factors influencing market values in the community generally and of the property of appellees specifically. He stated that the entire tract of 85.55 acres had a fair market value of $260,000 before the taking of 11.04 acres for the construction of Interstate Highway No. 40, but that the lands thereafter remaining had a value of only $174,000. Barnes obtained a list of 250 real estate sales that had taken place in the Conway community. On direct examination, he stated that he attributed $86,000 in damages to the lands of appellees as a result of his studies of these market sales.
The burden of demonstrating that there was no reasonable basis for the opinion of this witness, or the weakness of its basis, then devolved upon appellant. Arkansas State Highway Commission v. Stobaugh, 247 Ark. 231, 445 S. W. 2d 511; Arkansas State Highway Commission v. Clark, 247 Ark. 165, 444 S. W. 2d 702; Arkansas State Highway Commission v. Sargent, 241 Ark. 783, 410 S. W. 2d 381. In an effort to meet this burden, its attorney commenced a line of inquiry to determine whether the real estate sales considered by the witness involved lands comparable to those of appellees. After the witness had related the details of the sale of a one-acre tract and of a two-acre tract, and had stated that he did not consider two other sales because he did not feel that they represented fair market transactions, he was asked if he had another sale. After the trial judge interjected an inquiry as to the attorney’s purpose in asking about these sales, a hearing in chambers was had. There the judge informed appellant’s attorney that he was exercising his judicial discretion and limiting the examination of the witness about particular sales as repetitious unless another matter was brought to the court’s attention. When the circuit judge recalled that the witness said that he considered 250 sales about each of which counsel might inquire, appellant’s attorney asked if he might be permitted to ask the witness about the 15 sales that aided him most in arriving at his valuations. Even though appellees’ counsel suggested that appellant’s attorney inquire about 25 of these sales on which the witness relied, the judge ruled that he would exercise his discretion to limit cross-examination on any particular point. He added that it seemed to him that a point of exhaustion had been reached on the point of comparable sales.
A trial judge has the power and duty to exercise a reasonable control over the mode of interrogation of a witness and to stop production of further evidence on any point when the evidence theretofore produced is so full as to preclude reasonable doubt. Ark. Stat. Ann. § 28-703 (Repl. 1962). There is no reversible error in a court’s termination of cross-examination, unless there is an abuse of sound judicial discretion. Bartley v. State, 210 Ark. 1061, 199 S. W. 2d 965; St. Louis, I. M. & S. Ry. Co. v. Day, 86 Ark. 104, 110 S. W. 220. Yet this discretion is not unlimited. See Rooks v. State, 199 Ark. 1188, 136 S. W. 2d 481. It is the duty of the trial judge to permit a full, fair and reasonable cross-examination of a witness. Helena Cotton Oil Co. v. Harrington, 170 Ark. 654, 280 S. W. 630. Efforts of a trial court to expedite disposition of business before it is commendable and should be encouraged, but the right of a litigant to fully and properly cross-examine an adverse witness is more important and should not be abridged, even for the sake of expedition. Trammell v. State, 193 Ark. 21, 97 S. W. 2d 902.
The proper cross-examination of a witness is the most effective attack that can be made upon his credibility and the best means of diminishing the weight which might be accorded his testimony. A wide latitude is permitted in cross-examination as to questions tending to impeach the credibility of a witness or in eliciting matter for consideration of the jury in weighing the testimony. Peterson v. Jackson, 193 Ark. 880, 103 S. W. 2d 640. Where the testimony of a witness is opinion evidence, it is essential that opportunity for thorough cross-examination be accorded. Coca-Cola Co. v. Moore, 246 F. 942 (8th Cir. 1917). Courts should be especially liberal in allowing full and complete examination of an expert witness. Arkebauer v. Falcon Zinc Co., 178 Ark. 943, 12 S. W. 2d 916; Coca-Cola Co. v. Moore, supra; Cropper v. Titanium Pigment Company, Inc., 47 F. 2d 1038, 78 A. L. R. 737 (8th Cir. 1931); Adams v. Ristine, 138 Va. 273, 122 S. E. 126, 31 A. L. R. 1413 (1924); Stemons v. Turner, 274 Pa. 228, 117 A. 922, 26 A. L. R. 727 (1922); Annot., 17 Am. & Eng. Ann. Cas. 4 at 18 (1910).
In Coca-Cola Co. v. Moore, supra, a case arising in the Eastern District of Arkansas, the Eighth Circuit Court of Appeals aptly said:
* * The testing of the probative weight of an expert’s estimate of value necessarily requires a liberal latitude of inquiry into the factors and considerations upon which it is based.”
We find the language of the Kansas Supreme Court in Bourgeois v. State Highway Commission, 179 Kansas 30, 292 P. 2d 683 (1956) applicable. That court reversed a judgment in an eminent domain proceeding because of undue limitations on cross-examination of expert value witnesses. It said:
“* * # but appellant had the right on cross-examination to test the credibility of the testimony of the witnesses by asking qualifying questions as to the extent of the knowledge on the part of each witness, and as to each and every element that such witness took into consideration in arriving at his opinion of the value of the property. * * # On cross-examination great latitude is necessarily indulged in order that the intelligence of the witness, his powers of discernment and his capacity to form a correct judgment may be submitted to the jury so it may have an opportunity for determining the value of his testimony. * * *” (Citations omitted.)
The burden imposed upon appellant to demonstrate the lack of basis for this witness’ opinion, or the weakness thereof, was quite heavy in view of the witness’ qualifications and studies. For this reason, the latitude of permissible cross-examination should have been great. In Huffman v. City of Hot Springs, 237 Ark. 756, 375 S. W. 2d 795, in holding that a limitation on cross-examination was error, we adopted a statement from 98 C. J. S. 125, Witnesses § 372 which reads, in part:
“* * * The purpose of cross-examination, however, is not limited to bringing out a falsehood, since it is also a leading and searching inquiry of the witness for further disclosure touching the particular matters detailed by him in his direct examination, and it serves to sift, modify, or explain what has been said, in order to develop new or old facts in a view favorable to the cross-examiner. The object of cross-examination, therefore, is to weaken or disprove the ease of one’s adversary, and break down his testimony in chief, test the recollection, veracity, accuracy, honesty, and bias or prejudice of the witness, his source of information, his motives, interest, and memory, and exhibit the improbabilities of his testimony.”
We have no alternative to holding that the strict limitation imposed was an abuse of the trial court’s discretion. We do not mean to say that the court should have permitted a detailed interrogation about each of the 250 sales studied by Barnes. Yet neither the appellant’s offer to limit examination on sales, nor the suggestion of limitation by appellees’ attorney would have permitted an unreasonable extension of cross-examination on this important feature of the determination of the amount of just compensation.
On the previous appeal we held that there was error, on the record then before us, in the failure of the trial court to instruct the jury not to consider the Collier tract (39 of the 85.55 acres owned by appellees) either as to benefits or damages, because it was purchased by appellees with knowledge that the possible taking by appellant would leave it without access. Yet, we were unwilling to say that the Collier tract should be eliminated from consideration as a matter of law under any and all circumstances which might arise on retrial. Appellant made no objection in the trial court to an instruction which submitted this issue to the jury, nor does it assert error here because of this.
We do not reach appellant’s point asserting that the jury verdict of $108,000 was excessive and not based upon substantial evidence. We cannot anticipate that the evidence or the verdict will be the same upon a retrial. Therefore, no useful purpose would be served by any discussion of this point.
Because of the error indicated, the judgment is reversed and the cause remanded for a new trial.
Byrd, J., not participating. | [
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Carleton Harris, Chief Justice.
Appellants, Alan D. Johnson and Louise M. Loyd were charged and convicted of the crime of Robbery, it being alleged that they did by force rob the Pottsville office of the Peoples Bank and Trust Company of $7,000.00. The jury fixed the punishment of each at confinement in the state penitentiary for a period of 15 years. From the judgment so entered, appellants bring this appeal. For reversal, two points are asserted, first, that the court should have granted appellants’ motion for continuance, and second, that the court should have granted appellants’ motion for severance of the cases. We proceed to a discussion of each point.
The record reflects that the Information charging appellants with the crime was filed on June 26, 1969, and Ike Allen Laws, Jr., was appointed to represent appellants at arraignment. Subsequently, Laws moved that he be relieved from representing appellants for the reason that he was a stockholder in the Peoples Bank and Trust Company of Russellville, and further, that his father was a member of the Board of Directors. On July 12, the court entered its order relieving Laws, and appointed another attorney, Jim Young, to represent the defendants. Thereafter, according to appellants’ “statement of the case,” Young was relieved from the representation, and the present attorneys, Irwin, Streett and Braden were appointed on July 23. The case had already been set for trial for July 26 at 9:00 A.M. On July 24, Mr. Braden filed a motion for continuance, asserting that defense counsel had not been notified of the appointment until 7:00 P.M. on the night before; that Johnson was presently incarcerated at Cummings Prison, and counsel had had no opportunity to talk with him. The motion was denied. The court directed that Johnson be returned from the penitentiary, and he was returned to Pope County on July 25. On the next morning, attorneys for appellants made the following motion:
“The defendants would move for a continuance due to inadequate time in which to prepare a defense, that Alan D. Johnson’s first opportunity to speak to his attorney was approximately 4:00 o’clock Friday afternoon; and at this time we would also move the Court to sever the two actions and give the defendants a separate trial, because their interests are adverse to each other, and the same lawyers do not represent each of them.”
We do not agree with appellants’ first contention. Of course, a motion for continuance is addressed to the sound judicial discretion of the trial court, and a reversal of the trial court is only ordered where there is an arbitrary abuse of that discretion. The motion for continuance simply sets out that there has been an insufficient time allowed for preparation of the defense. The motion does not contain the names of any purported witnesses, let alone a statement or statements of what such witnesses would testify to, or where they resided. It will be recalled that appellants were charged with the crime, and arrested on June 26, and the trial did not occur until a month later. During this period of time, attorneys had been appointed to represent appellants, and the record reflects that Mr. Laws had already moved to protect the rights of Johnson. There is no showing that the previously appointed attorneys had been contacted to determine if an investigation had been made, or to ascertain the results of any such investigation. There being no allegation that would show a need for more time, we are unable to say that the court arbitrarily abused its discretion.
In discussing the second point, it is necessary that the evidence be reviewed. Harold Edward Williams testified that he was employed by the Peoples Bank and Trust Company of Russellville, and was working in the Pottsville branch on June 25, arriving at work about 8:30 A.M. He said that shortly after 1:00 P.M. the door opened, and a man, followed by a woman, came into the bank, and stopped in front of the teller’s window. The man said that they needed to see someone about a loan, and when asked as to the type loan, was told that money was needed to buy a farm. Williams explained that he was only working at Pottsville on a temporary basis, would not be able to make a loan of that type, and it would be necessary that they go to the bank at Bussellville, and contact one of the loan officers. The man asked for the names of persons to contact, and when Williams reached for a note pad, both the man and woman produced revolvers, and the man said, “This is it. Do you understand?” The robber pulled the hammer back on the revolver, handed Williams a blue and white striped pillow case, and told the banker to “fill this up.” While this was being done, the robber walked into the vault, looking for money. In placing the currency in the bag, Williams inserted $500.00 in marked bills, and having finished, turned to go into the vault. The woman cocked the hammer on her pistol, pointed it at him and said, “Hold it right there where you’re at.” The man returned from the vault, asked if there was an alarm system therein, and upon Williams’ replying in the negative, told the banker to go into the vault. The robber attempted to close the door without closing the fire doors, and Williams, in testifying, said that the door would not lock in such a manner. After waiting a few moments, and hearing a vehicle start up outside, Williams tried the door, could not get it open, but remembered there was an old church type bell above the vault with a rope that came down through the ceiling. A place in the cement ceiling had been chiseled out to take care of the wadded rope and a plain piece of paper had been attached to the ceiling, and painted so that it could not be distinguished from the ceiling itself. Williams pulled the paper loose and rang the bell some six or eight times until the bell turned upside down, and no longer would ring. Within a few minutes, Williams was discovered by a lady who operated the grocery store across from the bank. According to a subsequent audit, $7,214.25 was taken in the robbery. Appellants were apparently arrested within a short period of time, and were driven to the front of the bank. Williams went outside, saw the two persons in the car, and positively identified them as the robbers.
Billy Baker, Corporal with the Arkansas State Police, testified that, on June 25, he was on duty and received a communication about a pickup truck, and was told to watch out for it. He had also been advised that a bank robbery had occurred. Baker testified that he saw the truck at the west edge of Atkins, driving east on TI. S. Highway 6*4; that he was driving west, "but turned around and gave pursuit, finally stopping the truck after it had turned off onto Highway 105. The occupants of the vehicle, the appellants, were placed under arrest, and the officer made a search of the truck, and inter alia, found a large amount of money in a blue and white striped pillow case on the front seat. There was $6,694.00 in the sack.
Officer Andy McKay testified that he interviewed the two appellants and advised them of their constitutional rights; that Johnson indicated that he understood his rights and signed a waiver, and upon being asked if he had been involved in the commission of robbing the bank at Pottsville, answered, “You caught us with the goods. 'There is no sense in messing around, but before I give an answer I wish to talk to an attorney.” Subsequently, however, he gave a voluntary statement as to his participation, but the statement was interrupted for arraignment purposes, and after the arraignment, the attorney who had been appointed for appellants directed McKay not to talk with Johnson any further.
Joe W. Phillips, a special agent with the F. B. I., testified that he investigated the bank robbery, interviewed Johnson, advising the latter of his constitution al rights as set out on a printed form, which Johnson signed. The agent testified that each item was explained to Johnson; that he was asked if he understood these rights, and he answered affirmatively. Appellant then made a statement. In testifying before the jury, McKay stated that Johnson said, “You caught me with the goods,” instead of “us.”
As to Mrs. Loyd, McKay stated:
“She denied knowledge of the bank robbery, didn’t wish to make a statement, made several verbal comments she was nowhere around; and she stated it was true she and this fellow had come up to this area. She had got with a gentleman from Dardanelle, Arkansas; that they had anticipated going fishing; they got to drinking; and I believe her description was ‘he got a little too hairy’ for her in their consumption of alcohol, and she decided to hitchhike home; and it was just shortly before Trooper Baker had stopped them that Mr. Johnson had picked her up hitchhiking; and she knew nothing of the bank situation.”
Neither appellant testified:
The question of whether a severance should or should not be granted in felony trials less than capital is governed by the same rule that controlled appellants’ first point, i. e., the trial court will not be reversed unless there has been an abuse of discretion. Finley v. State, 233 Ark. 232, 343 S. W. 2d 787. We find no abuse of discretion under the facts of this case. It will be noted that the statement made by Johnson to the jury did not in any manner implicate appellant Loyd. Appellant Loyd’s statement to McKay was a denial of any participation in the crime; accordingly, there were no cross-implicating confessions as in Mosby and Williamson v. State, 246 Ark. 963, 440 S. W. 2d 230. This appellant obviously was primarily convicted upon the testimony of the banker, whose evidence definitely connected her as a principal. Mrs. Loyd, had she seen fit, could have maintained her position on the witness stand without fear of contradiction from Johnson, since the court had already excluded any reference to her participation.
We find no prejudice to either appellant, because of the court’s refusal to grant a severance.
Affirmed.
The content of this last sentence does not appear in the record.
It appears that the “do not” is a typographical error, as the record does not reflect that appellants were represented by separate counsel. Also, counsel, in arguing the point at Page 10 of appellants’ brief, state:
“In the case at bar, appellants in addition to being antagonistic towards each other, and having testimony if offered that would conflict with the others were both represented by the same appointed counsel. The fact that the same counsel represented both appellants prevented any showing of the hostility. The only alternative was for both to decline to take the stand. This presented a situation where the appellants when tried together were effectively deprived of representation by counsel.”
Lieutenant Andy Mc'Kay testified that Johnson was arraigned, and the court appointed an attorney, “and before he was returned from the courtroom we were instructed not to ask him any more questions by his court appointed attorney.”
Testimony at the trial revealed that the marked bills were included.
The statement was as follows: “I, Alan Douglas Johnson, make the following free and voluntary statement to Joe W. Phillips, who has identified himself as a special agent of the FBI and who has explained to me each of my rights as named in the above form, which I have signed.
“Shortly after 1:00 P.M., on Wednesday, June 25, 1969, I robbed the bank in Pottsville, Arkansas. While I cased that bank on the morning of June 25, 1969, prior to the robbery, I realized it was a branch bank of the Peoples Bank and Trust Company of Russellville, Arkansas. After I robbed the bank, I tried to lock the teller in the bank vault. I locked the vault door partially, but I did not get it locked all the way. I actually planned the robbery Tuesday night 6/24/69 before I robbed the bank on 6/25/69.
“I arrived in Pottsville, Arkansas, on the morning of ,6/25/69 and drove by the bank a couple of times and cased it before robbing it that afternoon.”
Of course, had the cases been severed, and either appellant had been willing to testify against the other, there was nothing to prevent the Prosecuting Attorney from using that testimony. | [
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Conley Byrd, Justice.
Appellants Harrigan E. Wortsmith and Catherine Wortsmith are the owners of Lot 28, Block 52, Lakewood Addition to the City of North Little Rock. They brought this action against appellee, The Matthews Company, to enjoin a 1968 replat of Lots 9 through 12 of said Block allegedly for the violation of the restrictive covenants contained in a bill of assurance dated February 2, 1965. The trial court dismissed the complaint upon a motion for summary judgment. For reversal they rely upon the following points:
“A. Appellee did not have approval of owners of sufficient acreage to amend bill of assurance and plat in effect on Lots 9-12, Block 52, Lakewood, when appellants bought their property.
“B. Appellee offered no pleading or proof that change did not violate North Little Rock zoning code.
“C. Appellee offered no pleading or proof that conduct of appellee did not mislead and defraud appellants and other similar persons.”
The record shows that said Block 52 was not all platted at the same time. The portion containing Lot 28, being Lots 19 through 31, was platted and the bill of assurance in connection therewith was recorded on Sept. 9, 1963. The portion involving Lots 9 through 12 was platted and the bill of assurance was recorded on February 2, 1965. Appellants purchased their property subsequent to the filing of the February 2,1965, bill of assurance. The Matthews Company caused Lots 9 through 12 to be replatted in April 1968 to lay out an alley or private way across the back thereof. The rear of Lot 9 backs up to the rear of Lot 28.
The February 2, 1965, bill of assurance that appellants are attempting to enforce provides:
“KNOW ALL MEN BY THESE PRESENTS:
“That John Matthews Company, an Arkansas Corporation, hereinafter called grantor, owns the following described land lying in Pulaski County, Arkansas, to-wit: that part of the unplatted part of
swy4 OF NE% AND N% OF SEy4, SECTION 24, TOWNSHIP 2 NORTH, RANGE 12 WEST, AND LOT 11, BLOCK 52, LAKEWOOD, PULASKI COUNTY, ARKANSAS
shown on the plat attached hereto and made a part hereof as LOTS 9 TO 13, INCLUSIVE (LOT 9 BEING A REPLAT OF THE LOT PREVIOUSLY PLATTED AS LOT 11), BLOCK 52, LAKEWOOD
and the grantor hereby plats same as
LOTS 9, 10, 11, 12 AND 13, BLOCK 52, LAKEWOOD, PULASKI COUNTY, ARKANSAS
and henceforth description and conveyance by such designation or part thereof as shown and represented on said attached plat shall be a proper and sufficient description thereof.
# # *
“Said land herein platted and any interest therein shall be held and owned subject to and in conformity with the following covenants which, subject to being amended or canceled as provided hereinafter, shall be and remain in fuii force and effect until January 1, 1999, to-wit:
(a) LAND USE AND BUILDING TYPE. Said land shall be restricted to detached single-family residence; garage, servants’ quarters, and other outbuildings must be clearly incidental to residential use of said land. Boarding houses, tenements, apartment houses, trailer parks, tourist courts, motels, hotels, eating houses, clubs, restaurants, stores, beauty shops, barber shops, commercial servicing and repairing of every kind, other similar activities and each of them are prohibited and shall not be carried on or permitted on any part of said land. The designation of such specific activities prohibited shall not limit what is prohibited on said land but this restriction shall be construed to prohibit on said land each and every business, trade, activity, and undertaking not in keeping with the general plan to develop said land for the highest class residential occupancy. No business, trade, activity, or undertaking which is or may become noxious or offensive shall be carried on or permitted on any part of said land nor shall anything be done thereon which may be or become an annoyance or nuisance to adjacent residents or the neighborhood. Usage in keeping with the highest class residential occu pancy such as the office of a doctor, a writer, or an artist shall he permitted if carried on without becoming an annoyance or nuisance to adjacent residents or the neighborhood and provided one name plate only, not exceeding one square foot in area, may be placed or permitted to remain on any home-site.
(b) PLOT AREA AND WIDTH. No residence shall be erected, altered, or permitted to remain on any part of said land or on part of said land and adjacent land if the area of the plot of ground for and used with such residence is less than 7,000 square feet or if the width thereof at the front building line is less than 65 feet.
(c) TEMPORARY STRUCTURES. No trailer, basement, tent, shack, garage, garage apartment, hutment, barn, structure of a temporary character, or outbuilding of any kind on said land shall at any time be used or occupied as a residence temporarily or permanently, provided the foregoing shall not be construed to prevent occupancy of servants’ quarters by bona fide domestic servants employed by and domiciled on said land with an owner or tenant.
(d) ARCHITECTURAL CONTROL. No building, wall, or fence shall be erected or placed on said land until complete building plans, specifications, and plot plan showing the location thereof with respect to existing topography and finished ground elevations have been approved in writing by said John Matthews Company, its successors or assigns. It is contemplated that said John Matthews Company, in its discretion, may eventually designate and authorize the Property Owners’ Association or incorporated town or city of the area involved to make such approval but until and unless said John Matthews Company, its successors or assigns, transfers this authority, then it, the said John Matthews Company, shall have complete authority with respect to such approval. It is the purpose and intent of this covenant that, in order to assure all home owners the safeguard of a reasonable degree of neighborhood conformity and harmony, the quality, design, and location of all residences be regulated as provided hereinbefore. In the event said John Matthews Company, its successors or assigns, fails to approve or disapprove any such plan and specifications within 30 days after submission to it or, in any event, if no suit to enjoin the erection or placing of such residence has been commenced prior to the completion thereof, such approval will not be required and this covenant will then be deemed to be fully complied with. There shall be no compensation to said John Matthews Company, its successors or assigns, for services performed pursuant to this covenant.
(e) SIGNS OE UNSIGHTLY OBJECTS. No billboard, poster, sign, or object of unsightly nature shall be placed or permitted to remain on any part of said land, except a name plate not exceeding one square foot in area as provided in paragraph (a) hereof and except one sign only per lot not exceeding four square feet in area may be displayed to advertise property for sale or rent.
Each and all of the restrictions set forth herein shall be binding as covenants on present and future owners, their heirs, successors, and assigns, shall run with the land, and may be enforced by any person or corporation owning land in the area described as follows:
Platted or unplatted lands in the over-all area described in a Dedication setting up a proposed Property Owners’ Association, appearing of record in the office of the Eecorder, Pulaski County, Ar- Kansas in Deed Record Book 362, Page 425, AND E% OF SW14 AND Wy2 OF SE % AND SEy OF SE1/4, SECTION 13, TOWNSHIP 2 NORTH, RANGE 12 WEST AND Wy2 OF NWy4, SECTION 19, TOWNSHIP 2 NORTH, RANGE 11 WEST, PULASKI COUNTY, ARKANSAS, but no person or corporation shall be liable for breaches committed except during his or its ownership. Any and all of the covenants set forth in this instrument may be amended, modified, extended, changed, or canceled in whole or in part by a written instrument signed and acknowledged by the owners of over 50% in-area of the land last hereinbefore described and the provisions of such instrument so executed shall be binding beginning with and after the date it is duly filed for record in Pulaski County, Arkansas.” [Emphasis ours].
Appellants’ allegation, as abstracted, is:
“. . . that at the time the property was acquired by Appellants, and at the time Appellee surrendered title to Lot 28, all of the Bills of Assurance covering all the pertinent parts of Block 52 prohibited any activity or undertaking that could become noxious or offensive and that nothing could be done on said land that could become an annoyance to the adjacent property owners; that at the time Appellants acquired Lot 28 it was contiguous to Lot 9 and the Bills of Assurance on file made it clear that there could be no public way running between Lots 25-28 on the East side of Block 52 and Lots 9-12 on the West Side; that the lots on the East side of Block 52 were set up to have a rear yard privacy typical of the higher class residential area; that Appellants constructed their home to take full advantage of this rear yard privacy; that the Bills of Assurance insuring this rear yard privacy, and upon which Appellants relied, were on file on all of Block 52 at the time Appellants ac quired their property; such Bills of Assurance had been approved by the North Little Rock Planning Commission; that this protection from annoyance and nuisance was designed by Appellee for the purpose of, and did command, a premium price on said lots.”
Point A: Appellants developed by interrogatories that the lands as shown by the dedication setting up a proposed property owners association in Deed Record Book 362, page 425, contained 800 acres plus. To this they add the. 200 acres described as being in Sections 13 and 19 supra, to arrive at a total of 1,000 acres plus that covered by the last quoted paragraph of the bill of assurance. The interrogatories further developed that appellee only owned 357 acres of the 1,000 acres so described. Upon these premises appellants argue that appellee did not own more than 50% of the “land last hereinbefore described” as set forth in the bill of assurance for purposes of amending the same.
Appellee on the other hand submitted an affidavit that it owned more than half of the Lots numbered from 9 through 13 inclusive of Block 52. Based upon this it contends that pursuant to the language of the bill of assurance that the “the land last hereinbefore described” referred to Lots 9, 10, 11, 12, and 13 of Block 52 and that by virtue thereof they were entitled to amend the bill of assurance.
Even should appellants be correct in their interpretation of the ownership required to modify the covenants contained in the bill of assurance, the trial court here properly dismissed their complaint because a re-plat, such as here involved, is not prohibited by the covenants set forth in the bill of assurance.
With Points “B” and “C”, we find no merit. The complaint as abstracted contains no allegations that appellee failed to comply with the North Little Rock zon ing code or that appellee’s conduct in filing the bills of assurance constituted a fraud upon appellants and other persons similarly situated. A party seeking to set aside a decree of the trial court has the burden of showing that such issue was before the trial court. This appellants failed to do in accordance with our rules.
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J. Feud Jones, Justice.
Mr. and Mrs. McDaniel sued Richard Judy in the Washington County Circuit Court for personal injuries and property damages growing out of an automobile collision. Duil Lane was made a defendant by cross action filed by Judy. A jury verdict resulted in a judgment for Mr. McDaniel against Judy in the total amount of $6,262.13, $500 of which was for property damage to the McDaniel automobile. Judy has appealed and relies upon the following points for reversal :
“The trial court committed prejudicial error in permitting continued examination of Officer R. D. Arnold concerning an intoximeter test and the amount of alcohol allegedly consumed by appellant.
The trial court committed prejudicial error in permitting examination of appellant relative to prior arrests and convictions.
Remarks made by the trial Judge in the presence of the jury constituted a comment on the evidence which prejudiced appellant.
The trial court erred in admitting into evidence repair estimates on plaintiff’s vehicle.”
The collision occurred in this manner: McDaniel was driving his automobile on Highway 16 in Fayetteville and Lane was driving his automobile in the same direction in front of the McDaniel vehicle. Judy was driving in the opposite direction meeting the Lane and McDaniel automobiles. Lane made a left turn from the highway to enter a side street, and in doing so he had Ms automobile across the traffic lane Judy was traveling as Judy approached over a hill. Seeing the Lane automobile across his lane of travel, Judy drove to his left to avoid the Lane automobile, and collided with the McDaniel automobile. McDaniel was injured and his automobile was damaged.
Appellant’s first point:
We are unable to agree with Judy that the trial court committed prejudicial error in permitting continued examination of Officer B. D. Arnold concerning the intoximeter test and the amount of alcohol allegedly consumed by Judy. The case of Wilson v. Coston, 239 Ark. 515, 390 S. W. 2d 445, cited in support of Judy’s contention, is not in point. In Wilson the trial court simply gave, as an instruction to a jury in a civil case, Ark. Stat. Ann. § 75-1031.1 (Bepl. 1957). This statute provides for chemical analysis of body fluids in criminal prosecutions for driving under the influence of alcohol and fixes presumption of guilt on chemical content ratings. No presumption of driving under the influence attended the testimony in the case at bar. Officer Arnold investigated the collision and before he was asked concerning the intoximeter test, he had already testified that he could smell alcohol on Judy when he talked to him at the scene of the accident; that from the way Judy handled himself and walked and talked he could tell that Judy had “a little something to drink. ’ ’ Officer Arnold testified that he was of the opinion that Judy’s faculties were impaired.
The question on the intoximeter test was first asked on direct examination- and was objected to. The objection was sustained and the jury admonished to disregard it. Judy’s counsel then followed up the question on cross-examination, and we cannot say to his disadvantage, by showing that the test only registered .12, which was not high enough to justify an arrest for driving under the influence of alcohol. This -testimony relative to the intoximeter test tended to rebut the officer’s prior testimony.
On cross-examination by Lane’s attorney, the officer testified that Mr. Judy admitted that he had been drinking beer. He testified that a .12 registration on the intoximeter test would, in his opinion, indicate a consumption of about a “six-pack” of beer. In response to a motion for a mistrial upon the admission of this testimony, the trial court said:
“It may be his opinion but I am going to ask the jury to disregard that statement because I don’t think he’s given enough background to what might well be a basis. There has to be a foundation laid to admit that but I will not grant a mistrial. I will overrule that.”
Mr. Judy testified that he and another person had divided and consumed a “six-pack” of Budweiser beer during the afternoon prior to the collision, but he denied that his faculties were impaired or that his driving was influenced in any way by the consumption of the beer.
We cannot say that the trial court abused his discretion or erred as a matter of law in refusing to grant a mistrial in the light of all the evidence. In the light of Judy’s own testimony that he had consumed half of a six-pack of beer, and in the light of the officer’s testimony that he did not arrest Judy, but would have done so had his meter reading been high enough; we do not consider the officer’s opinion, when considered with all the other evidence, as constituting- such prejudicial error as to call for a reversal. The important point was not whether Judy had consumed three or six cans or bottles of beer or whether the containers were large or small, the important thing on this point was how Judy tolerated the amount of beer he did drink, and the effect, if any, its consumption had on his driving.
Appellant’s second point:
Lane’s attorney attempted to examine Judy on cross-examination as to prior convictions in order to test Ms credibility as a witness. The pertinent portion of the record on this point is as follows:
“Q. Have you ever been arrested and convicted for the commission of any crime of any kind ?
A. Could you explain what you mean by crime! What type!
Q. Well, other than traffic violations? Any kind of — I’m not speaking of traffic violations.
• • «
A. Yes, sir.
Q. How many times?
« # #
Q. And what were the offenses!
A. Disturbing the peace.
Q. And what else?
A. Assault and battery after a dance.
Q. You were convicted on both counts; is that correct?
A. No, sir.
MB. BASSETT: Now, Your Honor, we object.
THE COUBT: The objection is sustained. G-oes only to Ms credibility and involves only one conviction.
MR. BASSETT: I want to make my record. It is calculated to try to prejudice these people against this man and is completely unrelated and uncorrelated to the accident. If it goes to the question of his integrity, of his credibility, whether or not he’s ever, been convicted at sixteen years old — this is a civil case, Your Honor. * * * I ask that the jury be instructed to disregard it.
THE COURT: As far as his testimony goes as to prior convictions, it goes only to his credibility. The charge against him, you will completely disregard it. You have heard his testimony.” (Emphasis supplied).
The law is well settled that the credibility of a witness may not be impeached by an examination as to prior arrests, accusations or indictments relating to prior criminal activity. Stanley v. Aetna Ins. Co., 70 Ark. 107, 66 S. W. 432; Thacker v. Hicks, 213 Ark. 822, 212 S. W. 2d 713; Kansas City Southern Ry. v. Belknap, 80 Ark. 587, 98 S. W. 366. There was really no excuse for the question asked Judy to even contain the word “arrest” unless it was inadvertently included or the question designed to elicit admissions of arrests without convictions. If the trial court had concluded that the question was artfully framed to draw an inadmissible. and prejudicial answer from the witness, the court would have been justified in declaring a mistrial, or in reprimanding the attorney. Apparently the court did not so consider the intent in this case. Where such questions are answered, however, the prejudice comes from the answers and not from the questions. If Judy was prejudiced at all by his answers in the case at bar, we. are of the opinion that the prejudice was removed, and perhaps turned to his advantage, by the admonition of the court and the explanation of appellant’s counsel, we have above emphasized, in his oral objection. We find no prejudicial error in permitting examination of appellant relative to prior. arrests and convictions.
Appellant’s third point:
Police Officer Arnold was asked if he had an opinion, based on experience, statements and investigation, as to the amount and type of alcohol consumed by Judy. The court’s comment in overrulihg the objection to this testimony was almost invited by question, and we think it was unprejudicial in this case.
“Q. Based upon your investigation and the statements which you took, your findings at the scene of the accident, do you have an opinion, based upon your experience, as to how much alcohol may have been consumed and what type?
MR. BASSETT: Just a minute, Mr. Arnold. We object to that, Your Honor.
THE COURT: If he knows.
MR. BASSETT: Why, Your Honor, — .
THE COURT: If he has an expert opinion, strong odor — .
MR. BASSETT: That isn’t what he asked, if Your Honor please. You are telling him what to say now. We object to the Court’s remarks.
THE COURT: I am telling you the reason why I think it ought to he overruled.”
It would appear that the court may have taken the phrase “why, Your Honor,’ to be a question, and was attempting to answer it. Apparently both the attorney and the court interrupted each other before they finished what they had started to say.
Appellant’s fourth point:
Mr. McDaniel testified that he purchased his automobile in August, 1966, and paid approximately $1,050 for it. He testified that the difference in the value of the automobile between the time he purchased it, and March 10, 1967, when the collision occurred, was due only to mileage and average wear. At this point in McDaniel’s testimony estimates were offered in evidence under the following procedure of record:
“Q. Did you attempt to secure repair estimates?
A. Yes, sir.
Q. I show you two documents and ask you if you can identify these?
A. Yes, sir, I can identify them.
Q. Will you please tell us what those are?
A. Ozark Motors, Berryville, Arkansas is an estimate for repairing the damaged vehicle, and Cecil’s Body Shop is an estimate for repairs to the same vehicle.
# # #
A. Four hundred seven, fifty-one, and three seventy-two, seventy-seven.
MB. BASSETT: Comes now the defendant, Judy and objects that the Arkansas law reflecting personal property damages, that the test of the average market value is before and after the accident. We further object on the grounds that improper foundation has been laid, Your Honor, as to the introduction of estimates. There has been no testimony on the part of this man whether the car has been repaired, two, who repaired it, and three, who paid for it. We object for those reasons.
MR. WADE: We will put those in, Your Honor.
THE COURT: He hasn’t offered them yet.
Q. Mr. McDaniel, after you received the two estimates, was the car, in fact, repaired?
A. Yes, sir.
Q. Who repaired it?
A. A body shop in Eureka Springs.
Q. Will you tell us what compensation, if any, you paid for the repair?
A. It was a work trade agreement.
Q. Will you tell us how that was arranged?
A. Yes, sir. My son owed me and in order to clear his debt, he made an agreement with the body shop man to do work for him, between four and five hundred dollars worth of work and he was to do the work and I was to get the car repaired.
Q. So it was simply a swap-out or a trade-out; is that right?
A. Yes, it was.
MR. BASSETT.: We renew our objection, Your Honor.
THE COURT: The test is, the value before and after.
MR. WADE: Well, we just submit that this is some evidence.
THE COUBT: Yes, it is some evidence but it is really before and after.
MR. WADE: We do make tender of Plaintiffs’ Exhibits Nos. 3 and 4 to the testimony of M. C. McDaniel.
MB. BASSETT: Object. .
THE COUBT: I will overrule it. It is just some evidence of before and after. He can state, as the owner, the value before and after.
MB. NIBLOCK: Let the record show my objections, too.
MR. BASSETT: And Mr. McDaniel cannot even testify today, sir, as to what was paid in dollars and cents to have it repaired.
THE COUBT: Well, the value is before and after.
Q. Mr. McDaniel, you testified that the purchase price was $1,050.00 in August of ’66? I will ask you if from your knowledge of the vehicle in question you have any opinion as to the value of the automobile after the collision?
A. After the collision, I took it to the Volkswagen place in Springdale and had them give me an estimate.
THE COUBT: No, just state what, in your opinion, it was worth. Not what they said.
A. A hundred seventy-five dollars.
MR. BASSETT: We also object to that because of the foundation laid.
THE COURT: He said he thought it was worth afterwards. He hasn’t asked what the value was before.
MR. BASSETT: Oh, he asked after?
THE COURT: Yes. $175.00 is what you say it was worth afterwards?
A. Yes, sir.
THE COURT: All right, not who you talked to or anything, what was the value before? Before the wreck, the day before, at the time of the wreck, in your opinion, as owner?
A. Nine fifty.
THE COURT: Nine fifty before and $175.00 after?
A. Yes, sir.
THE COURT: Proceed.
MR. BASSETT: We object, of course, to the Court examining the witness.
THE COURT: Well, I don’t intend to examine him.
MR. BASSETT: I’ll withdraw my objection.”
Under this testimony, we do not agree with appellant’s argument that the repair estimates were the only basis the jury had for making the award of $500 as damage to the McDaniel’s automobile. Mr. McDaniel did testify that he took his automobile to the Volkswagen place in Springdale and obtained an estimate, at this point the record is as follows:
“THE' COURT: No, just state what, in your opinion, it was worth. Not what they said.
A. A hundred seventy-five dollars.”
On cross-examination Mr. McDaniel testified that he went to someone else besides himself in arriving at the after value of $175; that he went to an authorized dealer with it. Mr. McDaniel testified that the value of his automobile before the collision was $950 and that its value after the collision ivas $175. The jury only awarded $500 which amounted to $275 less than Mr. McDaniel testified his property damage amounted to. The court reminded the attorneys throughout the trial that the correct measure of damages was not what it would, or did, cost to repair the automobile, but the difference in the market value of the automobile immediately before and immediately after the collision.
Apparently Judy did not question the items of damage reflected in the repair estimates as having occurred in the collision. The objection went primarily to the fact that the’ automobile had not been repaired under the estimates. After stating the correct rule (with which the trial court agreed) that the measure of damage was the difference in the before and after value of the automobile, the objection then continues:
“MR. BASSETT: * * * We further object on the grounds that improper foundation has been laid, Your Honor, as to the introduction of estimates. There has been no testimony on the part of this man whether the car has been repaired, two, who repaired it, and three, who paid for it. We object for those reasons.”
The amount of the verdict for personal injuries is not questioned in this case and we find nothing in the record that indicates passion or prejudice on the part of the court or jury, or that Judy’s rights were prejudiced by the alleged errors. There is no question that McDaniel’s automobile was damaged in the collision and the extent of the damage is not questioned. There could have been no prejudice in the introduction of the repair estimates because the jury verdict is in excess of either of them. The jury verdict evidently was based upon McDaniel’s opinion as to “before” and “after” values. Even though McDaniel admitted, on cross-examination by the third party defendant, that his opinion was based on information obtained from an automobile dealer, Judy made no objection at the time the testimony was offered and did not ask that the testimony be stricken. He is now in no position to assert the inadmissibility of McDaniels testimony as to the value after the collision.
Finding no reversible error in the record, we conclude that the judgment of the trial court should be, and it hereby is, affirmed.
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John A. Fogleman, Justice.
Appellant asserts that there is reversible error in this eminent domain proceeding because of the denial of its motion for change of venue and because there was no substantial evidence to support the jury’s verdict. We find merit in the second ground for reversal, but not the first.
Appellant’s contention as to the change of venue embraces the same arguments we rejected in Arkansas State Highway Commission v. Duff, 246 Ark. 922, 440 S. W. 2d 563; and Arkansas State Highway Commission v. Leavell, 246 Ark. 1049, 441 S. W. 2d 99. Appellant does state, however that it is not relying upon Ark. Stat. Ann. § 27-701 — 27-704 (Repl. 1962) as a basis for its motion for change of venue. It has long been recognized in Arkansas that these statutes govern all proceedings for change of venue in civil eases. Wise v. Martin, 36 Ark. 305; St. Louis, I. M. & S. R. Co. v. McNamare, 91 Ark. 515, 122 S. W. 102; St. Louis, I. M. & S. R. Co. v. Transmire, 106 Ark. 530, 153 S. W. 817; St. Louis, I. M. & S. R. Co. v. Reilly, 110 Ark. 182, 161 S. W. 1052; Scott v. State, 173 Ark. 625, 292 S. W. 979; Desha v. Independence County Bridge Dist., 176 Ark. 253, 3 S. W. 2d 969. Appellant does not advise, nor do we know, of other governing statutes. Consequently, the holding in the Duff case and the Leavell case applies here. We cannot say that a trial court abused its discretion in failing to grant a motion which is not supported as the applicable statute requires.
We fail to find substantial evidence to support the jury award of $3,600 as just compensation. Harold Ring, one of the appellees, was the only witness who testified that the difference in value between appellees’ 1.4-acre tract before the taking and the residuals of 0.57 acre and 0.15 acre amounted to more than $3,500. Mr. Ring left Morrilton, near which the lands are located, in 1954. In the interval between his removal from Morrilton and the trial, he has resided at West Memphis and Little Rock and has been employed as a driver for Arkansas Best Freight System. Appellees’ attorney admits that this witness was unable to explain the values about which he testified as required by Arkansas State Highway Commission v. Darr, 246 Ark. 204, 437 S. W. 2d 463. Therefore, we must reverse for lack of substantial evidence to support the verdict, and remand for a new trial.
We find ourselves in the identical position as obtained in the Barr case, in spite of appellant’s attack on the testimony of Gene Huett, an expert witness, on behalf of appellee. One of the bases of this attack was that Huett only visually observed the house on the 0.4-acre homesite, did not examine the roof, and did not know the age or area of this house. This point might have been well taken were it not for the fact that the witness testified that the house and homesite were not reduced in value by the taking and assigned the same value to them in determining the value of the remainder as he did in estimating the value of the whole property before 0.68 acre was taken.
Appellant also asserts that Huett’s testimony was not substantial because: (1) he valued the property on a front footage basis without being sure as to the amount of frontage; (2) he failed to take into consideration the plans and specifications for the project in arriving at his values of the residual property; and (3) because he used the sale of lots from the Deerwoocl subdivision and other properties in the same area as a basis for the vame assigned by him to the Ring property outside the homesite.
The burden was upon appellant to show the lack of a reasonable basis for Huett’s testimony. Arkansas State Highway Commission v. Holt, 242 Ark. 287, 413 S. W. 2d 643. We cannot say it successfully did so, upon the record presented here. Huett’s only uncertainty about frontage related to the homesite, and he promptly agreed to or accepted the figure stated by appellant’s counsel. Inasmuch as Huett knew the shapes and sizes of the residual tracts and that they bordered on the relocated highway, we find no significance in the fact that he made no study of appellant’s construction plans. Even though Huett was inexplicably uninformed as to the consideration and terms of the sale of a tract of land cornering on the Ring property, appellant still did not show that the Deerwood Subdivision was highly developed or that there was no basis for comparison of the properties. Huett testified that he had helped develop a subdivision in Morrilton. One of appellees’ witnesses agreed that .city utilities were available to the Ring property. Huett said that the road to the property was passable and that houses were being built along it. He stated that the highest and best use for all of the property before the taking was for residential lots. One of appellant’s witnesses agreed, and the other ascribed a use as undeveloped residential property. One of them admitted that he also considered some sales of lots in arriving at the values assigned by him. We find nothing in the record to show such a lack of comparability of the subject property and the Deerwood property and other lots referred to by Huett to justify declaring his testimony to be without substance.
We have considered the possibility of offering a remittitur in this case but, as heretofore mentioned, are confronted with the same difficulty we found in Arkansas State Highway Commission v. Darr, 246 Ark. 204, 437 S. W. 2d 463. | [
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John A. Fogleman, Justice.
This appeal involves questions pertaining to the application of our statutes on discovery and related pretrial procedures as they relate to the physician-patient privilege. They arose in a personal injury action brought by appellee against appellant. She alleged that her injuries were sustained as a result of the automobile in which she was a passenger having been struck from the rear by a vehicle operated by the appellant on February 25, 1967. Her suit was filed on June 6, 1968. Appellant denied liability and pleaded other defenses. Appellee alleged that by reason of the collision she was caused to suffer severe and permanent injuries to the body generally and the neck and spine in particular.
On October 15, 1968, appellant filed a motion praying that the court, by proper pretrial order, require appellee to elect whether she would call medical witnesses at the trial and, if so, that appellant be permitted to take the deposition of Dr. James T. Robertson and Dr. Paul T. Stroud. The motion was heard by the trial court on the date of its filing. By written stipulation, it was agreed that if the deposition of Dr. James T. Robertson of Memphis, Tennessee, were taken, he would testify that he is a physician specializing in neurosurgery and that appellee was treated by him both before and after February 25, 1967. It was also stipulated that if the deposition of Dr. Paul T. Stroud of Jonesboro were taken he would testify that he is a practicing physician and that he treated appellee subsequent to the incident complained of and had caused X-rays to be made of her on February 27, 1967. It was also stipulated that appellee’s counsel objected to any testimony by either physician as to any observations, treatment, diagnosis or communications on said occasions in the absence of a ruling of the trial court on appellee’s objection. The trial court held that it was without power to grant the relief prayed in the motion.
On October 18, 1968, appellant took the discovery deposition of appellee. 8he admitted on that occasion that Dr. Stroud had treated her for other conditions prior to her injury. She also admitted that she had been treated by Dr. Robertson during the preceding three years and was still under his care. She refused to answer inquiries as to the conditions for which these doctors had previously treated her on the ground of privilege. She also failed to answer and objected to a question asking whether she had ever been told she had arthritis of the spine or neck. Further interrogation was abandoned when appellee’s counsel stated that he was going to instruct her not to answer as to any communication made hy her to any doctor, at any time, including the injury of which she complains and not to answer any question regarding what any doctor may have told her, at any time, relating to any condition from which she might suffer.
On October 24, 1968, appellant filed a motion to require appellee to answer these and other proper questions addressed to her concerning her previous medical condition and treatment. In her response, appellee again asserted her right to refuse to answer any question concerning any treatment administered to her by any physician, or any communication made by her to any physician for the purpose of enabling him to diagnose, prescribe, treat or do any act for her as a physician or surgeon while attending her in a professional character. Appellant also moved that she be required to answer certain inquiries by Dr. Barnett, to whom she had gone for examination upon appellant’s request. The trial court found that the appellee properly refused to answer all these questions because they were within the medical privilege.
Upon the hearing of a motion to require appellant to deliver X-rays taken by Dr. Barnett and exhibited to his deposition for examination and copying, appellee again asserted that she had not waived her claim of privilege.
The case was tried on November 1, 1968. The fourth witness called by appellee was Dr. Paul Stroud, her family physician. He interpreted the X-rays taken by him as showing evidence of existing minor osteoarthritis of the neck. He also found evidence of muscle spasm in appellee’s neck. Dr. Stroud compared the X-rays made by him in February of 1967 with those made by Dr. H. C. Barnett, employed by appellant to examine appellee. By this comparison he found increased and additional evidence of degenerative osteoarthritis of the spine of appellee. He stated that muscle spasm was usually associated with muscle trauma but supposed that one could have it with marked arthritis. He stated that appellee had had headaches both before and after her injury but that she had characterized them as being headaches of different types. He did not recall her having made any complaints of tenderness in the region of the neck or any limitation of motion of her neck prior to this injury. Dr. Stroud stated on direct examination that the symptoms of the appellee, in his opinion, could all be produced by an arthritic syndrome with possibly a little nervous tension or they could all be produced by trauma as a result of the collision. According to him, a myelogram by a neurologist would tend to indicate whether appellee’s symptoms were attributable to the trauma or to arthritic changes. Dr. Stroud had no opinion whether the traumatic experience caused the existing symptoms of appellee either in whole or in part.
Immediately after the direct examination of Dr. Stroud was concluded, appellant moved for a continuance alleging that by reason of previous claims of privilege by the appellee, appellant had been deprived of any opportunity to obtain information as to the condition of appellee at and prior to the time of her alleged injuries and as to any disabilities which she may have suffered at or prior to the time of the collision. He also alleged he had been deprived of any opportunity to make a comparison of X-rays similar to that made by Dr. Stroud. It was asserted that appellant’s counsel was unable to properly cross-examine the medical witnesses of fered by appellee without expert advice and interpretation by a physician and that appellant could not be adequately prepared to defend without information as to appellee’s medical history. Continuance was sought until such time as appellant had been afforded an opportunity to interrogate all physicians who had examined and treated appellee for conditions of which, she complained, to avail himself of expert counsel as to the interpretation of various X-ray pictures offered and to obtain the testimony of expert witnesses in rebuttal of the findings and opinions of physicians offered as witnesses by appellee.
After the motion for continuance was denied, Dr. Stroud testified he had suggested that Mrs. Murphy see Dr. Robertson, a neurologist in Memphis, and ask him-to check the condition of her neck because she was already under his care. Appellee later told him that she had not mentioned the matter to Dr. Robertson and he said, “For God’s sake do it.” He stated that the condition for which he suggested a myelogram is within the field of Dr. Robertson. Dr. John T. Gray, another physician called as a witness by appellee, testified that there was evidence appellee had a preexisting arthritic condition and that it is difficult to say whether the minimal arthritic condition she had would account for a loss of lordotic curve in her neck or whether it would be attributable to trauma. He detected a definite increase in arthritic changes and in calcification during the five months intervening between his examination of appellee. and that of Dr. Barnett. He stated that one might con-, elude that whatever change occurred between these ex-animations was the result of progress of the arthritis and that arthritis is a disease. He did feel that the preexisting arthritis had been aggravated by the accident;.
While- appellee testified that she did not know she had any ..arthritis prior to the accident, she admitted that she had gone to Dr. Robertson and another Memphis physician for headaches. She stated that Dr., Robertson did not make any X-rays of her neck or spine after the accident although he had made some before the accident.
Appellant relies upon the court’s denial of his motion for pretrial discovery of medical evidence, as well as upon the denial of his motion for continuance, for reversal. He strongly urges that we adopt the rule stated in Mathis v. Hilderbrand, 416 P. 2d 8, 21 A. L. R. 3d 907 (Alaska 1966) and State ex rel McNutt v. Keet, Judge, 432 S. W. 2d 597 (Mo. 1968). In those cases it has been held that the filing and maintenance of an action to recover for physical injuries is, in itself, a waiver of the physician-patient privilege to the extent that attending physicians may be required to testify on pretrial deposition and that medical records and information must be disclosed on pretrial. Appellee contends that this very argument has been rejected by this court in Maryland Casualty Company v. Maloney, 119 Ark. 434, 178 S. W. 387. We agree with appellee in this argument. The Maloney case was cited with approval and followed in American Republic Life Insurance Company v. Edenfield, 228 Ark. 93, 306 S. W. 2d 321. We do not feel that the discovery and pretrial statutes are in such conflict with the decisions in those cases that we should depart from the rule therein stated.
Appellant argues, however, that these statutes permit the trial court to require a plaintiff in an action such as this to state whether or not medical evidence will be offered and thereupon to permit discovery of such evidence by the defendant. Our discovery statutes [Ark. Stat. Ann. §§ 28-348 — 28-359 (Bepl. 1962)] are based on the Federal Buies of Civil Procedure on Deposition and Discovery (Buies 26-37). In most particulars the statutes are verbatim copies of the rules. The pretrial conference statutes [Ark. Stat. Ann. §§ 27-2401— 27-2403 (Bepl. 1962)] were patterned after Federal Buie of Civil Procedure 16. This court has long recognized the salutary purposes of discovery procedures and the applicability of the principle of liberal construction of the act to accomplish those purposes. In Arkansas State Highway Commission v. Stanley, 234 Ark. 428, 353 S. W. 2d 173, 4 A. L. R. 3d 749, we said:
“The language of this statute was taken verbatim from Federal Rule 34. It follows that our legislature, in adopting the wording of the federal rule, also adopted the principle of liberal construction that had been announced in the leading case of Hickman v. Taylor, 329 U. S. 495, 91 L. Ed. 451, 67 S. Ct. 385: ‘We agree, of course, that the deposition-discovery rules are to be accorded a broad and liberal treatment. No longer can the time-honored cry of “fishing expedition” serve to preclude a party from inquiring into the facts underlying his opponent’s case. Mutual knowledge of all the relevant facts gathered by both parties is essential to proper litigation. To that end, either party may compel the other to disgorge whatever facts he has in his possession.’ ”
In Widmer v. Ft. Smith Vehicle and Machinery Corporation, 244 Ark. 626, 427 S. W. 2d 186, we said:
“It should not be necessary to point out that the discovery statutes were intended to assist in clarifying the issues in a law suit and help eliminate the elements of surprise and resulting delay in reaching a fair and impartial result at the trial of a law suit on its merits.”
This court has long recognized that a litigant may be required to disclose the names of persons having knowledge of material facts in issue. Dritt v. Morris, 235 Ark. 40, 357 S. W. 2d 13. When circumstances are such that justice requires it, a party may be under a duty to disclose the identity of witnesses he expects to call. See King v. Carden, 229 Ark. 929, 319 S. W. 2d 214.
We find certain language of the Supreme Court of Washington particularly appropriate in this situation. It said:
“We would agree that whenever it does become apparent that the plaintiff must decide in favor of waiver, then that waiver should not be delayed until the trial itself. The plaintiff should not have the unfair tactical advantage of a trial waiver which almost invariably results in a continuance and, frequently, in the dismissal of the action and another trial.
Certainly, at some stage in the pretrial proceedings, the plaintiff must decide whether he is going to call his treating physician or physicians, and, if he is, then the defendant is entitled to know it in time to take the deposition of such physician or physicians and prepare to meet their testimony.
* * * The federal courts, operating under identical rules, seem to have had little difficulty in accelerating the waiver of privilege on a case-to-case basis without the necessity of a blanket waiver.
* * * In other federal cases, the trial court has compelled, upon request, the delivery of a list of the witnesses (together Avith their addresses) to be offered on the trial. * * * The presence of his treating physician on the plaintiff’s list of Avitnesses is regarded as evidencing his intent to waive the privilege and may subject the physician to deposition. Tf the plaintiff desires to prevent the deposition being taken, or to limit its scope, he has the burden of convincing the trial court that the deposition should not be taken or to show good cause for such limitation.
"We can see no reason why our trial courts, exercising the same broad discretion, should not treat a plaintiff’s inclusion of his treating physician among his list of intended witnesses at trial as indicating his intent to waive his privilege. Such an apparent accelerated waiver could then enable the defense to utilize the full range of pretrial discovery procedures as to the treating physicians named and to the same extent and subject to the same controls as would govern discovery after waiver at trial.” Phipps v. Sasser, Wash., 445 P. 2d 624 (1968).
Even though the Washington court ultimately concluded that in the particular cases before them there was not a sufficient showing to justify the taking of the depositions of the injured parties’ treating physicians, in those cases the defendants in personal injury actions had undertaken to take the depositions of the physicians without any application to the trial court and without asking any disclosure of the identity of the witnesses for the injured parties. This result in no way dilutes the strength of the statement that the inclusion of a treating physician among the list of a party’s intended witnesses could be taken to indicate the intent to waive the privilege.
Mfe think that the motion made by appellant in this case was not as broad as it might have been. Regardless of whether the circumstances here were such as to have justified requiring appellee to disclose the names of all of the witnesses she intended to use, we think that she could properly have been required to state the names of any medical witnesses she expected to call. This motion simply asked that she be required to state whether she proposed to call any physician as a witness on her behalf. This was clearly within the range of permissible discovery and would have, at an appropriate stage in the proceedings, informed the court and the opposing party whether or not appellee intended to rely upon, or waive, her claim of privilege. The failure of the court to require appellee to do so was certainly prejudicial to appellant in the preparation of his defense.
Tt is widely recognized in the decisions of the courts of other jurisdictions that circumstances such as developed here would inevitably require a continuance or a mistrial when a plaintiff had consistently invoked the privilege until the actual calling of a physician in the course of a trial. See State ex rel McNutt v. Keet, Judge, 432 S. W. 2d 597 (Mo. 1968); Mathis v. Hilderbrand, 416 P. 2d 8, 21 A. L. R. 3d 907 (Alaska 1966); Phipps v. Sasser, supra; Awtry v. United States, 27 F. R. D. 399 (D. C. N. Y. 1961). The very situation which arose in the trial is that sought to be avoided through the use of pretrial procedures. We have no hesitation in holding that the trial court did have the power to grant the motion of appellant. Its failure to do so constitutes reversible error. We do not intend to say that there is no situation in which an injured party could show cause why he should not be required to make an election as to the exercise of his privilege. We do say that there was no such showing in this case.
In view of the position we take on the first point for reversal, it seems unlikely that other points asserted by appellant will arise upon a new trial of this case ■ — at least in the same background in which they arose on the first trial. The one exception is the assertion that it was error to permit appellee to offer evidence of the difference in market value of the automobile before and after the collision in which appellee was injured. The theory upon which this evidence was offered was that it was admissible for the purpose of showing the force of the impact. We do not see how this particular evidence could be admissible for that purpose. It is true that we have held that a repair bill is admissible in evidence for the purpose of showing the force of the impact in an automobile collision; however, the difference in market value could scarcely be considered to be a measure of the force of an impact. We do not consider the introduction of this evidence in the first trial as prejudicial error, because there was detailed testimony as to the parts of the vehicle damaged and the parts repaired and an admission by the witness through whom the testimony was offered that the vehicle could have been repaired more cheaply than his statement as to the difference in market value.
The judgment is reversed and the cause remanded for a new trial.
For example see: Burlage v. Haudenshield, 42 F. R. D. 397 (D. C. Ia. 1967); Greene v. Sears Roebuck & Company, 40 F. R. D. 14 (D. C. Ohio 1966); Awtry v. United States, 27 F. R. D. 399 (D. C. N. Y. 1961); Mariner v. Great Lakes Dredge & Dock Company, 202 F. Supp. 430 (D. C. Ohio 1962). (Footnote ours.) | [
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Carleton Harris, Chief Justice.
James Friar, appellee herein, is a common laborer with a background of steady employment until October 29, 1963, when his right hand was mutilated in a saw-type apparatus while employed by appellant, Southern Cotton Oil Company. It subsequently became necessary that the hand be amputated, and this was done on May 30, 1964. The company paid appellee’s medical and hospital expenses, paid for his prosthesis, and 40 weeks’ compensation during the healing period. Thereafter, Friar applied to the commission for the payment of a total of 150 weeks of compensation in two lump sum payments, and, with the written consent of appellant, the commission approved the two payments, the last of which was made on October 16, 1964. On November 3, 1967, appellee filed a claim for additional compensation, seeking total and permanent disability, additional medical treatment, and an attorney’s fee based on all sums awarded. This claim was controverted by the company, appellant taking the position that a joint settlement had been entered into between the parties, and claimant was accordingly barred from making any further claim. The company was also of the view .that, at any rate, Friar’s claim was barred by the statute of limitations, since the claim was not filed until more than two years after the last lump sum payment was made on October 20, 1964. The claim was heard by a referee who held that the two lump sum applications filed by the parties did not constitute a joint petition within the meaning of the "Workmen’s Compensation Act, and who further held that Friar had until July 12, 1968, to file for additional benefits, and the claim accordingly was not barred. It was ordered that the company offer medical treatment to claimant for the removal of a neuroma on the stump of the right arm, and for the fitting of the prosthesis that had already been purchased by the company (but could not be used after the appearance of the neuroma ). This was the extent of the award, and appellee appealed to the full commission. On hearing, the commission agreed with the referee that the lump sum payments did not constitute a joint petition settlement, and that the filing of the claim was not barred by the statute of limitations. The commission held that, as long as Friar was disabled with a curable neuroma on the stump of his right arm caused by the injury or the surgical amputation, the healing period had not ended, and it found that he had been totally disabled from the performance of any available work for which he was fitted. Thereupon the commission directed as follows:
“Beginning on October 30, 1963, and continuing subject to the limitations and provisions of the Arkansas Workmen’s Compensation Law, respondent shall pay claimant compensation at the rate of $35.00 per week until the further order of this commission, but shall take credit for compensation for 190 weeks already paid claimant. All compensation which has already accrued shall be paid in one lump sum, and all compensation which had accrued on March 20, 1968, the date of the filing of the referee’s award, shall bear interest from that date until paid at the rate of six per cent per annum, and all compensation accruing since said date shall bear interest at the rate of six per cent per annum from the date of accrual until paid.”
In addition, the company was directed to make arrangements with Dr. H. Austin Grimes of Little Rock for the further treatment of Friar’s right arm, and appellant was required to furnish reasonable hospitalization services for and during the period of claimant’s treatment. It was then directed that, after the arm had healed, the company should furnish a suitable prosthesis, and provide for the fitting of same. The commission stated that it would then hear further evidence on the question of Friar’s permanent disability, if any. This award was appealed to the Jackson County Circuit Court, which affirmed the commission. From the judgment so entered, appellant brings this appeal. Two points are relied upon for reversal, viz, first, “The appellee’s claim for additional compensation is barred by the statute of limitations.” Secondly, “There is not sufficient competent evidence in the record to warrant the .award of temporary total disability from October 29, 1963.” We proceed to a discussion of these contentions.
Let it first be said that the question of whether the two “lump sum settlements” constituted a “joint petition ” is no longer at issue in this case, appellant not arguing this contention in its brief, and stating in open court that it no longer relies upon that assertion. The principal question before us is, where a lump sum payment is made, whether the statute of limitations commences to run from the date of that payment, or whether it does not commence until the date the last payment of compensation would have been due, had the payments been made only as they accrued. We have, after a thorough study of this issue, concluded that the statute only commences at the date the last payment would have been due if the compensation had been paid in installments, and we are accordingly of the opinion that the commission and the Jackson County Circuit Court decided this question correctly for the reasons hereafter set out, and the trial court should he affirmed.
The statute in issue is Ark. Stat. Ann. § 81-1318(h) (Repl. 1960), and reads as follows:
“In cases where compensation for disability has been paid on account of injury, a claim for additional compensation shall be barred unless filed with the Commission within one [1] year from the date of the last payment of compensation, or two [2] years from the date of accident, which ever is greater.”
This is a case of first impression in this state, and research discloses that the courts of other jurisdictions have differed in their answer to the question presented. In 165 A. L. R. there is a discussion at Page 59, as follows :
“In order to determine whether an application for review, reopening, modification, or reinstatement has been filed within the time limits prescribed in the local law, it frequently is necessary to ascertain preliminarily what the date or time was when compensation was last previously paid. The only generalization warranted by the authorities (different statutes and different fact situations being involved in the decided cases) is that an effort is made to construe the statutes liberally, but without doing violence to their plain import and purview, in determining upon what date the last previous payment of compensation was made.
“In determining the date of the last previous payment of compensation, it has been held that the period of limitation which starts to run from the date of ‘last payment of compensation’ runs from the date when such a last payment actually was due, and that a review application will not be barred where it was made within the statutory period following that date, notwithstanding that payment itself was actually made by check in advance of the due date. But it has been held conversely, although consistently with the previous holding, that the actual date of the last payment will be controlling to determine the commencement of the running of the period, where payments which were due are made belatedly. The period starts to run from the date when the last period actually was made, not from the date when such payment would have been made had the payments been made regularly from the date of the accident.
* • *
“It sometimes happens that compensation which was being paid in weekly or similar installments is commuted and paid in a lump sum. As a physical actuality, in such a case the injured employee receives the ‘last’ payment of compensation very much earlier than he would have received it had the compensation continued to be paid in installments. It is then sometimes contended that the statutory period for review started to run from the time the commuted payment would have been made had there been no commutation. Although the au thorities are not in complete agreement, most of the courts which have passed on this question have held that where compensation is commutated and paid in a lump sum, payment so made at the time of commutation does not constitute a ‘last’ payment so as to start the running of the statutory period within which review may be sought; the statutory period, in such a case, does not run .against a review application until the time when the payments on the original award or agreement would have run out had they continued to have been paid in installments. As ,a reason for such rule, it has been pointed out that commutation does not in and of itself affect the merits as to whether in a particular case further compensation may or may not be attempted to be secured, but constitutes nothing more nor less than an advance payment.”
We have held that the Workmen’s Compensation Act is to be liberally construed.
Let it be remembered that the lump sum payment is not an advantage to the claimant; in making this settlement, the company is not mistreated in any manner. The lump sum settlement is frequently of benefit to all parties. The claimant receives the cash, and is .able to pay bills which may have accumulated during his absence from work, and the company receives the benefit of a 4% discount when the accrued compensation is paid in a lump sum.“ Were .appellant’s view to be adopted by this court, tbe employer would receive an additional benefit, i. e., the statute of limitations would be shortened.
Both appellant and appellee cite the case of Phillips v. Bray, 234 Ark. 190, 351 S. W. 2d 147. If the case can be said to be of aid to either party, it would appear that the language is favorable to appellee. In Phillips, a lump sum payment of $1,406.25 w,as paid to claimant by the insurer on December 12, 1958, this amount covering periodic installments which had already accrued. On January 18, 1960, claimant filed a claim for total permanent disability. The employer contended that the claim was barred by the statute presently under discussion, inasmuch as such claim was not filed within one year from the date of the last payment (the lump sum payment of December 12, 1958). We held that the claim was barred; however, we made specific mention of the fact that the lump sum payment was for accrued installments “and not for future accruals.” One of the justices dissented on the basis that the record did not make clear that the $1,406.25 payment was to take care of payments which had already accrued, rather than future accruals.
Appellant relies to a great extent upon our case of Jones Furniture Manufacturing Company et al v. Evans, 244 Ark. 242, 424 S. W. 2d 880, and, at first blush, it might appear that the case is strong support for appellant’s position. Jones did not involve a lump sum settlement. There, claimant was given an award of compensation for an injury received on May 13, 1964. On June 16, 1966, the claimant filed for additional compensation as a result of the May, 1964, injury and again received an award of compensation from the commission. The last installment of the original award had been due on June 4, 1965. The company made this payment, but was late in making it, the payment actually being made on June 17, 1965. Appellant appealed the commission award based on the June 16 claim to this court, contending that the claim was barred by the statute of limitations since it had not been filed within one year of the due date of the last payment, June 1, 1965. The claimant contended that his claim was filed in time, since it was filed less than one year (by one day) after the last payment had actually been made.
We have given considerable thought to the holding in Jones, realizing that in affirming the case now before us, it could perhaps appear offhand (though it is not argued by appellant) that this court, under the same circumstances, has held both that the statute commences to run at the time the last payment is actually made (as in Jones), and contrariwise, that the statute does not begin to run until the payment becomes due. It might thus appear that the claimant could prevail under either set of circumstances, and it goes without saying that such a result would seem grossly unfair to an employer. But a look at the facts in Jones makes it clear that that case was correctly decided, and is not, in any way, in conflict with the present holding. In the New Jersey case of Bucci v. Kirkpatrick Construction Company, 166 A. 203, the same factual situation arose, the only difference being that Bucci was not decided until after the New Jersey Supreme Court had held that in cases of advance settlements the statute did not commence to run until the due date of the final installment. In Bucci, the court said:
“It will be seen immediately that the present petition was filed more than a year after the date when the previous compensation payments would have expired had they been regularly paid since the accident, but less than a year from the time the compensation settlement award was made, after which date, of course, the last payments were made in fact. Respondents thereupon rely upon Harris v. International Motor Company, supra. There the employer had made payment before it came due. Counting the year from the date of the last payment in fact, the filing of the petition considered in the Harris Case was out of time. But, counting the year from the date the last payment should have been made, the petition was filed within time. The statute there considered, P. L. 1918, chap. 149 § 5, similarly provided for the filing of the petition ‘within one year after the last payment of compensation.’ The court there liberally construed the statute to hold the petition to be filed within time.
“Respondent in the case at bar accordingly argues that the converse should apply; i. e., that where an employer has made payment, not too soon but belatedly, the period should be counted, as in the Harris Case, from the time it should have been paid, not from the time it was paid in fact. But the present situation differs radically in law and common fairness from that in the Harris Case. There the court liberally interpreted the words of the statute to meet a situation where the parties had acted contrary to the ordinary course of human events, in making payment before the due date, a situation which it was hardly to be expected that the words of the statute would clearly cover. Here, on the contrary, the employer has not made payment steadily since the accident, as it has now been found he should have done, bnt has made same only after being required by the court to do so, a very normal situation. To this situation the words of the statute directly apply, that the period shall be counted as starting from ‘the last payment of compensation.’ To apply the statute in the manner contended by the respondent would permit the employer by adroit adjournment, and failure to do what it is notv found he should have done, to bar petitioner of his statutory rights, in the very face of the words of the statute, a result repugnant to every principle of justice.”
We think the position of the New Jersey court was sound and logical. Certainly, to permit an employer or its insurance carrier to make a late payment, i. e., subsequent to the due date of the final payment, and then rely on that fact to bar claimant, would be permitting one to profit by his, or its, own wrong, and might well encourage companies to make late payments as an additional aid in invoking the statute of limitations. It is thus seen that there is really no conflict between the ruling in Jones Furniture Company v. Evans, supra, and the holding in the present case, for, if the payment in Jones had been made when it was due, instead of 13 days late, the claimant would have been barred under our statute of limitations.
In Phillips v. Bray, supra, we said:
* * It seems perfectly obvious that the primary purpose of the one-year statute of limitations is to give the claimant that much extra time in which to decide whether he has been fully compensated for his injury, # * * J ?
That being true, it would not appear that it was the intent of the General Assembly, in passing this act, to cut off the one-year period which is .allowed the claimant to make this determination. We hold that the claim was not barred by the statute of limitations.
As far as this record is concerned, we do not feel that the evidence is sufficient to enable us to pass on the question of whether the award of temporary total disability from October 29, 1963, should be upheld. In June, 1964, Dr. Grimes, by letter, stated that, following the date of surgery in May, 1964, the post-operative course was uneventful. He said that the stump was well healed, and had satisfactorily shrunk to allow fitting for an upper extremity prosthesis. However, in December, 1967, Grimes made a report, stating that Friar continued to have pain over the wrist stump, and observing that there was a need for revision of the stump (because of a neuroma formation) in order to allow the utilization of a prosthesis. Friar testified that he had been unable to obtain employment since the accident, and he mentioned applications that had been made at several places. He testified that he was unable to wear the hook (because of the neuroma), and accordingly had only one hand to use in his work. The evidence reflected that claimant had a fourth grade education, and the only work that he had ever performed was common labor. There was no evidence offered that claimant could have obtained work, and it seemed certain that he did not have the use of but one hand. However, as stated by Commissioner Oliver Wendell Holmes in a dissenting opinion as to Point 2, there is no evidence that the neuroma discovered by Dr. Grimes in December, 1967, had been in existence all during the period following the accident. And, as stated by Commissioner Holmes, it is not at all clear why Friar waited more than three years to seek additional medical attention.
We think this phase of the case should be more fully developed, .and the case is reversed as to Point Two and remanded to the Jackson County Circuit Court, with directions to remand same to the Workmen’s Compensation Commission for further proof on the question of when the present disability commenced, i. e-, when the neuroma discovered by Dr. Grimes in December, 1967, first evidenced itself.
It is so ordered.
A tumor arising from nerve tissue.
The commission said:
“This neuroma has prevented claimant from the use of the prosthesis, and considering his age, occupational experience, lack of education, lack of skill in any occupation except physical • manual labor, the unavailability of employment for a person of his qualification and condition, and the fact that he has not been able to use his right arm, we are led to the conclusion that during this period of time he has been totally disabled from the performance of any available work for which he is fitted.”
See Ark. Stat. Ann. § 81-1319 (k) (Repl. 1960).
See Ark. Stat. Ann. § 81-1319(1) (Repl. 1960). See also Brooks v. Arkansas-Best Freight System, Inc. Employer; Adrian L. Ferguson v. Arkansas-Best Freight System, Inc., Employer, handed down Sept. 2, 1969.
This word is obviously a misprint, and should be “payment.”
Our research reveals cases from six states which have passed upon this question, New York, Pennsylvania, and New Jersey holding in the manner, cited in this annotation as the majority rule, while Florida, North Carolina, and Maryland have held to the contrary.
Boyd Excelsior Fuel Company v. McKown, 226 Ark. 174, 288 S. W. 2d 614; Reynolds Metal Company v. Brumley, 226 Ark. 388, 290 S. W. 2d 211; and cases cited therein.
Even if reduction of the installment payments to present value is not a benefit to the company, it is still relieved of the burdensome clerical work and bookkeeping attendant upon making numerous payments.
Emphasis supplied.
This case was decided by the Court of Common Pleas of New Jersey, and is referred to in the ALR annotation previously mentioned in the present opinion.
In Harris v. International Motor Company, 153 A. 97, the final installment of the compensation due the claimant was paid in advance of the due date, but the Supreme Court of New Jersey held that the phrase in the statute, “within one year after last payment of compensation,” authorized the injured claimant to file petition for further compensation within a year after the last payment of compensation was due, rather than when it was actually made. This holding has been reiterated several times, the last case we have found being Roberts v. All American Engineering Com pany, 248 A. 2d 280 (Nov. 1968). In this case the court comments that the period of limitations does not commence to run, though a lump sum payment had previously been made, until the last payment would have been due had it been paid by installments. The present New Jersey statute provides a two-year statute of limitations.
Emphasis supplied.
Ark. Stat. Ann. § 81-1319 (h) (Kepi. 1960), by requiring notice to the commission of final payment within 30 days points up the significance of prompt payment in relation to the statute of limitations. This notice permits the commission to see that the rights of the claimant have been protected. | [
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John A. Fogleman, Justice.
Appellee recovered judgment for $30,000 upon a jury verdict against appellant in an action based on the alleged negligence of appellant, a physician, in treating her and administering medication during an illness. Appellant relies upon three points for reversal. They are: failure to direct a verdict for appellant; error in admission into evidence of records of the Probate Court of Phillips County in a proceeding involving alleged incompetency of appellant; and error in the court’s refusal to give AMI 1501 requested by appellant. We find reversible error in the last two points but not the first.
During the presentation of evidence in chief on behalf of appellee, the court, over the objections of appellant, admitted into evidence records of the Probate Court of Phillips County in a proceeding entitled “In the Matter of Dr. R. L. Chrestman, Jr., an Insane Person No. A-989.” This record included the following:
1. Affidavit of Mrs. Grace S. Chrestman and R. L. Chrestman on a printed form alleging that appellant was, to the best of their belief, insane, and that he ought to be committed to an insane asylum for care and treatment, as his being at large was dangerous to the community, or prejudicial to his chances of recovering from present condition of mental disorder. This affidavit was dated February 27, 1967, the same day appellee was released from a hospital in which she had been treated under the supervision of Dr. Chrestman.
2. The answers of Dr. M. H. Oldham to interrogatories in said proceeding given on a form on which the questions were printed, and verified by oath on the date of the petition. In his answers Dr. Oldham stated that during the last two years appellant was progressively agitated, high-strung and easy to antagonize. In answer to an inquiry as to the first symptoms which caused suspicion of mental derangement, Dr. Oldham answered, “agitated, high-strung, bel ligerent — came to drink more and more for sedation. ’ ’ He described the more prominent manifestations as “split personality — schizophrenia —.alcoholic.” This doctor stated that appellant was considered of more than ordinary intelligence by his neighbors or acquaintances. He related that Dr. Chrestman had indulged in the use of intoxicating liquors to excess and that his appetite for tobacco, opium, morphine, laudanum or other drugs was questionable. He also stated that appellant had hallucinations of brain tumor, and had been checked by .a neuro-surgeon but that he had no brain tumor or brain pathology-
3. A similar affidavit by Dr. Charles P. McCarty, sworn to on the same date, was of the same ten- or as that of Dr. Oldham.
4. The order of the Probate Court entered on February 27, 1967, committing appellant to the custody of the Sheriff of Phillips County to be conveyed to the State Hospital for Nervous Diseases at Little Rock to be confined until discharged by due course of law. The order was based upon the depositions of the two physicians from which the court made a finding that appellant was insane as stated in the affidavit of Grace S. .and R. L. Chrestman.
5. The report of the Superintendent of the Arkansas State Hospital in conformance with Act 495 of 1965 made to the Probate Judge on March 10, 1967, stating that appellant was discharged as without psychosis and that his condition was improved.
6. Order of the Probate Court entered March 23, 1967, to be effective as of March 8, 1967, declaring appellant to be completely sane, capable of handling his own affairs, removing his disabilities and restoring his complete competency.
Objections to the introduction of these records were made on the ground that they were irrelevant, hearsay, and statements of opinions. Objection was made to the statements or depositions of the physicians and to the affidavit of the Chrestmans on the basis that appellant had no opportunity to cross-examine the persons making these statements. Appellant also objected to the offer of this evidence on the basis that there had been no showing that the persons making these statements were unavailable to testify or that appellee had made diligent effort to obtain their attendance to testify in person. Further objection was made to the Probate Court order committing appellant on the ground that it was entered in a cause to which appellee was not a party and without any hearing being afforded to Dr. Chrestman or any opportunity for him to present evidence or cross-examine witnesses upon whose statements the order was based. We find these objections to be well taken.
The affidavit by the Chrestmans could not have been admissible. It was a statement of the opinion of nonexpert witnesses as to the sanity of appellant without any statement of facts upon which they based their opinion and without showing that they were qualified to express such an opinion. Hankins v. State, 133 Ark. 38, 201 S. W. 832, L. R. A. 1918D 784.
The best that could possibly be said for the entire transcript is that it is secondary evidence of the facts therein stated. This type of evidence is admissible in the same case, or in a case involving the same issues between the same parties, when: (1) the witness who testified in the original proceeding is bevond the jurisdiction of the court or otherwise unavailable without the connivance of the party offering the testimony; and (2) his deposition could not have been obtained by the exercise of reasonable diligence; and (3) the adverse party had an opportunity to cross-examine when the original testimony was given. See McTighe v. Herman. 42 Ark. 285; Pine Bluff Co. v. Bobbitt, 174 Ark. 41, 294 S. W. 1002; Ark. Stat. Ann. § 28-713 (Repl. 1962).
In this case, both Dr. Oldham and Dr. McCarty were obviously within the jurisdiction of the court, as they were called as witnesses on behalf of appellant. Singularly enough, appellee did not examine either physician on the matter contained in his affidavit in the probate court proceeding. Since the affidavits were ex parte and there is no indication that Dr. Chrestman appeared in, or had notice of the probate proceeding, he certainly had no opportunity to cross-examine these witnesses in that proceeding.
The answers to interrogatories were not admissible because Mrs. Kendall was not a party to the proceedings, the doctors were within the' jurisdiction of the court, appellant did not have any opportunity to cross-examine these deponents, and the issues in this case were different. In this respect this case is similar to, and governed by, the decision in Hammond v. Peden, 224 Ark. 1053, 278 S. W. 2d 96. There we held that the complaint and depositions in a divorce proceeding were not admissible in an alienation of affections action by the husband. The reasons given were that collateral issues would have been raised which would only have called for the introduction of further testimony, and the parties and the cause of action were different. See also Conine v. Mize, 189 Ark. 92, 70 S. W. 2d 845.
The entire transcript of the probate court proceed ings actually was inadmissible because it was offered in an entirely different proceeding relating to an entirely different cause of action. Merrell v. Smith, 228 Ark. 167, 306 S. W. 2d 700. The adjudication of insanity itself might well have been admissible in evidence as a circumstance tending to make the issue as to the appellant’s nonperformance of his duty to his patient more probable but for two infirmities. The first, and perhaps more important of these, is that the probate court order was made subsequent to any act constituting any part of appellant’s treatment of appellee, and would not have shown his insanity during the course of treatment, even if that were an issue in this case. Shell v. Sheets. 202 Ark. 708, 152 S. W. 2d 301; Shores-Mueller Co. v. Palmer, 141 Ark. 64, 216 S. W. 295. Secondly, the record of the probate court proceeding indicates that the adjudication order was made without .appellant’s being present or having had notice. Rose v. Rose, 229 Ark. 899, 318 S. W. 2d 818. In view of these factors and the further fact that the superintendent of the state hospital discharged appellant and certified that he was without psychosis and was improved only nine days after the order was made, this order should not have been admitted into evidence.
Over the objections of appellant, the circuit judge gave AMI 301 instead of AMI 1501 offered by appellant. A reading of the allegations of the complaint and a review of the evidence presented shows that appellee was contending that appellant failed to use proper care and skill and was careless and negligent in administering a drug continuously for 18 days in excessive dosages without following proper procedures or taking proper precautions to avoid the deafness of appellee which resulted. This contention clearly called for the giving of AMI 1501 in its entirety. Walls v. Boyett, 216 Ark. 541, 226 S. W. 2d 552; Dunman v. Raney, 118 Ark. 337, 176 S. W. 339. The second paragraph of that instruction was necessary because the duty in issue can certainly not be said to be a matter of common knowledge. Lanier v. Trammell, 207 Ark. 372, 180 S. W. 2d 818; Gray v. McDermott, 188 Ark. 1, 64 S. W. 2d 94.
Appellee contends that this instruction was unnecessary because causation and the propensities of the drug are not questioned, relying on Lanier v. Trammell, supra. But in that case, it was established withoqt controversy that the surgeon should have washed his hands and sterilized his instruments before commencing his operation on the plaintiff. The only issue was whether he did so. "We said that no amount of medical testimony would have thrown any light on this issue. Here, the testimony is controverted, to say the least, as to what, under the circumstances relating to the patient’s condition, were proper procedures and precautions. Consequently, medical testimony was necessary as lay witnesses could not be expected to have, and the knowledge and experience of jurors could not be expected to encompass, this information.
Appellant moved for a directed verdict at the conclusion of appellee’s proof and again at the conclusion of all the evidence. Since appellant offered evidence after his first motion was denied, it was waived and we can only consider the second motion. American Physicians Insurance Company v. Hruska, 244 Ark. 1176, 428 S. W. 2d 622. It was shown that the doctor’s only source of information about the effects of the drug and its proper use was information furnished by the manufacturer, that he was familiar with recommendations in the Physician’s Book of Drugs as to periodic kidney function tests during the administration of the drug and that he failed to give the tests recommended. Even if these facts were not alone sufficient to establish a fact issue, they were when coupled with the testimony of various physicians.
Dr. Evans refused to answer a hypothetical question about standards of practice in Helena, but he gave his opinion that the dosage administered was excessive. Dr. Shea stated that the manufacturer’s directions and warnings in administering drugs should he as carefully followed as is consistent with the need for the drug. Dr. Faulkner, a Helena physician, testified that he would have continued urinalyses all during Mrs. Kendall’s hospitalization rather than discontinuing them several days prior to suspension of the administration of the drug. He attributed her deafness to prolonged and excessive use of the drug, even though he said he would have given more of the drug than she got, because her infection seemed to require excessive dosages. Dr. Kurts, another Helena physician, stated that the patient was treated properly but indicated that he would have ordered another culture later than that ordered by appellant. Dr. McCarty also thought that appellee was cared for properly, but felt that he might have given another urinalysis later than the last one ordered by appellant. Dr. Kirkman, still another Helena physician, stated an opinion based on a hypothetical question that the treatment met the standards of the medical profession in the community, but stated that he possibly would have given tests in addition to those given, even though he could not say that they were necessary.
There was no error in refusing to direct a verdict.
For the errors indicated, the judgment is reversed and the case remanded for a new trial.
We have an entirely different situation from that which obtained in George v. Davie, 201 Ark. 470, 145 S. W. 2d 729, relied upon by appellee. That action was against the estate of a deceased maker of a note. His testimony in his own bankruptcy proceeding with regard to the note was offered. The issues involved were the same in the two matters. The witness was subjected to cross-examination by an attorney representing the holder of the note in a hearing upon the identical issue in the bankruptcy court. | [
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J. Fred Jones, Justice.
This is an appeal by Herndon Harris from a summary judgment in favor of Southern Farm Bureau Casualty Insurance Company entered by the Washington County Circuit Court in a suit by Harris against Southern Farm on an uninsured motorist policy. The question presented is whether Harris can recover from Southern Farm on a policy issued to him and also recover on a policy issued to the owner of a vehicle he was driving.
While Harris was driving a pickup truck owned by Bartholomew he was injured in a collision caused by the negligence of Browning, an uninsured motorist. Southern Farm had issued an uninsured motorist policy to Harris with maximum coverage of $10,000, and Truck Insurance Exchange had issued a similar policy with a similar maximum coverage to Bartholomew. The injuries sustained hy Harris resulted in damage in excess of $20,000, or the combined maximum coverage of both policies. Truck Insurance Exchange paid its maximum coverage of $10,000 and Harris sued Southern Farm for $10,000. Southern Farm denied liability under the ‘ ‘ other insurance” provisions of its policy providing as follows:
“With respect to bodily injury to an Insured while occupying an automobile not owned by a Named Insured under this endorsement, the insurance hereunder shall apply only as excess insurance over any other similar insurance available to such occupant, and this insurance shall then apply only in the amount by which the applicable limit of liability of this endorsement exceeds the sum of the applicable limits of liability of all such other insurance.
With respect to bodily injury to an Insured while occupying or through being struck by an uninsured automobile, if such Insured is a Named Insured under other similar insurance available to him, then the damages shall be deemed not to exceed the higher of the applicable limits of liability of this insurance and such other insurance, and the Company shall not be liable under this endorsement for a greater proportion of the applicable limit of liability'of this endorsement than such limit bears to the sum of the applicable limits of liability of this insurance and such other insurance.
Subject to the foregoing paragraphs, if the Insured has other similar insurance available to him against a loss covered by this endorsement, the Company shall not be liable under this endorsement for a greater proportion of such loss than the applicable limit of liability hereunder bears to the total applicable limits of liability of all valid and collectible insurance against such loss,”
•The trial court granted Southern Farm’s motion for summary judgment and Harris relies on the following point for reversal:
“The ‘other insurance’ clause in appellee’s policy is contradictory to the provisions of Ark. Stats. 66-4003 et seq. and is also void as against public policy.”
Ark. Stat. Ann. § 66-4003 (Repl. 1966) provides as follows:
“No automobile liability insurance, covering liability arising out of the ownership, maintenance, or use of any motor vehicle shall be delivered or issued for delivery in this State with respect to any motor vehicle registered or principally garaged in this State unless coverage is provided therein or supplemental thereto, in not less than limits described in Section 27 of Act 347 of 1953 [§ 75-1427], as amended, under provisions filed with and approved by the Insurance Commissioner, for the protection of persons insured thereunder who are legally entitled to recover damages from owners or operators of uninsured motor vehicles because of bodily injury, sickness or disease, including death,resulting therefrom; provided, however, that the coverage required under this section shall not be applicable where any insured named ih the policy shall reject the coverage.”
Ark. Stat. Ann. § 75-1427 (Supp. 1967), as amended, reads as follows:
“No policy or bond shall be effective under Section 26 [§ 75-1426] unless issued by an insurance com pany or surety company authorized to do business in this State, except as provided in subdivision b of this section, nor unless such policy or bond is subject, if the accident has resulted in bodily injury or death, to a limit, exclusive of interest and costs, of not less than $10,000 because of bodily injury to or death of one (1) person in any one (1) accident and subject to said limit for one (1) person, to a limit of not less than $20,000 because of bodily injury to or death of two (2) or more persons in any one (1) accident, and if the accident has resulted in injury to, or destruction of property, to a limit of not less than $5,000 because of injury to or destruction of property of others in any one (1) accident.”
We agree with the appellee that this case is controlled by our decision in M. F. A. Mutual Ins. Co. v. Wallace, 245 Ark. 230, 431 S. W. 2d 742. We fully disposed of the specific point relied on by Mr. Harris in the case at bar, when in the Wallace case we said:
‘ ‘ The cases interpreting uninsured motorist statutes go both ways on the issue of stacking multiple policies covering the same accident or injury, Safeco Insurance Company v. Robey, 399 F. 2d 330, (8th Cir. 1968). However, in looking at the terms and purpose of our statute, we find that the ‘other insurance clause’ is not repugnant to Ark. Stat. Ann. § 66-4003, supra. Here MFA furnished uninsured motorist coverage ‘in not less than limits described . . .’ in the Safety Responsibility Act. Furthermore, since the purpose of the statute is ‘for the protection of persons insured . . . who are legally entitled to recover damages from owners or operators of uninsured motor vehicles. . .’ it is obvious that the statute was not designed to provide the insured with greater insurance protection than would have been available had the insured been injured by an operator with a policy containing the minimum statutory limits required by the Motor Vehicle Safety Re sponsibility Act, Ark. Stat. Ann. § 75-1427 (Snpp. 1967). See Maryland Casualty Company v. Rowe, 106 N. H. 422, 213 A. 2d 420 (1965).”
We conclude that the judgment of the trial court must be affirmed. To hold otherwise, under the facts of this case, would permit an insured to obtain double coverage for the price of one by the simple process of exchanging automobiles. Courts may enforce legal contracts or void illegal ones, but courts may not expand contracts beyond their terms and the intent of the parties.
The judgment is affirmed. | [
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Lyle Brown, Justice.
Jimmy Spivey and Freddie C. Payne appeal from a conviction on two counts of burglary and grand larceny. In the first burglary they were charged with taking a television set and a rifle; in the second charge they allegedly took an adding machine and a rifle. On appeal they attack the testimony of two of the State’s witnesses as being incompetent and prejudicial. The only evidence abstracted is the testimony of those two witnesses, W. V. Vincent and Sarah Kay Meredith.
The Testimony of W. V. Vincent. He attended an auction sale at which the defendants were present; Spivey turned in an adding machine to he auctioned off and the witness bought it; Spivey inquired of Vincent if he ever bought guns, to which Vincent replied in the affirmative; subsequently Spivey made a date by telephone with Vincent; and at the appointed time Spivey brought a pistol and seven rifles to Vincent’s home. At that point in Vincent’s testimony this colloquy occurred:
Mr. McCourtney: If the court please, we want to object to this line of questioning and .answers about these guns, unless it can be shown that they are guns connected with the burglaries of Mr. Ball and Mr. Barnett, which are contained in these charges.
The Court: The objection is overruled.
Mr. McCourtney: Note our exception.
Prosecuting Attorney: You did buy the eight guns?
A. On Monday morning, yes, sir. I did buy the guns.
Q. Do you have the guns now?
A. No, sir.
Q. Were they taken by persons that identified them as their owner?
Mr. McCourtney: We object to that all.
Prosecuting Attorney: We withdraw the questions.
The Court: The jury will disregard it.
Appellants hinge their first point for reversal on that part of the record just cited. They contend that the court should not have permitted Vincent’s testimony with reference to his having purchased eight guns to be continued after the first objection; they say the clear import of the testimony is that all the guns were stolen. The effect of the testimony, say the appellants, was to connect them in the minds of the jury with other alleged offenses.
In addition to the abbreviated abstract we have searched the record and we .are unable to find where the State ever established that any of the guns involved in the Vincent transaction came from the homes of the prosecuting witnesses; in fact it is fairly clear that they came from other sources.
The line of questioning was for the .apparent purpose of establishing that the defendants, a short time after the alleged offenses, had in their possession a quantity of guns thought to have been stolen from persons other than the prosecuting witnesses. Since counsel for the defendants specifically and timely objected to the line of questions .and saved exceptions, we are concerned with whether the testimony was admissible. The guns sold to Vincent had no connection with the larceny charges under prosecution. Proof of their possession was not relevant to show intent. If the defendants entered the homes of the prosecuting witnesses and took property therefrom, no further enlightenment on intent was necessary. Searcy v. State, 245 Ark. 159, 431 S. W. 2d 477 (1968); Alford v. State, 223 Ark. 330, 266 S. W. 2d 804 (1954).
True it is that after the second objection the prosecuting attorney withdrew the questions and the trial judge told the jury to “disregard it.” But the damage was already done. If the trial court had sustained the first objection the jury would never have heard the prejudicial testimony we have recounted.
The Testimony of Sarah Kay Meredith. The al leged burglaries occurred in two rural communities near McCrory. In his defense Freddie Payne testified that he had never been in the McCrory area except on one occasion when he was driving nonstop to Hot Springs. To rebut that testimony the State produced Sarah Kay Meredith. She worked at a cafe in McCrory and identified Payne as having patronized the cafe one day late in February or early March. (The burglaries were committed on February 27.) On direct examination she testified that the sheriff came to see her about one week after Payne was in the cafe; that he brought some pictures and she identified one as being that of Payne.
We do not agree with appellants that Sarah Kay Meredith’s extrajudicial identification was inadmissible. There are three cases which we think hold contrary to appellants ’ contention:
Birones v. State, 105 Ark. 82, 150 S. W. 416 (1912). Pursuant to a plan of the officers, the prosecuting witness went to the police station a few days after the offense; Birones was brought into the room and she recognized him. The testimony of the prosecuting witness to that effect on direct examination was upheld. “It was entirely competent for her to state how often she had seen the defendant before and after the commission of the crime, and whether she recognized him or not.” This court specifically pointed out that the ruling did not conflict with Warren v. State, 103 Ark. 165, 146 S. W. 477 (1912);
French v. State, 231 Ark. 677, 331 S. W. 2d 863 (1960). The prosecuting witness testified for the State in chief that he went to the police station some ten days after the crime and identified French in a lineup. The defendant objected to the witness being asked if he identified the defendant and to the affirmative answer. We said it was proper to state when and where he identified the defendant;
Bishop v. State, 236 Ark. 12, 364 S. W. 2d 676 (1963). The day following the alleged rape the prosecuting witness went to the jail and identified the defendant. Her testimony on direct examination to that effect was approved.
Among the five cases cited-'by appellants for rejection of the Meredith identification are three which, at first blush, appear to support their theory, particularly if emphasis is placed on some of the general pronouncements. Those cases ,are: Warren v. State, supra; Trimble & Williams v. State, 227 Ark. 867, 302 S. W. 2d 83 (1957); and Hicks v. State, 231 Ark. 52, 328 S. W. 2d 265 (1959). We think those holdings should be interpreted in light of the particular fact situations upon the reversals hinged. The Warren case was reversed because two officers were permitted to testify in chief that they saw the prosecuting witness identify Warren in a lineup. That same fact situation was the basis of the reversals in Trimble and in Hicks.
When courts are divided on an issue, .as they are in this instance, it is not difficult to find persuasive arguments on both sides. The division is reflected in an annotation in 71 A. L. R. 2d 449. Also, see Wharton’s Criminal Evidence, Vol. 1, 12 Ed., § 181.1 (Supp. 1969) Many safeguards are today in effect to protect the .accused in his due process rights pertaining to pretrial identification; cf. Simmons v. United States, 390 U. S. 377 (1968); United States v. Wade, 388 U. S. 218 (1967); and McClain v. Stale, 247 Ark. 33, 444 S. W. 2d 99 (1969). In light of those safeguards and the persuasive arguments supporting our own precedent we are unwilling to adopt a different rule than that which is supported by Birones, Bishop, and French. (We should mention in passing that the defendants here did not seek an in-chambers hearing .as was utilized in McClain v. State.)
For the error in admitting Vincent’s testimony relative to the eight guns, the case is reversed..
Byrd, J., concurs. | [
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Lyle Brown, Justice.
For the background facts in this case see Sulphur Springs Recreational Park, Inc. v. City of Camden et al, 242 Ark. 340, 414 S. W. 2d 113 (1967). After our decision dismissing that appeal for want of a final order, plaintiff-appellant subsequently sought and was granted another hearing. As a result of the last proceeding, the court again refused to strike the answer of the City of Camden and the individual codefendants. Secondly, on motion of the defendants, the court dismissed the complaint because .at the time of the filing of the suit the corporate plaintiff’s charter was nonexistent. Notwithstanding the charter was subsequently reinstated, the trial court held that the reinstatement was not retroactive to the date of forfeiture. Sulphur Springs Recreational Park appeals from those two rulings.
The Refusal of the Court to Strike the Answer. Recreational Park filed its complaint at Camden on January 14, 1965. Near the top of the complaint was printed “G. E. Snuggs, Lawyer, El Dorado, Arkansas.” The complaint was signed “G. E. Snuggs, Solicitor for Plaintiff.” Fifteen days later the defendants filed an answer and left a copy in the clerk’s office for plaintiff’s counsel. The copy was picked up by plaintiff’s counsel on February 10, 1965. Ark. Stat. Ann. § 27-362 (Repl. 1962 and Supp. 1967) sets out the manner in which an answer is to be served. Here is the pertinent portion:
Service upon the attorney or upon a party shall be made by delivering a copy to him or by mailing it to him at his last known address, or if no address is known, by leaving it with the clerk of the court.
Appellant argues that since Mr. Snuggs’ .address was shown on the complaint as “Lawyer, El Dorado, Arkansas,” the copy of the answer should not have been left with the clerk but should have been mjailed to Mr. Snuggs; and that the failure to follow that procedure requires that the answer be stricken. The contention is without merit. The attorneys for the defendants testified that they did not know Mr. Snuggs’ mailing address ; that is, no specific address in El Dorado was listed; that no address of any kind appeared below Mr. Snuggs’ signature where such addresses are commonly listed; and that the fine print “Lawyer, El Dorado, Arkansas” was inconspicuous and was overlooked. In fact the attorneys were not sure Mr. Snuggs had an office in El Dorado. Whether counsel had knowledge of Mr. Snuggs’ mailing address was a question of fact and we cannot say he preponderantly showed that knowledge to have been possessed by opposing counsel. Additionally, appellant does not claim any prejudice; in fact it is not disputed that appellant’s counsel obtained a copy of the answer from the clerk within ten days after it was timely filed.
The Dismissal of the Complaint. The corporate charter of appellant was revoked by a governor’s proclamation dated February 1, 1952, for nonpayment of franchise taxes. This suit was filed January 14, 1965. The corporation was reinstated on May 1, 1968. Appellees moved for dismissal of the complaint on the ground that it was filed at a time when the corporate entity was extinct; and that the rescission of the forfeiture was not retroactive.
Appellant did not have corporate status at the time the suit was filed. Not being in existence it possessed no capacity to sue. The subsequent reinstatement did not vest it with continuing existence from date of origin. Moore v. Rommel, 233 Ark. 989, 350 S. W. 2d 190 (1961). The restoration of the corporate status before trial creates no right to prosecute the initial complaint. Clark Estate Co. v. Gentry, 240 S. W. 2d 124 (Mo. 1951).
Appellant says there was no authority for revocation of its charter. That argument is based on the erroneous assumption that it is a nonprofit organization; the fact is that it is chartered as a business corporation.
Additionally, appellant argues that appellees’ answer in effect admitted appellant’s status as a corporation. Ark. Stat. Ann. § 27-1121 (Bepl. 1962) states that the alleged status of a party plaintiff, such as a corporation, shall be admitted unless specifically denied in the answer. In their answer the appellees did not set up a specific denial of the alleged status of plaintiff as a corporation. In April 1967 appellees inquired by interrogatories of 'the status of the corporation. Appellant refused to supply the information on the ground that the answer admitted the corporation’s legal existence. Thereafter appellees amended their answer and alleged the forfeiture of the charter.
We have many times held that it is within the inherent power of the trial court, within certain general limitations, to permit the amendment of pleadings. In Bridgman v. Drilling, 218 Ark. 772, 238 S. W. 2d 645 (1951), we said:
We have repeatedly stated that the trial court is vested with broad discretion in allowing amendments to pleadings under Ark. Stat. § 27-1160 in order to effectuate the manifest purpose of the statute to permit the trial of litigation upon its merits.
Of course the particular facts in each instance are significant. Here the appellees timely filed an answer. Before the case was finally called to trial the defendants discovered that the corporation was not in existence at the time the suit was filed. Appellees filed an amendment asserting that fact and the amendment was accepted by the court. We cannot conceive that amendment to have affected the substantial rights of the plaintiff. Therefore we are unable to say that the court abused its broad discretion pertaining to the allowance of amendments to pleadings.
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Frank Holt, Justice.
This appeal results from granting appellee’s motion for a summary judgment based upon the following transaction. The appellants gave $50 to appellee for a man’s nine-diamond ring. Appellants received a standard bill of sale from appellee. As a part of the same transaction, appellants then signed and delivered to the appellee an option to repurchase agreement. By its terms the appellee retained the right to repurchase the same ring for $55 within ten days upon presentation of the written option. Within this ten-day period the appellee gave appellants a $5 check for the purpose of having the option extended for an additional ten days. When appellee tendered $55 to appellants for the return of this diamond ring, the offer was refused by appellants with the explanation that appellee’s $5 check had been returned due to insufficient funds and, therefore, the time had expired for appellee to exercise his option to repurchase.
In appellee’s complaint as amended he alleged that although the agreements on their face appear to be a bill of sale and an option to repurchase, they are in effect merely a pawn-loan agreement by which he pawned his ring for $50 with the right to redeem it within ten days for an additional $5; that $5 of the $55 repurchase price provided in the option to repurchase constituted a usurious rate of interest in that it amounts to 10% for ten days, or 1% per day; that the contract should be rescinded and the diamond ring returned to appellee, or in lieu thereof, he be awarded $500 as the alleged value of the ring and that appellee was entitled to damages of $500 for appellants’ unlawful detention of the ring. Appellants responded with a general denial. In answering appellee’s request for admission of facts, appellants admitted the bill of sale agreement and option to repurchase agreement and denied that the option to repurchase had been extended for an additional ten days since appellee had given an insufficient funds check. Appellants also admitted that 70% of their inventory, based upon valuation, was used merchandise.
Appellee then filed a motion for summary judgment supported by his affidavit that he had entered into the sale and repurchase agreement; that the value of the diamond ring was $500; that, “I retained an option to repurchase the ring mentioned above for $50 plus an additional $5 interest within ten days from the execution of the bill of sale agreement dated January 10, 1968. I understood the entire transaction to be a pawn-loan agreeinent”; that he gave appellants his $5 check for a ten-day extension to repurchase his ring; that later his tender of $55 to appellants for the return of his ring was refused on the basis that he had not exercised his option in the repurchase agreement within the agreed extension of time since his $5 check was returned unpaid due to insufficient funds. The appellants did not file a counter affidavit.
In granting the summary judgment the trial court found:
“That the defendants did not file any counter affidavits or pleadings in response to plaintiff’s Motion for Summary Judgment and as a result thereof there is no genuine issue as to any material fact. ’ ’
The court further found that the transaction between the parties is a “shift or device for usurious loan of money;” that as a result the appellee is entitled to the return of the diamond ring or its value in the sum of $500 and the further sum of $500 as damages for appellants’ wrongful detention of the ring. Appellee now concedes that the record does not support an award of $500 as damages for the unlawful detention of the ring and offers a remittitur in that amount.
For reversal the appellants, through their present counsel, contend that the bill of sale and repurchase agreement on their face constitute a fact issue. Appellants say that: ‘ ‘ The Bill of Sale agreement in question reflects on its face that the appellee made a bona fide sale of a diamond ring to appellants. The Option to Repurchase agreement reflects on its face that a bona fide right was vested in appellee to repurchase the ring within the option period for the stated amount. There is no language in either of these agreements reflecting that the transaction between the parties was one of borrowing and lending of money as alleged by the appellee and the lower court erred in finding the latter to be the case as a matter of law.”
Appellee takes the position that the pleadings, appellants’ answers to appellee’s request for admission of facts, and appellee’s uncontroverted affidavit present a transaction which was a mere shift or device for a usurious loan of money. He cites Sparks v. Robinson, 66 Ark. 460, 51 S. W. 460 (1899). There we held that a sale and an option to repurchase based upon written instruments in a transaction similar to the one at bar constituted “a shift for a usurious loan of money.” We said:
“The instrument itself, and the sale ticket given with it, show that the grantor had the privilege of redeeming in thirty days, by paying the principal and not exceeding ten per cent., and the proof shows that at the end of each month the eighty cents, or ten per cent per month, was collected, and another sale ticket was issued granting the same privilege. And this might be continued ad Infinitum. The law shells the covering, and extracts the kernel. Names amount to nothing when they fail to designate the facts. We are of the opinion that the court was justified in concluding that the papers called ‘bill of sale’ and ‘sale tickets’ were nothing more or less than a shift for a usurious loan of money.”
A 1967 amendment to our summary judgment statute provides, in pertinent part:
“(e) * # # Defense Required. * * * When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if ap propriate, shall be entered against him.” Ark. Stat. Ann. § 29-211 (Supp. 1967).
In Ray Deam et al v. O. L. Puryear & Sons, Inc., 244 Ark. 18, 423 S. W. 2d 554 (1968), we said:
“* * * The opposition to the motion cannot always successfully take his stand on the content of his pleading alone. If the movant makes a case for summary judgment the opponent must come from behind ‘the shielding cloak of formal allegations and demonstrate a genuine issue.’ ”
See, also, Weldon Douglas et al v. The Citizens Bank of Jonesboro, 244 Ark. 168, 424 S. W. 2d 532 (1968), and Epps v. Remmel, 237 Ark. 391, 373 S. W. 2d 141 (1963).
We recently had occasion to consider the effect of a failure to respond to an affidavit supporting a motion for summary judgment in Ashley v. Eisele, 247 Ark. 281, 445 S. W. 2d 76 (1969). There we said that the failure to file counter affidavits does not in itself entitle the moving party to a summary judgment. However, the effect is to leave the facts asserted in the uncontroverted affidavit supporting the motion for summary judgment accepted as true for purposes of the motion.
In the case at bar appellee’s complaint asserted a pawn-loan arrangement with an illegal rate of interest. Appellants responded with a general denial. In a request for admissions appellants admitted that 70% of the value of their inventory consisted of used goods. Thereafter, appellee’s uncontroverted affidavit, which must be accepted as true, asserted that this was a pawn-loan transaction with a usurious rate of interest. In our view when the established law is applied, the appellee has met the burden of demonstrating that no material issue of fact exists since his affidavit stands uncontroverted. The trial court did not err in granting a summary judgment in favor of the appellee.
With exception of the award of $500 for damages for wrongful detention of the nine-diamond ring, conceded by appellee as error, the judgment is affirmed.
Fogleman and Jones, JJ., dissent. | [
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J. Feed Jones, Justice.
This is a workmen’s compensation case and the facts are not in issue. The appellants, Brooks and Ferguson, were claimant employees under the Arkansas Workmen’s Compensation Law. Both of them sustained compensable back injuries resulting in permanent total disability and they both filed petitions to the Workmen’s Compensation Commission for lump sum settlements. Their petitions were granted by the Commission and the full amounts payable for permanent total disability were made to them. The petitions were filed and granted under authority of Ark. Stat. Ann. § 81-1319 (k) (Repl. 1960) which is as follows :
“Whenever the Commission determines that it is for the best interest of the parties entitled to compensation, and after due notice to all parties in interest of a hearing, the liability of the employer for compensation may be discharged by the payment of a lump sum equal to the present value of all future payments of compensation computed at four (4%) per centum discount, compounded annually. The probability of the death of the injured employee or other persons entitled to compensation before the expiration of the period during which they are entitled to compensation shall, in the absence of special circumstances making such course improper, be determined in accordance with the American Experience Table of Mortality. The probability of the happening of any other contingency affecting the amount or duration of compensation shall be disregarded, except the possibility of the remarriage of the widow which shall be determined in accordance with the Danish Annuity and Dutch Remarriage Table.”
After receipt of the lump sum payments, Brooks and Ferguson required additional medication for the treatment of their ilijuries, and claims were filed for the medical expenses accruing both before and after the lump sum payments but not specifically included therein. The employer voluntarily paid the medical bills accruing prior to the lump sum payments, but the claims for additional medical benefits accruing subsequent to the lump sum awards were controverted on the theory that the employer had discharged its entire liability and fully settled all claims, both present and future, by the payment of the lump sums under the award.
The Commission awarded the additional medical payments and on appeal to the Sebastian County Circuit Court the cases were consolidated and the awards of the Commission were reversed, the circuit court holding that the employer had discharged its total liability under the statute, by the payment of the lump sum awards.
Brooks and Ferguson have appealed to this court on the single question of law as to whether the payment of compensation for permanent disability in one lump sum under the Workmen’s Compensation Law of Arkansas discharges the employer or his compensation insurance carrier from additional liability for medical services and treatment occurring in the future.
Under the “definitions” section of the Workmen’s Compensation Law, Ark. Stat. Ann. § 81-1302, subsection (i) (Repl. 1960), is found the following:
“ ‘Compensation’ means the money allowance payable to the employee or to his dependents, and includes the allowances provided for in section 11 [§ 81-1311,] and funeral expense.”
Ark. Stat. Ann. § 81-1311 (Repl. 1960), above referred to, reads in part as follows:
“Medical and hospital services and supplies. The employer shall promptly provide for an injured employee such medical, surgical, hospital and nursing service, and medicine, crutches, artificial limbs and other apparatus as may be necessary during -the period of six [6] months after the injury, or for such time in excess thereof as the Commission, in its discretion, may require. If the employer fails to provide the services or things mentioned in the fore going sentence within a reasonable time after knowledge of the injury, the Commission may direct that the injured employee obtain such service or thing at the expense of the employer, and any emergency treatment afforded the injured employee shall be at the expense of the employer.”
Thus, it is seen that medical services and funeral expenses, as well as money allowance payable to the employee, are included in the broad general statutory definition of “compensation.” In the context of benefits to the employee which are to be secured by the employer under the statute, Ark. Stat. Ann. § 81-1305 (Bepl. 1960), compensation payable to the employee for disability and the amounts payable in medical expenses are in the same category, but here the analogy ends.
Except as set out in the definition, the term “compensation,” as used throughout the statute, obviously refers to money benefits paid to the injured employee for disability. As examples,
Ark. Stat. Ann. § 81-1310 (Bepl. 1960):
“Compensation to the injured employee shall not be allowed for the first seven [7] days’ disability . . . compensation shall commence with the ninth [9th] day of disability . . .
Compensation payable to an injured emplayee for disability shall not exceed . . .
Compensation payable to the dependents for the death of an employee shall not exceed ...” (Emphasis supplied.)
Ark. Stat. Ann. § 81-1312 (Bepl. 1960):
“Compensation shall be computed on the average weekly wage ...” (Emphasis supplied.)
Ark. Stat. Ann. § 81-1313 (Repl. I960) provides;
“Compensation for disability. The money allowance payable to an injured employee for disability shall be as follows:
# # #
(c) Scheduled permanent injuries: An employee who sustains a permanent injury scheduled in this subsection shall receive, in addition to compensation for the healing period, sixty-five per centum [65%] of his average weekly wage for that period of time set out in the following schedule:
Jfc , ¶* 1? IP '
(d) Other cases: A permanent partial disability not scheduled in subsection (c) hereof shall be apportioned to the body as a whole, which shall have a value of 450 weeks, and there shall be paid compensation to the injured employee for the proportionate loss of use of the body as a whole resulting from the injury.* * *” (Emphasis supplied.)
Ark. Stat. Ann. § 81-1319 (Repl. 1960) provides:
“(a) Compensation shall be paid directly to the person entitled thereto without an award, except in those cases where liability has been controverted by the employer. If the compensation beneficiary is a mental incompetent or a minor of tender years or immature judgment, the Commission may in the exercise of its discretion direct that payment shall be made to a legally appointed guardian of the estate of such incompetent or minor.
(b) The first instalment of compensation shall become due on the fifteenth (15th) day after the employer has notice of the injury or death, as provided in section 17 [§ 81-1317,] on which date all compensation then accrued shall be paid. Thereafter compensation shall be paid every two [2] weeks except where the Commission directs that instalment payments be made at other periods.
(c) Upon making’ the first payment and upon suspension of payment of compensation the employer shall notify the Commission of such fact on a form prescribed by the Commission.
# # # -
(e) If any instalment of compensation payable without an award is not paid within fifteen (15) days after it becomes due, as provided in subsection (b), there shall be added to such unpaid" instalment an amount equal to six (6) per centum thereof .. . ! '
* # #
(g) Compensation shall bear interest at the legal rate from the day an award is made by either a Referee or the full Workmen’s Compensation Commission, on all accrued and unpaid compensation.
(h) Within thirty (30) days after the final payment of compensation has been made, the employer shall send to the Commission . . .
(i) The Commission may upon its own initiative at any time where compensation payments are being made without an award, and shall in any case where the right to compensation has been controverted or where payments of compensation have been suspended, or where an employer seeks to" suspend payments made under an award, or on application of an interested party, make such inyestigation, cause such medical examination to be made, hold such hearings, and take such further action as the Commission deems proper for the protection of the rights of all parties.
(j) The Commission may require any employer to make a deposit or bond with the Commission to secure the prompt and convenient payment of such compensation, and payments therefrom shall be made upon order of the Commission.” (Emphasis supplied.)
Having in mind the three divisions, or categories, of “compensation” as money allowance for disability, medical services and funeral expenses, we now return to tlie lump sum awards in these cases. There is no question that the amounts of the lump sum awards were calculated only on the money allowance for disability due the claimants for their 100% permanent disabilities. The award to Brooks concludes as follows;
“Therefore, upon payment by the respondents of $3,962.54 to the claimant, Walter Brooks, and upon payment to Mr. E. C. Gilbreath, attorney for claimant, the maximum attorney’s fee as provided by the Arkansas Workmen’s Compensation Act, the liability of the respondents for compensation for 100% permanent disability to the body as a whole is discharged. ’ ’
It is obvious to us from the wording of the statute, that there are two kinds of compensation benefits to which an injured employee may be entitled and which the employer is obligated to secure to the employee. (1) The money allowance payable to an injured employee for disability (§ 81-1313), and (2) medical and hospital services and supplies (§ 81-1311).
Funeral expenses are also specifically included in the definition of compensation, but Ark. Stat. Ann. § 81-1315 (a) and (b) provide:
“If death results from the injury the employer shall pay the reasonable funeral expenses, not exceeding the sum of two hundred and fifty ($250.00) dollars.
If death does not result within one [1] year from the date of the accident, or within the first three [3] years of the period for compensation payments fixed by the compensation order, a rebuttable presumption shall arise that such death did not result from the injury.”
As appellee would have us interpret the statute, funeral expenses would not be available under the statute where death results from injury and when the deceased employee had been paid any of the compensation due him in one lump sum. We cannot believe that such results were the intent of the statute.
The appellants contend that the appellee can only discharge and settle both its present and future liability for all compensation benefits under a joint petition as provided in Ark. Stat. Ann. § 81-1319 (1) (Repl. 1960), as follows:
“(1) Upon petition filed by the employer or carrier and the injured employee, requesting that a final settlement be had between the parties, the Commission shall hear the petition and take such testimony and make such investigations as may be necessary to determine whether a final settlement should be had. If the Commission decides it is for the best interests of the claimant that a final award be made, it may order such an award that shall be final as to the rights of all parties to said petition, and thereafter the Commission shall not have jurisdiction over any claim for the same injury or any results arising from same. If the Commission shall deny the petition, such denial shall be without prejudice to either party. No appeal shall lie from an order or award allowing or denying a joint petition.”
We agree with the appellants. As additional evidence of the correctness of their contention, Ark. Stat. Ann. § 81-1326 (Repl. 1960) provides:
“Except where a joint petition settlement has been approved the Commission may at any time within six [6] months of termination of the compensation period fixed in the original compensation order or award, upon its own motion or upon the applica tion of any party in interest, on the ground of a change in physical condition or upon proof of erroneous wage rate, review any compensation order, award or decision, and upon such review may make •an order or award terminating, continuing, decreasing or increasing for the future the compensation previously awarded, subject to the maximum limits provided for in this act [§§ 81-1301 — 81-1349]. Such review and subsequent order or award shall be made in accordance with the procedure prescribed in section 12 [§ 81-1323] hereof. No such review shall affect any compensation paid pursuant to a prior order or award. The Commission may at any time correct any clerical error in any compensation order or award.”
No compensation is payable to the employee for the first week of his disability unless he is disabled for as long as four weeks under § 81-1310 (a), supra, but he is entitled to prompt medical treatment under § 81-1311, supra.
It is obvious to us, and we therefore hold, that the liability of the employer that may be discharged by ,a lump sum payment under § 81-1319 (k), supra, can only relate to liability for such future payments of compensation as are capable of determination and reduction to present value, and that a lump sum settlement does only discharge the employer’s liability for such compensation as is included in the lump sum award. We do not say that compensation in the form of accrued but unpaid medical expenses cannot be included in a lump sum settlement so as to discharge the employer from liability therefor, but we do say that was not done in the cases before us.
We find no difficulty in concluding that the liability of an employer must first be determined before the value of future payments of compensation can be ascertained and reduced to present value for the purposes of a lump sum settlement, and we do not strain the liberal construction doctrine in holding that a lump sum settlement does not discharge the employer from liability for the payment of compensation not susceptible of determination and not contemplated nor included in the lump sum settlement.
The judgment of the circuit court is reversed. | [
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John A. Fogleman, Justice.
This appeal questions the correctness of action of the trial court in denying appellant’s motion for summary judgment and granting appellee’s. Appellee Munyon commenced the action, seeking to recover weekly total disability payments under a policy issued him by American Alliance Life Insurance Co. He alleged that: Munyon’s claims were paid by American Alliance through November 1, 1967; thereafter, American Alliance was declared insolvent by the Insurance Commissioner while it was indebted to appellee on account of his total disability; on February 13, 1968, appellant assumed, agreed to pay and became liable for performance of all obigations imposed upon American Alliance under said policy, as evidenced by a Certificate of. Assumption executed and delivered to Munyon. Appellee sought to recover for benefits accrued after the date of the assumption agreement, statutory penalty and attorney’s fees.
The policy and Certificate of Assumption were exhibited with the complaint. The latter document contained a statement that Organized Security assumed appellee’s American Alliance policy, together with amendments thereto and agreed to carry out the obligations of American Alliance.
Appellant, by answer, admitted that the policy exhibited with the complaint was a true copy of that policy, that appellee became totally disabled after January 9, 1967, and that his claim for benefits was honored by the issuing company through November 1, 1967. It denied that the Certificate of Assumption was anything other than an assumption of obligations under the policy for claims arising after the assumption date and denied liability for disability benefits accruing after February 13, 1968. Appellant stated, in its original answer, that inasmuch as the disability of Munyon appeared to be total and permanent, no useful purpose could be served by continued payment of premiums and tendered the return of two premiums paid by Munyon. A reinsurance agreement between the Insurance Commissioner, as Receiver for American Alliance, and Organized Security was exhibited with the answer. Under this agreement the latter company agreed to reinsure all outstanding policies of the type issued to appellee in accordance with their terms and to assume all liabilities of the former company under these policies, excluding all claims incurred under such policies before the “assumption of risk time and date.” Appellant also agreed to assume and carry out the several obligations of American Alliance expressed by and contained in the policies and to hold American Alliance harmless from any and all obligations in said policies arising on or after the effective date of the contract which was February 13, 1968.
Appellee Munyon moved for summary judgment-His affidavit in support of his motion also exhibited a copy of the Certificate of Assumption, which he stated was issued to him, together with a letter transmitting it. He stated that he was totally disabled within the meaning of the policy since December 28, 1966, and that he had filed a claim for disability benefits beginning February 13, 1968, with appellant, but that the claim had been refused.
Thereafter, appellant filed a motion for leave to amend its answer, a response to appellee’s motion for summary judgment and its own motion for summary judgment. The proposed amendment to the answer contained a denial that appellee was disabled and alleged that if any disability existed, it was the result of a diabetic condition specifically excluded under the American Alliance policy. A supporting affidavit was made by appellant’s attorney of record. Therein he stated that the reinsurance agreement attached to appellant’s original answer was a true and correct copy of the original agreement and that an exhibited “Waiver Rider” was attached to the original policy, but was not included with the policy attached to appellee’s affidavit. He asserted, in the affidavit, that when total permanent disability commences, the loss occurs at that time and may be considered a single claim, so that no cause of action was stated by appellee. The waiver rider stated an agreement that the terms of the policy should not apply to any disability caused, directly or indirectly, wholly or in part, by diabetes and any disease or disorder caused directly or indirectly from diabetes. It bore signatures by the president and assistant secretary of American Alliance, but no acceptance by appellee, although there was a blank space indicated for signature indicating acceptance.
Appellee then filed an amendment to the motion for summary judgment together with his affidavit that the waiver rider was not attached to or made a part of Ms policy at the time of its issuance and delivery, and that there was no agreement that such a rider was to be made a part of his policy. He exhibited Ms application, his receipt for the policy, his proof of loss executed February 6, 1968, his attending physician’s statement dated May 22, 1967, a letter from American Alliance dated May 26, 1967, transmitting a check for six weeks’ disability payments and requesting a claimant’s statement for each month, his physician’s statement dated February 6, 1968, a letter from appellant dated April 1, 1968, and vouchers showing payment of a total of $2,200 at the rate of $50 per week by American Alliance on appellee’s claim for disability. Later appellee filed another affidavit exhibiting a statement by his attending physician dated January 21, 1969. No further controverting affidavits or other matter was filed by appellant.
Each of the physician’s statements mentioned stated that the nature of appellee’s sickness was: (1) acute myocardial infarction (2) arteriosclerosis (3) diabetes (or diabetes with retinitis) (4) blindness, left eye can only discern light, right eye — 20/400, cannot read. Under the heading “Remarks” the last statement included the following:
“His total disability can be due either to his heart disease (Cardiac Disease, coronary insufficiency and arteriosclerosis, class III-D,) or to blindness. His heart disease could have developed either on account of Diabetes or not on account of it.”
The letter from appellant to appellee dated April 1, 1968, read as follows:
“Enclosed you will find a claimant’s statement form DI100CF which is to be filled out by you on the side marked claimant’s statement and by your doctor on the side for the attending physician’s statement. We would like to have as complete an account of your disability as possible for our records here.
Also, I am enclosing a few supplementary proof of loss form DI100CFS one to be completed each month and returned to us.
This company took over the policies and any liability under the policies commencing with the date of February 13, 1968. Any prior claims will be paid by the Deputy Receiver, Mr. W. W. Barton of Hot Springs. As soon as we receive the completed forms, we will send you a check for the amount due from the date of February 13th on.”
Appellant relies on two points for reversal. They are:
I
“AS A MATTER OF LAW DEFENDANT IS NOT LIABLE UNDER THE REINSURANCE AGREEMENT DATED FEBRUARY 13, 1968, FOR PLAINTIFF’S CLAIM FOR TOTAL DISABILITY SINCE PLAINTIFF’S CLAIM WAS A CLAIM INCURRED BY AMERICAN ALLIANCE PRIOR TO FEBRUARY 13, 1968.
II
GENUINE ISSUES OF MATERIAL FACT WERE RAISED BY THE PLEADINGS, EXHIBITS, AND AFFIDAVITS, WHICH COULD NOT BE DISPOSED OF BY SUMMARY JUDGMENT.”
In support of the first point, appellant argues that the exclusion of all claims, incurred under American Alliance policies before the assumption of risk time and date, left it without liability, as a claim and loss arising December 28, 1966, and a liability of the issuing insurance company.
Assuming, without deciding, that the exclusionary clause in the reinsurance agreement is subject to the construction urged by appellant, it is also subject to a construction making it liable for the monthly payments to appellee and others similarly situated as they become due. Appellant can hardly say that it was unaware of appellee’s claim. The reinsurance agreement required that the Insurance Commissioner deliver to appellant all of American Alliance Life Insurance Company’s books and records pertaining to its policies and policyholders and its card file. Appellant promptly forwarded its Certificate of Assumption to appellee. In this Certificate, appellant agreed “to carry out the obligatiQns of the American Alliance Life Insurance Company under individual policies issued under the terms of such policies.” (Policy No. 6-H-115)
Appellant’s letter of April 1, 1968, clearly recognizes that appellant was aware of appellee’s claim and acknowledged that it had taken “over the policies and any liability under the policies commencing with the date of February 13, 1968.” Appellee was also advised that, when the completed forms requested were received, appellant would send ‘ ‘ a check for the amount due from the date of February 13th on. ” It is clear that appellant did not then construe its reinsurance agreement as it now does. Thereafter, appellee paid at least two quarterly premiums which were returned to appellee with appellant’s original answer filed December 10, 1968.
Even where a contract is ambiguous in its terms, the parties will be hound to the construction which they themselves have placed upon it. Arlington Hotel Co. v. Rector, 124 Ark. 90, 186 S. W. 622.
In support of the second point, appellant argues that there is a genuine issue of fact as to whether the waiver rider mentioned in and attached to the affidavit of its attorney of record in this case was attached to and a part of the insurance policy issued by American Alliance. It might well be correct in this respect if its response and motion were supported as required by statute, even though appellee by affidavit categorically denied appellant’s assertion in this respect. The only support for this assertion was that of appellant’s attorney. He did not state in his affidavit, when he became attorney for appellant, that he had personal knowledge of the attachment of the waiver rider or, if he did, how he acquired this knowledge. An affidavit by an attorney is not to be considered under summary judgment procedures when the affidavits do not show that the attorney had personal knowledge of the facts set out and that he was competent to testify to them. Ark. Stat. Ann. § 29-211(e) (Supp. 1967); Mercantile National Bank v. Franklin Life Ins. Co., 248 F. 2d 57 (5th Cir. 1957); Subin v. Goldsmith, 224 F. 2d 753 (2nd Cir. 1955).
It must be affirmatively shown, or appear from statements contained in any affidavit supporting or opposing a summary judgment, that it is based upon personal knowledge of the affiant, that the facts stated therein would be admissible in evidence and that the affiant is a witness competent to state these facts in evidence. Zampos v. United States Smelting, Refining & Mining Co., 206 F. 2d 171 (10th Cir. 1953); Marion County Co-op Assn. v. Carnation Co., 114 F. Supp. 58 (W. D. Ark. 1953), aff’d., 214 F. 2d 557 (8th Cir. 1954); Young v. Atlantic Mutual Insurance Co., 38 F. R. D. 416 (E. D. Penn. 1965); Walpert v. Bart, 280 F. Supp. 1006 (D. C. Md. 1967), aff’d., 390 F. 2d 877; Couillard v. Charles T. Miller Hospital, 253 Minn. 418, 92 N. W. 2d 96 (1958). The affidavit of an attorney of record is not prohibited, but it is subject to the same tests as those of any other affiant. Here, the attorney’s affidavit is deficient. It does not indicate in any way how he acquired his knowedge of, or information about, the rider or its attachment to the policy. There was no error in finding that there was no issue of fact on this point. Furthermore, the copy of the rider attached to the deposition is neither a sworn or certified copy as required hy statute. Ark. Stat. Ann. § 29-211 (e) (Supp. 1967).
Since we find no merit in either point, the judgment is affirmed. Appellee requests allowance of an attorney’s fee in addition to the $500 allowance by the trial court. We allow an additional $500.
Jones, J., dissents.
Appellee stated in this application that he had diabetes, that he had been treated for this condition about 1959 by the same physician who made reports to the insurance companies and that he consulted this doctor about once a year.
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Frank Holt, Justice.
Appellee and appellants are adjoining landowners. Appellee brought this action against the appellants alleging that a mutual mistake was made in both of their deeds from a common grantor and that appellants had erected a fence upon appellee’s property “which is encroaching upon the property of plaintiff [appellee] 89 feet.” The appellee seeks reformation of both deeds, the quieting of her title, and asks that appellants be restrained from encroaching upon appellee’s property.
The chancellor found there was an erroneous description in the 1941 deed to Ralph Gillenwater who is the common grantor of appellants and appellee; that Gillenwater immediately went into possession of the property and enclosed, improved and maintained sufficient adverse possession of it for more than the required length of time; that in 1964 he conveyed the back one-half (%) .acre to the appellants based upon this inaccurate description; that approximately three years later he conveyed the balance or the front one-half (%) acre to his brother, now deceased, and his wife, the .appellee; that the descriptions in the deeds did not reflect the true intentions of the parties and that appellant L. O. Galyen, who is a real estate agent, was aware there was a mutual mistake in the descriptions in his deed. Further, the chancellor found “that a stob was driven into the ground at the point measured by Mr. Gillenwater [grantor] in the company of Mr. Galyen [grantee and appellant] at the time of their conveyance and that the property to be conveyed was to the east of the stob.” This would exclude the 89 feet from appellants’ land. The court then held that the deeds to appellants and appellee should be reformed to conform to their intentions, their respective titles quieted and confirmed , in them, ordered appellants to remove the fence they had constructed upon appellee’s property, .and enjoined appellants from further encroachment upon appellee’s property. From that decree comes this appeal.
For reversal appellants contend that the findings of the chancellor are against the preponderance of the competent evidence. We do not agree.
In 1941 Ralph Gillenwater purchased, without benefit of a survey, and took possession of a rectangular tract of land 105 x 420 feet, which is approximately one acre. In 1964 he conveyed the back or east half of this property to appellants with a legal description that was based upon the deed he had acquired. In 1967 he conveyed to his brother, now deceased, and his wife, the appellee, the balance or the front half of this tract of land. Thereafter the appellants had their property surveyed according to the description in their deed. According to appellants’ survey, their boundary line would include 89 feet of the property which appellee claims. Appellants then constructed a chain link fence along this 105-foot boundary line which ran within a few feet of the back of appellee’s house and separated it from her outhouse and other outbuildings. This action precipitated the present litigation.
The testimony of Ralph Gillenwater, the common grantor to both parties, and the testimony of other witnesses clearly showed that the intention of the grantor was to sell the appellants only the back one-half (%) acre of this rectangular tract of land, and that appellants intended to buy only this one-half (%) acre which measured approximately 210 x 105 feet. According to appellee’s evidence, Mr. Gillenwater measured, in Mr. Galyen’s presence, the one-half (%) acre which was to be conveyed to the Galyens. This measurement would exclude the 89-foot disputed strip of land. This understanding was denied by Mr. Galyen who insisted he relied upon the metes and bounds description in the deed which he claims would include the 89-foot strip of land in dispute.
According to Mr. Galyen, a real estate agent, his purpose in purchasing this back half acre was to eliminate an unsanitary situation that existed from an open outhouse at the back of the house appellee now owns and, also, to clear underbrush from the property. It seems his barbecue pit was located nearby. However, it appears from the evidence that during the three years he owned his property before this litigation he made no effort to eliminate these conditions or construct a fence on the common boundary line he now claims. It was only after the property was sold to appellee and her husband that he had the property surveyed and then constructed the fence which separates appellee’s house from the outbuildings adjacent to her house.
In written findings the chancellor stated: “* * * It is also noted in the Gillenwater to Galyen deed that the same is a conveyance of one-half (%) acre, more or less, and states ‘it is intended by this conveyance to convey the East one-half of all property purchased in Deed Record 157 at page 57 or acquired by adverse possession under authority of such deed.’ ”
It is quite clear from the testimony and the exhibits that if the land .appellants purchased in 1964 included the disputed 89-foot strip, then the acreage would be considerably in excess of the one-half (%) acre conveyed in the deed. However, when this 89-foot strip is excluded, the appellants still own an area 210 x 105 feet or approximately one-half (%) acre. Mr. Galyen himself testified: “I thought I was buying the 210 x 105 approximately, approximately a half acre.”
Equity will reform a deed or other written instrument which results from a mutual mistake and does not express the true intentions of the parties, if the proof of such a mistake is clear, convincing .and decisive. American Alliance Ins. Co. v. Paul, 173 Ark 960, 294 S. W. 58 (1927); Arnett v. Lillard, 245 Ark. 939, 436 S. W. 2d 106 (1969). Upon a careful review of the testimony and exhibits presented in the case at bar, we agree with the chancellor that appellee has met this requirement. It is not necessary that appellee present evidence that is undisputed to establish a mutual mistake and the true intentions of the parties.
Appellants also argue that the chancellor erred in admitting testimony in contradiction of the recitals in their deed. This contention is without merit. Although parol evidence is ordinarily not permitted to contradict or alter the terms of a written instrument, it is well established that in an action to reform an instrument, parol evidence is admissible to show a mutual mistake or fraud and to establish the true intentions of the parties. Fisher v. Fisher, 237 Ark. 321, 372 S. W. 2d 612 (1963); Hervey v. College Of The Ozarks, 196 Ark. 481, 118 S. W. 2d 576 (1938); Hoyer v. Edwards, 182 Ark. 624, 32 S. W. 2d 812 (1930). In the latter case we said that a mutual “mistake may be proved by parol evidence only.” In Fisher v. Fisher, supra, it is said: “. . . It is settled that a court of eqxiity has power to correct mistakes in a deed and conform it to the intentions of the parties based upon parol evidence of a clear, decisive and unequivocal nature.”
In the case at bar we are of the view that there was competent evidence of a clear, cogent and decisive nature to sustain the chancellor’s findings.
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Carleton Harris, Chief Justice.
This appeal relates to whether Motors Insurance Corporation, appellant herein, paid the wrong party in settling a claim. The case was submitted to the trial court for determination on stipulated facts and an exhibit. The stipulation was as follows:
“On or about May 2, 1968, William T. Warren purchased from Gosnell Chevrolet Buick Company, Russellville, a 1962 Chevy II Station Wagon, for a stated cash price of $995.00, less down payment, plus collision and comprehensive insurance written in Motors Insurance Corporation, in policy that is attached as an Exhibit and introduced into evidence as Exhibit A. .
“The contract under which Mr. Warren purchased the car was by Gosnell Chevrolet Buick Company assigned to General Motors Acceptance Corporation under an agreement in which Gosnell Chevrolet Buick Company was obligated to repurchase the contract in the event of non-payment by Mr. Warren.
“Mr. Warren entered into possession of the automobile and made one payment under the conditional sales contract in the month of June, 1968. The next payment, under the conditional sales contract was due July 2, 1968. On July 8, 1968, the automobile was involved in a collision in Morrilton, causing heavy damage.
“At the time of the accident the payment due July 2 had not been made. Following the collision the automobile was moved to Gosnell Chevrolet Buick Company at Russellville.
“At the time of the collision the automobile had a fair market value of $650.00. The insurance policy contained a deductible clause of $50.00 in respect to collision coverage.
“The latter part of July, 1968, GMAC called on Gosnell Chevrolet Buick Company to repurchase the contract for the debt. At that time the net balance due GMAC, after crediting all unearned finance charge and insurance premiums was $816.99, which, amount was paid by Gosnell Chevrolet Buick to General Motors Acceptance Corporation. Motors Insurance Corporation received from the Gosnell Chevrolet Buick Company an agreed repair price on the damaged vehicle in the amount of $534.75. Motors Insurance Corporation paid to Gosnell Chevrolet Buick Company $484.75, which was computed at the agreed repair cost, less the $50.00 deductible.
“Subsequently,. Gosnell Chevrolet Buick didn’t repair the automobile, but sold it in its damaged condition without notice to Mr. Warren. The salvage value was $50.00.
“Mr. Warren has not been the payee of any check issued by Motors Insurance Corporation and has not signed any release in favor of Motors Insurance Corporation. ’ ’
In addition to this stipulation, the insurance policy issued by Motors Insurance Corporation was offered into evidence. The court entered a judgment against Motors Insurance Corporation, and in favor of Warren, appellee, in the amount of $550.00, plus a $66.00 penalty, and awarded an attorney’s fee of $220.00. The court’s reason for entering the judgment was “that the court feels, or determines, he [Warren] has not had his day in court.” From the judgment, comes this .appeal.
The court erred, and the judgment will have to be reversed. In his brief, appellee states:
“* * * Without notice to or with the consent of the Appellee, the automobile was moved to Gosnell Chevrolet-Buick Company. * * * The Appellee never had any notice of any of the dealings between General Motors Acceptance Corporation and the Appellant. * * * No replevin action had been instituted by Gosnell Chevrolet-Buick Company and no notice of any delinquent or forfeiture had ever been given to the Appellee.”
Whether these facts are pertinent to a determination of the litigation cannot be passed upon by this court for the reason that it will be observed that they were not included in the stipulation. The policy of insurance was issued in favor of Warren and General Motors Ac ceptance Corporation, “as their interests may appear.” Section 7 of the policy, under “Conditions, ” provides as follows:
“The limit of the company’s liability for loss shall not exceed the actual cash value of the property, or if the loss of a part thereof the actual cash value of such part, at time of loss, nor what it would then cost to repair or replace the property or such part thereof with other of like kind and quality, nor, with respect to an owned automobile described in this policy, the applicable limit of liability stated in the declarations # * *.”
Tbe stipulation sets out that the fair market value of the automobile, at the time of the collision, was $650.00. It will be noted that, since Warren had only made one payment, and was delinquent in the second payment due, appellee owed a net amount under the contract which was in excess of the fair market value of the car. Under the stipulation, when payments to GMAC became delinquent, Gosnell Chevrolet Buick Company repurchased the contract as it was obligated to do under its agreement, and was accordingly subrogated to the rights of that company. Gosnell gave appellant a repair price on the damaged car in the amount of $534.75, and .appellant then paid the company $484.75, which represented the repair cost, less the $50.00 deductible.
The policy very clearly provided that Warren and General Motors Acceptance Corporation, in case of a loss, should be paid as their interests appeared. Of course, GMAC was entitled to the full amount of insurance under the aforesaid provision, but since Gosnell paid the indebtedness, the latter “stepped into the shoes” of the acceptance corporation. It was entirely proper for Motors Insurance Corporation to pay the money to Gosnell for two reasons, first, because of its being subrogated to the rights of GMAC, and second, because of Gosnell’s having agreed to repair the auto mobile. Let it be remembered that we are here dealing with the liability of Motors Insurance Corporation — not Gosnell. If Gosnell picked up the damaged vehicle and moved the car to its place of business in violation of a contractual arrangement with Warren — or settled the claim with appellant for an insufficient amount — or if Gosnell sold the wrecked automobile for a sum much less than its actual value — relief could have been sought by Warren against that company.
We can only determine this litigation from the facts stipulated by the parties, and, under that stipulation, the car admittedly being of less value than the amount owed by Warren, and GMAC or its subrogee being entitled to payment prior to any payment to Warren, we find no liability on the part of appellant.
Reversed.
Byrd, J., dissents. | [
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J. Fred Jones, Justice.
On October 29, 1958, Hardy Higginbottom, then 86 years of age, undertook to convey by warranty deed to his youngest son, Roe, an interest in Sharp County land under description as follows :
“My undivided one-half interest in and to the following described lands, to-wit: A part of the WV2 SE14 Sec. 20, Containing 76 acres; the NW% NE14, Sec. 29 containing 40 acres, all in Twp. 17 N. R. 4 west, subject to a mortgage to the Federal Land Bank of St. Louis.
Reserving unto my self all of the use and benefits including all rents profits from the above lands and premises.”
The deed recited $10 and other consideration but Roe testified that he considered the conveyance as a gift of the land, prompted perhaps by the fact that he was the youngest child and had suffered some financial reverses. The deed was mailed to Roe at his home in Indiana soon after it was executed but was not placed of record in Sharp County until soon after Mr. Hardy Higginbottom died intestate on December 8, 1965.
Roe took possession of the lands under the deed and on May 2, 1966, the other children of Hardy Higginbottom filed suit in the Sharp County Chancery Court to set the deed aside on various grounds, including undue influence, incompetency of the grantor, and a void description as to the 76 acres. The complaint prayed also for an accounting and partition. The chancellor found that Hardy Higginbottom was competent and under no undue influence at the time the deed was executed; that the deed was a volunary conveyance and conveyed good title to the 40 .acre tract accurately described, but conveyed no title to the 76 acres because of inaccurate and void description. The decree recites as follows:
“Therefore, it is by the Court considered, ordered, adjudged and decreed that the deed executed by Hardy Higginbottom, deceased, to Roe Higginbottom, dated October 29, 1958, and appearing of record in Deed Record A-5 at page 483 in the Recorder’s Office for Sharp County, Arkansas, insofar as It relates to part of the West Half (W%) of the Southeast Quarter (SE]4) of Section Twenty (20), containing 76 acres, in Township Seventeen (17) North, Range Four (4) West, subject to a mortgage to the Federal Land Bank of St. Louis, be, and the same is hereby, cancelled, set aside, and held for naught. It is further considered, ordered, adjudged and decreed by the Court that said deed insofar as it relates to the Northwest Quarter (NW!4) of the Northeast Quarter (NE%) of Section Twenty-nine (29), containing 40 acres, in Township Seventeen (17) North, Range Four (4) West, subject to a mortgage to the Federal Land Bank of St. Louis, is a valid conveyance of said 40 acre tract of land and by reason thereof the defendant, Roe Higginbottom, is vested with title to an undivided one-half interest by reason of said conveyance.
This cause is hereby continued for further proceedings on the prayer of plaintiff’s complaint for a partitioning of said lands and accounting for rents.”
Roe Higginbottom has appealed from so much of the chancellor’s decree that holds the deed void as to the 76 acres and states his point relied on as follows:
“The court erred in rendering a decree in favor of the plaintiffs for the following reasons:
1. Because of the basic principle laid down by this court in the case of Dorr v. School District No. 26, etc. wherein the court stated that a deed is not to be held void for uncertainty if by any reasonable construction it can be made .available.
2. Because the plaintiffs in the allegation in their complaint at page 1 of the transcript used the same description that is set out in the deed, about which they complain. Then the defendants in their answer admitted that they were in possession of that same land. There was no dispute in any part of either the complaint, the answer or the evidence with regard to the land that was involved.
3. Because it is admitted by the appellees that there is no dispute about the land that is involved in the law suit. In the discussion of the case during the trial one of the (attorneys for the appellees said: ‘There is no question but what a family group of people here in Sharp County, own certain land in Sharp County. There is no question about who it is that make up that family group. There is no question .about what land they own. There may be some argument about the interest — the amount of interest that different ones of them have in the tract— but there is no question about the identity of the individuals that do own the tract of land and there is not .any argument about what that tract of land is.’
4. Because the appellees in their allegation used the description that they say is indefinite and the defendants in their answer .admitted that they were in the possession of the land that had been set forth in the complaint of the plaintiffs. Or, in other words the plaintiffs state that the land is described a certain way. Then the defendants answering admit that the land of which they took possession is the same as described in the complaint. The plaintiffs are, in effect, attacking their own description.”
The appellant cites in support of his argument on the point relied on, Dorr v. School District, 40 Ark. 237, and Walker v. David, 68 Ark. 544, 60 S. W. 418.
The Dorr case is distinguishable from the case at bar on the facts. In Dorr a Mr. Edwards donated three acres of land for a church, schoolhouse and cemetery. The property was surveyed and described by metes and bounds and a plat was made and recorded. A church .and schoolhouse were built and a cemetery was established on the land. The cemetery had been dedicated for more than ten years when Dorr, who had purchased from Edwards the entire quarter section in which the three acres was included, brought suit in ejectment against the school district. The deed to the school district described the land ,as follows:
“A certain parcel of land lying and being in the county of Independence, commencing at a black-gum tree standing near the road and graveyard, near the residence of Benjamin I. Edwards, run ning north 40 poles to a stone, thence east 12 poles to a stone, thence south 40 poles, thence west 12 poles to the place of beginning, containing three acres, including said school house and graveyard.”
In Walker, the grantors owned no other land than that conveyed and they put their grantee into possession. This court’s own language in the Walker case distinguishes it from the case at bar. In Walker this court said:
“The circumstances here are that Cook and his wife owned the north half of the west half of the southwest quarter of section 30, containing 44 acres, and owned no other land in that section. The land was improved and nearly all under fence. They sold it to Lymus Walker, and put him in possession of it, describing it in the deed which they executed and delivered to him as the north part of the southwest quarter of section 30, etc., containing 44 acres, more or less. Now, apart from the circumstances surrounding the conveyance, ,a description of that kind shows prima facie an intention to convey 44 acres off the north part of the west half of the quarter section laid off in the shape of a rectangular parallelogram with the north line of the west half of the quarter section as one of its sides. Watson v. Crutcher, 56 Ark. 44. The proof shows that a rectangular tract containing 44 acres laid off in that way in the north part of the west half of the quarter section would take exactly the north half of the west half of the quarter section. And the circumstances in proof show that such a construction of the deed coincides with the intention of the parties thereto. Though a description in a deed which is clear and unambiguous cannot be set aside by parol proof of the acts of the parties, either before or after the deed, still in a case of doubtful description it is competent to look to the construction placed on the deed by the parties themselves as an aid to ascertain its meaning. 1 Jones, Beal Prop. § 334; Har ris v. Oakley, 130 N. Y. 1.” (Emphasis supplied).
In the case at bar it is apparent that the parties all knew the location of the land involved and the extent of the land owned by Hardy Higginbottom, as argued by the appellants. But it is also apparent from the record that Hardy Higginbottom did not attempt to include in the deed, all the land he owned and that he did in fact own other land not included in the deed to Boe. There is nothing in the record to indicate that the grantor did not own the remaining part of the west half of the southwest quarter of Section 20, other than the 76 acre part recited in the deed. The chancellor obviously recognized the problem Boe would encounter in attempting to separate the 76 acre part conveyed to him from the remaining part that was not conveyed, in the event he should attempt to convey title by deed to the land he owned, or in the event of partition.
The chancellor found that the conveyance was a voluntary gift, and this finding is supported by the evidence, No reformation of the deed is requested and there was no contractual obligation or consideration to support reformation. We agree with the appellees that this case is controlled by the rules announced in such cases as Smith v. Smith, 80 Ark. 459, 97 S. W. 439; Moore v. Jackson, 164 Ark. 602, 262 S. W. 653, and the other cases cited by the appellees and that the decree of the chancellor should be affirmed.
Affirmed.
Bybd, J., not participating. | [
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Frank Holt, Justice.
Pursuant to Ark. Stat. Ann. § 73-809(b) (Supp. 1967), tbe appellee filed with the Arkansas Commerce Commission a notice of the discontinuance of its agency station at Stamps, Arkansas. A requisite number of the qualified electors of the city signed and filed a petition with the Commission protesting the station closing and asking re-establishment of the station. After two separate hearings the Commission sustained the protestants’ demurrer at the close of appellee’s case. The Commission then made a Report and Order denying appellee the authority to discontinue its agency railroad station. Upon appeal the circuit court reversed the Findings and Order of the Commission and directed the entry of an order authorizing the closing of the station. From that judgment the Arkansas Commerce Commission and the protestants, the residents of Stamps who signed the petition, bring this appeal.
On appeal the appellants contend for reversal that the judgment of the circuit court was erroneous in finding that the Order and Findings of the Commission are contrary to the law and the evidence presented to the Commission; in finding that the Commission acted beyond its discretion in refusing to permit appellee to close its station; and further erred in finding and holding under the law and the evidence that appellee’s petition to close its station should have been granted by the Commission. The appellants ask that the judgment of the circuit court be reversed with directions to deny the petition of the appellee railroad and to reinstate the Order of the Commission which denied appellee the authority to close its Stamps agency station.
We recently considered the extent of appellate review upon appeals from the findings of fact of the Arkansas Commerce Commission. Fisher v. Branscum, 243 Ark. 516, 420 S. W. 2d 882 (1967). There we said that § 73-134 “provides that findings of fact of the circuit court are not binding on this court. On the other hand, it requires that we review all the evidence and make such findings of fact and law as we deem just, proper and equitable,’’ In other words, our review is similar to that which we make in chancery cases.
The appellee sought, according to the requirements of the statute, to discontinue service on the basis that the “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.” § 73-809(b). In support of these alternate allegations the appellee presented two witnesses. One was its supervisor of stations who was familiar with the operation and procedures followed by the railroad with respect to the handling of freight. He testified as to the amount of carload traffic and the number of customers (for the 12-month period preceding the notice of closing), the distance to the nearest agency station, the ability of the appellee to continue to perform identical service for its customers at Stamps, all of which was to the effect that the closing of the Stamps station would result in operating economies and would be consistent with the public convenience and necessity. The other witness was appellee’s special accountant employed in the cost bureau of its executive department. His testimony related to the volume of business and the operational costs of the Stamps station for the twelve months immediately preceding the filing of the notice. His testimony was based upon the official records of the railroad which, according to him, are kept in accordance with the standard accounting procedures followed by the railroad industry. It was his testimony that the operation of the Stamps station during the pertinent preceding twelve months resulted in a financial loss. We do not deem it necessary to detail the evidence in the case since upon a review of appellee’s uncontradicted evidence we are convinced that the appel lee made a prima facie case for the closing of the station. Arkansas Commerce Comm’n v. Kansas City Southern Ry. Co., 244 Ark. 912, 428 S. W. 2d 83 (1968).
However, when we review the evidence de novo, as we do in chancery cases, we find in the case at bar that an inequitable result would be reached by permitting the closing of the station without an opportunity for further proceedings. We perceive from the record that there were witnesses available for the protestants who should have been offered the opportunity to contradict the evidence submitted by the appellee, which evidence, as previously indicated, constituted a prima facie case for closing the station. This right was cut off by improvidently sustaining the demurrer, by protestants’ then attorney, to appellee’s evidence. As we said recently in Fisher v. Branscum, supra, we are required, after reviewing all of the evidence, to make “findings of fact and law as we deem just, proper, and equitable.” We have discretionary power in. equity procedure to remand for further proceedings. Brizzolara v. Powell, 214 Ark. 870, 218 S. W. 2d 728 (1949); General Box Co. v. Scurlock, Comm’n of Revenues, 224 Ark. 266, 272 S. W. 2d 678 (1954). In the state of the record in the case at bar, it is our view that a just, proper, and equitable result requires that we reverse the judgment of the circuit court. The cause is remanded with instructions that the Commission be directed to overrule the demurrer and permit the appellant protestants to offer proof, if they desire, in contradiction of the evidence presented by the appellee. In the event the protestants cannot or do not elect to do so, then the judgment of the circuit court is affirmed.
Reversed and remanded with directions to enter a judgment not inconsistent with this opinion. | [
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John A. Fogleman, Justice.
All of the appellants in this case were engaged in the production of grapes during the year 1967 and prior years. They appeal from a decree denying them reformation of policies of insur anee issued by appellee on their 1967 crops. This decree also denied appellants any recovery over and above the amounts paid by appellee on their claims prior to the institution of the present action. While appellants urge five points for reversal, we find it necessary to discuss only one of them, in view of our finding that the appellants completely released appellee from any liability on their respective claims by accepting the amounts which appellee contended were due under the policies of insurance.
The policies were issued through Walker Brothers. Inc., an insurance agency representing Travelers Indemnity Insurance Company and approximately twelve other companies. This agency had obtained hail insurance policies for the appellees in prior years. The policies previously issued had not provided full coverage on the grape crops until the grapes had become one-eighth of an inch in diameter. Walker began providing coverage under the policies issued by appellee during the year of 1966. The following clauses were contained in the application for insurance:
“Beginning 24 hours, except as may be provided in the policy, from the hour and date this application is last signed by both the applicant and the Company’s Agent, the Company shall assume liability for loss by hail and additional perils, if any, named in the policy.
* # *
The foregoing binder is subject to the representations and provisions of this application, to the conditions of the CHIAA Standard Crop-Hail Policy, and to the provisions of any endorsement attached thereto. A copy of this application, or abstract thereof, and of any endorsement shall be attached to the policy if issued by the Company and together with the policy shall constitute the insurance con tract; the original application will be on file with the Company.”
Attached to and constituting a part of both the appliction and the policy of insurance in each case, there was a sheet entitled “TREE FRUITS, GRAPES, BUSH FRUITS AN.D BERRIES.” Among the clauses set out on this sheet under the heading “Special Provisions” was the following, pertaining to grapes:
“It is a condition of this policy, if this application covers on grapes, not to exceed one-third of the amount of insurance applied for hereunder shall take effect prior to the time that 75% of the berries have attained a minimum size of Vs inch in diameter The Company shall not be liable for loss or damage to buds, blooms, or blossoms in any event, nor for loss or damage to vines and leaves unless such loss to vines and leaves shall affect the product thereof, and.then only to the extent that the product thereof has been affected. * * *”
The grape crops of all of the appellants suffered damage by hailstorm in the latter part of April 1967. Claude Brock, a field representative of a group of insurance companies insuring such risks, and A. G. Ackerman, an adjuster for the group, went to the damaged vineyards shortly after the loss occurred. The crops had not reached a stage of development which permitted any accurate estimate of the loss suffered at that time. At the time of the hail damage none of the grapes in any of the crops had attained the minimum size required for coverage in the face amount of the policies. On the occasion of this visit neither Brock nor Ackerman told any of the appellants that their coverage, under the circumstances, was limited to one-third of the amount of the insurance applied for. They did so advise Lowery Walker, the officer of the insurance agency who dealt with appellants.
Approximately one month after their first visit, Brock and Ackerman returned and made an assessment of the damages to the crops of each of the appellants in amounts that seemed to have been satisfactory to each grower. After determining the amount of damages Brock and Ackerman filled out a form for proof of loss for each of the appellants. The proofs of loss prepared for signature by appellants contained the following paragraph :
“The Insured under above described policy hereby agrees to accept thereunder said amount claimed in full payment, compromise and satisfaction for loss and damage as aforesaid and further agrees that said amount covers in full all loss and damage sustained previous to this date. The Insured also declares that the statements contained herein are true and are made for the purpose of collecting a claim from the Company and that no attempt had been made to deceive the Company, either as to the amount of insurance carried, acreage, location, ownership of crops, or the amount or extent of the loss.”
Each of the appellants declined to sign this proof of loss at first. Both Orville White and Vern White later talked with Walker. Thereafter each of them signed the proof of loss as prepared and submitted it to appellee. The basis of refusal for both of the Whites to sign the respective proofs of loss was their contention that they had bought 100% coverage while the proof of loss was based on only one-third of the damage. Robert E. Pianalto, Secretary-Treasurer of Pianalto-Pozza Farms, Inc., stated that he signed the proof of loss regarding the corporation’s grape crop. He did not talk to Walker but got his policy out, read it and decided that the coverage might be only for one-third of the loss, contrary to his understanding. He said that he signed the proof of loss to avoid as much confusion as possible. Richard Pianalto, president of the corporation, testified that he accepted the adjustment because he was under the impression that there was no alternative, after he obtained advice from certain insurance agents and officers.
After receiving the proofs of loss in the latter part of June 1967, appellee mailed a draft to each of the appellants for the amount shown in the respective proofs, i. e.t one-third of the total damage to each. These drafts were accepted, endorsed and the proceeds collected by the respective appellants. On the reverse side of each draft, immediately above the place where they were endorsed, there appeared the following statement:
“ENDORSEMENT OP THIS DRAFT IS HEREBY MADE ACKNOWLEDGMENT OP FULL PAYMENT AND DISCHARGE OF ALL CLAIMS AND DEMANDS FOR LOSS AND DAMAGE UNDER THE POLICY OF INSURANCE AS SET FORTH ON THE FACE OF THIS DRAFT; IN CONSIDERATION WHEREOF THE SAID POLICY IS HEREBY REDUCED IN SAID AMOUNT.”
On the face of each draft above the signature thereon and following the statement of the amount of the draft in words, appeared the following:
“BEING IN FULL SETTLEMENT OF ALL CLAIMS AGAINST THE ABOVE NAMED COMPANY FOR LOSS AND DAMAGE CAUSED BY HAIL OCCURRING 4/25 Í967 INSURED UNDER CROP-HAIL POLICY NO............. TSSUED AT THE SPRINGDALE, ARKANSAS AGENCY. LOSS NO.......... "
Appellants seek to avoid the effect of the clear statements contained in the proof of loss and on the drafts on the basis that the amount tendered and accepted was in payment of a liquidated, undisputed claim arising under the contract and not out of any compromise or settlement between the parties. Thus, they contend, there was no consideration for the release claimed by appellee for the discharge of an additional and dis tinct amount or item of liability. They rely upon DeSoto Life Insurance Company v. Jeffett, 210 Ark. 371, 196 S. W. 2d 243. In that case, the liability asserted- against which the release was pleaded was an additional and distinct - amount- or item of liability. 'The amount paid for-the -release was the amount which the jury determined to be a liquidated-and-uiidisputed obligation of the-insurance • company ' under ■ a clause providing for payment for partial disability. The claim- there asserted was based upon a -different clause providing for total disability. In its opinion the court recognized the general rule stated in American Insurance Union v. Wilson, 172 Ark. 841, 291 S. W. 417, where there is' a bona fide dispute as to'the amount due under an insurance contract, that the payment of a smaller sunrin satisfaction of the entire claim-is a sufficient consideration for the rfelease-of'the balance -of the amount claimed..
In the Wilson case, there "was the same kind of dispute between-the parties before the payment as existed ..here. ■ That suit was brought to -recover the difference between the face amount of a life insurance benefit certificate and the amount paid by the insurance company. The beneficiary claimed that the face amount. of the original policy was not affected by a merger contract under which the insurance company appealing assumed liability upon insurance certificates issued by the other company. This contract provided' that the appellant there should not be liable to the holders of benefit certificates--in excess ófran amount to be determined according to’ that contract. This' was the amount ‘tendered to'and accepted by the beneficiary in full payment of '-.all claims under the benefit certificate. The dispute there involved was whether the liability under the certificate was limited by the merger agreement because it -had not . been received by the insured and attached to his benefit certificate, thus- never becoming a part thereof. It was- held-. that- there was an accord and satisfaction, even though the beneficiary wrote the company before cashing the check, that he would accept it as part pajunent due on the policy. The court distinctly held that these circumstances did not involve a liquidated claim which could not be discharged by a payment of less than face value. We find the rule stated in that case to be applicable here. Even though the appellants agreed to and accepted the assessment of total damage by appellee’s representatives, there was definitely a dispute as to the amount for which the company was liable under the terms of the insurance policy. Thus the claim cannot be said to have been for a liquidated amount.
Earlier we said that if the basis upon which a liability should be determined under a contract between the parties is in dispute, the case is governed by the rule that acceptance and collection of a check or other remittance clearly stated to be full payment of the claim, without objection, achieves an accord and satisfaction. Arkansas Zinc and Smelting Corporation v. Silver Hollow Mining Company, 148 Ark. 512, 230 S. W. 573. We see no significant difference in that case and this. A later case applying this principle is Squires v. Beaumont, 233 Ark. 489, 345 S. W. 2d 465.
Appellants also assert that reformation should have been granted because of inequitable and unconscionable conduct of appellee’s representatives in failing to inform appellants upon their first visit to the grape fields that they would not receive full coverage but that coverage was limited to one-third of the face amount of the policy. Their argument that this failure prejudiced their opportunity to seek legal counsel before adjustment is unavailing because there was ample opportunity for them to have done so before executing the proofs of loss or accepting the payments. Even so, this is not the type of inequitable conduct necessary to justify reformation of a contract. If this conduct can be said to be inequitable and unconscionable, it did not induce any action on the part of any of the appellants or cause either of them to change his position in any way. Certainly the failure to so inform appellants did not cause any of them to enter into the contract involved or to accept the payment offered. We find no merit in this contention.
The decree is affirmed.
The only variation in this statement was the policy and the agency loss numbers. (Footnote Ours.) | [
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Conley Byrd, Associate Justice.
Appellant S & S News Agency, Inc., a wholesale magazine distributor and operator of one retail establishment known as the Point Newsstand, brought this action in equity to prevent appellees, Jack Freeze, Mayor; Clifford Y. Keheley, City Administrator; J. Sam Wood, City Attorney, and the City of Fort Smith, Arkansas, from prosecuting appellant’s agent under Ark. Stat. Ann. § 41-2704 (Repl. 1964), and from harassing or threatening appellant with further prosecution for the sale of the magazines involved in Gent v. Arkansas, 239 Ark. 474, 393 S. W. 2d 219 (1965), and Redup v. New York, 386 U.S. 767 18 L. ed. 2d 515, 87 S. Ct. 1414 (1967). Appellees filed a joint motion to dismiss upon the basis that the petition shows on its face that it is a proceeding to enjoin a criminal prosecution, in which case equity would be without jurisdiction because an adequate remedy exists at law. When the motion was first presented the trial court entered the following order:
“The Court concludes on July 3, 1969, that the motion should be treated as a demurrer and the Court is of the opinion that equity has no jurisdiction of the allegations of this complaint, that the complaint fails to state a cause of action upon which relief can be granted and that a complete and adequate remedy exists at law in the adjudication of any prosecutions that may be instituted in the law courts but in order to give full opportunity to plaintiff to sustain equity jurisdiction, the Court reserves its ruling upon such demurrer at this time and does grant to plaintiff a hearing on July 14, 1969, at which time plaintiff will be given an opportunity to present proof.”
After the hearing, the court entered the following order:
“And now on this July 14, 1969, the parties appearing . . . and the Court finds that plaintiff has failed to make a prima facie showing of ‘continual threats and studied harassment’ as alleged in the complaint and has failed to make a prima facie showing of irreparable injury and has failed to make a prima facie showing that the plaintiff has no adequate remedy at law and the Court is of the opinion that no jurisdiction exists in Chancery over the allegations of the complaint, that no grounds exist for transfer of this case to the law court because all constitutional questions sought to be raised can be litigated in any prosecutions, if any are commenced, and the Court finds that the demurrer should be sustained, and the complaint dismissed
For reversal appellant argues: that the burden was on defendants to sustain their motion; that the trial court had jurisdiction; that the defendants had violated appellant’s constitutional rights; that the trial court should declare the statute invalid; and that the question of obscenity was not involved.
Upon a trial held pursuant to the July 3rd order, it was shown that appellant was only interested in an injunction regarding subsequent issues of the magazines named in the United States Supreme Court mandate in Gent v. Arkansas, supra. The proof shows that two Fort Smith Police officers went to the Point Newsstand and purchased two magazines, neither of which is involved in this litigation. The officers took the two magazines to the prosecuting attorney and then to the municipal judge who issued a warrant for the sale of obscene literature. When the officers returned with the warrant to arrest the newsstand operator, appellant’s manager had arrived. At that time he voluntarily turned over to the officers copies of the magazines here involved so that they might take them to the prosecuting attorney for a determination of whether they violated the obscenity law. The proof shows that the newsstand operator was convicted in the municiapal court and that an appeal from that conviction is now pending in the Sebastian Circuit Court. Subsequent to the operator’s arrest and the ensuing publicity therefrom, other newsstands in the city told appellant to pick up the magazines that are here involved. Eventually appellant’s only retail outlet, the Point Newsstand, was forced to close down from lack of revenues from the sale of its magazines.
The rule consistently adhered to by this court is set forth in Rider v. Leatherman, 85 Ark. 230, 107 S. W. 996 (1908). We there held that equity will not entertain a contest over the validity of a statute nor restrain prosecutions pending the determination of the validity thereof where an adequate remedy at law exists. When we consider the complaint as amended to conform to the proof, Ark. Stat. Ann. § 27-116 (Repl. 1962), we agree with the trial court that equity had no jurisdiction to restrain the acts of which appellant complains.
While appellant loudly proclaims that its constitutional rights have been violated, the real gravaman of its complaint seems to be that neither the City Administrator nor the City Attorney will say whether appellant will be allowed to sell subsequent issues of the magazines involved in Gent v. Arkansas, without being-arrested under the obscenity law. We know of no law, and appellant has cited us none, which would permit a blanket injunction against a municipality with respect to all subsequent issues of the magazines involved irrespective of content or subject matter.
Affirmed.
Carretón Harris, Chief Justice, concurs. | [
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George Rose Smith, Justice.
This appeal is from a summary judgment in favor of the plaintiff, U. S. F. & G. In several respects the case is similar to U. S. F. & G. v. Wells, 246 Ark. 255, 437 S. W. 2d 797 (1969). Each case was an aftermath of the insolvency and ultimate bankruptcy of Kern-Limerick, Inc. That concern, in its last days, wrongfully exposed installment vendees of its equipment to double liability, by transferring tbe purchaser’s promissory note to one assignee and the underlying conditional sales contract to another. In the Wells ease we held that U. S. F. & G., having acquired its note from a holder in due course, was entitled to the rights of such a holder and took the note free from defenses that might have been asserted against the original payee. That decision is controlling upon the principal substantive point in the present litigation and is so recognized by the parties.
This appellant urges two points for reversal that were not presented in the Wells case.
First, it is argued that the trial court erred in rejecting an unverified amendment to the appellant’s answer, on the ground that it was filed too late. In view of the facts we find no abuse of discretion. The defendant’s first answer to the complaint was in substance a one-sentence general denial. The plaintiff, on the basis of admissions of fact made by the defendant, filed its first motion for summary judgment. Four days before that motion was to be heard the defendant filed an amended answer setting up affirmative defenses. That pleading was sworn to by the appellant. On January 3, 1967, the court denied the first motion for summary judgment, pointing out that the defendant had interposed affirmative defenses.
On October 3, 1968, the plaintiff filed a second motion for summary judgment, supported by affidavits controverting the asserted affirmative defenses. That motion was set for hearing on February 25, 1969. On that morning the defendant, without leave of court, filed an unsworn amendment to his answer, asserting for the first time that the equipment for which the defendant’s note had been given had been repossessed by Kern-Limerick with the consent of the original holder in due course of the note. The trial court, in rejecting the proffered amendment, pointed out that it was not verified, that it was filed almost five months after the plaintiff’s second motion for summary judgment, that it was filed more than two years after the defendant’s assertion of other affirmative defenses, and that the change of position indicated by the new pleading related to a matter that should have been known to the defendant and his counsel for more than two years. The court concluded: “To now allow such an amendment without motion and without notice seems to the court to be unfair.” We think it evident from the facts that there was no abuse of the circuit court’s broad discretion in such matters. Brewer v. Howell, 227 Ark. 517, 299 S. W. 2d 851 (1957). Under the circumstances an unverified pleading was not a substitute for the counteraffidavits expressly contemplated by the statute. Ark. Stat. Ann. § 29-211 (c) (Repl. 1962).
Secondly, the appellant insists that the trial court’s denial of the plaintiff’s first motion for summary judgment was res judicata of the second motion. The issues, however, were not the same, because the asserted affirmative defenses that defeated the first motion had been rebutted by affidavit when the second motion was considered. Hence a renewal of the motion was permissible in the interest of justice. Moore’s Federal Practice, § 56.14[2] (2d ed. 1966).
Affirmed. | [
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J. Fred Jones, Justice.
This is an eminent domain case involving the taking by the Arkansas Highway Commission, for Interstate 40 right-of-way, a 16.72 acre strip of land running northeast and southwest across the north 80 acres of Mr. Geeslin’s 440 acre tract of land in Conway County, Arkansas.
Mr. Geeslin testified that the highest and best use of his land was for livestock farming; that it was worth $300 per acre before the taking and $200 per acre after the taking. He testified that his entire land had been damaged in the amount of $58,263 because of the taking. Mr. George Lyford testified as an expert for Mr. Geeslin. He testified that the 80 acre tract through which the right-of-way was taken was not damaged at all by the taking, but that the remainder was damaged in the amount of $39,425. Two experts testified for the Commission. Mr. Scott testified that the damage amounted to $2,750 and Mr. Hayes testified that it amounted to $1,-750. All the testimony pertaining to damages was based on the difference in the value of the land before and after the taking. The jury returned a verdict for $45,000 and although the Commission filed a motion for a new trial, the court overruled the motion and entered judgment for the amount of the verdict. The Commission has appealed and relies on the following points for reversal :
‘ The trial court erred in overruling appellant’s motion for change of venue.
The trial court erred in not striking the value testimony of owner, Ralph L. Geeslin.
The trial court erred in not striking the value testimony of expert witness George Lyford.
The Court erred in overruling the appellant’s motion for a new trial.
The verdict is not based on substantial evidence and is excessive.”
We disagree with the Commission on its first point, but we agree with it on all the others.
The Commission filed a verified motion for a change of venue but the motion was not supported by the additional affidavits required by law and it was de nied by tbe trial court. The Commission argues that the trial court abused its discretion in refusing to grant the motion and that Geeslin waived any deficiency in the lack of affidavits in support of the motion by failing to object at the trial. We do not agree with the Commission. It filed its motion under Ark. Stat. Ann. § 27-701 (Repl. 1962), the pertinent part of which is as follows:
“Any party to a civil action, trial by a jury, may obtain an order for a change of venue therein by motion upon a petition stating that he verily believes that he can not obtain a fair and impartial trial in said action in the county in which the same is pending, on account of the undue influence of his adversary, or of the undue prejudice against the petitioner or his cause of action or defense, in such county. The petition shall be signed by the party and verified as pleadings are required to be verified, and shall be supported by the affidavit of at least two [2] credible persons to the effect that the affiants believe the statements of the petition are true.”
The Commission calls attention to sixteen eminent domain cases from Conway County where jury awards totaled $470,550, when the highest damages testified to by the Commission’s expert witnesses totaled only $131,-550. The same argument was advanced in the case of Ark. State Highway Comm’n v. Duff, 246 Ark. 922, 440 S. W. 2d 563, and there we said: “Our statute requires not only that a motion or petition for change of venue be verified, but, in addition, that it be supported by the affidavit of at least two credible persons that they believe the statements of the petition are true.” We pursue the Commission’s first point no further, for if its argument was not answered in Duff, supra, it was completely answered, adversely to the Commission’s contentions, in Ark. State Highway Comm’n v. Leavell, 246 Ark. 1049, 441 S. W. 2d 99.
In considering the other points the Commission relies on, we shall not go into the separate objections made to the testimony and exhibits. All objections except one were overruled by the trial court and the evidence was submitted to the jury for what it was worth.
The entire tract of land involved in this lawsuit consists of 440 acres. Eighty acres of the tract, one-fourth mile wide and one-half mile long, extends north from the northeast 40 of the remaining 360 acres. The remaining 360 acres lie roughly, on the map exhibit, in the form of a rectangle slightly longer east and west than it is wide north and south. Cadron Creek runs from the northeast to the southwest. It slightly cuts the southeast cor ner of the 80 acre tract and forms the eastern boundary line of the remaining 360 acre tract. The 80 acre tract extends north into hill land from Cadron Creek, and the remaining 360 acres extends west from Cadron Creek and is referred to as “bottom land.” The right-of-way extends diagonally through the 80 acre tract leaving ■approximately half of the remainder of the 80 acres, roughly in the shape of a triangle, on the northeast side of the right-of-way, and the remaining half in the form of a triangle, still joining the 360 acres on the southwest side of the right-of-way.
The jury verdict was for $5,575 more than any witness, other than Mr. Geeslin, testified that the damage amounted to, so the verdict was obviously based on Mr. Geeslin’s testimony. We must reverse the judgment of the trial court for two reasons. Mr. Geeslin simply submitted no substantial evidence that his land, outside of the actual taking, was damaged one-third of its original value, and there is no substantial evidence that the land was worth $300 per acre. Mr. Geeslin purchased about half of his land in 1959 for $62 per acre and the remainder in 1962 for $91 per acre. He paid $33,000 for the entire tract. There is no evidence in the record that he has made any improvements on the land or that it has increased in value since he purchased it.
The owner of land may give his opinion in evidence as to the value of his land without qualifying as an expert in land values, but his opinion does not constitute substantial evidence unless based on facts that would justify his opinion. A properly qualified expert’s opinion, however, does constitute substantial evidence unless it be shown that his expert opinion is without reasonable basis.
Mr. Geeslin testified as to some flooding and inconvenient access to parts of the 80 acres across which the right-of-way runs.
“Q. You cannot get to this land in the north?
A. No, sir, you cannot get to that.
Q. What has it done to this 80 acres?
A. It has completely destroyed the value of the whole property.”
And as to the remaining 360 acres, Mr. Geeslin testified, in part, as follows:
“Q. The remaining part of the 440 .acres, less this 80, has it been damaged since the taking?
A. Yes, sir.
Q. Tell us how.
A. The highest and most profitable — What I was going to use the place for, and I have gotten with the SCS people many years ago, was stock farming. That was my sole intention. Without this high land to get the cattle up out of the bottom, you know, you run a chance of running cows and them getting down in the creek and can’t get back up. So, that land has been damaged.
Q. Mr. Geeslin, prior to August 30, (He means March) [sic], 1966, and immediately thereafter, were you familiar with the value of lands similar to yours lying along Cadron Creek?
A. Yes, sir, the only piece of property I consider of anyways near as valuable as mine, acreage or value wise, lies approximately—
Q. Go to the exhibit and show the jury where it is.
A. From my property line here it is three quarters of a mile and directly across the track, [sic] the same type land. It is bottom land, subject to more overflow than mine. Mine is approximately 5 feet higher than his.
Q. Whose is that?
A. J. W. Benefield to Garland Kazar.
Q. Do you know when that sold?
A. March 31, 1966?
Q. Have you talked to both the buyer and seller?
A. Yes, sir, both, and the figure they used was $400.00 an acre is what Mr. Kazar paid Mr. Benefield for his land.
Q. March 31, 1966?
A. Yes, sir.
Q. Based on your knowledge of the land and sales in this area, will you tell the jury what in your opinion the 440 acre tract was worth immediately before March 30, 1966, or before the highway went through?
A. I figured it was worth $300.00 an acre. I didn’t consider it hill land any less valuable than the other for the reason I was going to use it as a stock farm, and it had as much value as the other, for the reason I was going to use it for that.
Q. Prior to March 30, 1966, what was the 440 acres worth?
A. $132,000.00.
Q. What, in your opinion, Mr. Geeslin, was the land worth immediately after the taking?
A. I would say it is worth $200.00, or — $200.00 an acre, or $88,000.00 after that.
Q. All right.
A. Because of the devaluation for the stock farm.
Q. Based on the taking and damages what, in your opinion, have you been damaged in dollars and cents, Mr. Geeslin, and tell us why?
A. Okay, sir. The 16.82 acres I valued at $300.00 an acre, or $5,016.00. The rest of the 80 acres— this block here — less the amount of the highway Right of Way that is not accessible, 58 acres, at $300.00 an acre, or $17,448.00, less the value that I placed on it immediately after the taking — This part I can’t get to — a small tract of land, if you find somebody that would give $30.00 an acre, or a devaluation of the 80, $15,735.00. On the remaining, I considered damaged $100.00 an acre, $36,500.00, because I can’t use it for the high value of stock farming, and it is limited to strictly row cropping.
Q. What, in your opinion, was the property worth immediately after the taking!
A. Immediately after the taking the total value would be $73,736.00.
Q. Making your damage what, Mr. Geeslin, in your opinion!
A. In my opinion, I was damaged $58,263.00; and all of this I haven’t covered.”
Mr. Geeslin testified on cross-examination that his land is in the soil bank; that the taking of the right-of-way has damaged it for cattle grazing purposes and that it is now only fit for row crops. In arriving at the value he compared his land to a 700 acre rice and soy bean farm sold by Benefield to Kazar for $400 per acre. He compared his 80 acres through which the right-of-way was taken to some land sold by Wilcox and Bell to Hixon for less than $200 per acre. Yet he values his 80 acres of hill land, along with the rest of his land, at $300.
We conclude that the trial court erred in refusing to strike the value testimony of Mr. Geeslin because it was shown on direct as well as cross-examination, that he had no logical basis for the value of $300 per acre he placed on his land. Regardless of the value of _Mr. Geeslin’s land prior to the taking, he is without reasonable basis for his testimony that his land had been damaged in the amount of $100 per acre. Mr. Geeslin still has approximately half of his 80 acres in hill land connected as before to his remaining 360 acres bottom land. It is difficult to reconcile Mr. Geeslin’s testimony that his bottom land has been reduced by one-third in value by converting it from its intended use as pasture to being fit only for row cropping. The chance he would take “of running cows and them getting down in the creek and can’t get back up” does not constitute substantial evidence that his 440 acres of land was damaged $100 per acre or in any other amount. He would take the same chance of overflow in planting his land to row crops as he would in running it in pasture.
Mr. Geeslin’s expert witness, George Lyford, testified that 75 acres of the 80 acre tract was in the hills and that its market value before the taking, as well as after the taking, was $175 per acre. He testified that 5 acres of the 80 acre tract, as well as the remaining 360 acres, was bottom land which had a market value of $300 per acre before the taking.
“Q. What was the value before the taking?
A. The value of the whole tract before the taking was $122,625.00.
Q. How did you arrive at that value?
A. I used the price of $175.00 an acre on 75 acres of this north 80 — 5 acres of that north 80 included in the bottom land at $300.00 an acre, which made a total of 345 [sic] in the bottom and 75 acres in the hills.”
On direct examination Mr. Lyford testified that he used comparable land sales in arriving at his evaluation, but he only testified as to two of them. One was the sale of hill land for less than $200 per acre made some six months after the taking, and the other was the Benefield sale at $400 per acre testified to by Mr. Geeslin. As to the damage of $100 per acre to the 365 acres in bottom land, Mr. Lyford testified on direct examination as follows:
“A. We considered the highest and best use was permanent pasture, and he had 250 head of cattle there. He would have—
Q. If you had a cattle farm, if the water came up, then the cattle would have high ground to go up to?
A. No, sir.
Q. Did Mr. Geeslin have this high ground before?
A. Yes, sir.
Q. Where was it?
A. On the north side of the right-of-way.”
On cross-examination Mr. Lyford testified:
“Q. Mr. Lyford, this tract Benefield to Sevier, March 31, 1966, that was for how much?
A. $290,800.00.
Q. How many acres?
A. 727 acres with no improvements.
Q. That is how much an acre?
A. $400.00 an acre.
Q. Let’s talk about this a little bit, Where is this property?
A. Across the creek and about a mile north.
Q. Across the creek and north of the subject land?
A. Yes, sir.
Q. What is the topography of this land?
A. It is in the first bottom north of the ridge that runs west of Beaver Fork Lake.
Q. Is it suitable for cultivation?
A. Yes, sir.
Q. Is the land we took in this law suit suitable for cultivation?
A. The land you took? No, sir.
Q. How do you compare these sales?
A. I compared that as the whole of the property. Q. What do they grow on the Sevier land?
A. What kind of land—
Q. This other land?
A. Rice and soy beans.
Q. Did you consider that comparable to this land that had timber and scrub underbrush?
A. No, sir. I took that into consideration in the north 80 acres.”
We conclude that both on direct and cross-examination Mr. Lyford revealed that he had no sound basis for his opinion that Geeslin’s land had a before value of $300 per acre and -an after value of only $200. Even if the before value of the 365 acres of bottom land was worth $300 per acre before the taking, there is no substantial evidence that it was damaged $100 per acre because of the taking. Both the owner and his expert witness testified that 75 acres of the 80 acre tract is hill land and' the photograph exhibits 3 and 4 bear this out. The plat shows, and the testimony indicates, that about half of the hill land still remains on the southwest side of the right-of-way and connected to the main body of bottom land, and there is no testimony that all of the 365 acres in bottom land is ever inundated by overflow. There are no buildings or other improvements on the property which have been severed from the remainder by the right-of-way. If the 365 acres lost one-third of its value because it is subject to such overflow that would force cattle to leave it and seek refuge on the 80 acres of hill land, then certainly a 727 acre rice and bean farm, over the hill in another valley, would not be comparable to the 365 acres of such overflow land. If the two farms are comparable, then it is only reasonable that the highest and best use of both of them would be for either cattle grazing or rice and bean farming. If Mr. Geeslin is correct in his testimony that his land is now only fit for row cropping, it would .appear that it is now more comparable to the rice and bean farm than it was before the taking.
This case is reversed and remanded to the trial court for a new trial.
Reversed and remanded.
Fogleman and Holt, JJ., dissent.
Ark. State Highway Comm’n v. Muswick Cigar and Beverage Co., 231 Ark. 265, 329 S. W. 2d 173.
Ark. State Highway Comm’n v. Darr, 246 Ark. 201, 437 S. W. 2d 463.
Ark. State Highway Comm’n v. Duff, 246 Ark. 922, 440 S. W. 2d 563.
Ark. State Highway Comm’n v. Johns, 236 Ark. 585, 367 S. W. 2d 436; Ark. State Highway Comm’n v. Dixon, 246 Ark. 731, 439 S. W. 2d 912; Ark. State Highway Comm’n v. Duff, supra. | [
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George Rose Smith, Justice.
This action was brought by the appellee Pittard to recover a $15,000 real estate agent’s commission for having sold a tract of land in Little Rock for the appellants, Foundation Securities Corporation and a companion company. The defendants denied liability on the ground that Pittard’s right to a commission was contingent upon the actual closing of the sale — an event which admittedly never took place. The trial court granted the plaintiff’s motion for summary judgment upon the pleadings and affidavits on file. For reversal the appellants contend that there are questions of fact about whether the sale could have been closed without the consent of the Little Rock Housing Authority.
The facts, as might be expected in view of the summary judgment, are for the most part undisputed. Foundation Securities orally employed Pittard to find a purchaser for the land. Pittard succeeded in interesting Gus B. Walton in the property at the stipulated price of $265,000. On- March 23, 1965, two contracts were signed. First, Walton paid Foundation Securities $5,000 for a written option to purchase the land. Second, Foundation Securities signed and delivered to Pittard the two-sentence contract now sued upon:
In consideration of services rendered by Harry A. Pittard in the sale of [the land] the undersigned agrees to pay Mr. Pittard a commission of Fifteen Thousand Dollars ($15,000.00). This commission to be payable upon closing of the sale to Grus B. Walton.
Both sides agree that the insertion of the specific requirement that the sale be closed takes the case out of the usual rule that a real estate agent earns his commission merely by producing a person ready, willing, and able to buy the property. Pittard insists, however, that the sellers arbitrarily refused to close the sale and accept Walton’s money, thereby waiving the condition in Pittard’s contract. Pinkerton v. Hudson, 87 Ark. 506, 113 S. W. 35 (1908).
There is, however, another condition to be considered, which brings us to the crux of the case. According to the record, the sale from Foundation Securities to Walton may have been contingent upon the approval of the Housing Authority, from which Foundation Securities had acquired the property. Two documents in the record indicate the necessity for the Housing Authority’s consent: One, Walton’s option recited that the sellers would obtain from the Housing Authority such permissions, consents, and .approvals as might be required to enable the sellers to consummate the transaction. Two, the counter-affidavit of Lyle Bettis, an officer of Foundation Securities, states that Pittard’s commission was upon condition that the sale to Walton be closed, and goes on to explain: “The reason for the condition . . . being that the property could not be sold without the approval of the Little Rock Housing Authority and could not be sold for a profit.”
At the oral argument Pittard’s attorney insisted that the quoted language in the Bettis affidavit should be disregarded, because it states merely a reason rather than a fact. A fact, however, may be stated in the form of a reason, as when we say: “The cause of action abated upon the plaintiff’s death, the reason being that the plaintiff had only a life estate in the land.” Moreover, on motion for summary judgment the testimony must be viewed in the light most favorable to the side resisting the motion; so any uncertainty must be resolved in favor of the appellants. Van Dalsen v. Inman, 238 Ark. 237, 379 S. W. 2d 261 (1964).
We conclude, therefore, that there is a question of fact whether the Housing Authority’s approval was essential to the consummation of the sale. Even so, Pittard insists that the appellants cannot shield themselves behind the Housing Authority’s nonconsent to the sale, because, Pittard argues, that obstacle was eliminated in a suit brought by Walton for specific performance of his option to buy.
This particular point is pivotal. The record shows that Walton filed suit against the sellers for specific performance of the contract. The Housing Authority was not a party to the case. The sellers’ answer interposed several defenses, one being that the Housing Authority had not approved Walton’s option to purchase and had advised the parties that it would not approve any transfer or conveyance of the property prior to the completion of certain improvements that had not then been made.
The evidence in the earlier case was not brought into the present record. The decree made no findings of fact whatever, merely reciting that Walton was entitled to a decree directing the sellers to specifically perform their contract. The sellers gave notice of appeal, but Walton died before the appeal was perfected. According to the Bettis affidavit, after Walton’s death “the heirs were unwilling to complete the sale, the Housing Authority never gave permission for the sale at the purchase price of $265,000.00, and the sale was never completed to Gus Walton or his heirs.” Apparently the heirs and the sellers abandoned both the suit and the sale.
Upon this point Pittard argues that when Walton sued for specific performance “he irrevocably elected to pursue that remedy and irrevocably abandoned his option (in the contract) to call the contract at an end and to secure his money back. Bigger v. Glass, 226 Ark. 466, 209 S. W. 2d 641 (1956); Belding v. Whittington, 154 Ark. 561, 243 S. W. 808, 26 A. L. R. 107 (1922). So, when Gus Walton filed suit for specific performance, he gave up his right to call the contract at an end. Since he did not have that right, his heirs, who stood in his place, possessed no greater rights than he did.”
The appellee, we think, misconstrues the scope of the doctrine of election of remedies, discussed in the two cases cited. True, when a plaintiff sues for specific performance he cannot, over the defendant’s objection, dismiss that case and bring suit for damages instead. It does not follow, however, as the appellee argues, that the mere filing of the first suit irrevocably commits the plaintiff to purchasing the property — so much so that he cannot change his mind and drop the whole transaction.
To the contrary, it is plain enough that, just as in any contested lawsuit, the plaintiff is always at liberty to abandon the pursuit of his cause of action. In fact, that point was clearly recognized in the Belding case, where we said that an election, once made, cannot be withdrawn “without due consent.” Hence, with the defendant’s consent, the plaintiff can change from one remedy to the other. It is even plainer that he can withdraw from the litigation altogether if he chooses to do so, with or without his adversary’s consent.
As we have seen, the Housing Authority’s approval of the sale may have been required. Upon that point, to say the least, a question of fact is involved. The plain tiff, in asking for a summary judgment in the court below, had the burden of eliminating that question of fact from the case. “A motion for a summary judgment is an extreme remedy and the burden of demonstrating the nonexistence of a genuine fact issue is upon the party moving for the summary judgment.” Deltic Farm & Timber Co. v. Manning, 239 Ark. 264, 389 S. W. 2d 435 (1965).
Here the appellee has not met that burden. Even after the entry of the decree in the earlier case Walton might have become convinced that the chancellor’s decision had been wrong and would be reversed on appeal. In that situation he would certainly have been at liberty to drop the suit and surrender whatever rights he had under the option contract. Upon Walton’s death his heirs stepped into his place and may have acted in the manner we have suggested. Furthermore, the Housing Authority was not a party to that case; so if its consent to the sale was actually required, a contrary finding by the court would not have been binding upon the Authority. Upon the record as a whole we are convinced that the earlier decree, which was abandoned by the parties, does not satisfy Pittard’s burden of showing that the necessity for the Authority’s consent to the sale has been eliminated from the case.
Reversed and remanded for further proceedings.
Harris, C. J., and Holt, J., dissent. | [
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Carleton Harris, Chief Justice.
This is a highway condemnation case. The Arkansas State Highway Commission, appellant herein, condemned 11.11 acres needed for the construction of Interstate Highway No. 40 in Johnson County, Arkansas, the property condemned belonging to W. D. Phillips, Jr., and Wanda Phillips, his wife, appellees herein. On hearing, Mr. Phillips testified that the total damages to his property amounted to $12,500.00. H. C. Yarbrough, a witness for appellees, testified that damages, in his opinion, amounted to $11,-720.00. Dee Evans, a real estate dealer of Johnson County, listed damages as $10,691.00. The jury returned a verdict for $9,000.00, and from the judgment so entered, appellant brings this appeal.
For reversal, two points are asserted: First, that the court erred in refusing to strike the testimony of H. C. Yarbrough as to the value of the property remaining after the taking, on the grounds that he had not seen the right-of-way maps or construction plans prior to testifying. The same alleged reversible error is also asserted with reference to the testimony of Dee Evans.
We do not agree with these contentions. In the first place, the point listed by appellant as to Yarbrough’s testimony, does not conform to the motion that was actually made. The motion made was as follows:
“We would like to move to strike this man’s testimony. It is obvious he doesn’t know what was out there when he looked at the after value, neither did he know as to the control of access and what was there after the taking.”
We nave stated on numerous occasions that if any part of the witness’s testimony is admissible, it is improper to strike all of his evidence. As stated in Arkansas Highway Commission v. Wilmans, 236 Ark. 945, 370 S. W. 2d 802:
“A motion to exclude all the testimony of a witness is properly overruled if a part of it is competent.”
That holding is applicable here. Not only that, but Yarbrough’s testimony makes clear that he had gone upon the property and observed and examined the construction. As to Evans, this witness testified that he did look at the construction plans for Interstate 40, but added; “I don’t think that I would have to study them too much.” His overall testimony clearly indicates that he did view the maps and plans. We find no error.
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Tom Glaze, Justice.
This is an appeal from a wrongful-death case. In January of 1997, James Arthur Neasley, a resident of Pulaski County, was working at the construction site of an apartment complex in Memphis, Tennessee. Appellee Summit Contrators was the contractor at the site. On January 16, Neasley was erecting trusses on the top of the building under construction when he fell to the ground and sustained injuries that required the removal of his kidney, partial removal of his colon, and exploratory abdominal surgery. Neasley died from complications from his injuries on February 7, 1997.
On November 12, 1999, Neasley’s mother, appellant Cleo Hall, filed a wrongful- death suit in Pulaski County Circuit Court against Summit Contractors and a number ofjohn Doe defendants. By way of a second amended complaint, filed on October 30, 2000, Hall added HRH Safety and Health Systems (“HRH”) as a defendant. HRH had contracted with Summit Contractors to develop and implement a safety program at the construction site where Neasley was working at the time of his accident. A fourth amended complaint added breach-of-contract claims against HRH.
On November 14, 2001, HRH filed a motion for summary judgment, alleging, among other things, that because the accident and injuries occurred in Tennessee, Hall’s action was barred by Tennessee’s one-year statute of limitations governing wrongful-death lawsuits. HRH contended that Hall’s initial complaint was time barred because she did not file her complaint until almost three years after Neasley’s accident; her second amended complaint, adding HRH, was not filed until more than three and a half years after Neasley’s death.
The trial court granted the summary-judgment motions filed by HRH and Summit, finding that Tennessee’s one-year limitations period applied and barred Hall’s action, rather than Arkansas’ three-year statute of limitations governing wrongful-death claims. See Ark. Code Ann. § 16-56-202 (1987). Because Hall had outstanding claims against other defendants, she requested, and the trial court agreed to enter, an order certifying Hall’s interlocutory appeal of the order granting summary judgment. See Ark. R. Civ. P. 54(b). Hall raises the following three points for reversal: 1) her claims against HRH and Summit are not barred by Tennessee’s one-year statute of limitations; 2) her cause of action is not barred by the application of the Uniform Conflict of Laws Limitation Act, particularly § 16-56-202; and 3) her second amended complaint was not barred by the three-year statute of limitations provided by the Arkansas wrongful-death statute.
Our standard of review for summary judgment cases is well established. Summary judgment should only be granted when it is clear that there are no genuine issues of material fact to be litigated, and the moving party is entitled to judgment as a matter of law. Stephens v. Petrino, 350 Ark. 268, 86 S.W.3d 836 (2002); City of Barling v. Fort Chaffee Redev. Auth., 347 Ark. 105, 60 S.W.3d 443 (2001). The purpose of summary judgment is not to try the issues, but to determine whether there are any issues to be tried. BPS, Inc. v. Parker, 345 Ark. 381, 47 S.W.3d 858 (2001).
As noted above, Hall challenges the trial court’s finding that, under § 16-56-202, Tennessee’s one-year statute of limitations was applicable, rather than Arkansas’ three-year statute. Section 16-56-202 provides in pertinent part that, “if a claim is substantially based... [u]pon the law of one (1) other state, the limitation period of that state shall apply.” § 16-56-202(a)(l) (emphasis added). The Commissioners’ Comment to this section notes that the Act “treats limitation periods as substantive, to be governed by the limitations law of a state whose law governs other substantive issues inherent in the claim. This is true whether the limitation period of the substantively governing law is longer or shorter than that of the forum’s law.” Comment to § 16-56-202. Thus, if Hall’s claim was “substantially based” on the law of Tennessee, under § 16-56-202, her claim would be barred by that state’s one-year statute of limitations.
Tennessee’s applicable statute of limitations is found in Tenn. Code Ann. § 28-3-104(a)(1), which provides that “[actions for . . . injuries to the person” shall be commenced within one year after the cause of action accrued. Tennessee cases have been clear for more than a century that this statute of limitations applies to wrongful-death actions. See Lynn v. City of Jackson, 63 S.W.3d 332 (Tenn. 2001); Gosnell v. Ashland Chemical, Inc., 674 S.W.2d 737 (Tenn. Ct. App. 1984); Jones v. Black, 539 S.W.3d 123 (Tenn. 1976); Whaley v. Catlett, 53 S.W. 131 (Tenn. 1899).
Clearly, the wrongful-death claim was substantially based on Tennessee law: the construction job where Neasley went to work was in Tennessee; Neasley, who lived in Arkansas, purposely went to Tennessee to take part in the construction job; the accident that caused Neasley’s death took place in Tennessee; and any negligence that led up to that accident occurred in Tennessee. In sum, it is readily apparent that the lawsuit was substantially based on Tennessee law, and therefore subject to Tennessee’s one-year statute of limitations.
We note that the Arkansas General Assembly repealed the Arkansas Limitations Act by enacting Act 310 of 1999; however, that change is of no import. Here, Neasley died in February of 1997. At the time when our state legislature repealed its Limitations Act (Act 310 was approved on February 25, 1999), Tennessee’s one-year statute of limitations had already expired; Hall’s wrongful-death claim was therefore time-barred in that state. This court has held that the legislature may retroactively increase the length of a statute-of-limitations period to cover claims already in existence, but it “may not expand a limitation period so as to revive a claim already barred.” Chunn v. D’Agostino, 312 Ark. 141, 847 S.W.2d 699 (1993) (emphasis added); Johnson v. Lilly, 308 Ark. 201, 823 S.W.2d 883 (1992). In Johnson, supra, this court explained the reason for this rule as follows:
[W]e have long taken the view, along with a majority of the other states, that the legislature cannot expand a statute of limitation so as to revive a cause of action already barred. Rhodes v. Cannon, 112 Ark. 6, 164 S.W.752 (1914); Couch v. McKee, 6 Ark. 484 (1845). In Wasson v. State ex. rel. Jackson, 187 Ark. 537, 60 S.W.2d 1020 (1933), this court wrote:
In most jurisdictions it is held that, after a cause of action has become barred by the statute of limitations, the defendant has a vested right to rely on that statute as a defense, and neither a constitutional convention nor the Legislature has power to divest that right and revive the cause of action. Where title to property has vested under a statute of limitation, it is not possible by an enactment to extend or revive the remedy since this would impair a vested right in the property.
Id. at 538, 60 S.W.2d at 1020-21 (quoting 6 R.C.L., p. 309).
Johnson, 308 Ark. at 203-04 (emphasis added).
As noted above, § 16-56-202 was still in effect at the time of Neasley’s accident and death. Therefore, because the claim was substantially based on Tennessee law, the Tennessee statute of limitations applied to the claim. Once that one-year statute of limitations expired in February of 1998, the defendants in this case had “a vested right to rely on that statute as a defense,” Johnson, supra, and the legislature’s subsequent repeal of the Limitations Act could not revive a claim that was already time-barred.
Hall raises an alternative argument, contending that the “unfairness” exception found in § 16-56-204 should govern this case. That exception is as follows:
If a court of competent jurisdiction determines that the limitation period of another state, applicable under §§ 16-56-202 and 16-56-203, is substantially different from the limitation period of this state and has not afforded a fair opportunity to sue upon, or imposes an unfair burden in defending against the claim, the limitation period of this state shall apply.
Hall argues that Tennessee’s one-year statute of limitations is unfair, because it “does not afford a reasonable opportunity to sue.”
In support of her argument, Hall cites American General Fire & Casualty v. Wal-Mart Stores, Inc., 791 F. Supp. 763 (W.D. Ark. 1992). There, the parties agreed that the substantive law of Louisiana applied to the case, which triggered § 16-56-202. However, the federal district court pointed out that Louisiana had a one-year statute of limitations on product liability claims, whereas Arkansas’ limitations period was three years; it further found that the “unfairness” exception in § 16-56-204 should apply, because the plaintiffs did not have a fair opportunity to sue within one year. The federal court noted the fact that the lawsuit was brought by the insurance company, as subrogee of an insured homeowner, against the manufacturer and the seller of an iron which caused a' house fire. The iron was purchased in Louisiana after being shipped there from Arkansas. The court observed that the investigation had to make its way not only through the plaintiff insurance company’s internal processes, but also through investigations by both the manufacturer and the manufacturer’s insurance carrier. The federal court held, “[G]iven the number of steps involved in processing the claims of both plaintiffs insured and plaintiff, it is obvious that a considerable amount of time would inevitably pass before plaintiff could responsibly determine that a lawsuit was appropriate and then file that suit.” American General, 791 F. Supp. at 766.
Here, the only investigation required by Arkansas law is the general investigation required by Ark. R. Civ. P. 11. Hall makes no argument that she would have been unable to conduct such an investigation within one year of Neasley’s death, or even asserts any facts that would indicate that she encountered any kind of substantial barriers to instituting suit within one year; instead, she simply asserts that Tennessee’s one-year statute of limitations is unfair and does not afford a reasonable opportunity to sue. However, this bald assertion of “unfairness,” with no evidence to support it, is insufficient to warrant reversal. See Mikel v. Hubbard, 317 Ark. 125, 876 S.W.2d 558 (1994) (this court will not reverse in the absence of prejudice).
Finally, Hall argues that her second amended complaint is not barred by the three-year statute of limitations, because she properly utilized Arkansas’ “John Doe statute,” Ark. Code Ann. § 16-56-125 (1987), to toll the statute of limitations as to HRH. Hall filed her second amended complaint, naming HRH for the first time, on October 30, 2000. On appeal, she argues that she did not discover the identity of HRH until she received answers to interrogatories and requests for production of documents from Summit on August 2, 2000. Because she amended her complaint to substitute HRH for one of the John Doe defendants within the ninety days allotted by § 16-56-125, she claims, the second amended complaint was timely as to HRH. Of course, for this argument to have any merit, this court would have to apply Arkansas’ three-year statute of limitations. As discussed above, however, Tennessee’s one-year statute of limitations governs this case, and therefore, Hall’s second amended complaint naming HRH was filed well outside of the applicable time limits.
Affirmed.
Summit Contractors adopted HRH’s summary-judgment motion.
Hall raises an argument that the Limitations Act does not bar her claim, citing § 16-56-202(a)(2) in support. That section provides that, if a claim is substantially based “[u]pon the law of more than one (1) state, the limitation period of one (1) of those states, chosen by the law of conflict of laws of this state, shall apply.” However, her claim is not substantially based on the law of more than one state; as discussed above,it is substantially based on the law of Tennessee. Further, she makes no genuine argument that her claim is substantially based on Arkansas law; rather, she simply states that Neasley’s death “is potentially governed by the laws to two states —Tennessee, where the negligence occurred, and Arkansas, where Neasley resided and where his estate was probated.” However, she offers no convincing argument or authority that would explain why a wrongful-death action that accrued as the result of an accident in Tennessee would be “substantially based” on Arkansas law. | [
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Per Curiam.
Appellant Allen Shane Kelley, by and through his attorney, Michael J. Dodson, has filed a motion for rule on the clerk. The motion reflects that the judgment of conviction was filed on October 10,2003, and the notice of appeal was timely filed pn October 22, 2003. The record, on appeal was due to be filed on January 20, 2004. See Ark. R. App. P. — Crim. 4; Ark. R. App. P. — Civ. 5. Thereafter, counsel obtained an order from the trial court extending the time to lodge the record on appeal, but that order was of no effect because it was entered on January 22, 2004, two days after the original ninety-day period ended. Id. The record was tendered in this court on January 23, 2004. Counsel admits responsibility for tendering the record late.
We find that such error, admittedly made by the attorney for a criminal defendant, is good cause to grant the motion. See Jackson v. State, 351 Ark. 212, 89 S.W.3d 930 (2002) (per curiam); Tarry v. State, 288 Ark. 172, 702 S.W.2d 804 (1986) (per curiam). The motion for rule on the clerk is, therefore, granted. A copy of this opinion will be forwarded to the Committee on Professional Conduct. See In Re: Belated Appeals in Criminal Cases, 265 Ark. 964 (1979) (per curiam).
It is so ordered. | [
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Per Curiam.
Johnny Paul Dodson was found guilty by a jury of possession of a controlled substance and sentenced as a habitual offender to life imprisonment. Dodson lodged an appeal from the judgment in this court on August 21, 2002. His attorney, Q. Byrum Hurst, was scheduled to file the appellant’s brief on September 30, 2002.
Counsel filed a series of motions for extensions of time to file the brief which were granted. The brief was not timely filed, however, and counsel sought leave to file a belated brief, which we granted on March 6, 2003. The appellee subsequently filed a motion to direct compliance with Ark. Sup. Ct. R. 4-3(h). The motion was granted on May 15, 2003, and appellant was allowed until June 24, 2003, to submit a complying brief.
Counsel sought another extension of time and was allowed until June 29, 2003, to submit the brief. (Counsel was notified at that time that no further extensions would be granted.) When the brief was tendered on Monday, June 30, 2003, it contained only an abstract and was accordingly returned to be corrected. The brief was due July 7, 2003, but not filed.
On July 24, 2003, the appellee filed a motion to dismiss the appeal on the ground that counsel had failed to file a brief or request leave to file a belated brief. Counsel did not respond to the appellee’s motion, and we granted it by per curiam order entered September 4, 2003.
On December 22, 2003, appellee Dodson filed the instant pro se motion in which he urges this court to reinstate the appeal because he was denied effective assistance of counsel by his attorney’s failure to file a brief that conformed to the rules of this court. We find merit in appellant’s argument and reinstate the appeal.
Mr. Hurst did not act to protect appellant’s right to appeal and thus denied him the effective appellate representation guaranteed to a convicted criminal defendant by the Sixth Amend ment. See Pennsylvania v. Finley, 481 U.S. 551 (1987). The direct appeal of a conviction is a matter of right, and a State cannot penalize a criminal defendant by declining to consider his or her first appeal when counsel has failed to follow mandatory appellate rules. Franklin v. State, 317 Ark. 42, 875 S.W.2d 836 (1994); see Evitts v. Lucey, 469 U.S. 387 (1985).
Because Mr. Hurst has not been relieved as counsel, he remains attorney-of-record and responsible for the appeal. He is directed to file within seven days of the date of this opinion a motion to file a belated brief. Mr. Hurst is further directed to appear before this court on Thursday, February 26, 2004, at 9. a.m, and show cause why he should not be held in contempt for his failure to protect appellant’s right to a first appeal.
Motion granted. | [
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Donald L. Corbin, Justice.
Appellant Damarcus Jordan appeals the order of the Pulaski County Circuit Court convicting him of capital murder and aggravated robbery and sentencing him to life imprisonment. On appeal, he argues that the trial court erred in refusing to grant (1) his directed-verdict motion on the charge of capital murder; (2) his motion to transfer his case to juvenile court; and (3) his motion to suppress his custodial statement. Our jurisdiction is pursuant to Ark. Sup. Ct. R. 1-2(a)(1). We find no error and affirm.
On the evening of February 11, 2001, Appellant was at the home of his friend Raymond Williams. Also present were Charles Robinson, another friend, and Williams’s three sisters. The group decided to order pizza from a nearby Pizza Hut. While waiting for the pizza to be delivered Appellant, Williams, and Robinson began discussing a plan to rob the pizza deliveryman when he arrived. Specifically, they discussed that one of the three would check the delivery vehicle for cash, while another would check his pockets, and the third would hold a gun on him. At one point, Appellant and Robinson began to argue over who was going to get to hold the gun but, ultimately, it was Appellant who held it. Appellant and the other two men then left the house for a while. When they returned, they came back inside the house for a few minutes, but then went back outside to wait for the deliveryman.
Approximately one hour and forty-five minutes after they ordered the pizza, Herman Lockhart, a part-time deliveryman for Pizza Hut, arrived at the Williams’s house. He went inside and dropped off the pizza. When he came back out, he was confronted by Appellant and Robinson. Appellant was pointing a gun at him when the gun discharged, striking Lockhart in the chest. Appellant, Robinson, and Williams then fled the scene.
The next morning, Williams’s mother arrived at Appellant’s home and informed his mother, Betty Jordan, that Appellant, Williams, and Robinson were wanted for questioning by the Little Rock Police Department. Betty and Curtis Clemons, a friend of hers, took Appellant and Robinson to the police department. Detective Steve Moore was notified that Appellant and Robinson were there, and he escorted the men to separate interview rooms. According to Moore, Appellant was informed that he was at the police department because there was a warrant for his arrest for capital murder.
While in the interview room, Moore and another detective, Ronnie Smith, advised Appellant of his Miranda rights. Appellant then gave a false statement regarding the events leading up to the death of Lockhart. In that statement, Appellant admitted that he and the others devised a plan to rob Lockhart when he delivered the pizza and that they waited outside for him to arrive. Appellant then told the officers that at the last minute he backed out and hid on the side of the house, while Williams and Robinson approached Lockhart. Appellant also told officers that it was Robinson who had the gun.
Shortly after this statement, when confronted with the fact that two of Williams’s sisters stated that Appellant wanted to hold the gun during the robbery, Appellant recanted his first statement. He then confessed to Moore and Smith that he was the one holding the gun during the robbery. He also admitted to shooting Lockhart, but claimed that Lockhart tried to grab the gun from him, causing it to accidentally discharge.
Appellant was charged by felony information with one count of capital murder and one count of aggravated robbery. A jury trial was held on April 29, 2003. During the trial, Annie Williams, a sister of Raymond Williams, testified that she overheard Appellant, Williams, and Robinson come up with a plan to rob the deliveryman. She stated that she never notified anyone of this plan, because she thought the three men were just joking. According to Annie, when the deliveryman left the house, she looked out the window and saw Appellant and Robinson standing in front of Lockhart. She could not tell if either man was holding anything, but stated that Appellant’s hand was pointed straight out in front of him. Annie turned away from the window and then heard a scream and a gunshot.
Stephen Ray, an analyst with the Arkansas State Crime Lab, testified that based on his analysis of the gunshot residue found on clothing worn by Lockhart at the time of the shooting, he was able to determine that Lockhart was not the victim of a close range or contact gunshot wound. According to Ray, Lockhart was not holding on to the gun at the time it was fired.
Dr. Frank Peretti was the medical examiner in this case. He testified that Lockhart died as the result of a single gunshot wound to the chest. Peretti stated that the wound was a distance gunshot wound, because there was no evidence of close range firing on the skin.
Following the presentation of all the evidence, the jury returned a verdict of guilty on both the capital-murder charge and the aggravated-robbery charge. This appeal followed.
I. Sufficiency of the Evidence
For his first point on appeal, Appellant argues that the trial court erred in denying his motion for a directed verdict made at the close of the State’s case and renewed at the close of all the evidence. Appellant argues that there was insufficient evidence to prove that he caused Lockhart’s death under circumstances manifesting an extreme indifference to the value of human life, as required by Ark. Code Ann. § 5-10-101 (a)(1) (Supp. 2003). Appellant avers that the State failed to prove that the shooting was nothing more than the result of an accidental discharge of the gun. In other words, Appellant argues that the mens rea necessary to sustain a capital-felony-murder conviction was not present and was not proved by the State. We disagree.
It is well settled that we treat a motion for a directed verdict as a challenge to the sufficiency of the evidence. Mills v. State, 351 Ark. 523, 95 S.W.3d 796 (2003); Williams v. State, 346 Ark. 304, 57 S.W.3d 706 (2001). The test for determining the sufficiency of the evidence is whether the verdict is supported by substantial evidence, direct or circumstantial. Id. Evidence is substantial if it is of sufficient force and character to compel reasonable minds to reach a conclusion and pass beyond suspicion and conjecture. Haynes v. State, 346 Ark. 388, 58 S.W.3d 336 (2001). On appeal, we view the evidence in the light most favorable to the State, considering only that evidence that supports the verdict. Williams, 346 Ark. 304, 57 S.W.3d 706. Remaining mindful of this standard, we review the evidence in this case.
Section 5-10-101(a)(l) provides that:
(a) A person commits capital murder if:
(1) Acting alone or with one (1) or more other persons, he ... commits or attempts to commit... robbery ... and in the course of and in furtherance of the felony or in immediate flight therefrom, he or ... an accomplice causes the death of any person under circumstances manifesting extreme indifference to the value of human life.
We have held that the required intent when a person is killed in the course of committing a felony, here robbery, is the intent to commit the felony and not the intent to commit murder. Isom v. State, 356 Ark. 156, 148 S.W.3d 257 (2004); Jones v. State, 336 Ark. 191, 984 S.W.2d 432 (1999). We have further held that the requirement of extreme indifference involves actions that evidence a mental state on the part of the accused to engage in some life-threatening activity against the victim. Williams v. State, 351 Ark. 215, 91 S.W.3d 54 (2002), cert. denied, 539 U.S. 907, 123 S.Ct. 2257 (2003); McCoy v. State, 347 Ark. 913, 69 S.W.3d 430 (2002).
Here, Annie Williams testified that she heard Appellant and the others making plans to rob Lockhart after he delivered the pizza. She testified that she heard Appellant and Robinson arguing over who was going to hold the gun, because Appellant wanted to do it. Annie also testified that immediately prior to the shooting, she looked out the kitchen window and saw Appellant and Robinson standing in front of Lockhart and that Appellant’s arm was pointing straight out in front of him. In addition to Annie’s testimony, Detective Smith testified that Appellant gave a statement admitting to shooting Lockhart. In that statement, Appellant claimed the gun went off after Lockhart tried to grab it. Appellant’s claim that the gun accidently discharged.was countered by evidence presented by the State that Lockhart’s wound was not the result of a close-contact wound and was not consistent with him having grabbed for the gun. Specifically, Stephen Ray, a crime lab analyst testified that an analysis of gunshot residue revealed that Lockhart was not holding on to the gun when it discharged. The medical examiner also testified that Lockhart’s wound was a distance wound, not a close-contact wound.
In sum, Appellant’s claim that the evidence did not eliminate the possibility of an accidental shooting is without merit. The fact that he pointed a loaded gun at Lockhart is sufficient to satisfy the requirement that he acted under circumstances manifesting an extreme indifference to the value of human life. This court has held that the mere act of pointing a loaded gun at another person in the course of a robbery is a manifestation of extreme indifference to the value of human life. Price v. State, 347 Ark. 708, 66 S.W.3d 653 (2002) (citing Isbell v. State, 326 Ark. 17, 931 S.W.2d 74 (1996)). In Isbell, this court noted that the act of pointing the weapon was sufficient to constitute the requisite circumstances regardless of whether there was an actual intent to shoot. Id. Accordingly, the trial court did not err in failing to grant his motion for a directed verdict.
II. Juvenile Transfer Motion
For his second point on appeal, Appellant argues that the trial court erred in denying his motion to transfer his case to the juvenile division of the circuit court. Specifically, Appellant argues that the trial court’s denial was clearly erroneous because he did not consider all the factors enumerated in Ark. Code Ann. § 9-27-318(g) (Supp. 2003). We do not address the merits of Appellant’s claim on this point, as the matter was previously decided by the Arkansas Court of Appeals in an unpublished opinion in Jordan v. State, CA 01-1203 (Ark. App. May 1, 2003). No petition for review of that opinion was ever filed with this court. Moreover, as this court pointed out in Davis v. State, 350 Ark. 22, 86 S.W.3d 872 (2002), an appeal from an order denying a motion to transfer to juvenile court following a conviction as an adult in circuit court is not timely and will not be considered by this court.
III. Motion to Suppress
For his final point on appeal, Appellant argues that the trial court erred in denying his motion to suppress his custodial statement, as his waiver of his Miranda rights was not voluntary, knowing, or intelligent. Appellant premises this argument on the notion that he was never informed that he would be charged as an adult. At the suppression hearing, Appellant argued to the trial court that his statement should be suppressed because officers failed to comply with certain provisions of the juvenile code. He does not continue this specific argument on appeal, however, and thus it is waived. See Echols v. State, 344 Ark. 513, 42 S.W.3d 467 (2001) (holding that issues raised below but not argued on appeal are considered abandoned). Thus, the sole issue for this court to decide is whether there was a voluntary, knowing, and intelligent waiver of Appellant’s rights.
In order to determine whether a waiver of Miranda rights is voluntary, knowing, and intelligent, this court looks to see if the statement was the product of free and deliberate choice rather than intimidation, coercion, or deception. Diemer v. State, 340 Ark. 223, 9 S.W.3d 490 (2000). In other words, did Appellant waive his rights with “full awareness of both the nature of the right being abandoned and the consequences of the decision to abandon it.” Sanford v. State, 331 Ark. 334, 346, 962 S.W.2d 335, 341-42 (1998) (quoting State v. Bell, 329 Ark. 422, 432, 948 S.W.2d 557, 562 (1997)). In order to make this determination, this court reviews the totality of the circumstances surrounding the waiver including the age, education, and intelligence of the accused; the lack of advice as to his constitutional rights; the length of the detention; the repeated and prolonged nature of the questioning; the use of mental or physical punishment; and statements made by the interrogating officers and the vulnerability of the defendant. Diemer, 340 Ark. 223, 9 S.W.3d 490. This court will reverse a trial court’s ruling on this issue only if it is clearly against the preponderance of the evidence. Grillot v. State, 353 Ark. 294, 107 S.W.3d 136 (2003).
We now turn to a review of the totality of the circumstances surrounding Appellant’s custodial statement. Appellant voluntarily arrived at the police station. He was patted down and taken to an interview room. Two officers, Detectives Moore and Smith conducted the interview of Appellant. According to both officers, there was no evidence that Appellant was under the influence of any narcotics or alcohol, and he appeared to understand what they were saying to him. Appellant told the detectives that he had completed the ninth grade and could read and write. Prior to asking any questions, Detective Smith verbally advised Appellant of his Miranda rights, as well as advised him that he was a suspect in a capital murder. Appellant signed the rights form stating that he understood his rights. He was advised of his rights at 10:35 a.m. His initial statement began at 10:39 a.m. and lasted until 11:00 a.m. Both Moore and Smith denied that they promised Appellant anything in exchange for his statement, or that they threatened or coerced him into making a statement. Because Appellant provided conflicting information about the identity of the shooter, Moore and Smith continued talking with Appellant after the conclusion of his first statement. Then, at 11:32 a.m., Appellant gave a second statement indicating that he, in fact, was the shooter. Prior to this second statement, Smith again went over with Appellant his Miranda rights and the fact that he was a suspect in a capital murder. A review of the circumstances surrounding Appellant’s waiver of his Miranda rights indicates that his waiver was made voluntarily, knowingly, and intelligently.
Before leaving this issue, we note that Appellant cites to the case of Ring v. State, 320 Ark. 128, 894 S.W.2d 944 (1995), for the proposition that a juvenile is especially vulnerable to interrogation and procedures. He makes no specific argument, however, as to how he was especially vulnerable in this situation, other than the fact that he was sixteen years of age at the time that he gave the statement. This court has previously rejected similar arguments.
In Boyd v. State, 313 Ark. 171, 853 S.W.2d 263 (1993), the appellant was seventeen at the time that he was questioned by police regarding his involvement in the burglary of a pawn shop. His sole argument on appeal was that the trial court should have suppressed his custodial statement because the extra safeguards embodied in Ark. Code Ann. § 9-27-317 (Repl. 2002) were not applied to him before he waived his Miranda rights. This court rejected his argument, noting that the safeguards of section 9-27-317 do not apply when a juvenile is charged as an adult. The court further stated that “when the prosecutor chooses to prosecute a juvenile in circuit court as an adult, the juvenile becomes subject to the procedures and penalties prescribed for adults.” Id. at 172-73, 853 S.W.2d at 264. This notion was reaffirmed in Sanford, 331 Ark. 334, 962 S.W.2d 335, where this court held that the age of a defendant alone is not sufficient to render a waiver unintelligent or unknowing. Accordingly, we cannot say that the trial court erred in refusing to suppress Appellant’s statement on this basis.
IVRule 4-3(h) Review
The record has been reviewed for prejudicial error pursuant to Ark. Sup. Ct. R. 4-3(h), and no reversible errors were found.
Affirmed. | [
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Annabelle Clinton Imber, Justice.
The Chicot County Circuit Court issued a permanent injunction that required Appellant Stanley K. Delancy to remove a herd of elk under his control from the State of Arkansas or slaughter and dispose of them by December 31, 2002. On appeal, Mr. Delancy contends that there is insufficient evidence to support the injunction, and that the circuit court’s order constituted a taking that requires just compensation under Article 2, § 22 of the Arkansas Constitution. We find no error and affirm.
In July 2001, the Southeast Arkansas Levee District granted Mr. Delancy a permit to construct a game fence and two cattle gaps on approximately 725 acres in Chicot County. At least one of the cattle gaps was located on the Mainline Mississippi River Levee. Although Mr. Delancy wanted to install gates at the cattle gap crossing on the levee, the permit issued by the Southeast Arkansas Levee District specifically provided that “no gates will be installed at cattle gap crossings.” Also in July 2001, Mr. Delancy submitted applications to the Arkansas Game and Fish Commission (AGFC) requesting a Wildlife Translocation Permit and Wildlife Commercial Breeder/Dealer Permit pursuant to AGFC Code § 15.01 et seq. (2004). Mr. Delancy was preparing to move a herd of elk he owned from property located in Louisiana to the enclosure he was constructing in Chicot County.
On August 10, 2001, Mr. Delancy met with wildlife officers from the AGFC who performed a preliminary inspection of the enclosure. The officers observed that the Mississippi River Levee had been “gated off’ to form the enclosure. They expressed concern about unrestricted public access and advised Mr. Delancy that the gates would have to be closed and locked. In fact, at that point the gates had not been approved by the levee district. The wildlife officers also notified Mr. Delancy that he could not bring any elk into his facility until he received all the proper permits from the AGFC. On August 17, 2001, one of the officers returned to Mr. Delaney’s enclosure while on routine patrol and discovered that the gates across the levee were unlocked and there were elk inside the enclosure. Mr. Delaney’s application to the AGFC had not yet been approved, and the elk had neither been properly-traced for disease, nor had they been inspected and vaccinated. In addition, the elk did not comply with AGFC’s disease certification requirements.
Ultimately, the Southeast Arkansas Levee District denied Mr. Delaney’s request to keep the gates on the levee road and had them removed. Shortly thereafter, on October 31, 2001, the AGFC denied Mr. Delaney’s application for a Wildlife Translocation Permit and Wildlife Commercial Breeder/Dealer Permit. The, AGFC advised him that he had ten days to remove the elk from the Arkansas enclosure. The elk were not removed, and on December 4, 2001, the Arkansas Livestock & Poultry Commission issued a quarantine order. The AGFC also issued citations for alleged violations of three AGFC Code provisions. Thereafter, the State of Arkansas filed a criminal information against Mr. Delancy charging him with possession of prohibited wildlife in violation of A.G.F.C. Code § 15.01, commercially breeding or distributing elk without a permit in violation of A.G.F.C. Code § 15.12, and transporting elk into Arkansas without a permit in violation of A.G.F.C. Code § 15.17. In conjunction with the information, the State sought an injunction to compel Mr. Delancy to remove the elk from the State of Arkansas, or, in the alternative, to authorize the State to remove and dispose of the elk.
During the bench trial on September 12, 2002, Mr. Delancy testified that he purchased the elk at various times from a seller in Louisiana. He admitted that he did not have the proper paper work on each elk and that one of the pregnant elk had escaped his enclosure. On November 1, 2002, the court entered an order finding Mr. Delancy guilty on all three counts, but deferred sentencing until December 3, 2002. The court also ruled that the State was entitled to a permanent injunction and ordered Mr. Delancy to remove forthwith from Arkansas all elk under his control, which matter would also be reviewed on December 3.
At that subsequent hearing, the court set the total fine for Mr. Delaney’s criminal violations at $3,000, or $1,000 per violation, and concluded that while Mr. Delancy had ample time to make suitable arrangements to remove the elk from the State, he had not done so. The court allowed Mr. Delancy until December 31, 2002, to have the elk transported to another state or slaughtered. If Mr. Delancy either failed to remove the elk or have them destroyed by December 31, the State would be authorized to enter the land where the elk were maintained and seize or slaughter the elk, with all costs of disposal and testing assessed against Mr. Delancy. The court’s written order was filed on December 20, 2002.
On December 23, 2002, Mr. Delancy filed a timely notice of appeal. On that same day, he filed a petition in this .court requesting a stay of the proceedings in the trial court. We denied the petition on December 27, 2003. The parties now stipulate that Mr. Delancy did indeed comply with the injunction and had the elk slaughtered on or before December 31, 2002. On appeal, Mr. Delancy does not challenge the criminal convictions, but instead raises two points of error. First, he asserts that the trial court erred in granting the injunction. Second, he suggests that the trial court erred in not awarding payment of just compensation under Article 2, § 22 of the Arkansas Constitution.
As a threshold matter, the State contends that Mr. Delaney’s argument with respect to the injunction is moot. As a general rule, the appellate courts of this state will not review issues that are moot. Cotten v. Fooks, 346 Ark. 130, 55 S.W.3d 290 (2001). To do so would be to render advisory opinions, which we will' not do. Id. Generally, a case becomes moot when any judgment rendered would have no practical legal effect upon a then-existing legal controversy. Id. This court has recognized two exceptions to the mootness doctrine. Id. The first one involves issues that are capable of repetition, yet evade review, and the second one concerns issues that raise considerations of substantial public interest which, if addressed, would prevent future litigation. Id.
In this case, the circuit court initially granted an injunction on November 1, 2002, that required Mr. Delancy to remove the elk from the State of Arkansas and enjoined him from future importation of wildlife into Arkansas unless he obtained the appropriate permits from the Arkansas Game and Fish Commission. On December 3, 2002, after finding that Mr. Delancy had failed to remove the elk, the circuit court amplified its injunction to require Mr. Delancy to either remove the elk or have the elk slaughtered by December 31, 2002; otherwise, state officials would be authorized to seize and slaughter the elk at his expense. Mr. Delancy filed a petition in this court on December 23, 2003, seeking a stay of the proceedings in the circuit court. We denied that petition on December 27, 2003. The parties agree that on or before December 31, 2002, Mr. Delancy had the elk slaughtered.
Compliance with the circuit court’s injunction is a foregone conclusion. Any opinion by this court would have no practical legal effect upon a now-existing legal controversy. Thus, the mootness doctrine is applicable. Nonetheless, we hold that this case falls within an exception to our mootness doctrine in that it is capable of repetition and yet would evade review. We recognize that there will be similar situations in which the State seeks an injunction that calls for the immediate removal or slaughter of animals that are potentially infected with a contagious disease. Because the threat of a contagious disease spreading among wildlife is immediate, cases of this nature will likely escape review. We conclude that it is appropriate to reach the merits of this case.
For his first point on appeal, Mr. Delancy contends that there was insufficient evidence to support the entry of an injunction due to the State’s failure to prove irreparable harm. This court reviews injunctive matters de novo. Custom Microsystems, Inc. v. Blake, 344 Ark. 536, 42 S.W.3d 453 (2001). The decision to grant or deny an injunction is within the discretion of the trial judge. Id. We will not reverse the judge’s ruling granting or denying an injunction unless there has been an abuse of discretion. Id. When considering an order that grants or denies an injunction, we will not delve into the merits of the case further than is necessary to determine whether the lower court exceeded its discretion. Id. We have explained that the sole question before us is whether the trial court departed from the rules and principles of equity in making its order, and not whether we would have made the order. Id.; see also Villines v. Harris, 340 Ark. 319, 11 S.W.3d 516, 519 (2000). In reviewing the lower court’s findings, we give due deference to that court’s superior position to determine the credibility of the witnesses and the weight to be accorded to their testimony. United Food and Commercial Workers, Intern. Union v. Wal-Mart Stores, Inc., 353 Ark. 902, 120 S.W.3d 89 (2003).
To establish sufficient grounds for a permanent injunction, the movant must show (1) that it is threatened with irreparable harm; (2) that this harm outweighs any injury which granting the injunction will inflict on other parties; (3) a likelihood of success on the merits; and (4) that the public interest favors the injunction. United Food and Commercial Workers, Intern. Union v. Wal-Mart Stores, Inc., supra. Irreparable harm is the touchstone of injunctive relief. Id. Harm is normally only considered irreparable when it cannot be adequately compensated by money damages or redressed in a court of law. Id; Dawson v. Temps Plus, Inc., 337 Ark. 247, 987 S.W.2d 722 (1999) (citing Arkansas Wildlife Federation v. Bekaert Corp., 791 F.Supp. 769 (W.D.Ark.1992)). Mr. Delancy focuses his argument on the evidence to support the lower court’s conclusion that the State of Arkansas was threatened with irreparable harm.
The trial court’s order granting the permanent injunction stated in pertinent part:
At the time of the trial, the Arkansas Game and Fish Commission did not have information regarding the origin of all of the elk Defendant transported into Arkansas nor did it have proof of veterinary inspections on all of the elk transported into Arkansas by Defendant. The Arkansas Game and Fish Code requires that this information be furnished prior to the elk being transported into Arkansas.
The State has met its burden of proof for the issuance of a permanent injunction by showing the risk of the transmission of disease, especially Chronic Wasting Disease (CWD), to Arkansas animals and wildlife from the elk which Defendant has in the State of Arkansas.
In response to outbreaks of CWD in other states many states, including neighboring states Missouri and Texas, have recently adopted measures severely restricting or banning the importation of deer or elk into those states. Since the filing of the petition herein, the Arkansas Game and Fish Commission has adopted Arkansas Game and Fish Code regulation § 15.18 which states that:
“It shall be unlawful to import, ship, transport, or carry into the state by any means any live member of the cervidae family, including but not limited to white-tailed deer and elk.”
Mr. Delancy does not contest that CWD is a tangible threat; instead, he contends that the State failed to prove any link between his herd and CWD. He specifically asserts that “[w]ithout this causal link, the trial court’s decision to enter the injunction was an abuse of discretion.” Apparently, Mr. Delancy would require the State to have “some type of measurable evidence that his herd was diseased.”
We conclude that there is ample evidence to support the injunction. Specifically, the elk were in the State as a result of Mr. Delancy violating three provisions of the AGFC Code. Mr. Delancy failed to produce records of origin for any of the elk. Thus, the AGFC was unable to verify the elk’s date of acquisition, place of origin, or name, address and telephone number of the seller. Furthermore, the danger of CWD and its corollary effect on wildlife was real and imminent. Indeed, Mr. Delancy testified that some of the elk had passed through T exas, and he thought that one of the bull elks originally came from Wyoming. The State introduced evidence that Wyoming has reported CWD in elk herds. In addition, the court considered that when CWD is detected, animals subject to the disease must be quarantined and destroyed to prevent further spreading. According to an article in the 2002-03 Arkansas Hunting Regulations Guide, a positive diagnosis of CWD in Warren might require extermination of all white-tailed deer from Pine Bluff to El Dorado to Camden. Furthermore, there was evidence that at least one of Mr. Delaney’s elk had escaped from his compound where it could have come in contact with the free ranging white-tailed deer of Arkansas.
The testimony at trial revealed that, unfortunately, the only way to test for CWD was by post-mortem testing of the animal brain tissue. The court was presented with facts that demonstrated a real and imminent threat of the transmission of CWD.'That threat entailed the possible destruction of all white- tailed deer living in a large portion of Arkansas. Under these circumstances, we cannot say that the trial court abused its discretion.
II. Just Compensation
For his second point on appeal, Mr. Delancy contends that the trial court erred in failing to award payment of just compensation for the taking of his elk under Article 2, § 22, of the Arkansas Constitution. Mr. Delancy failed to preserve this point on appeal because he failed to obtain a ruling on it from the trial court. At trial, Mr. Delancy forwarded a brief to the court in support of his response to the State’s petition for an injunction. In that brief, Mr. Delancy argued that an injunction amounted to a taking of property without the payment of just compensation in violation of Article 2, § 22, of the Arkansas Constitution and that he was entitled to just compensation for the value of his elk if the court issued the injunction. After the court granted the injunction, Mr. Delancy did not renew his claim for just compensation or request that the court rule on his claim. The record does not reflect that the court ever made a ruling on the issue. We have repeatedly held that a party’s failure to obtain a ruling is a procedural bar to consideration of the issue on appeal. Bell v. Bershears, 351 Ark. 260, 92 S.W.3d 32 (2002).
Affirmed.
A cattle gap will allow vehicles, but not cattle, to pass over a roadway. | [
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Per Curiam.
Respondent Sam Whitfield, Jr., was served with a petition for disbarment on July 3, 2003, while he was incarcerated in the Phillips County Jail. Mr. Whitfield filed for an extension of time to respond to the petition, and, on December 11, 2003, he was granted thirty days additional time, until January 10, 2004. Mr. Whitfield has not responded, and various attempts by the Committee on Professional Conduct to locate Mr. Whitfield have failed. The Committee is seeking a default judgment on the facts in their original petition, which contains evidence of serious misconduct on the part of Mr. Whitfield. The Committee prays that this court enter a default judgment, that the allegations of the petition for disbarment be deemed admitted, and that Mr. Whitfield be disbarred. In the alternative, the Committee is asking that a show-cause hearing be held, at which Mr. Whitfield shall appear and show cause why summary judgment should not be granted and why he should not be disbarred.
Given the circumstances of the case, we hereby appoint a special master, Judge John Jennings, to hear this matter and provide the court with findings of facts. Upon receipt of the master’s findings, we will render a decision in the matter. | [
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Per Curiam.
Appellant Mary Linker-Flores’s counsel, Anne Orsi Smith, moves this court to be relieved as counsel in the appeal of Appellant’s termination of parental rights. Smith bases her motion on the assertions that she can find no meritorious grounds for appeal and that she would incur substantial costs and expend great time, without the expectation of a flail recovery, in the pursuit of an appeal.
In 1989, the Arkansas General Assembly adopted the view that counsel shall be provided for indigent parents in termination cases “at all stages of the proceedings.” 1989 Ark. Acts 273, § 15, now codified at Ark. Code Ann. § 9-27-316(h)(1) (Supp. 2003); see also Brown v. Arkansas Dep’t of Human Servs., 330 Ark. 497, 954 S.W.2d 270 (1997). Because Appellant is entitled to representation on appeal, we deny Smith’s motion to be relieved. Further, we order the parties to this matter to brief the issue of whether counsel representing a parent in a termination proceeding should be required to file a no-merit brief, comparable to that required under Anders v. California, 386 U.S. 738 (1967), where there appears to be no meritorious grounds for appeal. This motion will be treated as a case and an appropriate briefing schedule will be established by the clerk of this court. | [
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] |
Robert L. Brown, Justice.
Appellant Omni Holding and Development Corporation (Omni) appeals from an order, finding it to be in civil contempt for refusing to deliver to appellee 3D.S.A., Inc. (3D), all of the aviation property it was ordered to deliver by the circuit court. The circuit court further found Omni’s “managing officer,” Tom Papachristou, in criminal contempt for personally directing Omni employees to switch data plates on several planes and for intentionally refusing to deliver certain items in the order of delivery in an assembled manner. The circuit court fined Omni $75,000, to be payable to 3D, and sentenced Papachristou to sixty days’ imprisonment. Omni raises four points on appeal: (1) that the circuit court erred in finding it in civil contempt and Papachristou in criminal contempt; (2) that the circuit court erred in awarding 3D possession of a plane which was the property of another person not made a party to the action; (3) that Arkansas Code Annotated § 18-60-819 (Repl. 2003), is unconstitutional as applied to the facts of this case; and (4) that the circuit court erred in admitting certain FAA reports into evidence because they were hearsay. We affirm the contempt order of the circuit court as modified.
On January 23, 2003, 3D filed a replevin action against Omni. The complaint asserted that under an aircraft and equipment lease agreement which expired on December 31, 2002, 3D had leased nine separate aircraft, logbooks, spraying equipment, and spare parts to Omni. 3D alleged that it had demanded the return of its property, both orally and in writing, but Omni had refused to return the property. 3D further asserted that the value of the nine aircraft totaled $610,000, and that it was entitled to the sum of $25,000 for wrongful detention of its property.
Omni answered 3D’s complaint and denied that 3D had a superior right to possession of the planes and other items. Omni admitted that the aircraft were leased to it by 3D but claimed the lease had been renewed. It further admitted that it refused to return the aircraft, because it had expended great time and expense in preparing the planes for its participation in the Boll Weevil Eradication Program in the upcoming season. A hearing was held by the circuit court, at the conclusion of which, the court ruled:
The Court will order immediate possession of the 9 aircraft identified by the contract to . . . 3D SA Corporation, now an Arkansas corporation, according to the proof. And they’re to be delivered along with all log books and parts and equipment that is associated with each aircraft.
I’m ordering [these 9 airplanes] returned to the registered owner. In fact that’s not even in dispute — the right to possess on the part of Omni is based upon the lease. The lease expired December the 31st. Your argument that the clause that required some vague notice that would extend the contract, I don’t buy. I do buy your argument — and will hear that at a later time — that you may be damaged as a result of that, that there might be a breach of one of the terms of the contract and under that breach,you sustained damages. I’m not hearing the issue of damages today.
[With respect to two planes which may have had their data plates swapped,] I’ll order that the two aircraft in question are not to be disturbed, modified, altered, or in any way delivered to third parties until such time as proper authorities can identify the rightful aircraft.
On February 10, 2003, the circuit court entered its order of delivery and directed the sheriff to take possession of the property at issue and deliver it to 3D. It further directed Omni to aid and assist the sheriff in this and expressly ordered Omni not to interfere with delivery of the property. The court set a bond in the amount of$l,120,000 to enable Omni to obtain redelivery of the property. The court also ordered that two Cessna airplanes, N-9091F, and N-19236G, be impounded and held by the sheriff for the sheriff and 3D to determine which of the two planes was 3D’s property.
On February 20, 2003, 3D filed a petition for contempt in the circuit court, alleging that 3D had continuously sought delivery of the property set forth in the order of delivery, but that Omni had failed to comply with that order. In particular, the petition asserted that Omni: (1) failed to aid and assist in effecting delivery by delaying delivery of some of the property; (2) failed to provide access to all of Omni’s premises; (3) interfered with the Sheriff and 3D in effecting delivery; and (4) removed, altered, destroyed, or substituted certain property or parts. The petition added that Omni had failed to deliver certain log books, failed to deliver or account for certain engines and propellers, and had delivered certain unidentifiable engine parts. 3D requested that Omni and its president, Kim Crockett, and its general manager, Papachristou, be ordered to appear and show cause why they should not be held in contempt.
A show-cause hearing was ordered by the court, and. on April 10, 2003, the contempt hearing commenced. Testimony was taken and at the conclusion of the hearing, the court ruled:
From the evidence I’ve heard, I have no difficulty at all in finding that Omni Corporation made — is in contempt of Court — and made a direct effort to conceal property that the corporation or its agents, officers, or employees knew or had reason to believe was the property of 3D Corporation subject to a lease and that they made deliberate efforts to conceal the identity of that property and to return to 3D property other than the property covered by the lease, which was owned by 3D.
I’m specifically finding that Omni Corporation — the corporation itself— is in civil contempt.
I’m also .specifically finding that Tom Papachristou was the managing officer or employee of Omni Corporation, that he had the duties and responsibilities to conduct the day-to-day activities of the business with regard to maintaining and flying and contracting the aircraft.
I’m finding specifically that he personally directed employees or agents to remove the data plates from two aircraft, to swap engine parts, and I’m finding him in criminal contempt and am going to sentence him to- 60 days in the county jail.
I’m persuaded somewhat by the argument that has been made that the money award, if any, should be perhaps reserved for an argument to the jury. On the other hand, I feel that a money award against the corporation is appropriate, and I’m going to allow a $75,000 civil contempt judgment in the way of civil damages for willful violation of the Court’s Order.
Mr. Papachristou can extricate himself from the criminal contempt by immediate compliance with the previous Order of the Court. That would include delivery of all of the parts and equipment, the GPS’s, radios, spray equipment, and the other attachments belonging to the leased property at the time he received it and in working condition. Short of that, he’ll serve the 60 days in jail.
Yeah, I think to make 3D whole will be a part of that. In order to purge himself of contempt, he’ll have to make 3D whole to the extent of that civil judgment and the return of the other items.
An order memorializing the court’s ruling on contempt was entered on May 19, 2003. In that order, the court found Omni in civil contempt and stated that the award of $75,000 against Omni “is found by the court to be in the nature of punitive damages against Omni.” The court also said that Papachristou could purge himself of the criminal-contempt sentence of sixty days’ imprisonment “by immediately delivering to 3D all of the properties Omni was ordered to deliver . . . and the payment of $75,000.00 to 3D to make 3D whole [.]” The court concluded that delivery of the items to 3D shall in no way result in the purging of the award of $75,000.00 “punitive damages” against Omni and in favor of 3D unless such sum is paid.
■ Omni subsequently asked the court to amend its findings, and to stay its order pending appeal, and to declare Ark. Code Ann. § 18-60-819 unconstitutional. On May 29, 2003, an order was entered in which the circuit court set the amounts for cash or corporate bonds to be posted by Omni for various actions it might desire to take with respect to certain pieces of property. The order further fixed a supersedeas cash bond in the amount of $75,000 for Omni and bond for Papachristou in the amount of $75,000 to remain free pending the appeal of his conviction for criminal contempt. Both bonds were posted. The court denied Omni’s motion to amend findings and its motion to declare Ark. Code Ann. § 18-60-819 unconstitutional.
I. Contempt
Omni’s principal contention in this appeal is that the circuit court erred in finding it in civil contempt and Papachristou in criminal contempt, because 3D failed to show that either party willfully committed any wrongful act after the entry of the February 10, 2003 order of delivery. Omni further asserts that if it damaged or mistreated 3D’s planes, 3D had an adequate remedy at law in the form of damages. It contends that there was no credible proof that Omni interfered with the delivery of the property pursuant to the court’s order, and further, that the court’s order was unclear in its directive to return assembled planes when the court also ordered Omni not to touch or alter the planes. Omni maintains that the circuit court erred in its findings of contempt, because the court “intermingled civil and criminal contempt.” Omni urges that punishing it or its agents with contempt basically amounts to imprisonment for debt, which constitutes cruel and unusual punishment. Finally, Omni maintains that finding Papachristou in criminal contempt was error because he was never made a party to the replevin suit or the contempt action.
a. Standard of Review for Civil or Criminal Contempt
We begin by distinguishing civil and criminal contempt:
Contempt is divided into criminal contempt and civil contempt. Johnson [v. Johnson], 343 Ark. at 197, 33 S.W.3d at 499. Criminal contempt preserves the power of the court, vindicates its dignity, and punishes those who disobey its orders. Johnson, 343 Ark. at 197, 33 S.W.3d at 499. Civil contempt, on the other hand, protects the rights of private parties by compelling compliance with orders of the court made for the benefit of private parties. Id. This court has often noted that the line between civil and criminal contempt may blur at times. Id. Our Court of Appeals has given a concise description of the difference between civil and criminal contempt. See Baggett v. State, 15 Ark. App. 113, 116, 690 S.W.2d 362, 364 (1985) (“[CJriminal contempt punishes while civil contempt coerces.” (emphasis in original)).
In determining whether a particular action by a judge constitutes criminal or civil contempt, the focus is on the character of relief rather than the nature of the proceeding. Fitzhugh v. State, 296 Ark. 137, 138, 752 S.W.2d 275, 276 (1988).Because civil contempt is designed to coerce compliance with the court’s order, the civil contemnor may free himself or herself by complying with the order. See id. at 139, 752 S.W.2d at 276. This is the source of the familiar saying that civil contemnors “carry the keys of their prison in their own pockets.” Id. at 140, 752 S.W.2d at 277 (quoting Penfield Co. v. S.E.C., 330 U.S. 585, 593 (1947) (quoting In re Nevitt, 117 F. 448, 461 (8th Cir. 1902)). Criminal contempt, by contrast, carries an unconditional penalty, and the contempt cannot be purged. Fitzhugh, 296 Ark. at 139, 752 S.W.2d at 276-277.
Ivy v. Keith, 351 Ark. 269, 279-80, 92 S.W.3d 671, 677-78 (2002).
Moreover, in Fitzhugh v. State, 296 Ark. 137, 752 S.W.2d 275 (1988), this court quoted from the United States Supreme Court’s decision of Hicks ex rel. Feiock v. Feiock, 485 U.S. 624 (1988). In Feiock, the Court, in an attempt to distinguish between the two contempts, said:
[T]he critical features are the substance of the proceeding and the character of the relief that the proceeding will afford. “If it is for civil contempt the punishment is remedial, and for the benefit of the complainant. But if it is for criminal contempt the sentence is punitive, to vindicate the authority of the court.” Gompers v. Bucks Stove & Range Co., 221 U.S. 418, 441 (1911). The character of the reliefimposed is thus ascertainable by applying a few straightforward rules. If the relief provided is a sentence of imprisonment, it is remedial if “the defendant stands committed unless and until he performs the affirmative act required by the court’s order,” and is punitive if “the sentence is limited to imprisonment for a definite period.” id., at 442. If the relief provided is a fine, it is remedial when it is paid to the complainant, and punitive when it is paid to the court, though a fine that would be payable to the court is also remedial when the defendant can avoid paying the fine simply by performing the affirmative act required by the court’s order. These distinctions lead up to the fundamental proposition that criminal penalties may not be imposed on someone who has not been afforded the protections that the Constitution requires of such criminal proceedings, including the requirement that the offense be proved beyond a reasonable doubt. See, e.g., Gompers, supra, at 444; Michaelson v. United States ex rel. Chicago, St. P., M. & O.R. Co., 266 U.S. 42 (1924). [Footnote omitted.]
485 U.S. at 631-32.
Because we conclude that both Omni and Papachristou were actually held' in civil contempt, which will be discussed later in this opinion, we apply the standard of review for civil contempt. Our standard of review for civil contempt is whether the finding of the circuit court is clearly against the preponderance of the evidence. See Gatlin v. Gatlin, 306 Ark. 146, 811 S.W.2d 761 (1991).
b. Clarity of the Circuit Court’s Order of Delivery
This court has observed that willful disobedience of a valid order of a court is contemptuous behavior. See Ivy v. Keith, supra. However, before one can he held in contempt for violating the court’s order, the order must be definite in its terms and clear as to what duties it imposes. See Ivy v. Keith, supra. In the instant case, the order at issue is the circuit court’s order of delivery, and Omni and Papachristou assert that it is unclear.
On February 10, 2003, the circuit court directed the sheriff to immediately take possession of the property listed in Exhibit A to the order, which included specific aircraft, log books, and engines and propellers, and deliver it to 3D. The specific aircraft to be taken were listed:
1. Air Tractor Serial #0397 #N6072Y Engine Serial #14087 Propeller Serial #BU11092 w/GPS and all spray equipment (assembled)
2. Air Tractor Serial #0273 #N6082Y Engine Serial #PCE14031 Propeller Serial #13495 with GPS and all spray equipment (assembled)
3. Cessna Serial #18802885T #N60711 Engine Serial #_ Propeller Serial #76208 w/GPS and all spray equipment (assembled)
4. Cessna Serial #18801829T #N9083H (unassembled)
5. Cessna Serial #18802806T #N60691 Serial #559352 Propeller Serial #747988 w/GPS and all spray equipment (assembled)
6. Cessna Serial #18803322T #N90834 (unassembled)
7. Cessna Serial #18803132T #N9084G (unassembled)
8. Cessna Serial #18803129T #N90837 (unassembled)
The order demanded that certain aircraft be assembled, and it further directed Omni not to “remove, alter, destroy or substitute any of this property or parts thereof pending delivery of the property to [3D].”
The court’s order was clear as to the property and in its directives. While Omni was directed not to change or substitute parts to the property, it was not prevented from reassembling any aircraft that had previously been disassembled. The court’s order, in addition, did not preclude Omni from requesting additional time in which to reassemble the aircraft. Yet, Omni made no request for more time to comply with .the order of delivery. This point has no merit.
c. Compliance with the Order of Delivery
In 3D’s petition for contempt, it listed the equipment that was missing from the aircraft that were to be delivered pursuant to the court’s order of delivery. Specifically, the petition alleged that of the aircraft to be returned in assembled form, two aircraft were “disassembled and un-airworthy,” one’s engine was missing components and the serial number data plate, and one had the engine oil cooler removed. In addition, three aircraft had an “[i]ncorrect and incomplete GPS” (Global Positioning System) and one had no GPS system at all. Finally, one had an “[i]ncorrect and incomplete” spray system, one lacked any spray equipment, and one had an incomplete spray system. It is clear to this court that the aircraft were not turned over to 3D in an “assembled” state, as directed by the circuit court’s order.
Furthermore, Omni’s claim that the court’s order was unclear and that it and Papachristou did not willfully disobey the order, because the court had told them not to “touch” the parts, does not ring true. Again, the court’s order merely prevented Omni from modifying, changing, or altering the aircrafts or parts thereof. Because Omni and Papachristou failed to turn over to the sheriff assembled planes and related equipment as specified in the order of delivery, they were in contempt of that order.
d. Adequate Remedy at Law
Omni claims that because 3D had an adequate remedy at law in the form of damages for any injury to its property, the-circuit court erred when it held Omni and Papachristou in contempt. What Omni appears to be arguing is that the circuit court confused damages for injury to equipment with a fine for contempt. However, Omni fails to cite this court to any authority to support this proposition, and we have held time and again that we will not consider arguments unsupported by convincing argument or sufficient citation to legal authority. See, e.g., City of Benton v. Arkansas Soil & Water Conserv. Comm’n, 345 Ark. 249, 45 S.W.3d 805 (2001). That alone is sufficient reason not to address this point. See id.
Moreover, as already stated, this court has held that an act is contemptuous if it interferes with a court’s business or proceeding, or reflects upon the court’s integrity. See Johnson v. Johnson, 343 Ark. 186, 33 S.W.3d 492 (2000). In the case at hand, Omni and Papachristou violated the court’s order of delivery when they failed to turn over specific planes and equipment and turned over instead disassembled aircraft. Although 3D may have some claim for damages in its lawsuit for the problems it has discovered, Omni and Papachristou ignored the court’s order and refused to deliver to 3D all of the property it was ordered to deliver. That is a sufficient basis for a contempt award.
e. Debtor’s Prison
Omni also contends that because 3D has an adequate remedy at law, the circuit court’s punishment for contempt is analogous to “imprisoning someone . .. for what basically amounts to a debt” thereby constituting cruel and unusual punishment and violating its right to a trial by jury. Once more, Omni has failed to provide convincing argument or sufficient citation to legal authority on this point. See City of Benton v. Arkansas Soil & Water Conserv. Comm’n, supra. Omni merely asserts that imprisonment is only justified where there has been willful disobedience of the orders of the court. Indeed, this court said as much in East v. East, 148 Ark. 143, 229 S.W. 5 (1921). To repeat, in the instant case, Papachristou and Omni willfully disobeyed the court’s order to return certain planes assembled. This point has no merit.
f. The "Civil Punitive Damage” Award
Omni next argues that the circuit court erroneously co-mingled civil and criminal contempt when it awarded $75,000 to 3D for Omni’s civil contempt and made Papachristou’s ability to purge his jail time conditioned on Omni’s payment of that amount.
We confess to some confusion over the contempt order. However, the circuit court, without question, found that Omni and Papachristou had willfully disobeyed its order of delivery. The court then found:
7. That because of the heretofore described actions of Omni and its managing officer, Tom Papachristou, Tom Papachristou is found guilty of criminal contempt and his hereby sentenced to serve sixty days in the jail at Crittenden County, Arkansas.
8. That because of the heretofore described actions of Omni and its managing officer,Tom Papachristou, Omni is hereby held in civil contempt of court, and 3D is awarded judgment from and against Omni in the amount of $75,000.00. Such award of $75,000.00 is found by the court to be in the nature of punitive damages against Omni.
9. That Tom Papachristou can purge himself of the criminal contempt sentence, and the time he is ordered by this court to serve in the Crittenden County jail, by immediately delivering to 3D all of the properties Omni was ordered to deliver including the aircraft described in paragraphs 4 and 5 herein as well as all the component parts of 3D’s airplanes, including but not limited to engines, radios, GPS’s and spray equipment, and other items which were not either delivered or were delivered in part only to 3D by Omni as reflected in the Report and Supplemental Report filed herein by 3D, with such parts and equipment being in proper, working condition at the time of such redelivery and the payment of $75,000.00 to 3D to make 3D whole for the value of the turbine engine parts on AT 6072Y that Tom Papachristou intentionally damaged and also substituted damaged component parts. Provided however that the delivery of these items to 3D shall in no way result in a purging of the award of $75,000.00 punitive damage against Omni and in favor of 3D unless such sum is paid:
It first appears that the circuit court held Papachristou in criminal contempt with sixty days to serve in jail, but then the court’s order provides that Papachristou can purge himself of this contempt by immediately delivering the planes, parts, and other items at issue to 3D. We conclude that the circuit court actually cited Papachristou for civil contempt in that the court was coercing Papachristou to abide by its order and providing a means by which the contempt could be purged. But the court also adds that Papachristou’s purging must include a payment of $75,000 to 3D “to make 3D whole for the value of the turbine engine parts” on a plane that Papachristou intentionally damaged.
Omni, on the other hand, is expressly held in civil contempt under the court’s order, and “3D is awarded judgment from and against Omni in the amount of$75,000.00[,]” which the court finds “to be in the nature of punitive damages against Omni.” Later, the court states in its order that the $75,000 is “to make 3D whole for the value of the turbine engine parts on AT6072Y[.]” At the end of its order, the court adds that the delivery of the planes, parts, and other items to 3D shall in no way result in a purging of the $75,000 in punitive damages awarded against Omni and in favor of 3D. Harking back to the discussion of contempt earlier in this opinion, a contempt fine for willful disobedience which is payable to the complainant is remedial, and therefore constitutes a fine for civil contempt, but if the fine is payable to the court, it is punitive and constitutes a fine for criminal contempt. See Hicks ex rel. Feiock v. Feiock, supra; Fitzhugh v. State, supra. Here, the fine is to be paid to the complainant, and we conclude that it is for civil contempt.
We disagree, though, with the circuit court that the purging of Papachristou’s contempt can rest on Omni’s payment of $75,000 to 3D. The keys to the jail in civil contempt must rest in the hands of the contemnor and nota third party. We, accordingly, modify the circuit court’s contempt order to eliminate Omni’s payment of $75,000 as a condition for Papachristou’s release from jail. Papachristou’s contempt can be purged solely by delivery of the planes, parts, and other items listed in the court’s order.
That leaves the issue of whether the award of $75,000 payable by Omni to 3D can be based on property damages awarded against Omni and in favor of 3D. A second question is whether the circuit court ordered $75,000 against Omni as a fine for contempt and then a second $75,000 to make 3D whole for property damage done to the turbine engine. Though the circuit court’s order is somewhat ambiguous on this point, we believe, after reviewing the record, that the court’s contempt order is a contempt fine against Omni, which was determined based on the damage done to 3D’s turbine engine.
Early on, the United States Supreme Court stated that when a contemnor has committed an act forbidden by the court, “[t]he only possible remedial relief for such disobedience would have been to impose a fine for the use of complainant, measured in some degree by the pecuniary injury caused by the act of disobedience.” Gompers v. Buck’s Stove & Range Co., 221 U.S. 418, 444 (1911). The Eighth Circuit Court of Appeals concluded similarly when it stated that a contempt fine against an errant mortgage company for foreclosing too early “seems to be of a dual nature, with both punitive and compensating purposes.” Hubbard v. Fleet Mortgage Co., 810 F.2d 778, 782 (8th Cir. 1987). The Eighth Circuit added: “In contempt cases, the trial court has discretion to fashion the punishment to fit the circumstances.” Id. Finally, this court has previously used compensatory damages as the measurement for fining the contemnor for violating a permanent injunction, which had enjoined the contemnor from discharging petroleum waste onto the complainant’s property. See C.R.T., Inc. v. Brown, 269 Ark. 114, 602 S.W.2d 409 (1980). In C.R.T., Inc., damage to the land caused by the additional petroleum waste became the measure of the contempt fine.
Though the circuit court mislabeled the contempt fine in its order as “punitive damages” in the instant case, we hold that the contempt award against Omni was a fine for civil contempt in the amount of $75,000 measured in part by the damage to 3D’s property. We conclude as we do because the fine for civil contempt was payable to 3D and was meant to be remedial and not to be a punishment payable to the court for criminal contempt. See Fitzhugh v. State, supra.
g. Contempt for One not a Party
Omni and Papachristou urge this court to reverse the finding of contempt against Papachristou, because 3D failed to make him a party to the action. This contention has no merit. In Hickinbotham v. Williams, 228 Ark. 46, 305 S.W.2d 841 (1957), this court observed that “[t]he violation or disobedience of an injunction order issued by a court having jurisdiction in the matter, when committed by a party to the injunction suit, or by a third party having actual notice, is a contempt of court, and is punishable as such by the tribunal issuing the orderf.]” 228 Ark. at 50, 305 S.W.2d at 843 (emphasis in original) (quoting 12 Am. Jur. § 26)). We have further said that one who has full knowledge of a court order and its import cannot flout it with impunity. See Arkansas Dep’t of Human Servs. v. R.P., 333 Ark. 516, 970 S.W.2d 225 (1998). The record in this case clearly reflects that Papachristou had full knowledge and notice of the circuit court’s order of delivery. In fact, he was present and testified at the February 5, 2003 hearing concerning 3D’s request for an order of delivery. We hold the notice was sufficient to find him in contempt for thwarting the resulting order of delivery.
II. Hoskopoulus Plane
Omni next contends that the circuit court erroneously awarded Cessna N731SS to 3D and further erred in finding that Cessna N60711, which was originally delivered to 3D, was Omni’s plane. Omni contends that it was undisputed that Cessna N60711, although it was registered to Omni, was owned by Ethymils Hoskopoulus. The crux of Omni’s argument is that the circuit court does not have the power to award a plane that has been junked and sold for parts and that is owned by another person (Hoskopoulus) who is not a party to the lawsuit.
In its order of contempt, the circuit court made the following finding with respect to the Cessna N731SS:
5. That 3D is hereby awarded immediate possession of aircraft described as N731SS Serial #18803124T in the possession of Omni because such aircraft is the property of 3D that is described as aircraft #3 on Exhibit A to the Order of Delivery and Omni is directed to immediately deliver the same to 3D. That Omni is awarded immediate possession of aircraft with current substituted “N” number 60711 because such aircraft is not the property of 3D less the engine and propeller thereon that is the property of 3D.
The circuit court’s conclusion is based on the fact that the data plates on the two planes were switched. This court, of course, reviews a circuit court’s finding of fact following a bench trial under a clearly-erroneous standard. See Burke v. Elmore, 341 Ark. 129, 14 S.W.3d 872 (2000). The testimony of Patrick Lackey, a former pilot for Omni, revealed that during one season of his employment, he flew an aircraft identified as the Cessna N60711. He testified that another employee, Larry Gandy, flew the plane that was owned by Hoskopoulos. Lackey further testified that he was familiar with the interior of the Hoskopoulos plane. He added that the interior of the plane now numbered N60711 and impounded by the court was quite different from when he had flown it, and, in fact, was more similar to the interior of the Hoskopulos plane that Larry Gandy flew. He stated that as a pilot that flew the Cessna N60711, the plane he examined in the hangar, which was identified by that number, was not N60711. Glenn Voros, who performed the aircraft audit for 3D, also testified that he found a certificate of aircraft registration for Cessna N731SS in the belly of the plane now sporting an identification number of N60711.
Based on this evidence presented to the trial court, we cannot say that the circuit court clearly erred in concluding that the plane marked N731SS was, in reality, N60711, which belonged to 3D. Accordingly, we affirm the court’s order directing that 3D’s property be returned to it.
III. § 18-60-819
Omni next claims that during an unreported conference call, counsel for 3D made reference to Ark. Code Ann. § 18-60-819 (Repl. 2003). According to Omni, this statute is unconstitutional on its face, because it allows a person to be imprisoned for something that is in the nature of a debt. Thus, the statute, under Omni’s theory, violates due process in that it allows for a law enforcement officer to arrest an individual outside of the normal judicial process. Plus, the statute leads to excessive bail and an excessive fine in violation of the United States and Arkansas Constitutions. Omni further contends that the application of the statute to the instant case where a non-party is given jail time violates due process and fundamental fairness.
This issue is not preserved for our review. We said in Raymond v. State, 354 Ark. 157, 118 S.W.3d 567 (2003), that a general objection by a party who cites to a constitutional provision is not sufficient to preserve the constitutional questions presented on appeal without further development. See also Harris v. State, 320 Ark. 677, 899 S.W.2d 459 (1995). As was the case in Raymond v. State, supra, Omni, in its motion to declare § 18-60-819 unconstitutional, summarily stated:
5. That Ark. Code Ann. § 18-60-819, is unconstitutional on its face, and as applied in this case, for the following reasons, to wit:
(a) It denies the right to trial by jury in violation of the U.S. and Arkansas Constitutions;
(b) It constitutes cruel and unusual punishment in that it essentially allows for the incarceration of an individual for something that is in the nature of a debt, and allows for an officer to arrest an individual even though the person arrested may not have the actual property sought;
(c) It violates due process of law in that it allows for an officer to arrest an individual outside of the normal judicial process, and subverts the right to a trial by jury;
(d) It denies an individual the right to confront witnesses;
(e) It amounts to excessive bail and an excessive fine in violation of the U.S. and Arkansas Constitutions [.]
Omni failed to cite to any authority in support of its propositions, other than merely quoting the statute at issue, or to develop its argument in any other respect. Moreover, Omni did not argue its motion to the court. Although Omni asserts that the statute was raised by 3D during a conference call with the circuit court, it concedes that the phone call was unreported and is therefore not included in the record before this court for our review.
It is axiomatic that this court will not strike down a legislative act on constitutional grounds without first having the benefit of a fully developed adversary case. See Drummond v. State, 320 Ark. 385, 897 S.W.2d 553 (1995). Omni failed not only to adequately brief this issue before the trial court, but it also failed to do so in its brief before this court. Because this issue was not fully developed at the trial-court level or on appeal, this issue is not preserved for appellate review.
IV FAA Reports as Hearsay
Omni argues that the FAA reports admitted into evidence as inspection reports were hearsay evidence and were admitted without any foundational proof by a records custodian to show that the reports were true public records. As a corollary argument, it contends that each FAA document amounted to expert opinion which was not subject to cross-examination and, thus, Omni and Papachristou were denied their right to confront witnesses.
The decision to admit or refuse evidence at trial is within the circuit court’s discretion, and this court will not reverse that court’s ruling absent an abuse of discretion and a showing of prejudice. See Barnes v. Everett, 351 Ark. 479, 95 S.W.3d 740 (2003). Rule 803(8) of the Arkansas Rules of Evidence sets forth an exception to the hearsay rule and deals with public records:
(8) Public Records and Reports. To the extent not otherwise provided in this paragraph, records, reports, statements, or data compilations in any form of a public office or agency setting forth its regularly conducted and regularly recorded activities, or matters observed pursuant to duty imposed by law and as to which there was a duty to report, or factual findings resulting from an investigation made pursuant to authority granted by law. The following are not within this exception to the hearsay rule: (i) investigative reports by police and other law enforcement personnel; (ii) investigative reports prepared by or for a government, a public office, or an agency when offered by it in a case in which it is a party; (iii) factual findings offered by the government in criminal cases; (iv) factual findings resulting from special investigation of a particular complaint, case, or incident; and (v) any matter as to which the sources of information or other circumstances indicate lack of trustworthiness.
Ark. R. Evid. 803(8) (2003).
Omni challenges three documents which were reports resulting from inspections conducted by the Federal Aviation Administration. A review of all three reports reveals that each document was signed and verified by an FAA employee. All three reports, entitled “Comparison Contrast of Relative Findings,” are findings resulting from investigations made pursuant to authority granted to the FAA by law. They clearly fall within the Rule 803(8) exception and do not fall within any of the five exclusions to that rule. We affirm on this point as well.
Affirmed as modified.
Prior to the hearing, Omni made an unsuccessful attempt to have the matter removed to federal court.The federal district court remanded the matter back to state court on April 9,2003.
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Annabelle Clinton Imber, Justice.
Appellant Stacey Eugene Johnson was convicted of capital murder in the death of Carol Heath and was sentenced to death in 1994. See Johnson v. State, 326 Ark. 430, 934 S.W.2d 179 (1996), cert. denied, 520 U.S. 1242 (1997) (Johnson I). We reversed that conviction because the trial court admitted a statement from the victim’s daughter identifying Mr. Johnson, after the daughter had been found incompetent to testify at trial. Id. A change of venue was granted for the retrial, in which the daughter was found competent to testify and did so, identifying Mr. Johnson. He was convicted and again sentenced to death, and we affirmed the conviction and sentence. See Johnson v. State, 342 Ark. 186, 27 S.W.3d 405 (2000), cert. denied, 532 U.S. 944 (2001) (Johnson II). A complete recitation of the facts and circumstances surrounding the murder of Carol Heath and the evidence presented at Mr. Johnson’s trial is not necessary here, but may be found in Johnson II.
This is an appeal from a hearing that concerned two petitions filed by Mr. Johnson. The first was a Rule 37 petition claiming ineffective assistance of counsel, and the second was an Act 1780 petition for writ of habeas corpus filed in December 2001, which sought new testing and retesting of DNA evidence. In August 2002, the circuit court denied both the Rule 37 and the Act 1780 petitions in separate orders. Two days before the circuit court’s ruling, Mr. Johnson moved to supplement his petition with a claim that victim-impact evidence and his resulting death sentence violated the rule of law handed down by the U.S. Supreme Court in Ring v. Arizona, 536 U.S. 584 (2002). The trial court denied the motion to supplement.
Mr. Johnson appeals on four points. First, Mr. Johnson contends the circuit court erred in denying his Act 1780 petition for further DNA testing of evidence. Second, Mr. Johnson asserts numerous points of error regarding the circuit court’s denial of his Rule 37 petition. Next, Mr. Johnson argues error in the denial of the motion to supplement his petition after the U.S. Supreme Court handed down Ring v. Arizona, supra. Finally, Mr. Johnson reargues that his death sentence was in violation of the federal and state constitutional prohibitions against ex post facto laws.
We agree with Mr. Johnson that his Act 1780 petition should have been granted for retesting of some DNA evidence; therefore, we reverse and remand for that DNA retesting to be performed. We affirm on all other points.
Arkansas Rule of Criminal Procedure 37.3 gives our court jurisdiction over this appeal of a denial of Rule 37 postconviction relief; also, as this is a case involving a sentence of death, we have jurisdiction pursuant to Ark. Sup. Ct. R. 1-2(a)(2).
In appeals of postconviction proceedings, we will not reverse a trial court’s decision granting or denying postconviction relief unless it is clearly erroneous. Dansby v. State, 350 Ark. 60, 84 S.W.3d 857 (2002). 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. Davis v. State, 345 Ark. 161, 44 S.W.3d 726 (2001).
As to Rule 37 claims of ineffective assistance of counsel, the general standard of review is found in Strickland v. Washington, 466 U.S. 668 (1984). The Strickland two-pronged test first requires the defendant to show that counsel’s performance was deficient to the extent that “counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the defendant by the Sixth Amendment.” Id. at 687. There is a strong presumption that counsel’s conduct falls within reasonable professional assistance. Id. at 689. Counsel is allowed great leeway in making strategic and tactical decisions and those decisions are a matter of professional judgment. Noel v. State, 342 Ark. 35, 26 S.W.3d 123 (2000). Matters of trial tactics and strategy are not grounds for postconviction relief on the basis of ineffective assistance of counsel. Lee v. State, 343 Ark. 702, 38 S.W.3d 334 (2001). The second prong of Strickland requires a showing of prejudice such that counsel’s deficient performance deprived the defendant of a fair trial. Id. at 687. This court has described this prejudice as meaning that the defendant must show there is a reasonable probability that, but for counsel’s errors, the outcome of the trial — either in the guilt or the penalty phases — would have been different. See State v. Hardin, 347 Ark. 62, 60 S.W.3d 397 (2001); Lasiter v. State, 290 Ark. 96, 717 S.W.2d 198 (1986).
Testing of DNA Evidence
Mr. Johnson requested DNA testing of some evidence and retesting of other evidence both under Act 1780 of 2001, which is codified at Ark. Code Ann. § 16-112-201 — 207 (Supp. 2003), and under Rule 37, asserting trial counsel was ineffective for failing to request testing. The evidence at issue consists of the following: (1) a cigarette butt that was located in a green shirt that was bloodstained with the victim’s blood and was found in the woods in close proximity to the victim’s purse and a white t-shirt that also had the victim’s blood on it; (2) negroid hairs found on the white t-shirt and in the victim’s apartment on and around the victim’s body; and (3) Caucasian hairs that were found in the victim’s apartment and on the green shirt in the woods. DNA test evidence was presented at both trials on the cigarette butt and negroid hairs, and Johnson was not able to be excluded as the donor of the DNA. According to Kermit Channell of the Arkansas Crime Laboratory, the chances the DNA belonged to another African American was 1 in 250.
Sometime after the first trial, further testing was performed on the saliva on the cigarette butt and it was shown that Johnson still was not excluded as the donor and the probability that another African American was the donor of the DNA was decreased from 1 in 250 to 1 in 28 million. In other words, retesting actually made it more likely that it was Johnson’s DNA on the cigarette butt. The negroid hairs were not retested. The Caucasian hairs have never been tested, and the prosecution stipulated that they did not belong to Johnson.
Along with his Rule 37 request for retesting, Mr. Johnson requests retesting of the above items under Act 1780 of 2001, which provides for retesting of evidence when there is new scientific technology available that was not available at trial. Act 1780 of 2001 is codified at Ark. Code Ann. §§ 16-112-201 through 207, and reads as follows:
(a)(1) Except when direct appeal is available, a person convicted of a crime may make a motion for the performance of fingerprinting, forensic deoxyribonucleic acid [DNA] testing, or other tests which may become available through advances in technology to demonstrate the person’s actual innocence if:
(A) The testing is to be performed on evidence secured in relation to the trial which resulted in the conviction; and
(B) The evidence was not subject to the testing because either the technology for the testing was not available at the time of the trial or the testing was not available as evidence at the time of the trial.
(2) The motion shall be filed before the court in which the conviction was entered.
(3) Reasonable notice of the motion shall be served on the prosecuting attorney who represented the state at trial.
(b) A person who makes a motion for the performance of fingerprinting, forensic deoxyribonucleic acid, testing, or other tests which may become available through advances in technology to demonstrate the person’s actual innocence must present a prima facie case that:
(1) Identity was an issue at trial; and
(2) The evidence to be tested has been subject to a chain of custody sufficient to establish that it has not been substituted, tampered with, replaced, or altered in any material aspect.
(c) (1) The court shall order that testing be performed if:
(A) A prima facie case has been established under subsection (b) of this section;
(B) The testing has the scientific potential to produce new noncumulative evidence materially relevant to the defendant’s assertion of actual innocence; and
(C) The testing requested employs a scientific method generally accepted within the relevant scientific community.
(2) The court shall impose reasonable conditions on the testing designed to protect the state’s interests in the integrity of the evidence and the testing process.
Ark. Code Ann. § 16-112-202 (Supp. 2003).
Illinois was the first state to pass postconviction DNA testing laws, and Arkansas’s Act 1780 was largely modeled after the Illinois laws. The Illinois model was used by at least three other states, Delaware, Idaho, and Missouri, but most states follow a New York model which differs greatly in standards of review and is more akin to an ineffective assistance standard. Like Act 1780, Illinois’s law requires:
(1) identity must have been an issue at trial;
(2) scientific evidence must not have been available at trial;
(3) testing must have potential to produce new, noncumulative evidence materially relevant to the assertion of actual innocence; and
(4) almost identical provisions for the preservation of evidence.
See 725 Ill. Comp. Stat. 5/116-3 (West 1998) (cited in People v. Savory, 756 N.E.2d 804 (Ill. 2001)).
In People v. Savory, supra, the Illinois Supreme Court considered a request for testing of evidence in a twenty-year-old conviction. At issue were bloodstains found on the defendant’s trousers on the night of the murder. The Illinois Supreme Court held that the issue of whether or not evidence is “materially relevant” cannot be determined in the abstract, but must be considered along with other evidence introduced at trial. Id. In the Savory case, the trial court had found that Savory was not entitled to retesting unless he could show that results favorable to him would completely exonerate him. Id. The Illinois Supreme Court rejected this, and held that “material relevance” is not limited to those cases in which a favorable result would completely exonerate the defendant. Nonetheless, the court affirmed the trial court’s denial of the retesting request, holding that the bloodstains on the trousers were not materially relevant because the prosecution’s case rested primarily on other evidence and the bloodstains were essentially collateral. Id. In making this determination, the court went through the litany of other evidence and stated,
... [T]he bloodstain evidence was essentially a collateral issue at trial and was not central to the State’s evidence of guilt. Under these circumstances, a test result favorable to the defendant would not significantly advance his claim of actual innocence, but would only exclude one relatively minor item from the evidence of guilt marshaled against him by the State.
Id. at 811-12 (emphasis added).
Like Arkansas, Delaware modeled its legislation on the Illinois Act. The Delaware Supreme Court, in a similar case, adopted the standards announced in Savory, supra, as follows:
Because the Delaware statute was modeled after the Illinois statute, that state’s case law is highly persuasive in determining the meaning of [the Delaware statute]. In People v. Savory, the Illinois Supreme Court overturned a lower court’s determination that post-conviction DNA testing “is available only in cases where the proposed scientific testing will, by itself, completely vindicate a defendant.” [FN 22] The Savory court decided the meaning of “materially relevant” by reference to dictionary definitions and held that, “evidence which is ‘materially relevant’ to a defendant’s claim of actual innocence is simply evidence which tends to significantly advance that claim.” [FN 23] We adopt that definition in construing the identical language in Delaware’s statute.
When deciding whether evidence is materially relevant, the trial court must consider not only the exculpatory potential of a favorable DNA test result, but also the other evidence presented at trial. [FN 24] Thus, if the State presented a strong case, and a favorable DNA test would discredit only an ancillary fact, the testing should be refused. At the opposite end of the spectrum, where the DNA test could exonerate the defendant, it does not matter how strong the other evidence might have been, [the Delaware statute] is satisfied.
Anderson v. State, 831 A.2d 858, 867 (Del. 2003). The Delaware court went on to hold that it is irrelevant whether the DNA test is likely to produce favorable or unfavorable results. If testing is warranted under this “material relevance” standard, the Delaware court held that testing would be authorized regardless of the slight chance it will yield a favorable result.
We do not believe, as the Delaware court does, that testing should be authorized regardless of the slight chance it may yield a favorable result. Nonetheless, we do find these cases to be persuasive, particularly with respect to their definition of the term “material relevance.” Therefore, we hold that DNA testing of evidence is authorized if testing or retesting can provide materially relevant evidence that will significantly advance the defendant’s claim of innocence, in light of all the evidence presented to the jury and the evidence presented to the trial court at the Act 1780 hearing.
Thus, in the instant case, we must look at the three pieces of evidence at issue in the petition for retesting, (1) the Caucasian hairs, (2) the cigarette butt, and (3) the negroid hairs, in light of the other evidence introduced at trial, in order to determine whether the evidence is materially relevant and would require retesting. The other evidence included the following:
(1) a bloody green shirt, identified as belonging to Mr. Johnson, was found in a wooded area in close proximity to the victim’s purse, a bloody white t-shirt, and a bloody towel.
(2) DNA tests showed the victim could not be excluded as the source of the blood on the green shirt, the white t-shirt, and the towel.
(3) Officer Hayes McWhirter testified that the victim’s young daughter, Ashley Heath, was present in the apartment the night of the murder and gave statements that
(A) a black male with a “girl sounding name” had come into the apartment;
(B) the black male had on a green shirt and sweater;
(C) the black male fought with her mother because her mother was dating someone else;
(D) she saw her mother and the black male fighting, then her mother was laying on the floor and was bloody.
(4) Ashley Heath had picked Mr. Johnson out of a photo lineup twice.
(5) At the time of his arrest, Mr. Johnson confessed to an Albuquerque police officer that he had killed someone in Arkansas;
(6) Testimony read into the record from Mr.Johnson’s stepmother, Sharon Johnston, was that Mr. Johnson had been released from jail on another matter the day of the murder, and he had told her he was going to spend the night with a white female who worked at a bank and had two children (this description matched the victim).
(7) Testimony was heard from Steven Hill, an inmate who had been jailed with Stacey Johnson on the day of the murder, who stated that Johnson told him he was going to “have sex with the first woman he met” after being released from jail that day.
The Caucasian hairs. In regard to the Caucasian hairs that have never been tested, Johnson’s request fails under Act 1780 for two reasons. First, subsection (a)(1)(B) requires that the evidence was not subject to testing before trial because the “technology for the testing” was not available at the time of trial or the “testing” was not available as evidence at the time of trial. Flowever, DNA testing of some sort was available at trial, and yet the Caucasian hairs were not tested. The second reason the request fails as to the Caucasian hairs is that this sort of DNA testing is used for the purpose of excluding a defendant as a possible donor. In this case, the prosecution stipulated that Johnson, an African-American, was not the donor of the Caucasian hairs. Therefore, not only were the hairs available for at least some DNA testing, the jury knew there were hairs that belonged to someone other than Johnson and it still convicted him. On these facts, we do not believe that the Caucasian hairs are evidence that is “materially relevant to the defendant’s assertion of actual innocence” as required by § 16-112-202(c)(1)(B).
With regard to Mr. Johnson’s Rule 37 claim that his counsel was ineffective for failing to request testing of the Caucasian hairs, we find that claim is unfounded. Once the prosecution stipulated that these hairs belonged to someone other than Johnson, there was no need for the defense to request retesting. Mr. Johnson contends that the Caucasian hairs should have been compared to the DNA database to determine if they matched the DNA of a known serial killer. However beneficial Mr. Johnson thinks such information might be, the fact is that this theory is so speculative that we cannot say a defense attorney was “deficient” for not having pursued it. Therefore, we affirm the trial court’s decision to deny testing of the Caucasian hairs on both the Act 1780 and Rule 37 petitions.
The cigarette butt. As to the saliva on the cigarette butt that was found on the green shirt, it was already retested once, pursuant to a request from Mr. Johnson. Far from excluding Mr. Johnson, the probability of the saliva being a donor other than Mr. Johnson went from 1 in 250 to 1 in 28 million, thereby decreasing the probability that the saliva belonged to anyone other than Mr. Johnson. Mr. Johnson argues that DNA testing has advanced now and there are new genetic markers that can now be tested. In support of his request, Mr. Johnson points to a statement by Kermit Channell of the Arkansas Crime Lab that “it is theoretically possible that someone could be excluded based upon a retesting for those additional markers.” Flowever, Mr. Channell also testified that the only way a retesting of the cigarette butt could exclude Mr. Johnson would be if he and someone else had the exact same DNA genetic profile — to a certainty of 1 in 28 million — and yet differed in other genetic markers. Mr. Channell testified that it was his opinion that it was extremely unlikely that retesting would rule out Mr. Johnson as the donor of the saliva on the cigarette butt.
The trial court denied Mr. Johnson’s request to retest the cigarette butt, finding that the defense was seeking an endless succession of retesting of old evidence. We believe the trial court was correct. Act 1780 was not meant to do away with finality in judgments. It was meant to be used to test evidence that will prove actual innocence of a wrongly-convicted person. It is conceivable that one could test and retest evidence repeatedly, each time obtaining a more narrow result, while there still is a “theoretical possibility” that at some point a retest would exclude a defendant. Where would it end?
Act 1780 hearings are governed by Ark. Code Ann. § 16-112-205, which states in pertinent part:
(d) The court may summarily deny a second or successive petition for similar relief on behalf of the same petitioner and may summarily deny a petition if the issues raised in it have previously been decided by the Arkansas Court of Appeals or the Arkansas Supreme Court in the same case.
Ark. Code Ann. § 16-112-205(d) (Supp. 2003). Mr. Johnson’s request has the potential to open a case for retesting of evidence every time science advances to include testing for yet another genetic marker. However, this is simply not the purpose behind section 16-112-201 et seq.
Mr. Johnson obtained retesting once on the cigarette butt saliva, and it did not exclude him. In fact, it made it extremely likely that the saliva was his. Such a high probability that the saliva on the cigarette butt was Mr. Johnson’s, coupled with Kermit Channell’s testimony and all the additional evidence presented to the jury at trial, makes retesting results unlikely to “significantly advance” Mr. Johnson’s “claim of innocence.” On the Rule 37 claim of ineffectiveness, the defense attorneys were certainly not deficient for deciding to avoid retesting of the cigarette butt, in light of the results of their first retesting request. Therefore, we affirm the trial court’s denial of retesting on the cigarette butt on both the Act 1780 and Rule 37 petitions.
The negroid hairs. The test results on the negroid hairs presented at trial are much more troubling. At trial, DNA results on these hairs could not exclude Mr. Johnson, but the probability that they belonged to another African-American were only 1 in 250. Considering the population of African-Americans in Arkansas alone, these results could conceivably include hundreds or thousands of people besides Mr. Johnson. Mr. Johnson acknowledges that retesting could result in the same narrowing of probability that happened when the cigarette butt was retested, but that the 1 in 250 ratio is so broad and includes so many persons other than Mr. Johnson, that he is entitled to retesting of the negroid hairs under Act 1780. We agree that retesting of the negroid hairs could be materially relevant to Mr. Johnson’s claim of innocence. Certainly, the other evidence in this trial shows that a favorable result would not per se exonerate Mr. Johnson. Nonetheless, our interpretation of § 16-112-202 does not require such a showing of complete exoneration in order to request retesting alone. The fact that some of the negroid hairs were found on the victim’s body made them particularly relevant to the prosecution’s case, and test results that would exclude Mr. Johnson could significantly advance his claim of innocence.
For these reasons, we reverse the trial court’s denial of Mr. Johnson’s Act 1780 petition for retesting of the negroid hairs and remand for the trial court to have such tests conducted.
While our holding effectively moots Mr. Johnson’s Rule 37 request regarding the negroid hairs, we do wish to note that trial counsel testified that when the retest of the cigarette butt came back so unfavorably, it was a strategy decision to not retest the negroid hairs. That seems to have been a prudent decision, and strategic decisions are not within the ambit of a Rule 37.
Other Rule 37 Claims of Ineffective Assistance of Counsel
In addition to his Rule 37 claim regarding DNA testing, Mr. Johnson makes thirteen other claims of ineffective assistance of counsel. None of these claims meet the two-pronged test set forth in Strickland v. Washington, supra, of both deficiency and prejudice.
A. The Confession
Mr. Johnson contends his counsel was ineffective for failing to file a written motion to suppress his statement to an Albuquerque police officer that he had killed someone in Arkansas. In addition to this admission, Mr. Johnson also talked about some homicides in Arizona and drugs. Mr. Johnson claims (1) there was no tactical reason for failing to file a written motion to suppress, (2) counsel should have called Mr. Johnson to testify at the suppression hearing, and (3) counsel should have acted to exclude references to other offenses that Mr. Johnson made in his statement to police.
In the Rule 37 hearing, trial counsel testified that the suppression issue was litigated at a pretrial hearing despite the lack of a written motion to suppress. As to the issue of putting Mr. Johnson on the stand, defense counsel testified that the decision not to testify was made by Mr. Johnson after trial counsel explained the situation. Finally, counsel testified that he believed the statements would be admitted, so it was his strategy to make them appear that they were outrageous ramblings and were not credible. Matters of trial strategy are not grounds for postconviction relief. Noel v. State, supra; Lee v. State, supra.
B. Competency of Ashley Heath
In order to impeach Ashley Heath, Mr. Johnson’s counsel wanted access to records of Ashley’s treatment by a therapist. The' defense believed these treatment records would show that Ashley did not have a memory of the night of her mother’s murder but had instead been coached into identifying Mr. Johnson. These records were kept sealed because of Ashley’s privilege as a patient. Mr. Johnson contends his counsel was ineffective for (1) failing to present evidence that those records fell outside privilege because they were for the purpose of preparing for litigation, (2) failing to present additional impeachment evidence, including cross-examining Ashley about her memories, and (3) failing to offer an expert treatise in support of his request for appointment of an expert to examine the child for competency.
Though Mr. Johnson mentions all three of these subpoints in his brief, he admits that testimony at the hearing did not support his first claim that counseling was for the purpose of litigation, so that defeats his first subpoint, and he makes no other argument for his second subpoint. Therefore, he has abandoned the first two subpoints and his only argument on this point concerns the treatise that he believes counsel should have introduced.
Mr. Johnson asserts that the circuit court erred in its rulings on the issue, and then simply asserts without citation to authority or supporting argument that there is a reasonable probability that the motion for an expert would have been granted if the treatise had been proffered and that the expert would have concluded that Ashley was incompetent to testify. We have repeatedly held that we will not consider an argument on appeal that has no citation to authority or convincing legal argument. See Smith v. State, 354 Ark. 226, 118 S.W.3d 542 (2003); Kelly v. State, 350 Ark. 238, 85 S.W.3d 893 (2002). Because Mr. Johnson’s argument is conclusory and cites no authority and makes no convincing legal argument in support of his contention, he has failed to show that the circuit court clearly erred in denying relief on this point.
C. Sixth Amendment Right to Confront Ashley Heath
In fohnson I, we held that some of Ashley Heath’s statements to officers constituted excited utterances and did not violate the Sixth Amendment’s Confrontation Clause. 326 Ark. at 438-45. At retrial, trial counsel made hearsay objections to these statements. In Johnson II, we rejected any appeal on the issue on law of the case grounds and because it was not supported by argument or authority. 342 Ark. at 202-03.
Mr. Johnson contended in his petition that this court wrongly ruled on the issue in Johnson II, and that counsel was ineffective in failing to preserve the issue for review. The circuit court refused to consider appellant’s claim, ruling that it was an attempt to reargue an issue settled on direct appeal. On appeal, appellant again argues that the confrontation issues were preserved for review, and, if not, counsel was ineffective in failing to preserve the issue.
However, these arguments regarding preservation are irrelevant. We did not rule in Johnson II that the issue was not preserved for review — we rejected any appeal on the issue because it was not supported by argument or authority, and, alternatively, because we had decided the issue in Johnson I. As such, Mr. Johnson’s argument that counsel was ineffective in failing to preserve the issue is without merit on its face.
In addition to the preservation argument presented in the Rule 37 hearing, Mr. Johnson has now raised a new argument on appeal: that counsel was ineffective in failing to sufficiently argue the issue in the Johnson II appeal. This argument was not raised below and was not ruled on by the circuit court; therefore, we do not consider it. See Nooner v. State, 339 Ark. 253, 4 S.W.3d 497 (1999). Even if a Confrontation Clause challenge constitutes an exception for some issues not raised below and preserved on appeal where the error is so fundamental as to render the judgment of conviction void and subject to collateral attack, see State v. Montague, 341 Ark. 144, 147 (2000), this court already decided the issue in Johnson I and rejected reconsideration in Johnson II. Thus, as the circuit court ruled, Mr. Johnson cannot reargue in his Rule 37 petition issues settled below. Furthermore, he suffered no Strickland prejudice because the outcome of his appeal would have been the same. See Sanford v. State, 342 Ark. 222, 28-29 (2000) (failing to raise objection without merit does not equate to ineffective assistance).
For these reasons, the trial court is affirmed on this issue.
D. Failure to Couch Proffer of Cordelia Ramsey Vinyard’s Testimony in Constitutional Terms
Mr. Johnson contends that trial counsel was ineffective “in failing to couch the proffer of the testimony of Cordelia Ramsey Vinyard in federal and state constitutional terms of the right to present a defense under due process, fair trial, compulsory process and confrontation.” The result of the testimony, argues Mr. Johnson, is that it would have helped show that someone else committed the murder, because Branson Ramsey, Ms. Vinyard’s ex-husband, was a friend of Carol Heath. Ms. Vinyard’s proffered evidence concerned alleged violence committed against Ms. Vinyard by Branson Ramsey when they were married.
The circuit court ruled that counsel did proffer the testimony, and that no evidence was presented at the Rule 37 hearing to find that we did not settle the issue in Johnson II. See 342 Ark. 186, 201-02 (holding that the trial court did not abuse its discretion in refusing to admit Ms. Vinyard’s testimony). Mr. Johnson’s argument is conclusory in its assertion that the testimony would have been admitted had counsel couched the proffer in constitutional terms. Moreover, Mr. Johnson’s Rule 37 claim on appeal is that the proffer should have been argued in constitutional terms, “which would permit a federal habeas court to review it.” Failure to preserve an issue for federal habeas review- is not the prejudice contemplated by the Strickland test, which requires a reasonable probability that the outcome at trial or, in this case, on appeal, would have been different. No such prejudice is cited by Mr. Johnson in this appeal. Therefore, the circuit court’s ruling is affirmed on this point.
„ E. Failure to Impeach Stepmother’s Testimony
In the first trial, Mr. Johnson’s stepmother, Sharon Johnston, identified the bloody green shirt found in the woods as belonging to Mr. Johnson. Ms. Johnston died before the second trial commenced, and her testimony from the first trial was read into the record to the jury. Mr. Johnson argues that his counsel was ineffective in failing to impeach his stepmother’s testimony on account of bias. Mr. Johnson contends his stepmother was biased toward him because she was angry that he had taken her automobile, and that his aunt, Debra Johnson, could have been called to testify about this.
At the Rule 37 hearing, Mr. Johnson argued that the evidence would have been admissible under Ark. R. Evid. 806, and under the rule that evidence of bias is always admissible. See, e.g., Dansby v. State, 319 Ark. 506, 893 S.W.2d 331 (1995). The trial court declined to find ineffective assistance of counsel because Rule 806 had to be read in conjunction with Rule 801(d)(2). However, Rule 806 refers to “a hearsay statement, or a statement defined in Rule 801 (d)(2)(iii), (iv), or (v).” Mr. Johnson’s argument is well-taken as regards the circuit court’s interpretation of Rule 806. Clearly, Rule 806 is not required to be read in conjunction with Rule 801(d)(2).
Nonetheless, Mr. Johnson’s argument fails for another reason. While trial counsel David Clark testified at the Rule 37 hearing that he could have presented testimony from Debra Johnson that Mr. Johnson’s stepmother was angry at him, Mr. Johnson failed to present the testimony of Debra Johnson herself, or any other evidence of the stepmother’s anger and alleged bias. The statement of attorney Clark that he was told by Debra Johnson that Sharon Johnston was angry was rank hearsay. Moreover, Mr. Clark testified that, although he recalled the aunt, Debra Johnson, being aware of the stepmother’s anger, he could have been wrong.
There is no indication that Debra Johnson was unavailable to testify at the Rule 37 hearing about Sharon Johnston’s supposed bias, but she did not testify and no affidavit in support of Mr. Johnson’s contentions was provided by her to the circuit court. The circuit court was not provided any real evidence at the Rule 37 hearing that the stepmother was, in fact,' angry or biased. Before Mr. Johnson can show trial counsel was deficient for failing to impeach the stepmother for bias, he must first present evidence that there was bias. He did not do so. Furthermore, Mr. Johnson alleges no prejudice as required by Strickland, but merely states that it is ineffective assistance of counsel to fail to impeach with available evidence. Mr. Johnson’s argument fails, and the trial court is affirmed on this point.
F. Failure to Establish that Johnson had Given Truthful Information
Mr. Johnson claims it was ineffective assistance for his trial counsel to fail to establish that, upon being bonded out ofjail shortly before the murder, he gave truthful information as to his address and other identification. He contends this would have shown the jury that he was not hiding from anyone. However, trial attorney Mickey Buchanan testified he decided not to use this information because it would have emphasized to the jury that Johnson had been in jail — a fact that they already knew, but that he did not wish to emphasize. This was a trial strategy and was not ineffective assistance of counsel. See Noel v. State, supra; Lee v. State, supra.
G. Failure to Impeach Jailhouse Witness Steven Hill
Steven Hill and Mr. Johnson were housed in the same jail on the morning of the murder. In his testimony, Hill was unable to identify Mr. Johnson in the courtroom, but testified that he was in jail with Stacey Johnson, a larger person, and that Johnson stated, “that when he got out of jail he was going to have sex with the first woman he ran into.” Mr. Johnson contends trial counsel were ineffective for failing to impeach Hill with prior statements indicating that he was pressured to make the claim against Johnson.
Trial counsel Buchanan eventually stipulated to the statement and asked no questions. Trial counsel Clark testified at the Rule 37 hearing that a defense investigator had evidence that Hill admitted to being pressured into giving his testimony. In his ruling on the Rule 37 petition, the circuit court ruled that Hill was sufficiently impeached on the stand when he failed to identify the appellant in the courtroom, and he credited Buchanan’s explanation that eliciting further testimony could have been damaging.
Mr. Johnson’s argument on appeal is conclusory — that the reliance on the non-identification as a reason not to impeach Hill is disingenuous. and unreasonable. However, Buchanan gave a reasonable explanation — that he was concerned if he pressed Hill, further testimony would be damaging.
Furthermore, Mr. Johnson provides a colloquy that occurred during the Rule 37 hearing between Mr. Johnson’s counsel and trial attorney Clark, in which Clark stated an investigator told Clark that he had a tape recording of an interview with Hill. In this recording, according to Clark, Hill allegedly told the investigator he had been pressured into giving his statement against Mr. Johnson. Again, this was hearsay within hearsay. Mr. Johnson did not produce the tape, an affidavit from the investigator or the investigator himself, or an affidavit from Hill or Hill himself, to testify as to the veracity of these statements allegedly made by Hill. Furthermore, Clark did not testify that he heard the tape himself.
Without any actual evidence before the circuit court that Hill had been pressured into giving testimony, it was not error for the circuit court to conclude there was no evidence of ineffective assistance of counsel in regard to impeachment of Hill’s testimony.
H. Failure to Develop Evidence of Relationship Between the Victim and Doyle Green
Mr. Johnson next claims counsel was ineffective in failing to fully proffer testimony and other evidence of a relationship between the victim and Doyle Green, an African-American. Mr. Johnson claims such evidence would have contradicted the State’s claim that the victim had no relationships with black men. See Johnson I, 326 Ark. at 447. Mr. Johnson also claimed that a DNA analysis would have combated the State’s evidence if the negroid hairs positively matched Green or failed to exclude him.
Trial counsel Buchanan testified that the matter was considered and rejected as a viable defense, and he made a strategic decision not to call Green. Again, trial tactics are not fodder for a Rule 37 petition. Noel v. State, supra; Lee v. State, supra. Furthermore, it was not within the ambit of defense counsel’s authority to force a DNA sample from Green, and we can find nothing in the record to indicate that the State had obtained Green’s DNA for comparison. Therefore, to contend that the defense was deficient because there was no DNA evidence to impeach the State’s evidence is unfounded. The circuit court is affirmed on this point as well.
I. Failure to Obtain Access to Victim’s Counseling Records
Mr. Johnson argued in his first supplemental Rule 37 petition that counsel was ineffective in failing to obtain the victim’s counseling and psychological records or to call her counselor as a witness. He contended that such would have resulted in discovery of any persons the victim was afraid of or who had threatened her. Any such person could then have been an alternate suspect against whom one could test forensic evidence. In the alternative, Mr. Johnson argued that counsel should have preserved the issue for appellate review. The circuit court denied relief, concluding that Mr. Johnson’s argument was speculative, that counsel did not see fit to pursue such theoretical evidence, and that the consideration of new evidence was beyond the scope of Rule 37.
On appeal, Mr. Johnson notes that the circuit court seemed to treat this claim as a freestanding one. Mr. Johnson has abandoned his ineffectiveness claim on appeal, because the two brief paragraphs devoted in his brief to this issue are merely a recitation of his arguments below, followed by an assertion that the trial court erred in denying Mr. Johnson access to the records and refusing to make an in camera inspection of the records requested. Johnson submits that the circuit court should have examined the records in camera to determine if any alternative suspects are contained therein, and cites Pennsylvania v. Ritchie, 480 U.S. 39 (1987), in support of his argument. However, we rejected such a freestanding claim in Weaver v. State, 339 Ark. 97 (1999):
As to Weaver’s claim bearing on the trial court’s refusal to direct the State to provide exculpatory evidence comprised of a list of persons undercover agent Tucker had arrested and prosecuted, he simply is in no position to raise this matter in a Rule 37 proceeding. Weaver sought these persons’ names and addresses in a belated attempt to substantiate his theory that Tucker engaged in sexual relations with Weaver and other men in an attempt to induce them to commit crimes involving illegal drugs. For authority, Weaver relies on Brady v. Maryland, 373 U.S. 83 (1963), which requires the State to disclose all favorable evidence material to the guilt or punishment of an individual.
The list of persons, if any, now sought by Weaver, was available at his original trial, but he never sought the information, nor did he claim a right to such information on direct appeal.Weaver does not use this postconviction proceeding to claim his counsel at trial and on appeal were ineffective for failing to obtain the list of names, but instead, he seeks to obtain that information in this postconviction proceeding, saying he is entitled to it as exculpatory evidence. Rule 37 does not provide for such discovery, and Weaver fails to cite any authority for the proposition. Neither does the Rule provide a remedy when an issue could have been raised in the trial or argued on appeal. Malone v. State, 294 Ark. 127 (1987). Our court has specifically held in Neal v. State, 270 Ark. 442, 605 S.W.2d 421 (1980), that Rule 37 does not allow a petitioner to raise questions which might have been raised at trial or on the record on appeal, unless they are so fundamental as to render the judgment void and open to collateral attack. If Weaver wanted to challenge the propriety of discovery, he should have done so before now by preserving the issue during his trial and raising it on direct appeal.
Weaver v. State, 339 Ark. 97, 103 (1999).
Thus, Mr. Johnson cannot raise this issue now as a direct attack on his conviction via Rule 37. Although Mr. Johnson, unlike Mr. Weaver, did allege ineffective assistance for counsel’s failure to obtain the records, he has abandoned that argument on appeal. The circuit court is thus affirmed on this point.
J. Failure to Object Properly to Alleged Brady Violations
In the Rule 37 hearing, Mr. Johnson alleged ineffectiveness for failing to object properly pursuant to Brady v. Maryland, 373 U.S. 83 (1963), for timely production of all exculpatory and mitigating evidence, including making motions for continuance. Mr. Johnson argued that a motion for continuance would have been successful or grounds for a successful appeal. He identified four items of evidence: (1) a video of the Heath residence showing the crime scene, (2) a failure to reveal contacts between the Heath family and police, in particular alleged relationships between the police and an alternative suspect, (3) untimely production of shoe prints and hair that allegedly could have shown persons other than appellant were present, and (4) a failure to provide medical examiner’s photographs that allegedly would have demonstrated further confusion in the physical evidence.
The circuit court made an extensive ruling on this claim; however, on appeal Mr. Johnson has only pursued the claim with respect to the video of the crime scene. As to that piece of evidence, the circuit court ruled that Mr. Johnson presented no evidence concerning the harmful denial of a motion for continuance, that such matter should have been raised on direct appeal, and, further, that Mr. Johnson presented no evidence supporting his allegation that the video tape would have shown tainted evidence. Moreover, the circuit court credited the testimony of counsel that he was not interested in the videotape because he preferred still photographs.
Once again, Mr. Johnson’s argument is conclusory. He disagrees with the circuit court’s credibility determination, to which this court defers. Jones v. State, 344 Ark. 682, 42 S.W.3d 536 (2001). Mr. Johnson further admits that he is unable to demonstrate prejudice because no video has been found to exist. Only references to a video in some trial documents exist, and the prosecuting attorney stated that he had seen no video and did not know where it was. Mr. Johnson admits that if such a video exists, it might have been an appropriate tactical decision not to use it. As stated previously, a tactical decision is not grounds for an ineffective-assistance claim, and without any claim of prejudice, neither prong of Strickland is met by this point on appeal. The trial court is affirmed on this point as well.
K. Ineffective Assistance in Jury Selection
This point on appeal contains no argument whatsoever. Mr. Johnson merely states that he argued below that trial counsel “also were ineffective in their failure to properly preserve the motion for change of venue from Pike County to Little River County because of the paucity of African-American residents in Pike and the larger number in Little River.” We do not consider arguments that have no citation to authority or legal argument in support thereof. Kelly v. State, supra.
L. Failure to Object to Evidence of Victim’s Religious Activities
Mr. Johnson claimed that counsel was ineffective during the penalty phase for failing to object to evidence concerning the victim’s religious activities under Ark. R. Evid. 401 to 403 and 610, and outside the scope permitted by Payne v. Tennessee, 501 U.S. 808 (1991). The circuit court denied relief, concluding that this court settled the issue in Johnson II, and that counsel did make proper objection at trial and that the evidence was admissible.
We did rule in Johnson II that counsel failed to preserve for appeal any argument on this issue. 342 Ark. at 199. Once again, however, appellant’s argument is conclusory in that he fails to explain why the evidence would have been excluded if counsel’s objections had been more detailed, and fails to explain why the evidence falls outside the scope of Payne. In short, his argument falls short of showing either deficient performance or prejudice. Therefore, the trial court did not clearly err in denying Rule 37 relief on this point.
M. Failure to Argue that the Victim Impact Law is Unconstitutional
Mr. Johnson renews his assertion that the Arkansas Victim Impact Statute, codified at Ark. Code Ann. § 5-4-602, is unconstitutional, and that counsel were ineffective in failing to make this claim. That is his entire argument. He alleges no reasons why counsel was ineffective in failing to make this claim, nor does he allege any prejudice. Therefore, he has met neither prong of the Strickland test and the trial court is affirmed on this point.
III. Allegation of Error in Denial of the Motion to Supplement the Rule 37 Petition
Two days before the circuit court issued its orders denying relief, Mr. Johnson moved for a second time to supplement his petition after the U.S. Supreme Court handed down Ring v. Arizona, 536 U.S. 584 (2002). Ring held that the principles in Jones v. U.S., 526 U.S. 227 (1999), and Apprendi v. New Jersey, 530 U.S. 466 (2000), specifically apply to capital cases, and the Supreme Court overruled precedent in contravention. See id. The summarized holding states,
Accordingly, Walton is overruled to the extent that it allows a sentencing judge, sitting without a jury, to find an aggravating circumstance necessary for imposition of the. death penalty. Because Arizona’s enumerated aggravating factors operate as “the functional equivalent of an element of a greater offense,” Apprendi, 530 U.S. at 494, n. 19, the Sixth Amendment requires that they be found by a jury.
Id. at 585.
Mr. Johnson argued in his proposed supplemental petition that Arkansas’s victim-impact procedure violated the doctrines announced in Jones, Apprendi, and Ring. He contended that victim-impact evidence is not charged in the information, and is not proven to the jury beyond a reasonable doubt because statutory law provides no standard of proof or place on the verdict form for the jury to indicate its findings as it does with aggravating circumstances. Mr. Johnson submits that such constitutes a fundamental denial of the right to a jury trial and is cognizable for the first time in a Rule 37 proceeding.
A circuit court’s denial of leave to amend a petition is reviewed by an abuse-of-discretion standard. Sanders v. State, 352 Ark. 16, 98 S.W.3d 35 (2003). It should be noted as well that this court has repeatedly stated that, in death cases where a Rule 37 petition is denied on procedural grounds, great care should be exercised to assure the denial rests on solid footing. Id. (citing Echols v. State, 344 Ark. 513, 42 S.W.3d 467 (2001); Wooten v. State, 338 Ark. 691, 1 S.W.3d 8 (1999)).
In Sanders v. State, supra, we held it was an abuse of discretion for a trial court to summarily dismiss a Rule 37 petition because the certificate of service caused the petition to exceed the page limit by one page. On the other hand, in Weaver v. State, 339 Ark. 97, 3 S.W.3d 323 (1999), we upheld a denial of leave to insert a last-minute due-process claim into a Rule 37 petition because the State was unprepared and unable to respond to the new theory without obtaining a continuance.
In the case at bar, similar to Weaver, Mr. Johnson submitted his motion two days before the circuit court issued its orders denying relief. Mr. Johnson submits that his claim fits the Rowbottom exception and can be raised for the first time in a Rule 37 proceeding. See Rowbottom v. State, 341 Ark. 33, 13 S.W.3d 904 (2000) (holding that errors, including constitutional errors, that are so fundamental as to render the judgment of conviction void and subject to collateral attack may be raised for the first time in a Rule 37 petition). We concluded in Rowbottom that the right to a twelve-member jury was a fundamental right, the violation of which rendered the judgment void and subject to collateral attack. Id.
Clearly, the right to a jury trial is a fundamental right, and this court has recognized Apprendi and the fundamental right to be judged by a standard of proof beyond a reasonable doubt in a criminal trial. See Anderson v. State, 353 Ark. 384, 108 S.W.3d 592 (2003). Therefore, it could be concluded that Mr. Johnson has made a claim stronger than that made in Sanders v. State, supra. If that is the case, in this instance of a claim of the denial of a fundamental right, then the circuit court erred in denying leave to supplement Mr. Johnson’s petition.
The question then becomes whether, if the circuit court abused its discretion, the case should be remanded for consideration and the issuance of findings, or whether we should simply decide the issue on appeal, perhaps under one of the Wicks exceptions. See Wicks v. State, 270 Ark. 781, 606 S.W.2d 366 (1980). Neither side has mentioned Wicks; however, Mr. Johnson has framed his argument in such a way that it could possibly fall under the first Wicks exception; that is, when the trial court fails to bring to the jury’s attention a matter essential to its consideration of the death penalty itself. See, e.g., Anderson v. State, supra. Thus, the issue of a possible Wicks exception is presented to us in this appeal, particularly when we consider that the State’s brief on appeal addresses only the underlying merits of Mr. Johnson’s claim, foregoing any defense of the circuit court’s refusal to grant leave to supplement the petition.
If we treat this as a Wicks exception, we must then decide whether, because this is a Rule 37.5 case, remand for consideration by the circuit court is more appropriate than this court considering the claim on our own motion under Wicks. After all, Rule 37.5 places an affirmative duty on the circuit court to issue findings of facts and conclusions of law on each claim raised. See Echols v. State, No. CR99-1060, slip op. (Oct. 30, 2003). Furthermore, the State had no opportunity below to respond to Mr. Johnson’s second motion to supplement and both parties’ arguments on appeal fail to provide a detailed discussion of the precedent related to this issue. Under these circumstances, we would normally be inclined to remand to the circuit court for findings.
Regardless of these conflicting considerations, however, we believe remand is not prudent in this case because Mr. Johnson could not prevail on his claim regarding victim-impact evidence in any case. The challenged statute is Ark. Code Ann. § 5-4-602(4) (Repl. 1997), and it requires a jury to consider victim-impact evidence in the context of weighing aggravating and mitigating circumstances. McGehee v. State, 348 Ark. 395, 72 S.W.3d 867 (2002).
Speaking generally, in Nooner v. State, 322 Ark. 87, 907 S.W.2d 677 (1995), we upheld the underlying constitutionality of victim-impact testimony. See Nooner, 322 Ark. at 107-109, 907 S.W.2d at 688-89 (citing Payne v. Tennessee, supra). This decision has been reaffirmed since. See Fudge v. State, 341 Ark. 759, 20 S.W.3d 315 (2000); Engram v. State, 341 Ark. 196, 15 S.W.3d 678 (2000).
McGehee v. State, 348 Ark. at 415, 72 S.W.3d at 879.
Furthermore, we stated in Noel v. State, 331 Ark. 79, 960 S.W.2d 439 (1998), that our case law specifically rejected the notion that victim-impact evidence is an aggravating circumstance or that it violates the statutory weighing process set out in Ark. Code Ann. § 5-4-603 through 605 (Repl. 1993). See Kemp v. State, 324 Ark. 178, 204, 919 S.W.2d 943, 956 (1999), cert. denied, 519 U.S. 982 (1996) (expressly addressing the issue of whether “because there is no place in the Arkansas statutory weighing process for the jury to consider victim-impact evidence, our victim-impact statute is violative of the Eighth and Fourteenth Amendments to the United States Constitution and Ark. Const, art. 2, § 9”)-
Therefore, as the State argues in its brief, Ring, Apprendi, and Jones are inapplicable to victim-impact evidence because it is not an element contained in a statute — it is simply evidence to be considered. Under our statutory procedure, aggravating circumstances must be proven beyond a reasonable doubt, and, thus, our procedure meets the standards of Ring and Apprendi. Accordingly, because the argument would thus be without merit even had the circuit court granted leave to supplement, we affirm the circuit court’s refusal to grant leave to supplement the Rule 37 petition. See Jackson v. State, 352 Ark. 359, 105 S.W.3d 352 (2003) (rejecting challenge to victim-impact laws’ constitutionality when framed as ineffective assistance of counsel).
IV Constitutionality of the Death Penalty
Finally, Mr. Johnson claimed that his death sentence was obtained unconstitutionally in violation of the prohibitions against ex post facto laws. This court rejected Mr. Johnson’s arguments on this point in both Johnson I, supra, and Johnson II, supra. Other than stating in his brief that he “reargues” this point, Mr. Johnson provides no argument whatsoever on this point on appeal. Because he provides no argument and we have already considered this claim twice, in Johnson I and, again, in Johnson II, we hold that this claim is without merit.
In conclusion, we reverse the circuit court’s denial of Mr. Johnson’s Act 1780 petition to retest the negroid hairs introduced into evidence at his trial, and remand for the circuit court to order DNA retesting of the negroid hairs to determine if Mr. Johnson can be excluded as the source of those hairs. We affirm the circuit court’s denial of relief based on the remainder of Mr. Johnson’s Act 1780 petition claims, as well as all other claims on appeal.
Affirmed in part, reversed and remanded in part.
Barbara Webb, Spl. J., joins in this opinion.
Corbin, J., not participating.
Without giving us any reason why we should do so, Mr. Johnson invites this court to overrule our case law and adopt a ie novo standard of review when the appeal of postconviction proceedings concerns questions of law or mixed questions of law and fact. We decline Mr.Johnson’s invitation to do so.
In the first trial Johnson’s stepmother, Sharon Johnston, identified the green shirt as belonging to Mr. Johnson. Ms. Johnston died before the second trial, so her first-trial testimony was read to the jury. We note that Mr. Johnson concedes in his brief that this identification of the green shirt as his “was a crucial item of evidence in tying the evidence to Johnson.”
This second prong was written concerning tests such as DNA testing that were technologically available and performed at a time when states were still unsure of the reliability of DNA, so DNA testing might have been performed but might not have been admissible at the time of trial.
We note that while we are granting Mr. Johnson’s request for retesting under § 16-112-202, it would be premature for us to address the circuit court’s refusal to grant a new trial under § 16-112-201, because that statute does not contemplate consideration of a petition for new trial until new scientific evidence has been obtained. | [
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Ray Thornton, Justice.
Appellant David Hunter appeals his convictions for the sale of unregistered securities, securities fraud, and theft of property, for which he has been sentenced to a total of forty-six years’ imprisonment. On appeal, he contends: (1) that the trial court erred in denying his motion for a directed verdict because of insufficient evidence to sustain the charge of selling unregistered securities; (2) that it erred in denying his motion for a directed verdict on the basis of the statute of limitations on the charge of securities fraud; and (3) that denial of these two motions violated his right to due process of law on the charge of theft of property. We find no merit in these arguments and affirm.
Appellant claimed that he invented or owned the rights to an invention of a patented device to prevent jackknifing of tractor-trailer trucks. The device was invented by O’Neal Sanders, who was granted a patent on October 17, 1978. Appellant met Mr. Sanders and persuaded him to install a working model of the invention on his horse trailer and truck. On October 21, 1980, a purported agreement was executed transferring Mr. Sanders’s rights in the invention to appellant. The evidence compels the conclusion that Mr. Sanders did not sign this purported agreement that was eventually filed with the Patent and Trademark Office on August 13, 1987.
Appellant incorporated Drivers Ace, Inc., in November 1987. Prospective investors in Drivers Ace, Inc., were informed that the corporation held the patent rights to manufacture the device. Appellant continued to promote the invention, sometimes claiming that he was the inventor. On December 3, 1992, Drivers Ace entered into an agreement with Marvin Engineering Co., Inc., of Inglewood, California, granting Marvin the exclusive license to manufacture the device worldwide.
Peter Brocklesby witnessed this agreement on December 3. On January 21, 1993, Mr. Brocklesby and another investor, Norbert von Boode, transferred $250,000 to the Drivers Ace, Inc., account in the First National Bank of Sharp County. This sum was to pay for 125 shares of stock in Drivers Ace at $2,000 per share, and the stock was issued February 3, 1993. Before the certificate was issued and on the same day that the sum of $250,000 was deposited in the Drivers Ace account, appellant wired $180,000 from the Drivers Ace account to his personal account in the First Ozark National Bank in Flippin, Arkansas.
Appellant argues that this transaction cannot be the basis for prosecution for securities fraud and for theft, that the charge of securities fraud is barred by the statute of limitations, and that the State did not prove the required elements of the crime of selling unregistered or nonexempt securities. We turn to our analysis of each of these arguments.
Appellant’s first two points for reversal involve his motions for directed verdicts, which we treat as challenges to the sufficiency of the evidence. Williams v. State, 329 Ark. 8, 946 S.W.2d 678 (1997). We consider challenges to the sufficiency of the evidence before we address other allegations of trial error. Harris v. State, 284 Ark. 247, 681 S.W.2d 334 (1984). The test for determining the sufficiency of the evidence is whether there is substantial evidence to support the verdict. Id. Evidence is substantial if it is forceful enough to compel a conclusion one way or the other beyond speculation and conjecture. Id. We review the evidence in the light most favorable to the party opposing the motion and consider only the evidence that supports the verdict. Id.
At trial, appellant’s counsel made motions for directed verdicts on two charges, the sale of unregistered securities and securities fraud. Appellant moved for directed verdicts after the State’s case-in-chief and properly renewed his motions, which the trial court denied. We examine each motion separately below.
Sale of Unregistered Nonexempt Securities:
With respect to the charge of selling unregistered nonexempt securities, appellant argues that the State failed to meet its burden of proof with respect to the charge. This argument lacks merit.
The statute delineating the offense provides as follows:
It is unlawful for any person to offer or sell any security in this state unless:
(1) It is registered under this chapter; or
(2) The security or transaction is exempted under § § 23-42-503 or 23-42-504.
Ark. Code Ann. § 23-42-501 (Repl. 1994). As appellant correctly states, the burden of proof is on the State to show that a sale of, or an offer to sell, an unregistered security took place. However, once the State has met that burden, the burden shifts to the seller to show that the security was either exempt from registration or was registered. Schultz v. Rector-Phillips-Morse, Inc., 261 Ark. 769, 552 S.W.2d 4 (1977); McMullan v. Molnaird, 24 Ark. App. 126, 749 S.W.2d 352 (1988).
Under Ark. Code Ann. § 23-42-504 (Supp. 1995), certain transactions are exempt from § § 23-42-501 and 23-42-502. Specifically, under subsection (a)(9)(A), stock offers to twenty-five people or less are exempted. However, Ark. Code Ann. § 23-42-506 (Repl. 1994) provides: “In any proceding under this chapter, the burden of proving an exemption or exception from an exemption is upon the person claiming it.” The statute requires that a proof of exemption be filed with the commissioner to prove that the transaction was exempt. Ark. Code Ann. § 23-42-503(d)(l) (Supp. 1995). Appellant made no such showing at trial.
The State clearly proved that the sale of 125 shares of Drivers Ace stock to Mr. Brocklesby and Mr. von Boode, which was dated February 3, 1993, was a sale of securities. The State proved that the stock was not registered. The burden under Arkansas law then shifted to appellant to prove that the securities were exempt from registration. Appellant failed to meet this burden. There was sufficient evidence to sustain a conviction, and we affirm the trial court’s decision on this point.
Fraud in Connection with Offer, Sale, or Purchase of Securities:
For his second point of appeal, appellant urges error in denying his motion for directed verdict based on the securities-fraud charge. In trial, counsel stated the following:
Mr. Adams: Comes now the defendant, Mr. Hunter, and moves that the Court direct a verdict of acquittal on the charges as follows: On the charge of securities fraud, the allegations set forth in the Information and the allegation of the State was that there was the use of a forged document to defraud persons to purchase shares of stock in Drivers Ace. That document is dated more than five years before the filing of this Information. There has been no testimony that the document was shown to anybody within five years of the filing of this Information. In fact, the only person who made any reference to it in his testimony said that his last contact with David Hunter was prior to the year 1990. The Statute of Limitations has clearly run on that allegation and should be dismissed.
The State countered at trial with the argument that the act used for purposes of tolling the statute may be the last act in a chain of conduct, and that the act in this case began with showing Mr. Brocklesby and Mr. Parker the license and ended with the sale to Messrs. Brocklesby and von Boode in 1993. The State contended that the last act in the chain occurred in 1993 and that this act tolled the statute.
On appeal, appellant attempts to argue that the State faded to produce sufficient evidence that “the defendant made a statement that [he] and Drivers Ace, Inc., had an agreement with the owner of a patent on an anti-jackknifing device for large tractor trailer rigs permitting Drivers Ace, Inc., to manufacture and market the device and that the statement was not true.”
Our law is well established that in order to preserve the challenge for our review, the movant must apprise the trial court of the specific basis on which the motion is made. Stewart v. State, 320 Ark. 75, 894 S.W.2d 930 (1995). Parties may not change their argument on appeal and are limited to the scope and nature of their arguments made below. Id. Proof of the specific element of the alleged crime must be identified in the motion for directed verdict in order to preserve the argument for appeal. Miller v. State, 328 Ark. 121, 942 S.W.2d 825 (1997).
As the trial language quoted above illustrates, the only portion of appellant’s argument on this point that is preserved for our review is the argument that the State failed to show that the fraud occurred within the preceding five-year period, as required under the statute of limitations. His argument regarding the sufficiency of the evidence was not made before the trial court and is therefore not preserved for our review.
The issue is whether the act alleged in violation of Ark. Code Ann. § 23-42-507 (Repl. 1994), was beyond the statute of limitations found in Ark. Code Ann. § 23-42-105 (Repl. 1994). The statute of limitations for this felony offense is five years, and it “does not begin to run until after the commission of the last overt act in the furtherance of a scheme or course of conduct.” Ark. Code Ann. § 23-42-105(a).
Arkansas Code Annotated § 23-42-507 provides as follows:
It is unlawful for any person, in connection with the offer, sale, or purchase of any security, directly or indirectly:
(1) To employ any device, scheme, or artifice to defraud;
(2) To make any untrue statement of a material fact or to omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they are made, not misleading; or
(3) To engage in any act, practice, or course of business which operates or would operate as a fraud or deceit upon any person.
The affidavit for warrant of arrest for appellant alleges that appellant’s violation of the statute involved a breach of subsection (2), making an untrue statement of material fact in connection with the offer, sale, or purchase of any security. The warrant stated that appellant made such a statement many times in connection with the sales and offers of stock in Drivers Ace, Inc. The affidavit claimed that the untrue statement was that appellant and Drivers Ace had an agreement with the inventor to manufacture and market the anti-jackknifing device. The fraud that appellant allegedly perpetrated was telling potential investors that the company had a license to use another’s patent to manufacture a device that would constitute the sole business of the company.
The evidence clearly shows that appellant’s acts in selling security in a company that makes and manufactures an invention that he claimed to have the right to manufacture and sell constituted fraud or deceit upon many persons within the five-year period preceding January 29, 1996. The abstract and record are replete with examples of appellant’s false statements or misrepresentations connected with the ongoing sale of this stock that culminated in the February 1993 exchange.
Reading the statute and viewing the evidence in the light most favorable to the State, we conclude that the evidence of appellant’s actions in offering stock in a company that he founded on a fraudulent premise constituted the last overt act in the furtherance of a scheme or course of conduct as required under statute. The course of conduct culminated in the sale of the stock on February 3, 1993, and commenced the running of the five-year statute of limitations. We affirm the trial court’s decision on this point.
Theft of Property:
As his last point of appeal, appellant argues that consideration of the charge of theft of property along with the two securities charges, which he argues should have been dismissed on his motions for directed verdicts, constituted a denial of his due process rights. Before the trial court, appellant argued that the State could not use the 1993 stock sale for both the purpose of tolling the statute of limitations for violations of § 23-42-507 and as a basis for liability under § 5-36-103 (Supp. 1995), the theft of property charge.
On appeal, appellant asserts merely that submitting these two securities charges to the jury with the theft charge denied him a fair trial in violation of his due process rights. Appellant clearly did not raise this issue before the trial court, and he cannot raise it for the first time on appeal. Arguments, even constitutional ones, that are not raised before the trial court are barred on appeal. Dulaney v. State, 327 Ark. 30, 937 S.W.2d 162 (1997).
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Robert L. Brown, Justice.
Appellant Willie Leon Green was charged with capital murder in connection with the shooting death of Little Rock Police Department Detective Joseph Fisher and attempted capital murder for the shooting of Little Rock Police Department Detective Frederick Lee. He was tried by jury and convicted of first-degree murder and attempted capital murder. He was subsequently sentenced to consecutive terms of life imprisonment and thirty years’ imprisonment. On appeal, he raises six points for reversal. We affirm.
At trial, Detective James Stephens of the Little Rock Police Department testified that he was in charge of executing a search warrant at Green’s apartment at approximately 7:55 p.m. on February 7, 1995. He testified that the plan was for Detectives Frederick Lee and Joseph Fisher to operate a battering ram for a forced entry into Green’s apartment along with other police officers. Detective Stephens testified that he had established a position securing the rear of the apartment building when he heard his entry team yell, “Police, search warrant, police,” followed by what he believed to be the battering ram striking the front door and a number of gunshots. He rushed to the front of the apartment building and found Detective Lee staggering out the door with a gunshot wound to the head. He saw Detective Fisher lying on the kitchen floor, where two police officers were attempting first aid. Police officers were also handcuffing Green and a woman named Donna Finney, who was on the couch near two children, one of whom was in a playpen. On cross-examination, Detective Stephens stated that he made the decision to execute the search warrant even though he knew that Green had been robbed the preceding month. He testified that some of his police officers wore police markings on their back and some wore vests with reflective tape that displayed “police” on the front.
Detective John Gravett confirmed that prior to breaching the door, he shouted, “Police, search warrant,” at least two times. He testified that the door was breached between the first and second yell. As he followed Detective David Smith to the front door, he heard gunshots, and the first thing he saw was Detective Lee with blood on his face. He said shots were still being fired at the time when Detective Fisher shouted out that he had been hit. He testified that Detective Smith yelled, “Get your hands up or I’ll shoot,” or words to that effect, at which time Detective Gravett saw Green squatting in the corner of the room with a gun at his feet. Detective Gravett admitted that it was common knowledge that Green’s apartment had been the subject of a recent robbery.
Detective Donnie Bakalekos testified that he was standing behind Detectives Lee and Fisher when he shouted, “Police. Search warrant. Little Rock Police,” prior to the door being rammed. He stated that he believed the entire squad yelled the same warning. He testified that he and Detective Ralph Breshears were assigned to secure the upstairs portion of the apartment. He explained that once the door was breached, he made it halfway up the stairs before he heard gunshots. He testified that Detective Breshears stood immediately below him on the stairs and fired his weapon.
Officer David Smith testified that he entered the apartment with a 12-gauge shotgun immediately behind Detective Fisher. He explained that he followed Detective Fisher until the time when Detective Fisher was shot. Once Detective Fisher fell to the floor, Officer Smith fired one round at Green, who attempted to hide behind some furniture. Officer Smith testified that the police officers’ ability to maneuver inside the apartment was hampered by a child’s playpen that appeared to be in the middle of the apartment. He testified that he fired his shotgun a second time when Green began firing from behind the furniture. Officer Smith testified that he yelled to Green to drop his gun and surrender, which Green did after Donna Finney shouted: “It’s the police. Drop your gun.“
Four other police officers confirmed that they heard their fellow police officers yell, “Police, search warrant.” Norma Allen, a resident of Green’s apartment complex, testified that she heard some people talking “loud” outside her apartment between 7:45 and 8:00 p.m. on the night of the killing, but she could not determine what they were saying. She testified that this was followed by a “boom” sound and then gunshots. She testified that she also heard screaming and a person yell, “Someone’s down.”
A Taurus .38 special revolver, which had been used by Green, was removed at the scene and contained five spent hulls. Cash in the amount of $505.39 was recovered from a purse located in the apartment. In the kitchen, a hat containing a .38 round, a wallet, a pager, and $1,643.37 was found by police officers. Two plastic bags with green, vegetable matter were also recovered. Upstairs in Green’s apartment, a Rossi .38 special revolver containing five live rounds was found in the master bedroom.
Donna Finney, Green’s girlfriend and the mother of his two children, was called by the prosecutor as a witness. At the time of the slaying, she was seven months pregnant. She testified that she never saw the word “Police,” written on any of the officers’ vests. She also told the jury that the previous home robbery on January 7, 1995, caused Green and her to lose $2,000 in cash, along with a ring and a check. She stated that the robbers were black, wore ski masks,' and broke into the apartment after midnight on a Friday night. She admitted that the police officers in this case were white and wore vests. She testified that they did not yell anything to identify themselves.
Former Detective Mark Sims testified that he and a confidential informant named John Cron were involved in four crack cocaine buys at Green’s residence before the shooting. On February 7, 1995, there was a plan for Detective Sims and Cron to both be present during a hand-to-hand purchase of crack cocaine from Green. At the same time, Detectives Fisher and Lee were to watch from the outside. Sims, however, contacted the two detectives and told them that the plan had changed and that Cron was going to make the buy alone. After Cron’s buy, Sims and Detective Fisher went to the Little Rock Municipal Judge to obtain the search warrant.
Dr. Charles Kokes, associate medical examiner, testified that he found gunshot entry and exit wounds on Detective Fisher’s body. He testified that the bullet entered the area in front of his right shoulder, missing the bulletproof vest, passed through the right lung and severed a branch of the aorta, and exited through his upper left back. He opined that this gunshot wound was the cause of death. Ronald Andrejack, a firearms and toolmark examiner, testified that the fatal bullet was fired from the Taurus .38 special revolver. However, his test results with respect to the bul let retrieved from Detective Lee’s head were inconclusive because the bullet was severely damaged.
Donna Finney also testified for the defense and stated that she was upstairs with her children on January 7, 1995, the date of the previous robbery. She heard a loud boom from downstairs. Green then came upstairs at gunpoint with a man behind him wearing a mask and demanding money. Finney next testified that on February 7, 1995, she was in the living room with Green and the two children when she heard a loud boom and the door “came in.” She testified that she was aware that Green was firing his gun but told him to stop doing so when she realized it was the police. On cross-examination, she claimed that she was not selling drugs; that some of the money found by the police officers was her rapid-return federal tax money; and that she did not hear anything prior to the door being broken down.
Green testified in his own defense. He stated that he was home on January 7, 1995, with Donna Finney, the two children, and two friends when three armed men broke through the door and entered the living room. The men wore masks and demanded money. Green testified that he had recently received a check from a lawsuit that had settled and that he had just been paid from his job at St. Vincent Infirmary. He testified that he gave the men his money at gunpoint. After that robbery, he testified that he kept two loaded guns in the house for protection. He admitted that he began selling crack cocaine about that time to recoup the money that was lost. He also testified that he recognized Detective Sims from a previous job at University Hospital and that he never sold him drugs. He stated that he sold John Cron two rocks of crack cocaine on February 7, 1995. Later, he, Donna Finney, and the two children were in the living room when he heard a loud noise and saw men coming through the front door. Green stated that he thought it was another break-in and grabbed his pistol. He testified that he fired toward the door and not at any particular person and that he hoped to scare the intruders off. He explained that his biggest concern was for the safety of his child, who was in the playpen between himself and the front door. He testified that he was firing from an awkward position behind a piece of furniture and that he could only recall firing three times. He testified that after those shots, he threw down his weapon to surrender when he was hit in the leg with a shotgun blast. He testified that he did not know that the police were coming that night and that he had no idea it was police detectives who were on the receiving end of his volley.
On cross-examination, Green stated that he was unaware that any of the officers were injured and maintained that he did not intentionally kill anyone. He stated that he only shot three times, but he could not explain how the pistol was out of bullets when he surrendered. He explained that he thought he shot first but that he was not certain.
In contrast to February 7, 1995, Green testified that the January 7, 1995 robbery was accomplished by three black males who were wearing ski masks. He testified that these men wore blue, which was a color associated with the Crips gang, but he denied that he was associated with the Park Street Pirus, a Bloods affiliate.
I. Insufficiency of the Evidence
At trial, defense counsel’s motion for directed verdict focused on the lack of premeditation and deliberation on Green’s part because of the forced entry which was a complete surprise. The motion was denied.
The standard of review for motions for directed verdict has been stated often by this court:
Motions for directed verdict are treated as challenges to the sufficiency of the evidence. Johnson v. State, 326 Ark. 3, 929 S.W.2d 707 (1996); Penn v. State, 319 Ark. 739, 894 S.W.2d 597 (1995). When a defendant challenges the sufficiency of the evidence convicting him, the evidence is viewed in the light most favorable to the state. Dixon v. State, 310 Ark. 460, 470, 839 S.W.2d 173 (1992). Evidence is sufficient to support a conviction if the trier of fact can reach a conclusion without having to resort to speculation or conjecture. Id. Substantial evidence is that which is forceful enough to compel reasonable minds to reach a conclusion one way or the other. Id. Only evidence supporting the verdict will be considered. Moore v. State, 315 Ark. 131, 864 S.W.2d 863 (1993).
McGehee v. State, 328 Ark. 404, 410, 943 S.W.2d 585, 588 (1997).
With respect to Green’s conviction for attempted capital murder, there was substantial evidence that he acted with premeditation and deliberation in the shooting of Detective Lee. A criminal defendant’s intent or state of mind is rarely capable of proof by direct evidence and must usually be inferred from the circumstances of the crime. Williams v. State, 325 Ark. 432, 930 S.W.2d 297 (1996); Carter v. State, 324 Ark. 249, 921 S.W.2d 583 (1996); Walker v. State, 324 Ark. 106, 918 S.W.2d 172 (1996). The necessary premeditation is not required to exist for a particular length of time and may be formed in an instant. Key v. State, 325 Ark. 73, 923 S.W.2d 865 (1996); Ward v. State, 298 Ark. 448, 770 S.W.2d 109 (1989). Premeditation and deliberation may be inferred from the type and character of the weapon used, the manner in which the weapon was used, the nature, extent, and location of the wounds inflicted, and the conduct of the accused. Key v. State, supra; Kemp v. State, 324 Ark. 178, 919 S.W.2d 943 (1996), cert. denied, 117 S. Ct. 436 (1996).
In this case, viewing the evidence in the light most favorable to the State, there was substantial evidence that Green was guilty of attempted capital murder with respect to the shooting of Detective Lee. There was evidence that the police officers announced their presence outside of Green’s apartment prior to breaking down the door. Once the door was knocked down, the first two men through, Detectives Fisher and Lee, were both shot. Fisher was shot with a bullet from Green’s Taurus .38 special revolver. The jury could have inferred that Detective Lee was shot with a bullet from the same weapon. The revolver that was recovered at the scene contained five spent hulls. Detective Lee was also shot in the head, while wearing his police gear and after an announcement that they were police officers executing a search warrant. We conclude that this constitutes substantial evidence that Green was guilty of attempted capital murder with regard to Detective Lee.
Green makes two additional arguments on appeal with respect to lack of substantial evidence relating to his first-degree murder conviction for the shooting death of Detective Fisher. Neither point should be considered, as neither was raised as part of Green’s motion for directed verdict before the trial court. This court does not address arguments, even constitutional arguments, that are raised for the first time on appeal. See, e.g., Travis v. State, 328 Ark. 442, 944 S.W.2d 96 (1997); Dulaney v. State, 327 Ark. 30, 937 S.W.2d 162 (1997). The first argument appears to be that Green’s conviction for first-degree murder was prejudiced by the submission of capital murder to the jury. His second point raised for the first time on appeal relates to self-defense. Both arguments are procedurally barred. We conclude that there is no basis for reversal on the first point.
II. Comment on the Evidence
During its case-in-chief, the prosecutor called Donna Finney to testify. She was questioned at length about Green’s involvement with selling drugs, and she proved to be hostile to the State on the subject. The prosecutor impeached her testimony with her prior statement given to police detectives. On cross-examination, defense counsel wanted to explore other topics contained in her statement, at which time the prosecutor objected on the ground that such questions were beyond the scope of direct examination. After the trial court overruled the objection, thus providing leeway to defense counsel, the following occurred:
THE COURT: . . . But Ms. Finney, are you aware of what pegury is?
MS. FINNEY: Huh-uh.
THE COURT: Perjury is lying in an official proceeding, which this is. Not telling the truth. The consequences of that are that if you’re convicted of it, you can be sent to the penitentiary from three to ten years and fined up to $10,000.
You are now under oath and you are sworn to tell the truth. Do you understand that?
MS. FINNEY: Yes, sir.
THE COURT: All right. You may proceed.
Green argues that the trial court’s admonition in the jury’s presence was an unauthorized comment on the evidence in violation of Ark. Const, art. 7, § 23. There is no doubt that the trial court intimated that it found the testimony of Ms. Finney not to be believable. We have held in the past that an insinuation by the trial court that a witness is committing perjury is an impermissible comment on the evidence by the trial court. See, e.g., West v. State, 255 Ark. 668, 671, 501 S.W.2d 771, 773 (1973)(holding the following to be an unconstitutional comment: “How much were you paid to come up with this information?”); Watkins v. State, 222 Ark. 444, 448, 261 S.W.2d 274, 277 (1953)(holding the following to be an unconstitutional comment: “Let me warn you whatever you said then they have it down word for word and you were under oath then and are under oath now, but if you tell the same things two different ways you are going to be guilty of perjury. You get yourself straight[.]”). Green admits that this error was not raised to the trial court but asserts that the argument is not barred because (1) this court searches the record for reversible error in life cases under Ark. Sup. Ct. R. 4-3 (h), and (2) Ark. R. Evid. 103(d) provides that nothing in the rules precludes taking notice of errors affecting substantial rights though they were not brought to the attention of the trial court.
In interpreting Rule 4-3 (h), this court has continually maintained its position that the language of Rule 4-3 (h) does not mandate plain-error review. See, e.g., Wright v. State, 327 Ark. 558, 940 S.W.2d 432 (1997); Webb v. State, 327 Ark. 51, 938 Ark. 806 (1997); Echols v. State, 326 Ark. 917, 936 S.W.2d 509 (1996), cert. denied, 117 S. Ct. 1853 (1997); Childress v. State, 322 Ark. 127, 907 S.W.2d 718 (1995); Aaron v. State, 319 Ark. 320, 891 S.W.2d 364 (1995). We have been constant in requiring an objection by counsel to preserve an issue for our review under Rule 4-3(h). The acknowledged exceptions to this rule are (1) death penalty cases involving an error in a matter essential to the jury’s consideration of the death penalty itself; (2) cases where the trial judge made an error of which the appellant had no knowledge; (3) cases where the trial judge neglected his or her duty to intervene; and (4) cases involving evidentiary errors which affected the appellant’s substantial rights. Camargo v. State, 327 Ark. 631, 640, 940 S.W.2d 464, 469 (1997), citing Wicks v. State, 270 Ark. 781, 606 S.W.2d 366 (1980). Green does not attempt to fit his situation into one of the four Wicks exceptions.
In addition, Green’s argument cannot be salvaged by the language of Rule 103(d) of the Rules of Evidence. This court has previously held that this language does not authorize review of plain error. See, e.g., Lovelady v. State, 326 Ark. 196, 931 S.W.2d 430 (1996). This issue is barred from our review.
III. Batson Challenge
The procedure for a challenge under Batson v. Kentucky, 476 U.S. 79 (1986), is well settled:
First, the defendant must make a prima facie case that racial discrimination is the basis of a juror challenge. In the event the defendant makes a prima facie case, the State has the burden of showing that the challenge was not based upon race. Only if the defendant makes a prima facie case and the State fails to give a racially neutral reason for the challenge is the court required to conduct a sensitive inquiry.
Wooten v. State, 325 Ark. 510, 514, 931 S.W.2d 408, 410 (1996), cert. denied, 117 S. Ct. 979 (1997), quoting Prowell v. State, 324 Ark. 335, 344, 921 S.W.2d 585, 591 (1996). See Mitchell v. State, 323 Ark. 116, 913 S.W.2d 264 (1996); Heard v. State, 322 Ark. 553, 910 S.W.2d 663 (1995).
A prima facie case may be established by: (1) showing that the totality of the relevant facts gives rise to an inference of discriminatory purpose, (2) demonstrating total or seriously disproportionate exclusion of blacks from the jury, or (3) showing a pattern of strikes, questions, or statements by a prosecuting attorney during voir dire. Sonny v. Balch Motor Co., 328 Ark. 321, 944 S.W.2d 87 (1997); Wooten v. State, supra. The standard of review for reversal of a trial court’s Batson ruling is whether the trial court’s findings are clearly against the preponderance of the evidence. Id. We have observed in this regard that “the trial court [is] in a good position to determine whether th[e] reason was genuine or pretextual.” Sonny v. Balch Motor Co., 328 Ark. at 330, 944 S.W.2d at 92, quoting Hernandez v. New York, 500 U.S. 352, 365 (1991).
At trial, Green objected to the State’s use of peremptory strikes against two potential African-American jurors. One of these jurors was Ruthie Hadley, whom the State sought to strike because she appeared to sleep 75 percent of the time through one previous trial and 98 percent of the time in another. Both of these trials were before the same trial court. The prosecutor offered to the trial court that he did not want a person with this history to sit on a capital-murder case. The court overruled the Batson objection and stated: “And I recall that that’s one of the problems with this particular juror and I also recall that this juror was late both days of court and appears to have very little interest in the process.”
The second potential juror was Frank McFadden, whom the State initially sought to strike because he had philosophical objections to the death penalty and stated that he was predisposed to sentencing a criminal defendant to life without parole. The trial court overruled the motion to strike for cause and determined that McFadden intimated that he could consider the death penalty under certain circumstances despite his philosophical opposition. When the State exercised its peremptory strike, a Batson objection was raised, and the prosecutor stated as his race-neutral explanation the same arguments made in support of his motion to strike. The trial court ruled that the explanation was sufficient.
We have held that there is no need for the prosecutor to give an explanation sufficient to strike a juror for cause. Prowell v. State, supra. Under these facts, we are not convinced that the trial court’s rulings were clearly against the preponderance of the evidence. Sonny v. Balch Motor Co., supra. This point with respect to both jurors has no merit.
IV. Misdemeanor Weapon Conviction
At trial, Green testified on cross-examination by the prosecutor that before January 7, 1995, he owned a handgun but did not carry it outside the house. The prosecutor sought to impeach his credibility with a certified copy of a 1992 misdemeanor judgment of conviction for possession of a weapon. Green’s only objection was that the misdemeanor conviction was irrelevant. The prosecutor answered that the evidence was in response to Green’s statement that he kept loaded guns in his house only to defend his home. Green’s objection was overruled, and Green denied knowledge of the misdemeanor conviction.
On appeal, Green argues that the prior misdemeanor conviction should not have been allowed into evidence under Rule 609 of the Arkansas Rules of Evidence. He admits that the only argument raised against its admission at trial was to relevance but urges now that “[the objection] was not well put, but it sufficiently apprised the trial court of what the complaint with the evidence was.”
Arkansas law is clear that an appellant may not change arguments on appeal. See, e.g., Foreman v. State, 328 Ark. 583, 945 S.W.2d 926 (1997); Stephens v. State, 328 Ark. 81, 941 S.W.2d 411 (1997); Brown v. State, 326 Ark. 56, 931 S.W.2d 80 (1996). We conclude that that is what has occurred in relation to the misdemeanor conviction. Consideration of this point is procedurally barred.
V. Identification of Police Officers
During Green’s direct testimony, he testified that he did not hear officers shout their identity prior to breaking down the door. He was then asked by defense counsel: “If you’d have heard it, what would you have done?” The prosecutor objected for the reason that an answer would have called for speculation. The trial court sustained the objection. Green did not proffer a response into the record, and his argument on appeal is that the trial court violated his Fourteenth Amendment due-process rights because he was prevented from fully presenting his case.
The State argues failure to proffer the response as rebuttal to Green’s point. In order to challenge a ruling on excluded evidence, an appellant must proffer the excluded evidence so that the decision can be reviewed unless the substance of the evidence is apparent from the context. Tauber v. State, 324 Ark. 47, 919 S.W.2d 196 (1996); Davis v. State, 319 Ark. 460, 892 S.W.2d 472 (1995). We believe that here the content of Green’s response can be gleaned from the defense he offered at trial — he would not have shot the men had he known they were police officers. Indeed, Green testified on direct examination that he had no. idea he was shooting at police officers. We decline to decide this point on failure to proffer a response.
This court, however, does not reverse a judgment of conviction absent prejudicial error. See, e.g., Jefferson v. State, 328 Ark. 23, 941 S.W.2d 404 (1997). We fail to discern reversible error under these circumstances when Green had already made it clear that he did not know the men were police officers and did not intend to kill anyone. This point is without merit.
VI. Second-Degree Murder Instruction
At the jury-instruction conference, the trial court was faced with the issue of which version of AMCI 2d 1003 to give to the jury on the lesser-included offense of second-degree murder. The prosecutor sought and received the version of the second-degree murder instruction requiring proof that appellant “knowingly caused the death of Detective Joseph Tucker Fisher under circumstances manifesting extreme indifference to the value of human life.” Green, however, asked for the alternative language in the second-degree murder instruction that Green “with the purpose of causing serious physical injury to another person, caused the death of Joseph Tucker Fisher.” Green’s requested instruction was denied, and he proffered it into the record. Both instructions contain correct statements of the law.
At the conference, the following colloquy occurred surrounding the two instructions:
THE COURT: Which one’s correct?
PROSECUTOR: I would submit that the one that we submitted. The one that says, knowingly caused the death, et cetera, under circumstances manifesting, et cetera, et cetera, is the correct one because under the submitted one by defense counsel it says, with the purpose of causing serious physical injury to another person. The testimony by the defendant is that he was not trying to shoot anybody, I don’t see how he could form the purpose of hurting that one individual —
DEFENSE COUNSEL: Wei, that’s —
THE COURT: I think he’s right on that.
The trial court noted that Green’s defense was that he was only-shooting in the direction of the door as opposed to shooting at a particular person.
Green’s testimony was that he had been robbed the previous month; that he maintained a loaded gun for protection; that he believed he was again being robbed when the police burst in; and that he did not intend to shoot anyone and only hoped to scare away the intruders. On appeal, the State again submits that Green’s denial of an intent to shoot anyone negates the possibility that he had the purpose of causing serious physical injury to another person, and that the instruction Green requested was not required to be given. In support of its position, the State cites Vickers v. State, 313 Ark. 64, 852 S.W.2d 787 (1993), a case that stands for the well-established principle that a party cannot assert a complete denial of the offense and at the same time insist that a rational basis exists for instructing on a lesser-included offense.
This is not a case, though, where the issue is whether a rational basis exists to give an instruction on a lesser offense. See, e.g., Brown v. State, 325 Ark. 504, 929 S.W.2d 146 (1996); Vickers v. State, 313 Ark. 64, 852 S.W.2d 787 (1993); Fladung v. State, 292 Ark. 510, 730 S.W.2d 901 (1987). An instruction on the lesser offense of second-degree murder was given. Rather, this is a case involving which alternative paragraph of AMCI 2d 1003, the second-degree murder instruction, should have been given. This appears to be a case of first impression for this court.
We conclude that the trial court did not err in instructing the jury as it did. There is first the fact that it does seem inherently inconsistent for Green to testify that he did not shoot at anyone and then request an instruction that “with the purpose of causing serious physical injury to another person,” he caused the death of Detective Fisher. Moreover, evidence was presented supporting the instruction that Green killed the police officer under circumstances manifesting extreme indifference to the value of human life. For example, Green shot five times and hit two police officers. We are further mindful of the fact that the jury returned a verdict of guilty for first-degree murder, which included purposeful murder of Detective Fisher as an element of the offense. Under these circumstances, we cannot say that it was reversible error for the trial court to instruct the jury as it did.
The record has been examined under Ark. Sup. Ct. R. 4-3(h) for reversible error, and none has been found.
Affirmed.
Newbern, Corbin, and Imber, JJ., dissent. | [
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Ray Thornton, Justice.
Jimmy Seek, appellant, pleaded guilty to charges of residential burglary, kidnapping, and sexual abuse, for which he received a fifteen-year sentence to the Arkansas Department of Correction. After the trial court entered its judgment and commitment order, Seek filed a motion to withdraw his guilty pleas pursuant to Ark R. Crim. P. 26.1. He alleged that the pleas were not voluntarily and intelligently made because Lewis Littlepage, his attorney, misled him as to the punishment he would receive. After a hearing, the trial court denied Seek’s motion on its merits, finding that he had voluntarily entered his pleas after being fully informed. We agree and affirm.
On appeal, Seek maintains that Littlepage advised him that he would receive a prison term, consistent with the sentencing guidelines, of about twenty-four months. He contends that, but for that advice, he would not have entered guilty pleas. Seek concedes that the court informed him prior to the guilty pleas that he was facing possible sentence of five to twenty years for the burglary and kidnapping offenses, and three to ten years for the sexual abuse offense. He argues, however, that Littlepage failed to inform him that the sentencing guidelines were not mandatory and could be ignored by the court.
Seek was charged with the offenses after he confessed to the police. He described entering his neighbor’s house, wearing a ski mask, at midnight through an unlocked door. Upon finding the victim in bed, he tied her hands behind her back and then sexually molested her. He left forty-five minutes later. During the confession, Seek consented to a police search of his home and car. The police subsequently found a rope in Seek’s car that matched the description of the rope used in the crime.
Jurisdiction is proper in the supreme court when an appeal is based on a petition for postconviction relief under Ark. R. Crim. P. 37. Ark. R. S. Ct. l-2(a)(4). We have so held even after the original petition was brought under Rule 26.1 of the Ark. R. Crim. P., and entitled “Motion to Withdraw a Guilty Plea.” McCuen v. State, 328 Ark. 46, 941 S.W.2d 397 (1997); Johninson v. State, 330 Ark. 381, 953 S.W.2d 883 (1997). A motion to withdraw a guilty plea, under Rule 26.1, is untimely when filed after sentencing and entry of judgment. McCuen, 328 Ark. at 55, 941 S.W.2d at 402. When these petitions come to us on appeal, we treat them as motions for postconviction relief under Rule 37. Id. at 56, 941 S.W.2d at 402; Johninson, 330 Ark. at 385, 953 S.W.2d at 884. In the case before us, we therefore review the petition as a motion for postconviction relief, even though it was brought as a motion to withdraw a guilty plea.
We do not reverse a trial court’s denial of postconviction relief unless the ruling was clearly erroneous. Rowe v. State, 318 Ark. 25, 26-27, 883 S.W.2d 804, 805 (1994). When a guilty plea is challenged, the issue is whether the trial court erred in finding that the plea was intelligently and voluntarily entered with the advice of competent counsel. McCuen, 328 Ark. at 58, 941 S.W.2d at 403. To determine the competency of counsel, we apply the standard adopted in Strickland v. Washington, 466 U.S. 668 (1984), in which the petitioner must prove that “counsel’s performance fell below an objective standard of reasonableness and that, but for counsel’s errors, there is a reasonable probability that the outcome would have been different.” McCuen, 328 Ark. at 58, 941 S.W.2d at 403. The petitioner carries the burden of overcoming the presumption that counsel is competent. Id.
Given the facts of this case, we cannot say the trial court committed clear error when it found that Seek did not meet this burden. Littlepage testified that, in addition to advising Seek that he had a good chance to receive the prison term indicated in the sentencing guidelines, he also informed Seek that the court did not have to follow them. By contrast, Seek put on no evidence to support his claim. Seek did not testify, nor did he offer witnesses to testify on his behalf.
Even if Littlepage was acting unreasonably in advising Seek, Seek did not offer proof that the outcome would have been different if he had not pleaded guilty and the case had gone to trial. Evidence in the record suggests otherwise. In confessing to the crime, Seek gave a detañed description of the events that transpired during the commission of the crimes. The rope that the police found in Seek’s truck was also incriminating. We can appreciate that Seek was unhappy about the sentence he received, however, he is not entitled to have his pleas withdrawn, after the sentence has been announced, solely because he received a sentence greater than he expected. Johninson, 330 Ark. at 390, 953 S.W.2d at 887 (quoting Stobaugh v. State, 298 Ark. 577, 580, 769 S.W.2d 26, 28 (1989)).
Neither can we find clear error in the trial court’s conclusion that Seek was fully informed about the entire range of possible punishment. The evidence in the record before us shows that, in signing the plea statement, Seek acknowledged that he read and understood the possible sentences for the charged offenses, that he discussed the case fully with his attorney and was satisfied with his attorney’s services, and that he understood that the judge was not required to follow the sentencing guidelines discussed by Seek and his attorney. The record also shows that, during the plea proceeding, the court reviewed with Seek the possible sentences he could receive for each of the offenses. At that time, Seek stated that he was not induced to plead guilty by any promises made to him and that he was pleading guilty because he was guilty. Based on this evidence, we affirm the trial court’s ruling that Seek’s pleas were intelligently and voluntarily entered with the advice of competent counsel.
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David Newbern, Justice.
Andrew Akins was convicted of rape, Ark. Code Ann. § 5-14-103 (Repl. 1993), and aggravated robbery, Ark. Code Ann. § 5-12-103 (Repl. 1993), and given sixty- and forty-year consecutive imprisonment sentences respectively. Mr. Akins argues the evidence was insufficient to support the conviction. We disagree with his argument on that point. We decline to review his argument that he was denied his right to a speedy trial because we have no indication that the Trial Court ruled on such a motion. The State concedes that reversal and remand is required because Mr. Akins was denied his constitutional right to represent himself. In addition, we address Mr. Akins’s argument that the Trial Court abused his discretion in admitting evidence that Mr. Akins had committed an earlier crime. As the case is to be remanded, and thus a new record of trial compiled, we need not address the argument that the record in this case was insufficient to permit Mr. Akins to mount a proper appeal.
George and Ralita Franklin, residents of Lake Village, went with Tommy and Ledell Bolton to Dave’s Food Mart where the Franklins cashed a tax-refund check. When Mr. Franklin left home later that evening, he saw Mr. Bolden talking with Andrew Akins, who lived on the same street as the Franklins. Mr. Bolden was aware that Mr. Franklin would be working in Wynne that evening. When Mr. Franklin left to go to work, he took most of the cash from the check with him.
Still later that evening, Ms. Franklin and a child were watching television in the Franklins’ bedroom. When someone knocked on the front door, the child opened the door because she thought that it was her brother. After seeing who was at the door, the child began crying and ran into the bedroom. Thereafter, a man, dressed in black and wearing a mask, entered the bedroom. The only lighting in the bedroom came from the television. The man pointed his shotgun at Ms. Franklin and demanded the money he had seen at Dave’s Food Mart. Ms. Franklin told him that she did not have that money, and she gave him twenty-eight dollars. He insisted that she had more money and lifted the gun up as if he were going to hit her with it.
The man then pointed his gun at Ms. Franklin and told her to go into the front room. He then demanded that she disrobe. The room was dark. When he raised his gun up as if he were going to hit her with it, she complied. While he was standing behind Ms. Franklin, he made her turn around and hug him. Then, he made her bend over a living room chair, and he placed his penis in her vagina. After he ejaculated, he told her to go to the bathroom to urinate. The light was not on in the bathroom. After she urinated, he told her to wipe herself with a tissue. She did so, and she put the tissue in a bucket in the bathroom. The man grabbed her hand and told her that if she went to the police, he would kill her and the child.
He then told her to turn off the kitchen lights so that he could, without being seen, exit the house through the back door. She testified that they were in the kitchen for about twenty-five minutes. While the lights were on in the kitchen, Ms. Franklin focused on his eyes. Once the kitchen lights were turned off, the man left the house. During the course of the incident, the man called Ms. Franklin “bitch” several times.
After the man left, Ms. Franklin ran to the house next door, and she was brought to the police department and to a hospital emergency room where a standard rape-kit examination was performed. She told the police that the man who entered her home could have been Jarvis Akins because the eyes that she saw looked like Jarvis Akins’s eyes. Andrew Akins and Jarvis Akins are brothers. She was informed that Jarvis Akins was in jail. She told Mr. Franklin that she did not know who the perpetrator was but that he had “funny looking eyes.” The next day, she viewed photographs at the request of the police. She covered the faces of the individuals, except for the eyes, in the three pictures, and she identified Andrew Akins.
At the trial, Stephanie Watts testified that Andrew Akins raped her on November 21, 1990. Ms. Watts testified that during the course of the incident, Mr. Akins called her “all sorts of bitches,” made her hug him, and told her that if she told the police about the incident, he would harm her. Ms. Watts further testified that Mr. Akins did not wear a mask during the incident, and that he ripped her clothes off and raped her while she was lying down. Ms. Watts stated that Mr. Akins also hit her, choked her, and poked her in the eyes.
There was testimony that Mr. Akins escaped from custody on two occasions. There was also testimony that Mr. Akins has many relatives in the area, and some have light, hazel eyes as does Mr. Akins.
A small paper bag containing paper towels and the rape kit, which included underwear worn by Ms. Franklin on the night she was raped, was submitted to the Arkansas Crime Laboratory to be tested for the presence of semen and blood. Semen was identified on the various swabs from the rape kit, the underwear, and the paper towels.
John Quill, an FBI supervisory special agent, testified that he analyzed DNA samples from vaginal swabs and the underwear of Ms. Franklin as well as blood samples taken directly from Mr. Akins, and he concluded that the DNA profiles matched Mr. Akins’s DNA. He also analyzed DNA samples from the vaginal swabs of Stephanie Watts and concluded that the DNA profiles matched Mr. Akins’s DNA. Mr. Quill testified that the chance of an unrelated individual having a DNA profile like Mr. Akins is less than one in seven hundred million in the Caucasian, black, and Hispanic population. He also testified that “unrelated” means those individuals other than a father, a brother, or a cousin so that if there is another accused from the family, the probability numbers would be different. He stated that he can distinguish the DNA profiles of brothers if he has a known standard for comparison. No such standard was offered as evidence at the trial.
Í. Sufficiency of the evidence
The first issue on appeal is whether the Trial Court erred in denying Mr. Akins’s motion for directed verdict. “A motion for directed verdict is a challenge to the sufficiency of the evidence.” Carter v. State, 324 Ark. 395, 921 S.W.2d 924, (1996). In considering whether a conviction is supported by sufficient evidence, the Court need only consider the evidence that supports the guilty verdict, and the Court views the evidence in the light most favorable to the State and affirms if there is substantial evidence to support the verdict. Martin v. State, 328 Ark. 420, 944 S.W.2d 512, (1997); Hicks v. State, 327 Ark. 652, 941 S.W.2d 387 (1997). “Substantial evidence is that which is forceful enough to compel reasonable minds to reach a conclusion one way or the other” and permits the trier of fact to “reach a conclusion without having to resort to speculation or conjecture.” McGehee v. State, 328 Ark. 404, 943 S.W.2d 585 (1997).
The original record, portions of which were lost, does not include a motion for directed verdict by counsel for Mr. Akins at the close of the State’s case. The Trial Court held a reconstruction hearing pursuant to an order from this Court to complete the record, and concluded that defense counsel made the motion for directed verdict as required by Ark. R. Crim. P. 33.1. The ground stated was lack of substantial evidence identifying Mr. Akins as the perpetrator of the offense against Ms. Franklin.
There was substantial evidence to support the jury’s verdict. Ms. Franklin identified Mr. Akins from a photographic line-up, and most important, his DNA profile matched that contained in the rape kit. The jury also could have taken into consideration the opportunity Mr. Akins had to learn of the cash that he thought was in Ms. Franklin’s possession, especially in view of the fact that the perpetrator mentioned, in the course of committing the offenses, having seen the money at Dave’s Food Mart.
2. Speedy trial
The second issue is whether the Trial Court erred in not dismissing this matter based on a violation of Ark. R. Crim. P. 28. The record does not include a motion to dismiss based on the denial of a speedy trial. The record-reconstruction effort leaves some doubt as to whether such a motion was made. It is clear, however, that neither the original record nor the record of the reconstruction hearing shows that any ruling on such a motion occurred. To preserve arguments for appeal, even constitutional ones, the appellant must obtain a ruling. Newman v. State, 327 Ark. 339, 939 S.W.2d 811 (1997); Danzie v. State, 326 Ark. 34, 930 S.W.2d 310 (1996).
At the reconstruction hearing, the attorneys and the Trial Court spoke of various motions and trial events, including testimony, that were not transcribed.' Defense counsel had the opportunity to review the record and note that no ruling on such a motion was included. However, no reference to a ruling was made in the reconstruction proceeding. We decline to dismiss this case in view of the lack of evidence that the Trial Court ruled on a speedy trial motion.
3. Prior criminal conduct
Stephanie Watts testified that she was raped by Mr. Akins some three months prior to the rape of Ms. Franklin. The Trial Court gave a limiting instruction that “such evidence of another similar event committed under similar circumstances is admitted solely for the purpose of establishing identity of the Defendant.” See Ark. R. Evid. 404(b).
The record does not indicate that there was an objection to Ms. Watts’s testimony, so we do not reverse on the point in this instance. As a retrial is likely, however, we will address the issue to point out that, had a proper objection been made, the evidence should have been excluded.
Ordinarily, the Trial Court has wide discretion in admitting evidence of other crimes or wrongs, and its decision will not be reversed absent an abuse of discretion. Haynes v. State, 309 Ark. 583, 832 S.W.2d 479 (1992). We have, however, zealously guarded the rights of accused persons to have the State’s evidence strictly confined to the issues surrounding the offense charged to insure that no one is convicted because he has committed offenses other than that for which he is on trial or because he is of bad character and addicted to crime. Tarkington v. State, 250 Ark. 972, 469 S.W.2d 93 (1971). Yet the mere fact that evidence shows the defendant guilty of another crime does not prevent its admissibility when otherwise competent on the issue on trial. Id.
The similarities of the two rapes were not sufficient to support a finding that Ms. Watts’s testimony was admissible pursuant to Ark. R. Evid. 404(b) which provides that evidence of other crimes, wrongs, or acts may be admissible to establish proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. See Rogers v. State, 257 Ark. 144, 515 S.W.2d 79 (1974) (stating evidence of a defendant’s commission of a similar offense is admissible as tending to show identity of the perpetrator when the similarity of the means or manner employed in committing the crimes logically operates to set the offenses apart from other crimes of the same general variety and tends to suggest that the perpetrator of one was the perpetrator of the other).
The rapes occurred months apart. Ms. Franklin’s assailant wore a mask, Ms. Watts’s assailant did not. Ms. Franklin’s assailant made her take off her own clothes while Ms. Watts’s assailant ripped her clothes off of her. Ms. Franklin’s assailant raped her from behind while she bent over a chair while Ms. Watts’s assailant raped her while she was lying down. Ms. Franklin’s assailant did not strike her while Ms. Watts’s assailant hit her, choked her, and poked her in the eyes.
The only similarities between the two rapes were that both Ms. Franklin and Ms. Watts reported that the assailant called them a “bitch” and made them hug him. Whatever probative value the rape of Ms. Watts had was substantially outweighed by the danger of prejudice. Ark. R. Evid. 403.
The State argues that evidence of Ms. Watts’s rape was necessary in order for expert testimony on the DNA analysis to be presented because the DNA expert had to testify as to how he obtained the DNA samples of Mr. Akins. There was no such necessity. The expert had DNA samples from Mr. Akins and from Ms. Franklin. The ones from Ms. Watts were superfluous.
5. Self-representation
The remaining issue is whether the Trial Court erred in denying Mr. Akins’s right to represent himself. The State concedes reversible error on this point. At the August 18, 1995 pretrial hearing, Mr. Akins requested that he be allowed to represent himself and stated that he would not be ready for trial on the August 22 trial date. Apparently, communications between Mr. Akins and defense counsel had broken down. Defense counsel stated that he was only able to get “limited responses” from Mr. Akins, and Mr. Akins stated that defense counsel would not listen to him. The Trial Court explained that Mr. Akins “need[ed] somebody with experience in the law,” and that he was not convinced that Mr. Akins had demonstrated sufficient intelligence to represent himself. The Trial Court also stated that if Mr. Akins had asked “three years ago” to represent himself, he might have been allowed to do so, but there would be no continuance to allow the defendant to become familiar with the case. Defense counsel argued that Mr. Akins was familiar with the case, and that Mr. Akins had filed a motion to sever, which was similar to the motion defense counsel later filed, as well as a writ of mandamus to effect his release pursuant to Rule 28.3.
At the close of the hearing, the Trial Court stated that, if Mr. Akins reviewed his file during the four days prior to trial, the Trial Court would reconsider. There was some confusion as to whether the Trial Court would allow Mr. Akins to represent himself if he read the file and was prepared for the August 22 trial date.
On the morning of the trial, Mr. Akins stated that he still wanted to represent himself and that he had asked to do so on previous occasions but that he was not prepared to go to trial that day. As to Mr. Akins’s argument that he attempted to speak with the Trial Court about representing himself prior to August 18, the Trial Court could not recall the incident and stated that he would have to agree with Mr. Akins. Mr. Akins also referred to letters that he had written to the Trial Court in which he had requested that he be allowed to represent himself. Mr. Akins’s request to represent himself on August 18, 1995, was the first such request in the record. Mr. Akins stated that he had not read the file because he thought that the Trial Court had already decided that he would not be allowed to represent himself. Defense counsel pointed out the “crux” of the case — Ralita Franklin’s statement and the testimony that the DNA statistics applied solely to non-related people — in an apparent attempt to persuade the Trial Court that Mr. Akins had the ability to represent himself. The Trial Court held that Mr. Akins could not represent himself because he was not prepared to go to trial and because of the complexity of the case due to the DNA evidence.
The Trial Court also held that “[w]ithout granting you [Mr. Akins] a continuance to represent yourself, you are not intelligently and knowingly, in my opinion, making the decision to represent yourself. And for that reason, I’m going to deny your motion.” The Trial Court ultimately agreed with the prosecutor that it did not have a problem with Mr. Akins representing himself, but with him representing himself on August 22 due to his lack of preparation.
“It is. . . well established that an accused has a constitutional right to represent himself and make a voluntary, knowing, and intelligent waiver of his constitutional right to the assistance of counsel in his defense. But every reasonable presumption must be indulged against the waiver of fundamental constitutional rights.” Oliver v. State, 323 Ark. 743, 918 S.W.2d 690 (1996). “To establish a voluntary and intelligent waiver, the trial judge must explain to the accused that he is entitled as a matter of law to an attorney and question him to see if he can afford to hire counsel. The judge must also explain the desirability of having the assistance of an attorney during the trial and the drawbacks of not having an attorney.” Gibson v. State, 298 Ark. 43, 764 S.W.2d 617 (1989). “The right to counsel is a personal right which the accused may knowingly waive either at the pretrial stage or at trial.” Leak v. Graves, 261 Ark. 619, 550 S.W.2d 179 (1977) (finding that in view of the appellant’s age, education, and recent experience in court, represented by counsel, appellant knowingly and intelligently chose to waive his right to counsel); see Barnes v. State, 258 Ark. 565, 528 S.W.2d 370 (1975) (holding that appellant’s assertion of his right to represent himself was timely because it was made before the trial commenced).
In Fritz v. Spalding, 682 F.2d 782 (9th Cir. 1982), the United States Court of Appeals for the Ninth Circuit, considering the appellant’s assertion of his right to represent himself accompanied by a motion for continuance, stated that, when a defendant’s pretrial motion to proceed pro se is accompanied by a request for a continuance, the motion may be denied only upon “an affirmative showing” that the purpose of the pro se motion was to gain delay. The Court further stated that the court “must examine the events preceding the motion to determine whether they were consistent with a good faith assertion of the right and whether the defendant could reasonably be expected to have made the motion at an earlier time."
The Trial Court refused to allow Mr. Akins to represent himself because he was not prepared to go to trial on August 22, 1995. Based on our holdings in the Leak case and the Barnes case, we hold that the Trial Court erred in denying Mr. Akins’s request to represent himself at trial because the request was made four days before trial and again on the morning of the trial before the trial began. If the Trial Court had granted Mr. Akins’s request to represent himself on August 18 or if the Trial Court had been clearer about its intention to reconsider Mr. Akins’s request after he reviewed his file, then Mr. Akins would have had an opportunity to be prepared for trial, and a motion for continuance might not have been necessary. Additionally, Mr. Akins does not seem to assert his right as a delaying tactic, but rather due to frustration with defense counsel.
As to whether Mr. Akins could have reasonably been expected to raise the motion at an earlier time, we note his undisputed assertion of attempts to assert his right prior to August 18 as well as the confusion regarding the Trial Court’s statement that it would reconsider the request on August 22. In these circumstances we do not gainsay the State’s concession that reversible error occurred.
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W.H. “Dub” Arnold, Chief Justice.
The State brings this interlocutory appeal under Ark. R. App. P. — Crim. 3(c), asserting the grounds that the trial court (1) improperly suppressed a one-pound bag of marijuana allegedly abandoned by appellee Mike Gray; and (2) erroneously concluded that appellee had standing to challenge the validity of a search warrant to search another person’s residence. The Attorney General maintains, as it is required to do under Rule 3(c), that the correct and uniform administration of justice requires our review of the trial court’s suppression order. Because we conclude that neither issue raised by the State involves the correct and uniform administration of justice, we dismiss the appeal.
On June 24, 1994, officers with the Third District Judicial Task Force met with a confidential informant to arrange an undercover sale of marijuana and crystal methamphetamine to Lavern Bruton at his residence in Pocahontas, Arkansas. Later that evening, the informant went to Bruton’s residence with ten pounds of marijuana and an eight-ball of crystal methamphetamine that had been provided to him by the task force. While the informant was inside the residence, Bruton telephoned appellee Mike Gray and instructed him to come to his house. When appellee arrived in a silver van, officers who were conducting surveillance observed Bruton come outside and sell him one pound of marijuana. After the sale, appellee drove away from the residence. Soon thereafter, officers executed a search warrant of the Bruton residence and recovered nine pounds of marijuana. When officers stopped appellee in his van, they found no controlled substances. However, while appellee was stopped, officers found a bag of marijuana in a ditch. The mark on the bag matched the markings on the other bags found in the Bruton residence that the informant had given Bruton.
Appellee was charged by felony information with possession of a controlled substance with intent to deliver. Thereafter, he filed a pretrial motion to suppress the one-pound bag of marijuana on the ground that it had been obtained pursuant to an invalid search warrant of Bruton’s residence. He further argued that he was on Bruton’s private property upon Bruton’s invitation when he was “unlawfully observed” by the officers. He further claimed that the warrant to search Bruton’s residence was invalid because it was an “anticipatory warrant.” The trial court conducted a suppression hearing at which Bruton testified, confirming that he had indeed delivered one pound of marijuana to appellee on the night in question. At the conclusion of the hearing, the trial court granted appellee’s motion and suppressed the bag of marijuana found in the ditch, from which the State now brings this interlocutory appeal.
The first issue presented is whether the trial court should have determined that appellee abandoned the marijuana in question and thus abandoned his rights under the Fourth Amendment. Before addressing the merits of this claim, we must first decide whether this issue is properly before us under Rule 3(c). Specifically, we must decide whether the correct and uniform administration of justice requires us to review this point.
In support of its argument, the State refers us to three cases regarding abandonment of Fourth Amendment rights. See Edwards v. State, 300 Ark. 4, 775 S.W.2d 900 (1989) (cocaine admissible where appellant tossed aside container of cocaine when he saw officers approaching him); Wilson v. State, 297 Ark. 568, 765 S.W.2d 1 (1989) (jacket and gun left at friend’s home held abandoned); and Cooper v. State, 297 Ark. 478, 763 S.W.2d 645 (1989) (appellant who fled his vehicle after traffic stop abandoned any expectation of privacy in car and its contents). A review of these decisions illustrates that the issue of abandonment necessarily turns on the facts in a given case. See State v. Tucker, 268 Ark. 427, 428, 597 S.W.2d 584 (1980) (“ [Abandonment is a fact question generally determined by a combination of acts and intent”).
Because the trial court’s decision in the present case necessarily turned on whether appellee in fact abandoned the marijuana, we must conclude that the resolution of this issue does not require an interpretation of our criminal rules with widespread ramifications. See State v. Hart, 329 Ark. 582, 952 S.W.2d 138 (1997); citing State v. Harris, 315 Ark. 595, 597, 868, S.W.2d 488 (1994):
Where the trial court acts within its discretion after making an evidentiary decision based on the facts at hand or even a mixed question of law and fact, this court will not accept an appeal under Ark. R. Crim. P. 36.10 (now Ark. R. App. P. — Crim. 3(c)). '
We reach a similar conclusion regarding the State’s second allegation of error; that is, that the trial court erred in determining that appellee had standing to challenge the validity of the search warrant obtained to search Bruton’s-residence. Resolution of this issue required the trial court to determine whether appellee manifested a subjective expectation of privacy in Bruton’s residence and whether society is prepared to recognize this expectation as reasonable. See Dixon v. State, 327 Ark. 105, 937 S.W.2d 742 (1997). Because this issue presented a mixed question of law and fact, it too is not appealable.
It is well-setded that we only accept appeals by the State when our holding would establish important precedent. State v. Hart, supra; State v. Rice, 329 Ark. 219, 947 S.W.2d 3 (1997); State v. Townsend, 314 Ark. 427, 863 S.W.2d 288 (1993). As neither issue presented by the State involves the correct and uniform administration of justice, we dismiss the appeal.
Appeal dismissed.
Glaze, J., dissents. | [
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Per Curiam.
Appellant, Johnny Ray Hawthorne, by and through his attorney, has filed a motion for a rule on the clerk. We treat this motion as a motion for belated appeal. His attorney, John F. Stroud, III, admits in his motion that the filing of the notice of appeal was premature due to a mistake on his part. We find that such an error, admittedly made by the attorney for a criminal defendant, is good cause to grant the motion. See In re Belated Appeals in Criminal Cases, 265 Ark. 964 (1979) (per curiam). The motion for belated appeal is therefore granted.
Appellant has also filed a pro se motion for appointment of counsel and rule on the clerk. Because we are granting his attorney’s motion for belated appeal, we find that appellant has not been prejudiced by this delay. We accordingly deny this motion for appointment of counsel and rule on the clerk.
A copy of this opinion will be forwarded to the Committee on Professional Conduct. | [
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Per Curiam.
Appellant, Dennis Cornell Tucker, by his attorney, G.B.“Bing” Colvin, III, has filed a motion for rule on the clerk. His attorney admits that the transcript was tendered late due to an error on his part.
We find that such error, admittedly made by the attorney for a criminal defendant, is good cause to grant the motion. See per curiam order dated February 5, 1979. In re: Belated Appeals in Criminal Cases, 265 Ark. 964; Terry v. State, 272 Ark. 243, 613 S.W.2d 90 (1981).
A copy of this opinion will be forwarded to the Committee on Professional Conduct. | [
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Tom Glaze, Justice.
On January 26, 1996, pursuant to Ark. Code Ann. § 23-12-611 (1987), the DeQueen and Eastern Railroad (Railroad) filed an application to discontinue its agency station in Dierks, Arkansas. The Railroad operates as a rail carrier that transports goods, property, and raw materials in interstate and intrastate commerce. By discontinuing the Dierks agency station, the Railroad intended to consolidate that station with the agency operation in nearby DeQueen, Arkansas. Notice of the proposed discontinuation was filed with the Arkansas Highway and Transportation (AHT) Commission, and it provided the discontinuation would be effective in ninety days.
Twenty-five registered voters, who were residents of Dierks, petitioned the AHT Commission, asking it to reestablish the agency station operation. See § 23-12-611(b). The Commission set a hearing on the matter for May 21, 1996, but the hearing was postponed so that the respective parties could brief the following question:
"Whether the federal Interstate Commerce Commission (ICC) Termination Act of 1995 preempts state jurisdiction of the discontinuation of railroad agency stations?
See 49 U.S.C. § 10101 (1994) et seq. On June 4, 1996, the Commission entered its report and order concluding that it no longer had jurisdiction over the matter, because the ICC Termination Act, specifically § 10501, granted the Federal Surface Transportation Board the exclusive jurisdiction over “transportation by rail carriers” as part of the interstate rail network. The Commission’s decision resulted in its dismissing the residents’ petition.
Next, the residents appealed the Commission’s decision to the Pulaski County Circuit Court, and the court affirmed the holding of the Commission. The residents then filed this appeal, and assign two points of error by the circuit court. First, the residents argue that the federal act does not preempt § 23-12-611, and the AHT Commission retains jurisdiction over agency station closings in the state. Second, the residents contend that Congress’s enactment of the ICC Termination Act violates the Commerce Clause. Only these two questions of law need be addressed to decide this appeal.
In their first point of error, the residents claim that state law is preempted only when it conflicts with federal law, and no conflict is shown to exist in the federal and state laws here. The residents further argue that the federal act not only lacks specific language requiring preemption, but also that the state has long regulated the discontinuation of agency stations under state authority and should continue to do so. The Railroad counters by declaring preemption of § 23-12-611 has been effected by passage of the 1995 ICC Termination Act, and submits such preemption was accomplished in the three ways the Supreme Court sanctioned in English v. General Electric Co., 496 U.S. 72, 78-79 (1990). There, the Court held preemption may occur as follows: (1) express preemption, where Congress defines explicitly the extent to which its enactments preempt state law; (2) field preemption, where Congress’s regulation of a field is so pervasive or the federal interest so dominant that an intent to occupy the entire field can be inferred, and (3) conflict preemption, where state law stands as an obstacle to the accomplishment of the full purposes and objectives of a federal statute.
In any preemption analysis, the overriding principle which must guide our review is whether Congress intended to preempt state law. Id.; see also Medtronic, Inc. v. Lohr, 116 S.Ct. 2240 (1996). This analysis depends primarily on statutory and not constitutional interpretation. Philadelphia v. New Jersey, 430 U.S. 141 (1977); see also 16 Am. Jur. 2d, Constitutional Law § 291 at p. 795. Here, Congress’s intent is discerned from the act, itself. Section 10501(b)(1) establishes the parameters of the Surface Transportation Board’s jurisdiction as follows:
(1) transportation by rail carriers, and the remedies provided in this part (with respect to) rates, classifications, rules . . . practices, routes, services, and facilities of such carriers; and
(2) the construction, acquisition, operation, abandonment, or discontinuance of spur, industrial team, switching, or side tracks, or facilities, even if the tracks are located, or intended to be located, entirely in one State, is exclusive. Except as otherwise provided in this part, the remedies provided under this part with respect to regulation of rail transportation are exclusive and preempt the remedies provided under Federal or State law. (Emphasis added.)
Clearly, the act covers “transportation by rail carriers” and the discontinuation of their carriers’ related facilities.
The next logical question is whether the station agencies are related “facilities” within the meaning of the federal act. Three recent cases from other jurisdictions addressing this issue have answered this question, yes. The Nebraska Supreme Court, in In re Application of Burlington Northern R. Co. v. Page Grain Co., 545 N.W.2d 749 (Neb. 1996), held that the states no longer have jurisdiction over services and facilities of interstate rail carriers, and further decided that the regulation and remedies relevant to rail service agencies are under the exclusive jurisdiction of the federal government. In CSX Transportation, Inc. v. Georgia Public Service Commission, 944 F. Supp. 1573 (N.D. Ga. 1996), a United States District Court case came to the same conclusion, holding that the ICC Termination Act preempted the state regulation of railroad agency closings. Finally, the United States District Court in Montana determined that, by the federal act, Congress expressly preempted state law on railroad agency discontinuations, and further held that state law was preempted by virtue of both field and conflict preemption. See Burlington Northern Sante Fe Corp. v. Anderson, 959 F. Supp. 1288 (D. Mont. 1997).
Given the broad language of the act itself, its statutory framework, and considering the recent decisions interpreting the act, we believe it is clear that Congress intended to preempt the states’ authority to engage in economic regulation of rail carriers. The preemptive strike, we hold, includes regulation of agency station discontinuations. Accordingly, we conclude § 23-2-611, which gives the AHT Commission the authority to regulate such closings, is preempted by the ICC Termination Act of 1995.
In their second point of error, the residents maintain that the act violates the Commerce Clause of the United States Constitution. The residents argue that Congress has exceeded its authority by regulating closings of agency stations. This argument is without merit.
In 1981, the Supreme Court held that Congress may regulate (1) the use of channels of interstate commerce, (2) the instrumentalities of interstate commerce, or persons or things in interstate commerce, even though the threat may come only from intrastate activities, and (3) activities having a substantial relation to interstate commerce. Hodel v. Virginia Surface Mining & Recl. Assn., Inc., 452 U.S. 264, 276-77 (1981). Congress’s authority to regulate extends even to intrastate aspects of the operation of railroads. The law is well settled that Congress has the power to regulate railroad boxcars traveling exclusively intrastate because of their inherent mobility and connection to interstate commerce. See Southern Ry. Co. v. United States, 222 U.S. 20 (1911).
Contrary to the residents’ argument, Congress’s authority to regulate even intrastate aspects of railroads under the Commerce Clause is not undercut by recent United States Supreme Court decisions. See United States v. Lopez, 514 U.S. 549 (1995). When complete regulation of interstate commerce requires incidental regulation of intrastate commerce, the Commerce Clause authorizes such regulation. Id.; see also CSX Transp., 944 F.Supp. 1573. Congress’s regulation of intrastate railroad agencies under the act is part of a larger regulation of economic activity, in which the regulatory scheme would be undercut unless the intrastate activity were regulated. Id. Therefore, the preemptive effect of the act does not violate Congress’s power to regulate railroad agency station discontinuations. The dismissal of the residents’ petition by the Pulaski County Circuit Court for lack of jurisdiction due to preemption must be affirmed.
Affirmed. | [
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Annabelle Clinton Imber, Justice.
This appeal questions whether the trial court had jurisdiction to rule upon a posttrial motion. We disagree with the trial court’s conclusion that it had jurisdiction to enter the order, and accordingly we reverse and remand.
On September 26, 1991, Jeffrey Slaton obtained a divorce from Teresa Slaton in the Washington County Chancery Court. Jeffrey was awarded custody of the two children born of the marriage. Teresa was granted visitation rights and ordered to pay $300 a month child support. Several hours after the divorce decree was entered, Teresa Slaton filed a pleading entitled a “Motion for Reconsideration” in which she claimed that the divorce decree was contrary to the preponderance of the evidence adduced at trial.
In response, the trial court entered on September 30, 1991, an order stating that the divorce decree should be “stayed and held in abeyance until further hearing in this matter which is scheduled for October 8, 1991, at 9:00 a.m.” The following day, the court appointed a guardian ad litem to investigate and represent the children’s interests.
The court did not hold a hearing on the matter until February 24, 1992. During the hearing, the court explained that it granted Teresa’s motion because:
I didn’t feel that I had all the information that I should to make a meaningful decision. And, quite frankly, my decision hasn’t changed that much other than I have given full credence to the report of the ad litem, and this is going to be the order in regards to the minor children.
The court then orally announced its ruling.
On March 5, 1992, the court modified the initial divorce decree by providing that Jeffrey and Teresa would share joint custody of the children with neither parent being required to pay child support. Although joint custody was granted, Jeffrey became the primary custodial parent with detailed visitation rights granted to Teresa.
Over the next three years, Jef&ey and Teresa filed numerous motions regarding child custody, support, and visitation. On December 26, 1995, the court granted Teresa sole custody of the children and ordered Jeffrey to pay child support in an amount to be determined at a later hearing. Five days later, Jeffrey filed a “Motion to Declare Order Void and to Set Arrearage.” In this motion, Jeffrey claimed that the March 5, 1992, order was void because the trial court lost jurisdiction by failing to rule 'upon Teresa’s motion for reconsideration within thirty days as required by Ark. R. App. P. — Civ. 4(c). Because the March 5, 1992 order was void, Jeffrey argued that the original September 26, 1991 divorce decree was still in effect, and that Teresa owed him over $14,000 in past-due child-support payments under that decree.
In an order entered on February 12, 1996, the trial court found that it had jurisdiction to issue the March 5, 1992 order pursuant to Ark. R. Civ. P. 60(b) which allows a trial court to modify an order within ninety days of its having been filed with the clerk. In the alternative, the court found that Jeffrey had waived his jurisdiction argument by appearing before the court and participating in the hearing. Finally, the court found that Jeffrey was estopped to deny the validity of the March 5, 1992 order because both parties had relied upon it for several years. Accordingly, the court denied Jeffrey's motion. From this order, Jeffrey filed a timely notice of appeal in the Arkansas Court of Appeals.
In an unpublished decision, the Court of Appeals found that Teresa’s September 26, 1991 motion for reconsideration was actually a motion for a new trial under Ark. R. Civ. P. 59, and that the trial court had jurisdiction to issue the March 5, 1992 order because it had granted Teresa’s motion for a new trial on September 30, 1991, which was well within the thirty-day limit mandated by Ark. R. App. P. — Civ. 4(c). Slaton v. Slaton, No. CA 96-670, Slip Op. (Ark. Ct. App. March 5, 1997). We granted Jeffrey’s petition for review. Upon granting a petition for review, we review the case as if the appeal was originally filed in this court and give no deference to the ruling rendered by the Court of Appeals. Goston v. State, 327 Ark. 486, 939 S.W.2d 818 (1997); Mullinax v. State, 327 Ark. 41, 938 S.W.2d 801, cert. denied, 117 S. Ct. 2411 (1997).
I. Abstract Deficiencies
In her brief, Teresa made a motion to strike the portions of Jeffrey’s abstract of the September 26, 1991 divorce decree regarding the grounds for divorce and why custody was initially granted to Jeffrey. We agree that these matters were irrelevant to the issues on appeal, and thus they were not considered. See Ark. Sup. Ct. R. 4-2(a)(b); Purtle v. McAdams, 317 Ark. 499, 879 S.W.2d 401 (1994).
Teresa also included in her brief a motion for costs arguing that according to Ark. Sup. Ct. R. 4-2(b)(l), she is entitled to reimbursement for the costs she incurred to supplement the deficiencies in Jeffrey’s abstract. This motion is denied because as in McNair v. McNair, 316 Ark. 299, 870 S.W.2d 756 (1994), we find it “impossible to separate the time and costs for the Supplemental Abstract portions essential only to the appeal itself.”
II. Continuing Jurisdiction
The sole issue on appeal is whether the trial court had jurisdiction to issue the March 5, 1992 order. Teresa presents several arguments supporting the trial court’s finding that it had jurisdiction to enter the order. First, Teresa argues that the trial court’s order should be affirmed because a chancery court has continuing jurisdiction to modify child support and custody orders. See Ark. Code Ann. § 9-12-314(b) (Repl. 1993). The chancery court, however, has continuing jurisdiction to modify such orders only when the moving party has demonstrated a change in circumstances requiring modification. Williams v. Williams, 253 Ark. 842, 489 S.W.2d 774 (1973); Campbell v. Richardson, 250 Ark. 1130, 468 S.W.2d 248 (1971). In her September 26, 1991 motion, Teresa stated that the trial court’s custody and support order was clearly against the preponderance of the evidence, and not that the circumstances had changed such that modification was required. Accordingly, we find no merit to this argument.
III. Arkansas Rule of Civil Procedure 59
Next, Teresa claims that the trial court had jurisdiction to enter the March 5, 1992 order pursuant to Ark. R. Civ. P. 59 and Ark. R. App. P. — Civ. 4(c). Teresa argues that her September 26, 1991 “Motion for Reconsideration” was a motion for a new trial which the trial court granted in its September 30, 1991 order. Teresa further asserts that because the court granted her motion within thirty days, as required by Ark. R. App. P. — Civ. 4(c), the court had jurisdiction to hold a new trial on the issue of child custody and support on February 24, 1992, and enter its order regarding the same on March 5, 1992. See Williams v. Hudson, 320 Ark. 635, 898 S.W.2d 465 (1995); Arkansas State Highway Comm’n v. Ayres, 311 Ark. 212, 842 S.W.2d 853 (1992); Wal-Mart Stores, Inc. v. Isely, 308 Ark. 342, 823 S.W.2d 902 (1992).
Before we can answer this issue, we must first decide whether Teresa’s “Motion for Reconsideration” was actually a motion for a new trial pursuant to Ark. R. Civ. P. 59. We have previously held that motions should be liberally construed, and that courts should not be blinded by titles but should look to the substance of motions to ascertain what they seek. Cornett v. Prather, 293 Ark. 108, 737 S.W.2d 159 (1987). For example, in Jackson v. Arkansas Light & Power Co., 309 Ark. 572, 832 S.W.2d 224 (1992), we held that a motion to vacate which stated that the judgment was void because “it is contrary to the facts, public policy and is clearly contrary to the preponderance of the evidence” was really a motion for a new trial under Ark. R. Civ. P. 59(a)(6). As in Jackson, Teresa claimed in her motion for reconsideration that the divorce decree was contrary to the preponderance of the evidence, which is a specifically enumerated ground for a new trial under Ark. R. Civ. P. 59(a)(6). Thus, we hold that Teresa’s September 26, 1991, pleading was a motion for a new trial.
The next issue is whether the trial court’s September 30, 1991 order granted Teresa’s request for a new trial. Jeffrey asserts that it did not because the court failed to make a ruling in the order specifying the particular basis for which the new trial was granted. Jeffrey did not raise this argument before the trial court and thus, we will not consider it for the first time on appeal. Jones v. Jones, 320 Ark. 449, 898 S.W.2d 23 (1995). Moreover, in General Motors Corp. v. Tate, 257 Ark. 347, 516 S.W.2d 602 (1974), we said that when “an order granting a new trial is expressed in general terms without a specification of grounds, it must be affirmed if it can be supported on any ground alleged in the motion.”
By looking to the substance of the trial court’s order and the court’s explanation for why it granted Teresa’s motion, we hold that the trial court’s September 30, 1991 order did not grant Teresa’s request for a new trial pursuant to Ark. R. Civ. P. 59(a)(6). As previously mentioned, Teresa asserted in her September 26, 1991 motion that the findings in the initial divorce decree were clearly against the preponderance of the evidence adduced at trial. In response to Teresa’s motion, the trial court appointed a guardian ad litem to represent the children and granted the guardian unlimited access to the children’s medical, psychiatric, and school records. Additionally, the court announced at the beginning of the February 24, 1992 hearing that it granted Teresa’s motion for reconsideration because it did not have enough evidence at the time it initially entered the divorce decree to “make a meaningful decision.” Thus, it is apparent from the court’s order and its comments during the hearing that the court was attempting to stay the effect of its September 26, 1991 divorce decree, so that it could hear additional evidence. Instead of reviewing the evidence it heard at the initial divorce hearing as requested by Teresa in her Rule 59(a)(6) motion, the trial court decided to hear additional evidence.
We have previously held that a Rule 59(a)(6) motion cannot be used to bring into the record that which does not otherwise appear in the record. Burge v. Pack, 301 Ark. 534, 785 S.W.2d 207 (1990); Sharp Co. v. Northwest Ark. Planning & Consulting, Co., 269 Ark. 336, 602 S.W.2d 627 (1980). For these reasons, we find that the trial court’s September 30, 1991 order did not grant a new trial pursuant to Ark. R. Civ. P. 59(a)(6). Because the court did not, therefore, act upon Teresa’s motion for a new trial within thirty days as required by Ark. R. App. P.— Civ. 4(c), the motion was deemed denied and the trial court did not have jurisdiction under Rule 59 to enter the March 5, 1992 order. See Williams, supra; Ayres, supra; Isely, supra.
IV. Arkansas Rule of Civil Procedure 60
Instead of relying upon Ark. R. Civ. P. 59, the trial court found that it had jurisdiction to issue the March 5, 1992 order under Ark. R. Civ. P. 60(b) which states that:
To correct any error or mistake or to prevent the miscarriage of justice, a decree or order of a circuit, chancery or probate court may be modified or set aside on motion of the court or any party, with or without notice to any party, within ninety days of its having been filed with the clerk.
On numerous occasions, we have held that a trial court loses jurisdiction to set aside or modify an order pursuant to Ark. R. Civ. P. 60(b) if it does not do so within ninety days of the entry of the original order. Griggs v. Cook, 315 Ark. 74, 864 S.W.2d 832 (1993); City of Little Rock v. Ragan, 297 Ark. 525, 763 S.W.2d 87 (1989). In this case, the court did not modify or set aside its September 26, 1991 divorce decree until March 5, 1992, which is well beyond the ninety-day limitation period contained in Rule 60(b).
A trial court may modify or set aside its order beyond the ninety-day limitation contained in Rule 60(b) if the specifically enumerated conditions listed in Rule 60(c) exist. As in Cigan Ins. Co. v. Brisson, 294 Ark. 504, 506-A, 746 S.W.2d 558 (1988) (supplemental opinion granting rehearing), there is nothing in the record to suggest that these conditions exist in this case, nor were they argued below or upon appeal. Thus, we conclude that the trial court did not have jurisdiction to enter its March 5, 1992 order pursuant to Ark. R. Civ. P. 60.
V. Waiver
The trial court alternatively held that Jeffrey waived the issue of the trial court’s jurisdiction when he appeared before the court on February 24, 1992, and argued the merits of Teresa’s motion for reconsideration. We have continuously held that a party may not consent to subject-matter jurisdiction where no such jurisdiction lies, nor may jurisdiction be waived. Douthitt v. Douthitt, 326 Ark. 372, 930 S.W.2d 371 (1996); Priest v. Polk, 322 Ark. 673, 912 S.W.2d 902 (1995). Thus, we conclude that Jeffrey did not waive the issue of the trial court’s jurisdiction to enter the March 5, 1992 order.
VI. Estoppel and Res Judicata
Finally, the trial court found that Jeffrey was estopped from contesting the court’s jurisdiction to enter the March 5, 1992 order because both parties had relied upon the order for approximately three and a half years until it was eventually modified on December 26, 1995. Teresa, however, failed to assert the affirmative defense of estoppel in her answer to Jeffrey’s motion to set aside the March 5, 1992 order, as required by Ark. R. Civ. P. 8(c). Instead, Teresa only asserted the defense of res judicata. Because Teresa failed to obtain a ruling from the trial court on the issue of res judicata, we will not consider it upon appeal. See Morrison v. Jennings, 328 Ark. 278, 943 S.W.2d 559 (1997).
As to Teresa’s estoppel argument, we have previously held that a party may correct his or her failure to plead an affirmative defense by amending the answer at any time pursuant to Ark. R. Civ. P. 15(c). Terminix Int’l Co. v Stabbs, 326 Ark. 239, 930 S. W.2d 345 (1996); Burge v. Pack, 301 Ark. 534, 785 S.W.2d 207 (1990); Brooks v. Town & Country Mutual Ins. Co., 294 Ark. 173, 741 S.W.2d 264 (1987). This argument must fail, as it did in Burge and Brooks, because there is nothing in the record to suggest that Teresa ever requested that her answer be amended to include the affirmative defense of estoppel.
We have also held that under Ark. R. Civ. P. 15(c), an issue not set forth in the responsive pleading may be raised by express or implied consent of the parties and thereby treated in all respects as though it had been properly pled. Porter v. Harshfield, 329 Ark. 130, 948 S.W.2d 83 (1996); Hackleton v. Larkan, 326 Ark. 649, 933 S.W.2d 380 (1996); Brooks, supra. Once again, there is nothing in the record to suggest that the affirmative defense of estoppel became an issue during the hearing by either express or implied consent of the parties. Accordingly, we find that Jeffrey was not estopped from asserting that the trial court did not have jurisdiction to enter the March 5, 1992 order.
For these reasons, we find that the trial court did not have jurisdiction to enter the March 5, 1992 order modifying custody and child support. We reverse and remand for the trial court to determine the amount that Teresa owes in past-due child-support payments. This determination should take into account how long the September 26, 1991 child-support order remained in effect, in view of various orders entered subsequent to March 5, 1992, that may or may not have incorporated by reference the terms of the March 5, 1992 order.
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Per Curiam.
Petitioner, B.J. McAdams as “managing agent” for Colonial Ballroom, Inc., petitions this court to issue a writ of mandamus to the Pulaski County Circuit Court and to the individual judges serving on the Pulaski County Circuit Court. Specifically, he asks that we direct the judges and the court to reverse a denial of his motion for a temporary restraining order to prohibit the North Little Rock Police Department from enforcing a curfew on an establishment owned by Colonial Ballroom, Inc.
We note initially that the petition requests this court to direct the judges and the circuit court to do more than perform ministerial acts. The petition asks this court to direct a reversal of a prior decision by using the extraordinary writ of mandamus. Mandamus clearly does not lie for such purposes. See Wilson v. Neal, 329 Ark. 125, 947 S.W.2d 338 (1997); Sanders v. Neuse, 320 Ark. 547, 898 S.W.2d 43 (1995).
We also deny the petition for an additional reason. Based on the style of the case and the signature at the end of the petition, Colonial Ballroom, Inc., is not represented by counsel. Bob McAdams, who is not a licensed attorney, has signed the petition filed in this court. We have held that corporations must be represented by licensed attorneys. See All City Glass & Mirror, Inc. v. McGraw Hill Information Sys. Co., 295 Ark. 520, 750 S.W.2d 395 (1988); Arkansas Bar Assn v. Union Nat’l Bank, 224 Ark. 48, 273 S.W.2d 408 (1954).
In sum, we deny the petition for failure of the corporation to have legal representation as well as for the fact that mandamus does not lie under these circumstances.
Writ denied. | [
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W.H. “Dub” Arnold, Chief Justice.
This case was certified to this Court from the court of appeals pursuant to Ark. Sup. Ct. R. 1-2(17) (d)(2) as a case of significant public interest involving a legal issue of major importance. This case involves the renewal of an insurance contract; specifically, we must address the issue of what constitutes an acceptance of a renewal notice for an insurance contract. Appellee, Traver, urges this court to adopt the postal-acceptance rule by holding that an insured accepts a renewal offer by placing a renewal premium payment in the mail. Appellant, Equity, contends that the plain language of the policy requires actual receipt of the payment, so the mailbox rule is not applicable.
Traver was involved in an automobile accident on March 19, 1994. The other party involved in the accident filed a claim with his insurance carrier; after payment of that claim, the insurance carrier filed a subrogation action against Traver. Traver then filed a third-party action against his insurance carrier Equity pursuant to a non-standard automobile policy contract.
Equity denied coverage of the accident claiming that Traver’s policy was not in effect on the date of the accident. Specifically, Equity contended that the original policy had lapsed on March 14, 1994.
Traver received a renewal notice from Equity giving the due date of the renewal as March 9, 1994. The expiration date of the policy was March 14, 1994. Traver included a check and a handwritten note stating he had lost the renewal form in an envelope addressed to his local Hot Springs insurance agent, Roberson and Associates. He gave the envelope to his mother who mailed it from a mail drop-off in the Hot Springs mall to the Hot Springs agent on March 11, 1994. The envelope was postmarked March 12, 1994; it was postmarked a second time with March 21, 1994.
The local agent did not receive the envelope until March 22, 1994; the agent forwarded the payment to Equity which received it on March 25, 1994. Equity accepted the check and reinstated the policy effective March 22, 1994. This gave a seven day period between March 14, the expiration date of the policy, and March 22, the new policy effective date, when Traver was not insured.
The Equity document entitled “YOUR PLAIN LANGUAGE CAR POLICY” was entered into evidence. Its “Renewal Provisions” section is as follows:
We won’t refuse to renew this policy solely because of your age, sex, marital status, residence, race, color, creed, national origin, ancestry or occupation. Subject to our consent you may renew this policy. When we consent to renew this policy, you must pay the renewal premium in advance. We will mail you a notice telling you when your premium must be paid. Your policy will expire if we don’t receive the required payment by the renewal date.
The original policy listed the term from September 14, 1993, until March 14, 1994. An Equity employee, Tammy Warrier, testified that it was Equity’s policy to extend renewal offers every six months. The renewal offer issued to Traver listed a due date of March 9, 1994. According to Ms. Warrier, the March 9, 1994, due date was an arbitrary date selected by the company to give the customer enough time to mail the payment before the expiration date. She indicated that company policy provides that “to renew a policy, the proper down payment must be postmarked by the U.S. Postal Service on or before the due date.” Ms. Warrier explained that company policy was such that if the payment was postmarked before the arbitrary March 9, 1994, due date, but received late, even later than the March 14, 1994, expiration date, the company would have used the postmarked date and renewed the policy effective March 14, 1994. Conversely, if the postmark was before the expiration date, but after the due date, no such leniency would be given to a customer.
The trial court ruled that Traver’s timely deposit in the United States mail of his renewal premium before the due date March 14, 1994, was an effective renewal and that the policy was in effect continuously, with no lapse. The trial court noted that there was no legal authority for this ruling, yet determined that the public policy of the State of Arkansas weighs heavily against forfeiture, so a timely deposit of a renewal premium in the U.S. mail, in the absence of fraud or deceit, constitutes an effective acceptance of the policy.
There is no Arkansas case direcdy addressing this issue. In Kempner v. Cohn, 47 Ark. 519, 1 S.W. 869 (1886), we recognized the mailbox rule for the acceptance of a contract. Once an offer has been made, a contract is completed when the acceptance is mailed if the acceptance is made in a reasonable amount of time. If a letter of withdrawal is mailed, before the mailing of the acceptance, it is effective only if the party to whom the offer was made receives the withdrawal before making the acceptance. Id.
Despite the fact that this case was decided in the 1800s, there are few cases following it which expound upon this theory. The Kempner decision has been followed as a routine matter of contract theory, with the proviso that parties are free to dictate the terms of offers and acceptances as they deem necessary.
In Michelsen v. Patterson, 9 Ark. App. 275 (1983), the court of appeals addressed a situation where a tenant mailed his rent on December 31, 1981, and it was received by the owner on January 2, 1982. The rent was due on January 1, 1982, and this day was a legal holiday. The owner refused the payment, and the tenant sought a court order deeming the payment timely under the mailbox acceptance rule. The court of appeals determined that the express language of a contract making time of the essence can eliminate the application of the mailbox acceptance rule. While there was no express language in the contract between the two parties, the tenant had received two letters during the year in which the owner indicated that no late payments for rent would be accepted and notified the tenant that strict adherence to all terms of the agreement was expected. The court of appeals found that these two correspondences were enough to put the tenant on notice that time was of the essence and a delay in receiving the payment was a breach of the contract. The court of appeals affirmed the finding that the payment was not timely; however, this decision was limited to the particular facts of the case.
In the case before us, the policy language requires actual receipt of a premium payment prior to the expiration date of the policy to constitute acceptance of a renewal offer. The actual renewal notice gave the due date as a date five days before the expiration date. It does not contain the language requiring actual receipt of the premium payment; it instructs the insured to pay the amount listed as due in order to renew the policy.
In Farmers Insurance Company of Arkansas v. J. W. Hall, 263 Ark. 734, 567 S.W.2d 296 (1978), a dispute arose when an insured mailed his premium payment approximately seven days after the expiration date. The insured was involved in an accident several hours after mailing his insurance premium payment. Upon attempting to collect from the insurance carrier, the insurer refused coverage claiming that the policy had lapsed and was not in effect. The trial court ruled that Arkansas statutes that required notice before cancellation of an insurance policy precluded the policy from lapsing. We reversed holding that notice is not required when an insurance contract is for a specified term.
The outcome of Hall, supra, is not particularly helpful to the case at bar; however, the decision does provide insight into the manner in which these term policies have been interpreted in the past. In Hall, we classified the renewal notice as an offer to renew the policy which the insured could either accept or reject. The expiration date was the date that the offer expired by the terms on the face of the offer. Failure by the insured to accept the offer before the expiration of the term it was held open caused the policy to expire by its own terms; thus, the offer expires, and there is technically no cancellation. Id. at 737.
In Hall, we classified a renewal notice as an offer and the payment of the renewal premium as acceptance; however, the issue of what constitutes acceptance was not addressed. By utilizing the Hall analysis, Equity made an offer of renewal when it sent the notice of renewal. The offer, by its terms was open until the underlying policy expired on March 14, 1994. Traver was free to accept or reject the offer up until that date by paying the premium. As evidenced by the language of the policy, Equity does not intend to be bound by acceptance of the contract until actual receipt of the premium; however, the language of the renewal notice does not require such receipt.
Equity relies upon 43 Am. Jur. 2d Insurance §447 as controlling the situation at bar. Specifically, this section states: “Where a policy makes the advance payment of the premium a condition for renewal, such payment must be made in advance to effect a renewal of the policy.” This particular passage quotes the Arkansas case, Hall, discussed supra. However, it does little to render a solution to the actual issue here. There is no dispute that the payment of the premium was a condition precedent for acceptance; the question is at what point was the acceptance made, upon placing payment it in the mail or upon its receipt by the insurer?
Traver relies on a passage from Am. Jur. 2d which states:
Under insurance policies providing that payment of premiums shall be made at a certain place by a certain time under penalty of forfeiture, where the insurer requests, authorizes, or acquiesces in the sending of the premiums by mail, a deposit thereof in the mail, properly addressed, and in time, according to the usual course of the mail, to reach the prescribed place by the time it is due, will prevent a forfeiture, even though it does not in fact reach its destination at all, or until after the date when due, and this notwithstanding that time is regarded as the essence in the contract.
43 Am. Jur. 2d Insurance §909 (emphasis supplied). This section then cites cases from various jurisdictions that follow this theory. However, this section is not particularly helpful because we are not dealing with an instance of mere payment on an existing insurance contract. Absent an existing insurance contract, there is no contractual right to be forfeited; therefore, the equitable rule weighing against forfeitures is not controlling.
In Mississippi Insurance Underwriting Association v. Maenza, 413 So.2d 1384 (Miss. 1982), the Mississippi Supreme Court examined a situation closely analogous to the case at bar. A prop erty and casualty policy renewal notice/offer was sent to the insured with an expiration date of September 10, 1979. The insured mailed payment on September 8, 1979, but it was not received by the insurer until September 11, 1979. A hurricane destroyed the insured’s property on September 11, 1979. The insurer accepted the payment, but claimed the policy had lapsed because payment was not received on or before the due date. The insurer then treated the payment as an application for new coverage and issued a policy with the effective date of September 14, 1979.
The insured brought a claim before the Mississippi Insurance Commission, and it rendered a ruling that the renewal was effective when the premium payment was deposited in the United States mail, as long as it was deposited in time to reach the insurer on or before the expiration date. The insurance commission determined that neither party was to blame for a delay within the postal service; however, the insurer was the party that should bear the imputed burden because it adopted the postal service as its agent when allowing premiums to be transported via mail. 413 So.2d at 1386.
The Mississippi Supreme Court affirmed the findings of the insurance commission. Specifically, that court held that the insurer’s renewal notice is an offer that is accepted by the offeree/ insured sending premium payments. The insurer in this instance required that payment be received before acceptance became effective; the Mississippi court rejected this notion because there was no clear language to suggest that acceptance was not effective until receipt. However, the court went on to conclude that in circumstances where an insurer invites premiums to be forwarded through the mail, it adopts the postal service as its agent and deposit of a payment with that agent constitutes acceptance of coverage. According to the Mississippi court, adopting the postal service as an agent imputed any negligence on their behalf to the insurer despite any contract language to the contrary; therefore contract language requiring receipt before acceptance was valid does not render the mailbox acceptance rule inapplicable. Id. at 1388.
In Maenza, the Mississippi court based the finding that the insurer invited the use of the postal service on several factors. First of all, the renewal notice itself indicated that payment could be made via mail, and the insurer utilized the mail to send the renewal notice. The insurer’s office was over 100 miles from most of its insureds, so personal delivery would have been impractical. There are two other important factors to note in the Maenza decision. First, the payment was deposited with the postal service prior to the expiration date, in apt time to reach the insurer in a timely manner. Second, upon receipt of the payment it deemed late, the insurer made no attempt to refund the money, but caused a new policy to become into effect with a gap in the coverage.
In the case before us, Equity did have written language requiring receipt of the payment in order for acceptance to be effective; however, that language was in the policy and not on the actual renewal notice. Equity utilized the postal service as a carrier for its offer and expected to receive the acceptance via the mail. Traver mailed the premium payment in a timely manner where, absent negligence or mistake by the postal service, it had ample time to reach Equity prior to the termination date. Upon receipt of Traver’s check, Equity did not refuse the payment, yet accepted it as an application for a new policy.
Based upon the facts of this case, it is our determination that Traver’s placing the renewal premium in the mail in a timely manner constituted acceptance of Equity’s renewal offer. Due to the peculiar factual scenario provided here, this holding is limited to the particular facts and circumstances of this case. We do not institute an absolute rule of applying the “mailbox rule” to all renewal premium payments, nor do we hold that parties are not free to dictate the terms of acceptance of offers. The facts before us present a unique situation where Traver was not afforded notice through the actual offer that receipt of payment was required before acceptance was effective. Given the fact that there was no fraud or negligence on behalf of Traver and the fact that Traver placed the payment in the mail with ample time for it to reach Equity prior to the expiration of the offer, we hold that in this instance there was a manifest acceptance of the renewal offer. Therefore, Traver’s policy did not lapse, and it was effective beginning on March 14, 1984.
Affirmed.
Brown and Imber, JJ., concur.
Newbern, J., dissents. | [
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Robert L. Brown, Justice.
Appellant Tammy J. Sublett appeals an order granting summary judgment in favor of appellees Sharon L. Hipps and Daniel Berry. We find no error in the trial court’s order, and we affirm.
On January 3, 1995, Sublett filed a complaint against Hipps and Berry to recover damages for personal injury arising from an automobile accident. Sublett alleged that at about 8:15 a.m. on January 8, 1992, she was travelling south on Interstate 430 in Little Rock when Hipps, who was moving in the same direction in an adjacent lane, abruptly moved in front of her and decelerated rapidly. Sublett alleged that Hipps’s maneuver caused her to strike the rear of Hipps’s pickup truck, and she in turn was rear-ended by Berry’s sport-utility vehicle. Sublett asked for joint and several liability against Hipps and Berry on several theories of negligence and damages in the amount of $175,000.00.
On April 5, 1995, Hipps answered, denying all allegations of fault and affirmatively pleading for the application of comparative fault. On September 29, 1995, Hipps filed a pleading designated as a third-party complaint against Berry, asking for indemnification or, in the alternative, for contribution. On November 27, 1995, Berry filed his answer to the original complaint as well as the third-party complaint and denied all allegations of fault. He also pled the statute of limitations as an affirmative defense.
Berry next moved for summary judgment on the ground that both the complaint and third-party complaint were barred by the three-year statute of limitations for negligence actions under Ark. Code Ann. § 16-56-105 (1987). He asserted that although Sublett filed her complaint in a timely manner, she did not obtain service on him within 120 days pursuant to Rule 4(i) of the Arkansas Rules of Civil Procedure and also failed to move for an extension within that same period.
Sublett responded to Berry’s motion for summary judgment and argued that any objection to the untimely service of the complaint under Rule 4(i) was waived when he filed his answer. She contended that while Berry’s answer raised the statute of limitations as a defense, his defense was waived because he answered the complaint without moving to dismiss or otherwise raising the issue of insufficiency of process, as required by Rule 4(i).
Hipps then moved for summary judgment and maintained that the undisputed facts showed the following: that Hipps was driving in the lane to the left of Sublett; that Sublett admitted there was adequate distance between the cars when Hipps made the lane change; that Sublett admitted Hipps signaled before entering Sublett’s lane; and that Sublett applied her brakes, began sliding, and rear-ended Hipps.
Sublett responded to Hipps’s motion for summary judgment and cited three factual bases to support her allegations of negligence: (1) traffic was heavy; (2) the pavement was wet; and (3) Hipps turned into Sublett’s lane 50 feet in front of her, which a juror could conclude was done in violation of the statute which creates a duty to change lanes only when it can be done “with safety.” Ark. Code Ann. § 27-51-302(1) (Repl. 1994).
The trial court issued a letter opinion in which it determined that Sublett’s claim against Berry was barred by the statute of limitations and that Sublett’s deposition testimony established that Hipps did nothing wrong and, thus, did not cause the accident. Orders dismissing Sublett’s claims against both Berry and Hipps were entered.
I. Berry’s Motion for Summary Judgment
The standard of review for appealing the grant of summary judgment is well-established:
In these cases, we need only decide if the granting of summary judgment was appropriate based on whether the evidentiary items presented by the moving party in support of the motion left a material question of fact unanswered. The burden of sustaining a motion for summary judgment is always the responsibility of the moving party. All proof submitted must be viewed in a light most favorable to the party resisting the motion, and any doubts and inferences must be resolved against the moving party. Our rule states, and we have acknowledged, that summary judgment is proper when a claiming party fails to show that there is a genuine issue as to a material fact and when the moving party is entitled to summary judgment as a matter of law.
Milam v. Bank of Cabot, 327 Ark. 256, 261-62, 937 S.W.2d 653, 656 (1997). See Renfro v. Adkins, 323 Ark. 288, 914 S.W.2d 306 (1996). Once a moving party establishes prima facie entitlement to summary judgment by affidavits, depositions, or other supporting documents, the opposing party must meet proof with proof and demonstrate the existence of a genuine issue of material fact. Milam v. Bank of Cabot, supra; Renfro v. Adkins, supra.
Sublett contends, as her first point, that Berry waived a defense of insufficiency of service of process under Ark. R. Civ. P. 12(h)(1) because he failed to move to dismiss the complaint on that ground and further failed to raise the defense in his answer. She concedes that service was not accomplished on Berry within 120 days because counsel was under the false impression that he had died without insurance coverage. Sublett further admits that no attempt was made to seek an extension from the court within the 120-day period from the filing of the complaint. Nevertheless, she contends that Farm Bureau Mut. Ins. Co. v. Campbell, 315 Ark. 136, 865 S.W.2d 643 (1993), and Lawson v. Edmondson, 302 Ark. 46, 786 S.W.2d 823 (1990), support her contention that Berry waived his argument regarding insufficiency of process.
The issue for this court to resolve is whether Berry’s defense raised in his answer is in truth a limitations defense or whether, in actuality, it is a contention of insufficiency of process. We conclude that the defense is one of limitations that is decided by when the litigation was commenced.
Under Rule 3 of the Arkansas Rules of Civil Procedure, an action is commenced by filing a complaint with the clerk of the proper court. Forrest City Mach. Works, Inc. v. Lyons, 315 Ark. 173, 866 S.W.2d 372 (1993); Green v. Wiggins, 304 Ark. 484, 803 S.W.2d 536 (1991). But this court has also held that the effectiveness of the commencement date is dependent upon meeting the requirements of Rule 4(i), which provides in part that service of process on a defendant must be accomplished within 120 days after the filing of the complaint. See Edwards v. Szabo Food Serv., Inc., 317 Ark. 369, 877 S.W.2d 932 (1994); Hicks v. Clark, 316 Ark. 148, 870 S.W.2d 750 (1994); Forrest City Mach. Works, Inc. v. Lyons, supra; Green v. Wiggins, supra.
In Green v. Wiggins, supra, the appellant filed a medical-malpractice action against several defendants, including the appellees who were two doctors. No attempt at service was made on those appellees, and appellant obtained a voluntary dismissal without prejudice after the two-year medical-malpractice statute of limitations expired. Appellant then refiled his action and attempted unsuccessfully to serve appellees through certified mad. Appellant moved the trial court for an extension 148 days after the filing of his second complaint. We held that because the appellant did not complete service on appellees within 120 days under Rule 4(i), his medical-malpractice action was not commenced, and the savings statute could not be invoked on his behalf. A similar failure by Sublett to commence her cause of action against Berry within the limitations period occurred in the instant case.
Moreover, while Rules 12(b)(5) and 12(h)(1) clearly set forth the procedure for raising an insufficiency-of-service-of-process defense, they do not set the conditions for mounting a limitations defense. The touchstone for a limitations defense to a tort action is when the cause of action was commenced. See Ark. Code Ann. § 16-56-105 (1987). Berry raised the statute of limitations as an affirmative defense in his answer and has shown failure to commence the litigation within three years as required by our caselaw. See Forrest City Mach. Works, Inc. v. Lyons, supra; Green v. Wiggins, supra. That is all that is required.
Finally, we view the cases of Lawson v. Edmondson, supra, and Farm Bureau Mut. Ins. Co. v. Campbell, supra, as clearly distinguishable. The Lawson case did not involve the statute of limitations but solely concerned a Rule 12(b)(5) defense of insufficient service. Similarly, the issues of commencement of a cause of action and the running of a limitations period were not before this court in the Farm Bureau case. Hence, neither case is authority for the question at hand.
Because the accident occurred on January 8, 1992, and service on Berry was not obtained within 120 days after Sublett filed her complaint on January 3, 1995, and no extension was sought, the statute of limitations ran on this cause of action. The trial court was correct in granting summary judgment in favor of Berry.
II. Hipps’s Motion for Summary Judgment
We turn next to Sublett’s contention that summary judgment in favor of Hipps was also error. In order to establish a prima facie case of negligence, a plaintiff must prove that he sustained damages; that the defendant was negligent; and that such negligence was a proximate cause of the damages. Anslemo v. Tuck, 325 Ark. 211, 924 S.W.2d 798 (1996); Mason v. Jackson, 323 Ark. 252, 914 S.W.2d 728 (1996); Morehart v. Dillard Dep’t Stores, 322 Ark. 290, 908 S.W.2d 331 (1995).
In support of her motion for summary judgment, Hipps attached portions of Sublett’s deposition. In that deposition, Sublett made the following relevant admissions: (1) that appellee Hipps did not cut her off, although traffic ahead was already stopped; (2) that there were approximately 50 feet between their vehicles when Hipps entered her lane; (3) that she had already applied her brakes when Hipps signaled to enter her lane; (4) that she briefly took her foot off the brake pedal to contemplate a maneuver into the next lane but did not attempt to do so; (5) that she subsequently applied more pressure to the brakes and began sliding on the wet pavement; (6) that there was adequate space for appellee Hipps’s vehicle to pull into her lane; and (7) that she was not aware of anything Hipps did wrong.
Hipps contends that Sublett’s version of the events as set out in her deposition presents no genuine issue of material fact and directly refutes a number of the allegations in her complaint. Hipps further contends that the deposition testimony, especially Sublett’s final admission, reflects that Sublett was the sole proximate cause of her own accident. We agree.
Again, Sublett responds as she did in the trial court that the conditions on the road and the statute on lane changes present a fact question. She cites this court to AMI Civ. 3d 903 (“Violation of Statute or Ordinance as Evidence of Negligence”), and Ark. Code Ann. § 27-51-302(1) (Repl. 1994), which provides:
A vehicle shall be driven as nearly as practical entirely within a single lane and shall not be moved from the lane until the driver has first ascertained that movement can be made with safety[.]
Id. She maintains that, given the circumstances, an issue of fact exists as to whether Hipps made the lane change “with safety” when only 50 feet of space separated the two vehicles.
We are aware, as we have already stated, that in reviewing a grant of summary judgment, we must consider the evidence in the light most favorable to Sublett. However, road conditions in and of themselves do not constitute negligence. The issue, rather, is how people perform under those conditions. Sublett admits that Hipps did not cut her off when she changed lanes and further that Hipps did nothing wrong. These drastic admissions, which contradict her complaint, not only fail to create a genuine issue of material fact under Ark. R. Civ. P. 56(c), bqt they appear to concede lack of fault on Hipps’s part. We have affirmed grants of summary judgment in the past when the plaintiff/appellant makes a pivotal admission that goes to the heart of the case. See, e.g., Bushong v. Garman Co., 311 Ark. 228, 843 S.W.2d 807 (1992); King v. Jackson, 302 Ark. 540, 790 S.W.2d 904 (1990). This is such a case. We affirm this facet of the trial court’s order as well due to Sublett’s failure to meet proof with proof. Milam v. Bank of Cabot, supra.
Affirmed. | [
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Robert L. Brown, Justice.
This appeal arises out of a judgment of conviction for first-degree battery and residential burglary. Appellant Nathaniel Lewis was sentenced to 20 years on each count to run concurrently. His one issue on appeal concerns whether the trial court erred in refusing to allow him to impeach his own witness, Gordon Brown, with a videotaped statement Brown purportedly gave to West Memphis police officers. He files his appeal in this court based on his contention that this is an issue of significant public interest. We affirm for failure to comply with Ark. Sup. Ct. R. 4-2(b)(2).
This court has repeatedly held that it will not consider arguments that have not been properly abstracted. Wallace v. State, 326 Ark. 376, 931 S.W.2d 113 (1996); Richmond v. State, 326 Ark. 728, 934 S.W.2d 214(1996); Watson v. State, 313 Ark. 304, 854 S.W.2d 332 (1993). We have stated that it is a fundamental rule that the appellant is required to provide an abstract that contains information from the record necessary to an understanding of the questions presented to the Court for decision. Ark. Sup. Ct. R. 4-2(a)(6); Richmond v. State, supra; D. Hawkins, Inc. v. Schumacher, 322 Ark. 437, 909 S.W.2d 640 (1995); Carmical v. City of Beebe, 316 Ark. 208, 871 S.W.2d 386 (1994). Scattered references to the record contained in the argument portion of the brief are not sufficient to meet this court’s requirements under Rules 4-2(a)(6) and 4-2(b)(2). See Richmond v. State, supra; Wynn v. State, 316 Ark. 414, 871 S.W.2d 593 (1994); Watson v. State, supra.
Here, Lewis not only failed to abstract material parts of the record, but he failed to include in his brief any abstract of the record at all. In his brief, Lewis merely quoted part of the colloquy between counsel, Brown, and the trial court as part of his argument. This is plainly not enough to satisfy our rule. His brief is flagrantly deficient, and under such circumstances, we affirm. Ark. Sup. Ct. R. 4-2(b).
Affirmed.
Arkansas Supreme Court Rule 4-2(a)(6) was redesignated Arkansas Supreme Court Rule 4-2 (a)(5) by per curiam opinion dated July 15, 1996. In Re: Supreme Court Rule 1-2, and Other Matters Related to the Jurisdiction of the Supreme Court and Court of Appeals, 325 Ark. 525 (1996). On June 30, 1997, a new subsection 4-2(a)(2) was added to Rule 4-2, thereby again making the abstract subsection 4-2(a)(6). In Re: Supreme Court Rule 1-2, Rule 2-4 and Rule 4-2(a), Rule 2 of the Rules of Appellate Procedure — Criminal, and Rule 3 of the Rules of Appellate Procedure — Civil, 329 Ark. 656 (1997). | [
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Annabelle Clinton Imber, Justice.
The appellant obtained a $1,600 jury verdict on a negligence claim brought against the appellee. The appellant moved for a new trial and argued, among other things, that the verdict was clearly against the preponderance of the evidence and that the jury erred in assessing the amount of the recovery. The motion was deemed denied, and the present appeal ensues. We find no error and affirm.
On August 1, 1995, Charles Depew was a passenger in a vehicle that was struck from behind in an automobile accident. Depew filed a complaint against James Jackson, alleging that the accident and his resulting injuries were due to Jackson’s negligence. Jackson admitted liability, and the case was submitted to the jury on the issue of damages only. At trial, Depew testified that the collision snapped or popped his neck back. A few days later, he developed increasing pain and soreness in his neck area. X-rays taken after a visit to the emergency room revealed a possible fracture in Depew’s spine, and Depew was referred to a neurosurgeon, Dr. Anthony Russell.
Dr. Russell examined Depew and recommended surgery. According to Dr. Russell, Depew had a bone that was not properly connected to another bone in his neck — this resulted in the possibility that the floating bone might be driven into his brain stem, rendering Depew a quadriplegic. This condition, known as an os odontoideum, was either a congenital abnormality where the bone fails to fuse properly, or a fracture that had occurred several years earlier and had failed to fuse and heal properly. Dr. Russell stated that it most likely “formed way back in the embryonic stage.” Cables were used in the surgery to fuse the floating bone with another piece of bone. As a natural consequence of this procedure, Depew lost range of motion in his neck, including a degree of stiffness. Constant pain was also consistent with the surgery, in addition to headaches. Depew later went to another physician to receive treatment for his pain, which included injections and other medications.
Depew’s medical bills amounted to over $15,000. Depew’s expert witness projected total damages in the amount of $345,794, which figure included past and future medical expenses, loss of household services and pain and suffering.
The jury returned a verdict for Depew in the amount of $1,600. Depew filed a motion for new trial, which was deemed denied. While Depew articulates a number of points on appeal, his argument consists of two primary components — that the verdict was clearly against the preponderance of the evidence, and that the jury erred in the assessment of the recovery.
1. Ark. R. Civ. P. 59(a)(6).
When a motion for new trial is made on the ground that the verdict was clearly against the preponderance of the evidence and is denied by the trial court, see Ark. R. Civ. P. 59(a)(6), this court will affirm if there is substantial evidence to support the verdict. Esry v. Carden, 328 Ark. 153, 942 S.W.2d 846 (1997); Patterson v. Odell, 322 Ark. 394, 909 S.W.2d 648 (1995). Substantial evidence is evidence of sufficient force and character to compel a conclusion one way or the other with reasonable certainty. Esry, supra. The evidence must force the mind to pass beyond suspicion or conjecture. Esry, supra. In examining whether substantial evidence exists, the verdict is given “the benefit of all reasonable inferences permissible in accordance with the proof.” Patterson, supra.
As controlling authority, Depew relies almost exclusively on Young v. Honeycutt, 324 Ark. 120, 919 S.W.2d 216 (1996), a case where the trial court granted the plaintiffs motion for new trial following a defendant’s verdict in a negligence case. Given that Young involved the appellate review of the grant of a motion for new trial, it provides us with littie guidance in the present case. Moreover, in Young there was no dispute that the plaintiff s injuries were sustained as a result of the accident. By contrast, the issue of proximate causation is the crux of the present case.
In attempting to show that the verdict was not supported by substantial evidence, Depew quotes extensively from Dr. Russell’s testimony concerning the stability of Depew’s spine both before and after the accident:
Q: [Y]ou can go on and have a fracture and still remain stable?
A: Yes.
* * *
Q: Then all at once you have some kind of insult or something happens to your body and it affects your stability at that point, then you start having trouble?
A: Yes.
When asked his opinion of Depew’s stability up until the time of the accident, Dr. Russell answered “stable with the potential for instability.” When asked about Depew’s stability given that he had no pain or dysfunction in the neck region up until the time of the accident, Dr. Russell testified “[i]t would tell you that most likely he was stable during that time although you could still be unstable.” Dr. Russell added that Depew’s pre-accident level of functioning did “not necessarily” indicate that he was stable, although in “almost all cases” the patient would have known about it sooner if he had instability. Ultimately, Dr. Russell opined to a reasonable degree of medical certainty that Depew was “[n]ot grossly unstable” before the accident. The fact that Depew had no pre-accident pain “could be an indicator that he had become unstable at the time of the collision.” When asked whether an “[os odontoideum] can remain stable all your life until you’re sixty-two years old,” Dr. Russell replied “True.” Plaintiff’s counsel then asked, “And you’ll never know you had it?”:
A: That’s true because you’ve still got all your ligaments in there holding it to this bone like it’s supposed to be there.
Q: That keeps it stable?
A: That keeps it stable, yes.
In operating on Depew, Dr. Russell wanted to “restore stability to [Depew’s] spine.” In a letter written to Depew’s attorney, Dr. Russell wrote that Depew’s “paraspinous muscle spasm” was a sequelae of his recent auto accident. In other deposition testimony Dr. Russell stated that it was his opinion within a reasonable degree of medical certainty that “the automobile accident aggravated the preexisting condition leading to [Depew’s] ultimate surgical procedure.” Dr. Russell answered in the affirmative when asked whether it was a reasonable assumption that Depew’s neck pain was caused by the collision, considering that he had no neck pain before but had persistent neck pain afterward.
The above-recited evidence does support Depew’s theory that the collision rendered his spine unstable, necessitating stabilizing surgery. However, other portions of Dr. Russell’s testimony are equivocal on the point, and tend to support Jackson’s position that the collision had nothing to do with aggravating or worsening Depew’s condition — the accident and resulting x-rays simply led to the discovery of the defect.
As quoted above, Dr. Russell testified that the os odontoideum condition was most likely congenital. Dr. Russell explained that “[t]he fracture was discovered by the emergency room physician at Southwest and then brought to my attention. Certainly, I commented on it, felt like it needed surgery.” When asked on cross examination whether he recommended surgery “[b]ecause of that condition where that is not fused,” and “because you thought that condition alone posed some threat to Mr. Depew,” Dr. Russell answered in the affirmative. Dr. Russell opined that the os odontoideum “certainly” occurred before the accident, and that the accident did not make the fracture any worse. At one point the following colloquy occurred:
Q: And this [is] a very similar thing. It showed a condition that was there?
A: Yes.
Q: Not caused by the accident?
A: No.
Q: Not made worse just shown to you, is that right?
A: Correct.
Thus, this above-recited evidence shows that Dr. Russell operated to repair a congenital defect that was not caused or even worsened by the accident. The accident had the incidental result of bringing Depew into the hospital for x-rays, which allowed the os odontoideum condition to be discovered. In reading from deposition testimony at trial, Dr. Russell was asked “Do you still stick with your statement that. . . [Depew] had a C-l, 2 instability aggravated by a motor vehicle accident?” Dr. Russell replied:
In the terms you’re asking for in a legal sense, I guess what I’ll have to say is no, you’re wanting me to say that the accident. . . When I said aggravated what I meant to say was, brought to our attention, that’s what I should have said. The accident brought this problem to our attention.
Dr. Russell could not say that it was “a hundred percent certain” that the accident aggravated a preexisting problem. In being asked whether he had changed his mind as to whether the accident aggravated a preexisting injury, Dr. Russell answered:
[Reading from deposition testimony.] “I haven’t changed my mind. I maintain the point that he had a preexisting condition, that due to the automobile accident, it was brought to our attention. And it ultimately led to his surgery, yes. I mean. . . I’ll never, ever dictate the word ‘aggravated’ in anything I do again because it seems to be a point of contention here. I don’t know. It’s suddenly changed meaning for me.” And I went on to state that due to the surgery, he will have permanent impairment, decreased range of motion, secondary to the operative procedure.
Depew makes much of the following statement contained in a letter written by Dr. Russell:
In my opinion it is more likely than not that had Charles Depew not been involved in the vehicle collision of August 1, 1995, and had not received any other injury to his neck then he probably would have lived the balance of his life in the same condition that he was in before the collision.
However, this statement does not necessarily establish that the collision proximately caused or aggravated the os odontoideum condition. Dr. Russell testified that a person with an os odontoideum condition could live “until you’re sixty-two” and not even know there was a problem. As a result of the collision, the os odontoideum condition was discovered and Dr. Russell recommended surgery to prevent the possibility, however remote, of the floating bone compressing the spinal chord and causing paralysis. As explained by Dr. Russell, “The surgery is not for those ninety-nine who don’t get injured it’s for that one that trips and become[s] Christopher Reeve.”
In summary, Dr. Russell’s testimony cuts both ways. While portions of it show that Depew’s spine was stable before the accident and unstable afterward, other portions establish that Depew had a congenital defect that was not caused or worsened by the collision. The incidental x-rays necessitated by the collision simply allowed the defect to be discovered and treated. Thus, the loss of mobility and pain due to the surgery, and the accompanying decrease in Depew’s ability to perform routine activities, were not proximately caused by Jackson’s negligence. Given the character of this testimony, the jury did not have to resort to conjecture or speculation to arrive at its verdict. This is especially true considering that we are to give the verdict “the benefit of ail reasonable inferences permissible in accordance with the proof.” See Patterson, supra. Because substantial evidence supports the verdict, we cannot say that the trial court erred in denying Depew’s motion for new trial on the ground that the verdict was clearly against the preponderance of the evidence.
2. Ark. R. Civ. P. 59(a)(5).
Generally, where the primary issue on appeal is the alleged inadequacy of the jury’s award, see Ark. R. Civ. P. 59(a)(5), this court will affirm the denial of a motion for new trial absent a clear and manifest abuse of discretion. See Whitney v. Holland Retirement Ctr., Inc., 323 Ark. 16, 912 S.W.2d 427 (1996); Luedemann v. Wade, 323 Ark. 161, 913 S.W.2d 773 (1996); National Bank of Commerce v. McNeill Trucking Co., Inc., 309 Ark. 80, 828 S.W.2d 584 (1992); Smith v. Petit, 300 Ark. 245, 778 S.W.2d 616 (1989). “An important issue is whether a fair-minded jury could have reasonably fixed the award at the challenged amount.” Luedemann, supra (citing Smith, supra).
In the present case, a fair-minded jury could have reasonably fixed the award at $1,600. Obviously, the jury accepted Jackson’s theory of the case, and declined to award Depew damages for any of his surgery-related medical bills. As more fully discussed in the prior point, there was substantial evidence from which the jury could have decided that the surgery, and therefore the resulting pain and loss of mobility, were due to a preexisting condition and not proximately caused by the automobile accident. Thus, a fair-minded jury could have reasonably decided to exclude the surgery-related medical bills from its award. The record reflects that most of the $15,000 in medical bills incurred by Depew related to the surgery. The mere fact that a plaintiff has incurred medical expenses and the defendant has admitted liability does not automatically translate into a damage award equivalent to those expenses. See Kratzke v. Nestle-Beich, Inc., 307 Ark. 158, 817 S.W.2d 889 (1991). Based on the foregoing, we cannot say that the trial court clearly and manifestly abused its discretion in denying Depew’s motion for new trial on the ground that the jury erred in the assessment of the amount of recovery.
Affirmed.
Depew also quotes from Young to make a number of other points regarding appellate review of the grant of a new trial that have little bearing in the present case. Here we are not concerned with the grant of a new trial. The same can be said for Depew’s assertion that when a new trial has been granted, it is “more difficult” to show an abuse of discretion on appellate review because the opposing party will have another opportunity to prevail. See, e.g., Diamond State Towing Co., Inc. v. Cash, 324 Ark. 226, 919 S.W.2d 510 (1996); Bristow v. Flurry, 320 Ark. 51, 894 S.W.2d 894 (1995). | [
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Per Curiam.
This appeal was filed in the Arkansas Court of Appeals. The appellee, Karen Ruth Hutchins, moved to dismiss the appeal on the ground that there was no final, appealable order. The appellant, Albert Curtis Hutchins, responded to the effect that the orders being appealed are contempt orders which are final. In his response, Mr. Hutchins stated that he had filed a federal bankruptcy petition and that Ms. Hutchins had petitioned the federal Bankruptcy Court for relief from the automatic stay of proceedings required by 11 U.S.C. § 362(a)(1). Ms. Hutchins’s petition for relief from the stay was pending when the response to this motion was filed. Mr. Hutchins also asked for additional time to file his abstract and brief. The Court of Appeals certified the motion to this Court because this Court has not determined the effect of the “automatic stay” provision of 11 U.S.C. § 362(a)(1) upon contempt proceedings. We hold that the contempt orders are final and appealable. Some of them are merely coercive and thus civil in nature. Those orders are stayed by the federal law. One of the orders is a criminal contempt citation. It is not stayed by the federal bankruptcy law. Further consideration of the case will remain with the Court of Appeals.
Mr. Hutchins was held in “willful contempt” on a number of grounds having to do with his failure to comply with previous court orders concerning custody of the Hutchinses’ son, Joseph. The sanctions imposed were, however, in all but one instance prospective and coercive in nature. Those were civil contempt citations which were entered for the purpose of compelling obedience to orders and decrees made for the benefit of the parties. Bates v. McNeil, 318 Ark. 764, 888 S.W.2d 642 (1994); Fitzhugh v. State, 296 Ark. 137, 752 S.W.2d 275 (1988).
One of the Chancery Court’s orders was, however, a criminal contempt order. It fined Mr. Hutchins $50 outright for having written on the child’s underwear a message to Ms. Hutch-ins having to do with his allegation that Ms. Hutchins had sexually abused the child. That obviously final order was entered to punish Mr. Hutchins for disobedience to its previous order not to do or say anything that would lead the child to believe he was unsafe in the custody of either parent. As it was punitive in nature, that order was a criminal contempt citation. Fitzhugh v. State, supra.
All actions with respect to the civil contempt orders are stayed in the Chancery Court and in the Court of Appeals until such time as the automatic stay provided for in 11 U.S.C. § 362(a)(1) has been lifted by the Bankruptcy Court. The criminal contempt order is not stayed. See In re Allison, 182 B.R. 881 (N.D. Ala. 1995); In re Kearns, 168 B.R. 423 (D. Kan. 1994); Stovall v. Stovall, 126 B.R. 814 (N.D. Ga. 1990); In re Roussin, 97 B.R. 130 (D.N.H. 1989). | [
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Donald L. Corjbin, Justice.
Appellee Larry James Stephenson was charged as a habitual offender with possession of drug paraphernalia and maintaining a drug premises. Appellee was tried by a jury on December 4, 1996. The case never reached the jury, however, because the trial court directed a verdict for Appellee on both charges at the close of the State’s evidence. The State has filed this appeal. The threshold issue in this case is whether the State is permitted to appeal from the trial court’s order directing a verdict for Appellee. Resolution of this preliminary issue requires our construction of Ark. R. App. P. — Crim. 3(c); our jurisdiction is thus pursuant to Ark. Sup. Ct. R. 1-2(a)(17)(vi). We accept appeals by the State when our holding would be important to the correct and uniform administration of the criminal law. Rule 3(c). As a matter of practice, this court has only taken appeals “which are narrow in scope and involve the interpretation of law.” State v. Banks, 322 Ark. 344, 345, 909 S.W.2d 634, 635 (1995). Where an appeal does not present an issue of interpretation of the criminal rules with widespread ramifications, this court has held that such an appeal does not involve the correct and uniform administration of the law. State v. Harris, 315 Ark. 595, 868 S.W.2d 488 (1994). Appeals are not allowed merely to demonstrate the fact that the trial court erred. State v. Spear and Boyce, 123 Ark. 449, 185 S.W. 788 (1916).
Our law is well settled that the State is not permitted to appeal from a directed verdict acquitting the defendant when the sole issue is the sufficiency of the evidence of the defendant’s guilt. State v. Long, 311 Ark. 248, 844 S.W.2d 302 (1992); State v. Dixon, 209 Ark. 155, 189 S.W.2d 787 (1945). The reasoning behind this rule is stated as follows:
The question of the legal sufficiency of the evidence in a given case constitutes a question of law for the decision of the court, but it cannot become a precedent for application in another case because of the varying state of facts in different cases, and therefore the decision of that question, even though it be one of law, is not important in the “uniform administration of the criminal law.”
Spear and Boyce, 123 Ark. 449, 450, 185 S.W. 788, 789.
The State contends that the transcript in this case demonstrates that the prosecution was prejudiced and that, thus, this appeal is necessary to ensure the correct and uniform administration of the criminal law, as provided in Ark. R. App. P. — Crim. 3(c). The State argues that the trial court erroneously weighed the credibility of the evidence and ignored key evidence favorable to the State, rather than deciding the motions strictly on the sufficiency of the evidence. The State relies heavily on this court’s decisions in State v. Johnson, 326 Ark. 189, 931 S.W.2d 760 (1996), and Long, 311 Ark. 248, 844 S.W.2d 302. Such reliance is misplaced because the facts of both cases differ considerably from those in the present case.
In Johnson, the appellee was tried on the charge of driving while intoxicated. In granting the directed verdict, the trial court commented that Johnson’s blood-alcohol content, 0.06 percent, was “terribly low,” and observed that there had been no field sobriety tests performed at the time of the stop. The trial court remarked further about the “subjective” observations of the officers and concluded that the low result of the blood-alcohol test coupled with the absence of any “objective” tests mandated a directed verdict in Johnson’s favor. This court accepted the appeal in that case due to the trial court’s remarks and, perhaps more significantly, due to the trial court’s erroneous belief that a conviction for driving while intoxicated is dependent upon quantified evidence of blood-alcohol content, as opposed to sufficient other evidence of intoxication. Thus, a review of the case was warranted in order to ensure the correct and uniform administration of the criminal law, particularly that pertaining to the offense of driving while intoxicated. Here, the State does not contend that the trial court misinterpreted the law.
In Long, 311 Ark. 248, 844 S.W.2d 302, the appellees were charged with capital murder. At the end of the State’s case, the trial court directed verdicts for both appellees. In a written order, the trial court recited the evidence presented by the State and then made conclusory comments. The trial court pointed to numerous inconsistencies and discrepancies in various witnesses’ testimonies and then concluded that the jury would have had to engage in too much speculation and conjecture to sort out the inconsistencies and find the appellees guilty of the crimes charged. This court concluded that the trial court’s remarks amounted to an improper weighing of the evidence, as variances and discrepancies in the proof go to the weight or credibility of the evidence, which is for the jury to resolve.
Here, at the conclusion of the State’s case and outside the presence of the jury, Appellee’s counsel made a motion for directed verdict on the grounds that the State had failed to prove that Appellee had a proprietary interest in the home where he was arrested and that the drug paraphernalia found in the home was possessed by Appellee. The trial judge granted the directed verdict. Subsequently, the trial judge explained his ruling to the jurors:
The Court’s directing a verdict for the defendant in this case. The Court is not convinced that there’s sufficient evidence for a jury to do anything other than speculate as pertains to the premises. The affidavit for search warrant itself makes clear that the state was under the impression that a female was maintaining that particular premises. Contrary to the inference that a person simply being in a premise is enough to establish a proprietary interest, that is not the law in the State of Arkansas. And, specifically, the Court asked Miss Sakevicius [Arkansas State Crime Laboratory chemist] if there were any traces even of cocaine in her exhibit number three, which is the only item that was taken off of Mr. Stephenson. And she said, “no.” So, that is not sufficient to establish. Usually even on a bag, there are traces or residue to show that there has been some cocaine in the bag. But Miss Sakevicius, specifically in response to the Court’s own ques tions, said that she did not find cocaine in what she identified as her E-3. And that is the one that was taken off Mr. Stephenson.
Thank y’all very much. You can relieve yourselves of your badges. You all are excused.
This case is unique in that the State has based its grounds for appeal on the words of the trial judge, which were not directed to trial counsel in the form of an order, but rather, were directed as a lay explanation to the jurors who had served in the case. We have no other indication of the trial judge’s reasons for directing the verdict, as the written order from the trial court reveals only that Appellee’s motion for directed verdict was granted and that he was acquitted.
The State asserts that the trial judge improperly weighed the evidence in granting the motion for directed verdict and failed to consider the totality of the State’s proof, viewing the evidence in a light most favorable to the State. The State asserts further that the trial judge ignored critical evidence of Appellee’s guilt and relied, instead, on selective evidence that tended to favor Appellee. The State does not argue that the trial judge commented on one witness’s credibility over another, or that he stated that the State’s evidence was not believable, or that he indicated that there were too many discrepancies in the witnesses’ testimonies for the jury to convict Appellee. In other words, the State merely contends that the trial judge erred in directing a verdict in favor of Appellee because there was sufficient evidence presented to convict him of the charges. Such contention is not a proper basis for an appeal by the State.
Accordingly, we dismiss the appeal. It is not for this court to engage in a search for error where any determination by this court would not set precedent or serve as a guide in future prosecutions. Even assuming arguendo, that the trial court erred in directing the verdict for Appellee, we would still hold that the appeal must be dismissed, as Rule 3(c) does not contemplate such an appeal by the State. Additionally, we do not view the trial judge’s comments as indicating that he improperly weighed the credibility of the evidence. Instead, the trial judge’s comments demonstrate only that he concluded that there was not sufficient evidence presented demonstrating that Appellee maintained the premises or that he had possessed drug paraphernalia. The trial judge in this case did not engage in a comparison of various witnesses’ testimonies in an effort to harmonize them. Nor did he express any sentiment that the State’s witnesses were not credible or that their testimony was not believable. Thus, we cannot say that the trial judge improperly weighed the credibility of the evidence, as opposed to viewing the evidence as merely being insufficient to sustain a conviction on the charges.
Appeal dismissed.
Glaze, J., dissents. I would agree to review this unusual case, and can think of no reason not to do so; especially since the defendant here is free from future prosecution as a result of the trial court’s granting him a directed verdict. | [
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Tom Glaze, Justice.
Appellant Charles B. Stanley brings this appeal from his conviction of theft of property and a sentence of forty years’ imprisonment. His sole point for reversal is that the trial court erred in denying his motion to suppress evidence.
The pertinent facts began on December 30, 1992, when Officer Bob Paxton stopped a red 1979 Ford Thunderbird vehicle for a traffic violation in DeWitt. Charles Stanley was a passenger, and his brother, Lawrence Stanley, was the driver. During the stop, Paxton saw two large speakers in the back seat of the car, and he also observed a yellow flashlight, boxes of tools, and other small items. Paxton, who had knowledge of some prior residential and church burglaries involving stolen speakers and tools, sought a warrant to search the vehicle after having it impounded. Apparently Paxton and Patrolman Jim Miller prepared an affidavit and search warrant, and Miller appeared before the DeWitt Municipal Judge. The affidavit reflects that Patrolman Miller had been sworn by the municipal judge, and Miller averred that the impounded 1979 Ford Thunderbird was owned by Elizabeth Ann Hill, and that it concealed certain property. Miller further said that the facts tended to establish the grounds for issuance of a search warrant. It is this affidavit that Charles challenged below, and now on appeal, as being deficient because it failed to provide any facts to show reasonable cause existed for the issuance of a search warrant.
Charles’s argument is meritless for two reasons. First, he has failed to abstract the order showing that the trial court denied his motion to suppress. An appellant’s failure to abstract the order appealed from and other critical documents precludes this court from considering issues concerning them. King v. State, 325 Ark. 313, 925 S.W.2d 159 (1996).
Second, Charles had no standing to challenge the vehicle’s search because he had no property or possessory interest in , the 1979 Ford Thunderbird. An appellant must have standing to challenge a search on Fourth Amendment grounds because the rights secured by the Fourth Amendment are personal in nature. Dixon v. State, 327 Ark. 105, 937 S.W.2d 642 (1997) [citing Rakas v. Minios, 439 U.S. 128 (1978)]. Whether an appellant has standing depends on whether he manifested a subjective expectation of privacy in the area searched and whether society is prepared to recognize that expectation as reasonable. Id. Here, Stanley bore the burden of proving that he had a legitimate expectation of privacy in the car, and he failed to meet that burden.
This court has repeatedly held that a defendant has no standing to question the search of a vehicle owned by another person. State v. Barter, 310 Ark. 94, 833 S.W.2d 372 (1992). In order to establish a legitimate expectation of privacy in an automobile owned by another person, a defendant must show that he gained possession of the vehicle from the owner or from someone who had authority to grant possession. Littlepage v. State. 314 Ark. 361, 863 S.W.2d 276 (1993).
Here, it was undisputed that, at the time the search warrant was issued, Elizabeth Hill, Charles’s mother, owned the vehicle, and Charles was only a passenger when the vehicle was stopped by Officer Paxton. Because Charles had neither a property interest nor a possessory one, he had no legitimate expectation of privacy in the vehicle. Koonce v. State, 269 Ark. 96, 598 S.W.2d 741 (1980). Accordingly, he failed to establish that he had standing to object to the vehicle search.
For the foregoing reasons, the trial court’s decision is affirmed.
The record reflects that, in addition to the affidavit, the municipal judge had recorded Miller’s oral testimony bearing on facts and reasons for Miller’s seeking a search warrant, but the tape was missing and most likely had been erased. | [
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Per Curiam.
This is a juvenile delinquency proceeding in which, appellant, W.W., by his attorney, Alvin Schay, has filed a motion for rule on the clerk. His attorney admits that the notice of appeal was not filed in a timely manner due to a mistake on his part.
We find that such error, admittedly made by the attorney for a criminal defendant, is good cause to grant the motion, which we will treat as a motion for belated appeal. See Terry v. State, 272 Ark. 243, 613 S.W.2d 90 (1981); In Re: Belated Appeals in Criminal Cases, 265 Ark. 964 (1979) (per curiam).
The motion for belated appeal is, therefore, granted. A copy of this opinion will be forwarded to the Committee on Professional Conduct. | [
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Tom Glaze, Justice.
Appellee James D. Parrish initiated this litigation, by suing Larry Jones, Jones’s Warehouse Sales grocery-store, and Eric Donald for negligence that caused injury to Parrish. The events leading to Parrish’s injuries began at Jones’s store where Donald and a friend, Timothy Branson, tried to purchase some groceries. When Donald presented a check with someone else’s name printed on it, Jones asked for identification, and while Jones was attempting to verify the check, Donald and Branson departed the store, got in Donald’s vehicle and drove away. Jones, who was an auxiliary police officer and auxiliary fireman for the City of Clarksville, saw the two men leave, so he got in his truck and followed them. From his truck, Jones called the police dispatcher, and told her that he was following two men in their vehicle because the men had just attempted to cash a forged check at Jones’s store. Sometime during Jones’s pursuit, Donald accelerated his car, and Jones responded in kind. While trying to keep Donald’s car in sight, Jones turned on his four-way flashers and a red bubble light which he kept in his truck, pursuant to his duties as an auxiliary fireman. Both vehicles were speeding. Jones was about one-quarter of a mile behind Donald’s car when it skidded out of control and collided with a Missouri Pacific Railroad vehicle. The Railroad vehicle in turn struck Parrish, who was standing nearby. Parrish was thrown twenty-five feet into the air before falling to the ground. Parrish brought this suit for injuries allegedly sustained and caused by Jones’s and Donald’s negligence.
This case was tried to a jury, which returned a verdict for Parrish in the amount of $150,000.00 and $5,000.00 for Parrish’s wife. The jury assigned Donald to be eighty percent at fault and Jones twenty percent at fault. Because a pretrial settlement had been entered between Jones’s business, Warehouse Sales, its insurance carrier (Argonaut Great Central Insurance Company), Timothy Branson, and Mr. and Mrs. Parrish, the trial court reduced the jury award, but not in accordance with Jones’s request. Since the Warehouse Sales’s insurance company paid $15,000.00 in settlement of the store’s possible liability, Jones claimed he should have received full credit in that amount against the amount he owed under the jury award. Instead, the trial court determined the $15,000.00 was to be divided equally between the Parrishes and Branson. Jones assigns this and two other errors he claims warrant reversal on appeal.
In his first argument, Jones urges the trial court erred in rejecting an interrogatory which he requested be given to the jury. That interrogatory was proffered during the trial court’s conferencing of jury instructions. While that conference is abstracted, the abstract skips parts of the record, making it difficult to determine what exactly took place. Thus, since we are affirming this case, the record has been definitively read to be sure the parties’ relevant objections and proffered documents are set forth.
In conferencing with counsel, the trial court first considered AMI Civ. 3d 306 which was based on Ark. Code Ann. § 12-9-303 (Repl. 1993), and reads as follows:
AMI CIVIL 3d, 306
When I use the word “fault” in these instructions, I mean negligence.
12-9-303 AUTHORITY OF OFFICERS
(a) An auxiliary law enforcement officer shall have the authority of a police officer as set forth by statutes of this state when the auxiliary law enforcement officer is performing an assigned duty and is under the direct supervision of a full-time certified law enforcement officer.
(b) When not performing an assigned duty and when not working under the direct supervision of a full-time certified law enforcement officer, an auxiliary law enforcement officer shall have no authority other than that of a private citizen.
Parrish objected to the court’s giving AMI Civ. 3d 306, stating the instruction was untimely. He also complained that AMI Civ. 3d 306 was misleading because Jones offered no instructions on the statutes generally referenced in AMI Civ. 3d 306. The trial court disagreed and overruled Parrish’s objection.
The next relevant matter raised was Jones’s proffer of a modified AMI Civ. 3d 911 instruction which provides as follows:
One issue you must decide is whether Larry Jones was acting as an auxiliary policeman at the time and place of the occurrence. If you find that Larry Jones was in the immediate pursuit of an actual and suspected law violator and was operating a red rotating emergency light on his vehicle which he was driving, then his vehicle may be considered an authorized emergency vehicle, and he was entitled to operate the vehicle in accordance with the following traffic laws applicable only to emergency vehicles:
(a) Relieved of the obligation to obey speed limits, and
(d) Emergency vehicles have the right of way over other vehicles.
It does not relieve Larry Jones of the duty to exercise ordinary care for the safety of others. It is for you to decide if Larry Jones was an auxiliary police officer and whether he was operating an authorized emergency vehicle.
After the trial court refused the foregoing modified instruction, Jones then proffered the following interrogatory:
Do you find by a preponderance of the evidence that Larry Jones was acting within the course and scope of his authority as an auxiliary police officer for the City of Clarksville at the time of the occurrence? Answer yes or no.
Parrish again objected, stating the interrogatory is an entirely new issue to be submitted to the jury upon which there has been no previous instruction offered. He continued that, even if the jury were to find that he was an auxiliary police officer, that did not give Jones the authority to exceed the speed limits because he was not in an authorized vehicle. The trial court sustained Parrish’s objection, saying, “I think that interrogatories number one through [five] that already have been agreed upon cover the situation.”
Although Jones offered no argument or explanation to the trial court below concerning why he believed he was entitled to the interrogatory above, he argues on appeal that, at the time of Donald’s accident, Jones, as an auxiliary police officer, was obeying a direct order from his supervisor, the city chief of police, to keep Donald’s car in sight. Based on giving an instruction and interrogatory, concerning whether Jones was acting as an auxiliary officer at the time of the accident, he submits the jury could have found he was not negligent.
We find the record confusing when comparing the argument at trial with the one Jones now puts forth. Adding to that confusion is the manner by which Jones frames his legal issue on appeal. In this respect, Jones solely attacks the trial court’s refusal to give his proffered interrogatory, but asks no reversal for the trial court’s failure to give his proffered instruction. While Jones acknowledges the trial court gave AMI Civ. 3d 306, which sets out the authority of auxiliary officers under § 12-9-303, he offers no argument why 306 was not sufficient to cover the theory of his case.
Moreover, assuming Jones is also challenging in this point for reversal the trial court’s refusal to give his modified 911 instruction, that proffered instruction raises other questions. One, Jones modified AMI Civ. 3d 911 by adding language such as “You must decide . . . whether Larry Jones was acting as an auxiliary policeman” and “if you find Larry Jones was in pursuit of [a] violator and was operating a red rotating emergency light on his vehicle . . . then his vehicle may be considered an authorized emergency vehicle The initial added language underscored in Jones’s 911 instruction is already covered in 306 which defines when an auxiliary officer shall and shall not have the authority of a police officer. Also, the other underscored, added language in Jones’s 911 instruction suggests Jones’s truck, when equipped with a red rotating light, could be an authorized vehicle; however, Jones cites no legal authority for this proposition. Rather, we point out that the existing AMI Civ. 3d 911 defines an emergency vehicle as being an ambulance, fire truck, or police car, and makes no mention of a police officer’s private vehicle.
While AMI Civ. 3d 911 ’s note on use and comment refer to Ark. Code Ann. §§ 27-37-202 (Repl. 1994) and 27-49-219(d) (Repl. 1994), which cover flashing lights on emergency vehicles and define “authorized emergency vehicle,” Jones made no mention of these statutes at trial when offering his modified 911 instruction. In defining “authorized emergency vehicle,” § 27-49-219(d) includes (1) motor vehicles equipped with blue rotating or flashing emergency lights used by governmental police agencies; (2) vehicles equipped with red rotating or flashing emergency fights owned and used by volunteer firefighters while engaged in official duties, and (3) vehicles equipped with amber flashing or rotating emergency or warning fights and owned by private individuals whose use is determined by the Commissioner of Motor Vehicles, in accordance with regulations to prevent abuses thereof, to be for extra hazardous service. (Emphasis added.) Although these statutory provisions do not appear to help Jones, Jones presents no other argument regarding how his truck could even be considered an authorized emergency vehicle as he asserts in his 911 instruction.
In sum, we reiterate that Jones failed to articulate his reason or cite any law to the trial court in support of the giving of AMI Civ. 3d 911, as modified. For these reasons alone we need not consider his argument on appeal.
We add, somewhat in the same vein, that a trial court need not give an instruction which needs explanation, modification, or qualification, but to the contrary, the instruction offered must be simple, impartial, and free from argument. Pineview Farms, Inc. v. Smith Harvestore, Inc., 298 Ark. 78, 765 S.W.2d 924 (1989). Here, as we have discussed, Jones’s proffered 911 instruction is confusing and is clearly not free from argument. "We conclude the trial court correctly rejected Jones’s modified 911 instruction.
Because Jones’s proffered interrogatory argument is dependent upon his 911 instruction, we hold the trial court was correct in refusing his interrogatory, as weE. Under Rule 49 of the Rules of CivE Procedure, the trial court has the discretion to submit to the jury written interrogatories upon one or more issues of fact. In this respect, we find no abuse of discretion in the trial court’s refusal here, especiaEy since Jones has never fuEy explained the trial court’s error in its finding that the five interrogatories that had been agreed upon were sufficient to cover the parties’ respective cases. Although there may have been another appropriate or possible instruction to warrant an interrogatory such as the one proffered by Jones, we hold no such clear and simple instruction was proffered in this case. Therefore, we affirm on this point.
Jones’s second point concerns whether the trial court violated Ark. Code Ann. § 16-64-115 (Repl. 1993) when, after the jury retired for deliberation, it answered the juror’s question, “Does Mr. Parrish have any future recourse in a court of law for the future wages if he loses his job after this ruling?” Over Jones’s objection, the trial court answered, “Not as far as this claim is concerned.”
Jones argued below, and now on appeal, that no testimony was presented as to what recourse Parrish might have in a court of law if he lost his job after this ruling, and the trial court’s answer was based on speculation and conjecture. He further argues that Parrish’s employer was not a party to the lawsuit, and if Parrish was terminated after this lawsuit, nothing prevented him from seeking recourse in court against his employer. Jones urges that because the trial court’s answer did not relate to evidence in the case, nor did the answer pertain to a question of law, the trial court abused its discretion in answering the jury’s question. We disagree.
Here, the trial court carefully worded its answer to correlate to the jury’s question, and, in doing so, limited its response so the jury would understand that Parrish had no future recourse as far as this claim is concerned. The law is well settled that the trial court has broad discretion to decide what information should be given to the jury. National Bank of Commerce v. HCA Health Services of Midwest, Inc., 304 Ark. 55, 800 S.W.2d 694 (1990); Dickerson Constr. Co., Inc. v. Dozier, 266 Ark. 345, 584 S.W.2d 36 (1979); Rose v. King, 170 Ark. 209, 279 S.W.2d 373 (1926). Here, Jones fails to show the trial court abused its discretion in giving the narrow and carefully worded response it made to the jury.
Jones’s last argument suggests the trial court erred when it failed to give him full credit for the $15,000.00 pretrial settlement amount his company, Warehouse Sales, paid for being dismissed from the lawsuit. Prior to trial, counsel for the Parrishes, Branson, Jones, and Warehouse Sales orally agreed that Warehouse Sales would pay $15,000.00 for the company’s release, but the Parrishes reserved their rights to continue against Jones, individually. Some confusion arose over exactly how the settlement amount would be credited.
After the jury verdict, but before judgment was entered, the Parrishes notified the trial court that the Warehouse Sales settlement amount was divided equally with $7,500.00 going to the Parrishes and $7,500.00 to Branson. Counsel for the Parrishes and Jones voiced opinions that they thought all $15,000.00 would be paid the Parrishes, but instead, the release signed by the Parrishes, their counsel, and Branson reflected the amount divided between Branson and the Parrishes. To confuse matters further, one counsel for the Parrishes later said, sometime during trial, that Branson was to receive compensation in the amount of $7,500.00. Consistent with that understanding, the text of the release read that the $15,000.00 amount was paid in compromise of the claims of the Parrishes and Branson against Warehouse Sales and its insurance carrier, Argonaut Great Central Insurance Company.
Of course, Jones asserts his belief that, at pretrial conference, all parties’ interests were represented by counsel and no specific mention was made that Branson should receive $7,500.00. Consequently, Jones lays claim to the full amount. However, because of the considerable confusion surrounding who was to be credited the settlement monies, we believe the trial court resolved this matter soundly. Since the liability exposure of Warehouse Sales and its insurance company was separate from Jones’s, those entities had a right to agree to limit and allocate their liability against the claims of the Parrishes and Branson in any manner they chose.
For the reasons hereinabove, we affirm the trial court’s rulings on all points.
Parrish and his wife were plaintiffs in the lawsuit. For convenience, we in most instances refer to Parrish in the singular.
Branson, Eric Donald’s passenger, was also injured in the accident and had a claim against Jones.
In the text of his argument, Jones does recite his proffered modified AMI 911, and later generally cites authority for the proposition that it is error to refuse an instruction which is supported by the evidence.
Jones argues on appeal that, as an auxiliary police officer, he was immune from suit, and if the trial court had received his interrogatory and the jury found him to be an auxiliary officer, he would have been shielded from liability. This argument was not ruled on below, so this court will not consider it on appeal. Lively v. Libbey Memorial Physical Medicine Ctr., Inc., 311 Ark. 41, 841 S.W.2d 609 (1992). | [
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Per Curiam.
On August 26, 1996, judgment was entered reflecting that Don Mallett had been found guilty by a jury of theft of property by deception. A sentence of fifteen years’ imprisonment with three years suspended was imposed.
Mallett’s' retained attorney, Andrew Clark, filed a notice of appeal; but because it was filed before the judgment was entered, it was of no effect. Hicks v. State , 324 Ark. 450, 921 S.W.2d 604 (1996). Now-before us is Mallett’s pro se motion seeking to proceed with a belated appeal of the judgment pursuant to Rule 2(e) of the Rules of Appellate Procedure — Criminal, which permits a belated appeal in a criminal case in some instances.
It is the practice of this court when a pro se motion for belated appeal is filed alleging that counsel was ineffective for failure. to perfect an appeal to request an affidavit from the trial attorney in response to the allegations in the motion. Mr. Clark expresses in his affidavit the erroneous assumption that the notice of appeal was timely. He avers that he did not perfect the appeal because Mallett did not produce the $1,600.00 necessary to pay the court reporter to begin work on the transcript.
Rule 16 of the Rules of Appellate Procedure — Criminal provides in pertinent part:
Trial counsel, whether retained or court appointed, shall continue to represent a convicted defendant throughout any appeal to the Arkansas Supreme Court, unless permitted by the trial court or the Arkansas Supreme Court to withdraw in the interest of justice or for other sufficient cause.
The record does not reflect, and attorney Clark does not contend, that he was relieved as counsel by the trial court, and it is clear from the filing of the untimely notice of appeal that Clark knew that Mallett desired an appeal. See Miller v. State, 299 Ark. 548, 775 S.W.2d 79 (1989). As a result, Clark was obligated to file a timely notice of appeal and, if Mallett was unable to pay the cost of the appeal, lodge a partial record in the appellate court to preserve the appeal. Upon lodging the partial record, counsel would then have been in a position to file a motion in the appellate court for his client to proceed as an indigent and to be appointed counsel or, if Mallett was not indeed indigent at that time, to file a motion to be relieved as counsel. Under no circumstances may an attorney who has not been relieved by the trial court abandon an appeal where he is aware with the thirty days allowed to file a notice of appeal that the convicted defendant desires to appeal simply because defendant has not paid for the transcript. Miller, supra.
The motion for belated appeal is granted. A convicted criminal defendant is entitled to effective assistance of counsel on appeal. The direct appeal of a conviction is a matter of right, and a state cannot penalize a criminal defendant by declining to consider his first appeal when his counsel has failed to follow mandatory appellate rules. Franklin v. State, 317 Ark. 42, 875 S.W.2d 836 (1994); see Evitts v. Lucey, 469 U.S. 387 (1985). To cut off a defendant’s right to appeal because of his attorney’s failure to follow rules would violate the Sixth Amendment right to effective assistance of counsel. Evitts v. Lucey, supra. See also Pennsylvania v. Finley, 481 U.S. 551 (1987).
Mallett has appended to the motion for belated appeal an affidavit asserting his indigency. As the State has not contested that assertion, he will be permitted to proceed informa pauperis on appeal. Mr. Clark remains attorney-of-record and is appointed to represent the appellant. Our clerk will lodge the record, and counsel is directed to file within thirty days a petition for writ of certiorari to bring up the record, or that portion of it, necessary for the appeal.
A copy of this opinion shall be forwarded to the Arkansas Supreme Court Committee on Professional Conduct.
Motion granted.
If there was a second timely notice of appeal filed with the circuit clerk, it does not appear in the partial record lodged here. | [
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Annabelle Clinton Imber, Justice.
The appellant, Clarence Edward Mixon, was convicted by a jury of residential burglary, aggravated robbery, theft of property, and two counts of rape. As a habitual offender, Mixon was sentenced to consecutive terms of two life sentences plus 115 years’ imprisonment. On appeal, Mixon argues that the trial court erred in allowing testi mony regarding two footprints that were found near the crime scene, and in ordering his sentences to run consecutively. Finding no merit to either argument, we affirm.
On October 9, 1995, at approximately 3:30 a.m., a man broke into the victim’s home, raped her twice at knife point, and stole her jewelry. The victim was unable to see her attacker because a pillow case was placed over her head. She, however, was able to feel a scar on the perpetrator’s forearm.
The next morning, around 9:00 a.m., the police discovered two footprints outside of the victim’s home. The first footprint was located on a bench underneath a window to the victim’s house. The second footprint was found on the ground approximately sixty-five to seventy feet from the victim’s home at the intersection of Tenth and County Street. Officer Humphries testified that the patterns of the two footprints were similar, and the letters “L.A.” were clearly visible in the print found at the street corner. Detective Tate testified that there was “no doubt” in her mind that an L.A. Gear tennis shoe made both footprints. Detective Tate also testified that she observed similar footprints leading to and away from the victim’s home. The victim testified that she did not own any L.A. Gear tennis shoes, and no such footwear was found in her home.
Several days later, the police located the victim’s stolen jewelry in several pawn shops, and the pawn tickets listed the depositor as the defendant, Clarence Mixon. When Mixon was arrested, he was wearing a pair of L.A. Gear tennis shoes with markings similar to those observed in the two footprints found at the crime scene. At the time of his arrest, the police also observed a scar on Mixon’s forearm similar to that described by the victim. Furthermore, DNA testing indicated a 99.99% probability that Mixon raped the victim. Finally, the victim identified Mixon’s voice as similar to the voice she heard on the night of the rape. Based on this evidence, the jury found Mixon guilty of residential burglary, aggravated robbery, theft of property, and two counts of rape.
I. Footprints
For his first argument on appeal, Mixon asserts that the trial court erred when it allowed the police officers to testify about the footprints that were found at the crime scene. Mixon argues that the trial court erred when it declined to exclude the evidence under Ark. R. Evid. 403, which states in relevant part that:
Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice. ...
We have repeatedly held that the balancing mandated by Rule 403 is a matter left to a trial court’s sound discretion, and thus, we will not reverse the court’s ruling absent a showing of manifest abuse. Wallace v. State, 326 Ark. 376, 931 S.W.2d 113 (1996); Scott v. State, 325 Ark. 267, 924 S.W.2d 248 (1996).
Mixon argues that the testimony was more prejudicial than probative because L.A. Gear is a popular brand of tennis shoe, and the prints were found in a heavily traveled area several hours after the assault occurred. Officer Humphries, however, testified that there was not much traffic in the area at six o’clock in the morning, and Detective Tate testified that she saw similar footprints leading to and away from the victim’s home. Moreover, Detective Tate testified that there was “no doubt” in her mind that both footprints were made by L.A. Gear shoes. Finally, the footprints had similar patterns to the soles of the shoes Mixon was wearing at the time of his arrest. Based on these facts, we cannot say that the trial court abused its discretion when it declined to exclude the testimony under Rule 403.
II. Consecutive Sentences
At the conclusion of the trial, the jury sentenced Mixon to forty years for residential burglary, forty years for theft of property, seventy-five years for aggravated robbery, and two life sentences for the two counts of rape. The trial judge ordered all sentences, except for the sentence of forty years' for theft of property, to be served consecutively. On appeal, Mixon argues that the trial court erred in running the sentences consecutively because the court faded to use its discretion pursuant to Ark. Code Ann. § 5-4-403 (Repl. 1993).
We, however, cannot address the merits of this argument because Mixon failed to properly preserve the issue for appellate review. On several occasions, we have refused to address an appellant’s challenge to the trial court’s decision to run the sentences consecutively when the appellant failed to make an objection below. See Hicks v. State, 327 Ark. 652, 941 S.W.2d 387 (1997); Brown v. State, 326 Ark. 56, 931 S.W.2d 80 (1996). Because Mixon made no objection after the trial court announced its ruling that four of his five sentences would run consecutively, we must affirm the trial court’s ruling.
III. Arkansas Supreme Court Rule 4-3(h)
In accordance with Ark. S. Ct. R. 4-3(h), the record has been reviewed for rulings decided adversely to Mixon but not argued on appeal, and no reversible errors were found. | [
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Annabelle Clinton Imber, Justice.
At issue in this case is whether service of process under Ark. R. Civ. P. 4 is necessary to obtain a valid default judgment against an obligor for child-support arrearages. The trial court held that the service on the obligor was defective and set aside a default judgment obtained against him. We reverse and hold that personal service of process under Rule 4 was not necessary because the chancery court had continuing personal jurisdiction over the obligor and the obligee asserted no new or additional claims for relief.
Sara Jane Ragland and Jimmy Clyde Ragland were divorced pursuant to a decree entered by the Searcy County Chancery Court on March 16, 1978. Sara Jane was awarded custody of their minor children, and Jimmy Clyde was ordered to pay $200 monthly in child support through the office of the Chancery Clerk. In a contract dated August 15, 1977, and filed on May 22, 1978, Sara Jane assigned her right to child support to the Division of Social Services in consideration for public assistance.
On July 21, 1986, the Child Support Enforcement Unit, in its capacity as assignee, filed a “Motion for Judgment” requesting a judgment in the amount of $14,000 for arrearages unpaid by Jimmy Ragland. OCSE obtained a default judgment in the amount of $14,000 on October 8, 1986. Among other things, the judgment provided that “¡Jimmy Ragland’s] agent was duly served with a copy of the motion for judgment on 22nd day of July 1986, and no response has been filed herein and (Jimmy Ragland] stands wholly in default.”
On October 30, 1995, Jimmy Ragland moved to set aside the default judgment following the institution of income withholding against him. Ragland alleged that the default judgment was “void because of insufficiency of service of process.” Ragland also moved to stay OCSE income withholding and attached an affidavit from the Searcy County Circuit Clerk who reviewed the underlying case file and did not find a ‘“green card’. . .nor. . . any proof of service upon the Defendant, Jimmy Ragland.” In response, OCSE asserted that the service of its “Motion for Judgment” was valid because it was sent to Ragland via certified mail, return receipt requested. OCSE attached the “green card” which showed a July 22, 1986, delivery date, and bore the signature of Sandy Ragland on the “Signature — Agent” line.
On February 20, 1996, the trial court entered an order setting aside the default judgment because of insufficient service of process under Ark. R. Civ. P. 4(d)(8)(A). According to the trial court, OCSE did not comply with the rule’s additional requirements that Ragland be served by restricted delivery, and that the record contain the “green card” before entry of the default judgment. OCSE brings the present appeal. The Court of Appeals certified the case to us as involving an interpretation of Rules 4(d)(8)(A) and 5(b) of the Arkansas Rules of Civil Procedure.
For its sole argument on appeal, OCSE argues that the trial court had continuing personal jurisdiction over Ragland, and thus no new service of process under Ark. R. Civ. P. 4 was necessary to obtain a valid default judgment on the past-due arrearages. Because the trial court granted Ragland’s motion to set aside the default judgment, we review this ruling for an abuse of discretion. See, e.g., Tharp v. Smith, 326 Ark. 260, 930 S.W.2d 350 (1996); M. v. Clark, 316 Ark. 439, 872 S.W.2d 410 (1994).
One of the earliest Arkansas cases addressing the trial court’s continuing personal jurisdiction over the parties in a divorce action is Jones v. Jones, 204 Ark. 654, 163 S.W.2d 528 (1942). In Jones the chancery court awarded the obligee a monthly amount of alimony. The obligor later moved to Florida and fell behind on payments, and the obligee sought a decree for the amount in arrears. While the chancery court recognized that the obligor was delinquent on the payments, it nonetheless refused to render a decree for the arrearage because the entire arrearage had accumulated while the obligor resided in Florida, and no additional personal service of process had been obtained on him.
This court reversed the trial court’s determination that additional personal service of process was necessary, characterizing the alimony award as a “continuing general decree” against the obligor that would endure until modified by a change in the condition of the parties. Id. Accordingly, the alimony award was not a final determination of the parties’ respective rights, and the decree for future payments was not “a final decree upon which an execution might be issued or which might become a lien upon real estate.” Id. In order to collect on this continuing general decree, the Jones court recognized the need to periodically ascertain arrearages and render a decree for the amount due:
For these purposes the parties to the suit continue to be parties and, being parties already, it would not be necessary to get personal service upon them to carry out and enforce a continuing decree when an attempt is made to reduce the decree to a definite and certain amount, dependent upon whether there should be delinquencies in the payment of the monthly alimony allowed.
Id. Thus, the trial court was clearly erroneous in refusing to issue a “decree certain” for the alimony arrearage for lack of additional personal service of process on the obligor. Id.
Subsequent to Jones, a number of cases have reinforced this court’s position that the chancery court has continuing personal jurisdiction over the parties to a divorce with respect to certain support/alimony matters. See, e.g., Rice v. Rice, 213 Ark. 981, 214 S.W.2d 235 (1948) (no additional service of process is necessary to collect alimony arrearage under a separate maintenance decree); Schley v. Dodge, 206 Ark. 1151, 178 S.W.2d 851 (1944) (actual notice given to a nonresident alimony obligee was sufficient where the obligor petitioned to modify an award arising out of an Arkansas decree rendered when both parties resided in Arkansas).
Turning to an analysis under the modern rules of civil procedure, Rule 4 expressly governs the service of the complaint and summons, while Rule 5 governs the service of “every pleading and every other paper” filed after the complaint. Rule 5(a) does require that pleadings asserting any new or additional claims for relief against a party in default be served in the manner provided for service of summons under Rule 4. The crucial inquiry in the present case is which service rule governs OCSE’s “Motion for Judgment” filed on July 21, 1986.
The answer to this question turns on the characterization of OCSE’s cause of action, and whether it is a new, original cause of action being asserted against Ragland. Jones and its progeny suggest that an action to reduce past-due arrearages to an executable judgment is not a “new” cause of action, but instead flows from the original divorce decree. As such, personal jurisdiction over the parties continues without the need for additional service of process.
Ragland attempts to distinguish the Jones line of cases by arguing that OCSE was not an original party to the action, and thus that “continuing jurisdiction applies only to parties contemplated within the decree.” This distinction is not persuasive. OCSE stands in Sara Ragland’s shoes as the contractual assignee of her entitlement to support. Indeed, OCSE submitted to the trial court’s personal jurisdiction by instituting the proceedings to obtain a judgment. Ragland cites to no authority for the proposition that the assignment of the obligee’s rights creates a meaningful difference insofar as the chancery court’s continuing personal jurisdiction over him as obligor. Rather, Jones suggests that an obligee’s attempt to reduce past-due arrearages to judgment where the chancery court has continuing personal jurisdiction over the obligor is not a new or additional claim for relief necessitating new personal service of process. Accordingly, service of OCSE’s “Motion for Tudgment” was governed by Rule 5(b), rather than Rule 4(d)(8)(A).
The next question is whether service of OCSE’s “Motion for Judgment” was properly made under Rule 5. Rule 5(b) generally requires service upon a party’s attorney. However, contemplating the very issue presented in this case, Rule 5(b) adds that service upon a party’s attorney is insufficient “in a case where there is a final judgment but the court has continuing jurisdiction.” In such cases, service is required to be made to the party. Service upon a party may be made by mailing a copy of the pleading or paper to the party at his last known address, and “service by mail is presumptively complete upon mailing.”
In the present case, the certificate of service contained within OCSE’s “Motion for Judgment” shows that it was mailed to Jim Ragland on July 18, 1986, at P.O. Box 728, Marshall, AR 72650. Moreover, the green card later attached to OCSE’s response to Ragland’s motion to set aside shows that the article was delivered via certified mail to “Jim Ragland P.O. Box 728, Marshall, AR 72650,” on July 22, 1986. Sandy Ragland signed for the article in the box designated “Signature —■ Agent.” Because service of OCSE’s “Motion for Judgment” was presumptively complete upon mailing, the trial court abused its discretion in setting aside the default judgment due to insufficient service.
Reversed.
OCSE does not contest that service was insufficient under Rule 4. Its argument on appeal is limited to the general assertion that the chancellor erred in finding that Rule 4 was the governing rule of service. Inexplicably, OCSE fails to cite Rule 5 in its appellate brief, or otherwise argue which rule of service besides Rule 4(d)(8)(A) is applicable. We nonetheless engage in a comparative analysis of Rules 4 and 5 because OCSE’s abstract demonstrates that OCSE argued to the trial court below that the service provisions of Rule 5 governed its “Motion for Judgment.”
This characterization is consistent with Ark. Code Ann. § 9-14-234(b) (Supp. 1995), enacted as part of Act 383 of 1989. The statute provides that any child support payment that has accrued under an order providing for the payment of child support shall automatically become a final judgment subject to writ of garnishment or execution. Id.
The Reporter’s Note to Rule 5(b) states that it was amended to incorporate provisions from Ark. Stat. Ann. § 27-362 (Repl. 1979), now deemed superseded. (The Reporter’s Note incorrectly cites the relevant statute as Ark. Stat. Ann. § 27-632). Ark. Stat. Ann. § 27-362(b) provided:
In cases involving divorce, child custody, child support, or other cases wherein the court has continuing jurisdiction, the attorney of record shall be considered as such. . . only until such time of the entry of a final decree. In such cases wherein the court has continuing jurisdiction, it shall be insufficient to show that service was obtained on the attorney of record after the date of entry of the final decree. In such cases, service may be obtained by mailing a copy of the petition by certified mail, return receipt requested, to the address of the other party, or if no address be known, then to the last known address of said party. | [
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Robert L. Brown, Justice.
This appeal arises out of the murders of three children in Little Rock and the attempted murder of their mother. The appellant, Tracy Trinette Calloway, was convicted of three counts of murder in the first degree and one count of criminal attempt to commit murder in the first degree. She was sentenced to a total term in prison of 132 years. Her appeal raises three issues: (1) the propriety of a non-model jury instruction on accomplice liability, (2) the prosecutor’s placing her own character at issue in closing argument, and (3) the trial court’s discretion in refusing to grant defense counsel surrebuttal argument following the prosecutor’s rebuttal argument. We affirm the judgments of conviction.
On June 4, 1995, Biley Dobi Noel, Terry Carroll, Curtis Cochran, and Tracy Calloway were riding in Little Rock in Cochran’s car and, according to Calloway, “getting high” on drugs. They went to the home of Mary Hussian, where Calloway got out of the car and followed Noel and Carroll to the house. Just before they entered the house, Noel handed her a handgun, and she testified that she returned it immediately. Noel burst into the house, and Calloway followed, stopping just inside the doorway. Noel told three children in the residence to get down on the floor, and Calloway testified that she told them to do what Noel said. She watched Noel shoot each of the children in the head and kill them. The victims were Malak Hussian, age 10; Mustafa Hussian, age 12; and Marcel Young, age 17. According to Curtis Cochran, the murders were in retaliation for Yashica Young’s involvement in the death of Noel’s brother. Yashica Young was another child of Mary Hussian. Following the murders, Calloway testified that she ran from the house with Carroll.
On June 6, 1995, the Little Rock Police Department focused its investigation on a search of Calloway’s neighborhood in an effort to locate a suspect named “Tracy,” and Calloway surrendered herself to police officers that same day. Calloway gave a full statement indicating that she was with the young men at the time of the murders but stating that she was not aware of an intention to commit the killings.
At trial, the prosecutor’s theory of the case against Calloway was one of accomplice liability. Calloway’s defense was that she did not know what Noel and Carroll intended to do at the Hussian house and that she did not assist them in any way in the commission of the murders. The prosecutor presented testimony from Curtis Cochran, who was driving the vehicle that day. Cochran testified that everyone in the car knew where they were going and what Noel intended to do because Noel announced it in the car. According to Cochran, Noel gave Calloway a .45 caliber handgun while they were in the car, and she still had it when they went to the Hussian house.
Jack Thomas, a neighbor of the victim, also testified for the State and stated that he saw Calloway run from the Hussian house and that it appeared as though she was carrying a gun. Kyle Jones testified that he arrived at the Hussian residence with his fiancee, Marcel Young, and saw three people standing in- the carport: Noel, Cochran, and Calloway. The threesome asked Marcel and Kyle if Yashica Young was home, and Kyle said that he would check. Kyle and Marcel entered the house, and Kyle went to the back of the home to tell Marcel’s mother, Mary Hussian, that they were home. He heard someone burst in through the front of the house and heard Marcel scream. Kyle and Mary Hussian ran toward the front of the house and were intercepted by Carroll, who was carrying a shotgun. They retreated to the bedroom. Kyle went into the bathroom and closed the door. Mary Hussian hid behind the bed and dialed 911. Kyle testified that he heard three shots come from the front room and that he heard the shotgun blast in the bedroom just before he escaped through the window. Kyle eventually came back to the house and told police officers what he had seen.
Mary Hussian told the same story to the jury as Kyle did. She testified that when she hid behind the bed to call 911, Carroll yelled for her to come out from behind the bed. She pleaded with him not to kill her or her children. She eventually rushed Carroll, and they fought for control of the shotgun. The shotgun discharged in the struggle, and the shot went through the roof. Mary Hussian gained control of the gun and chased Carroll back through the house, where she saw her three murdered children lying on the floor. Carroll left through the front door. Mary Hussian saw three people in the house, but could only identify Carroll and Noel and not Calloway.
The State also contended at trial that Calloway’s original statement to the Little Rock police officers and her trial testimony were in conflict. She first told police officers that she was in the car and that Cochran and she picked up Carroll and Noel, but at trial she testified that the threesome picked her up to give her a ride home. She also testified at trial that she did not see any guns in the car until the group was about to go into the Hussian house. However, it was established at trial that two weapons were used at the murder scene — a .45 caliber pistol and a shotgun. Calloway admitted that Carroll was in the back seat of the two-door car with her but maintained that she did not see the shotgun.
The jury convicted Calloway of the four charges and subsequently sentenced her as stated above.
Calloway’s first assignment of error is that the trial court used a model jury instruction, AMCI 2d 401, instead of the amended AMCI 2d 401 proffered by her. AMCI 2d 401, which was given to the jury, reads as follows:
In this case, the State does not contend that Tracy Calloway acted alone in the commission of the offenses of Capital Murder and Criminal Attempt to Commit Capital Murder. A person is criminally responsible for the conduct of another person when she is an accomplice in the commission of an offense.
An accomplice is one who directly participates in the commission of an offense or when causing a particular result is an element of an offense, acting with respect to that result with the kind of culpability sufficient for the commission of that offense, she:
Solicits, advises, encourages, or coerces the other person to engage in that conduct causing the result; or aids, agrees to aid, or attempts to aid the other person in planning of the conduct causing the result.
Calloway sought to add the following language relating to “mere presence”:
Mere presence, acquiescence, silence or knowledge that a crime is being committed, in the absence of a legal duty to act, is not sufficient to make one an accomplice.
The language was refused, and defense counsel proffered the amended instruction for the record.
In reviewing the trial court’s decision to use a model jury instruction over a non-model instruction, this court has held that the trial court should not use a non-model instruction unless there is a finding that the model instruction does not accurately reflect the law. See Williams v. State, 329 Ark. 8, 946 S.W.2d 678 (1997); Hill v. State, 318 Ark. 408, 887 S.W.2d 275 (1994); Moore v. State, 317 Ark. 630, 882 S.W.2d 667 (1994). In support of her contention that the model instruction should include a “mere presence” component, Calloway cites several cases which have held that mere presence is not enough to establish that an individual was an accomplice. See Vickers v. State, 313 Ark 64, 852 S.W.2d 787 (1993); Ford v. State, 296 Ark. 8, 753 S.W.2d 258 (1988); Spears v. State, 280 Ark. 577, 660 S.W.2d 913 (1983).
This court has twice specifically rejected the argument that AMCI 2d 401 should be altered to reflect the notion that mere presence is not enough to establish accomplice liability. See Williams, 329 Ark. at 21, 946 S.W.2d at 688; Webb v. State, 326 Ark. 878, 935 S.W.2d 250 (1996). Our reasoning for these holdings is sound. In order to prove that a person is an accomplice under AMCI 2d 401, one must prove that the defendant was engaged in activity which aided in the commission of the crime and, thus, was not merely present. If the State proves that a person was present when a crime was committed but does not further prove beyond a reasonable doubt that person in some way participated in the crime, the State has not met its burden. It would be redundant for the trial court to instruct the jury on what does not give rise to accomplice liability in addition to what does. Moore, 317 Ark. at 636, 882 S.W.2d at 671.
Calloway attempts to distinguish Webb v. State, supra, by contending that this court found that the facts in Webb did not support a “mere presence” instruction. However, this argument does not contend with the more recent decision in Williams v. State, supra, where this court specifically stated that Webb rejected the requirement of a “mere presence” jury instruction. We held in both Williams and Webb that AMCI 2d 401 accurately and completely reflects the law of accomplice liability. Thus, Calloway’s argument on this point has already been settled by prior case law and is meritless.
Calloway’s second point arises out of comments made by the prosecutor during closing argument. The prosecutor made the following statement:
And another thing about these oaths. I take an oath. He’s exactly right. I took an oath as a deputy prosecutor. So, when he stands up here and says that Curtis Cochran tailored his testimony to suit me, then he maligns me. Well, ladies and gentlemen, I took an oath. So, if you believe that what I did was told Curtis Cochran what to say —
Defense counsel objected to the prosecutor’s argument and moved for a mistrial. The trial court denied the motion but did admonish the jury that “counsel are not allowed to inject their own personalities in the trial,” and that the jury should not consider such comments or make them a part of their deliberations. Calloway now contends that the statement made by the prosecutor was so prejudicial that it could not be corrected by an admonition and that a declaration of a mistrial was warranted.
This court has held that a mistrial is such an extreme remedy that it should not be used unless there has been error “so prejudicial that justice cannot be served by continuing the trial or when the fundamental fairness of the trial itself has been manifestly affected.” Puckett v. State, 324 Ark. 81, 89, 918 S.W.2d 707, 711 (1996). A mistrial should only be declared when an admonition to the jury would be ineffective. Id. Moreover, the trial court is given broad discretion to control counsel in closing arguments, and this court will not disturb the trial court’s decision absent a manifest abuse of discretion. Lee v. State, 326 Ark. 529, 932 S.W.2d 756 (1996). We said in Lee: “[RJemarks that require a reversal are rare and require an appeal to the jurors’ passions.” 326 Ark. at 532, 932 S.W.2d at 758.
In this case, the trial court made a specific finding that defense counsel had “invited” the prosecutor’s rebuttal by questioning the integrity of the prosecutor in closing argument. Defense counsel repeatedly made reference to the fact that Curtis Cochran had changed his story only after the prosecutor talked to him. The prosecutor’s rebuttal sought to correct any inference that she told Cochran to lie. This court has recognized that when one party uses improper closing remarks the other party may respond with what would ordinarily be improper remarks. Id; Larimore v. State, 317 Ark. 111, 977 S.W.2d 570 (1994); McFadden v. State, 290 Ark. 177, 717 S.W.2d 812 (1986). We have no doubt that the prosecutor should be allowed to counter any suggestion of suborning perjury.
Furthermore, the trial court immediately sustained defense counsel’s objection to the prosecutor’s injecting personalities into her argument and immediately admonished the jury to that effect, thereby curing any potential prejudice. Having observed the argument first hand, the trial court was in the best position to determine if there was prejudice, and we defer to its judgment. Bullock v. State, 317 Ark. 204, 876 S.W.2d 579 (1994). There was no abuse of discretion in this regard.
For her final point, Calloway contends that the trial court erred in not granting defense counsel’s request for surrebuttal argument to correct misstatements made by the prosecutor. At the end of the prosecutor’s rebuttal, the defense counsel moved the court to allow him a surrebuttal argument because the prose cutor had misrepresented Calloway’s testimony in her rebuttal argument. Specifically, defense counsel claimed that the prosecutor had argued that Calloway contended that the two other State witnesses, Jack Thomas and Kyle Jones, were lying. In fact, Calloway never specifically stated that they were lying, but her testimony did contradict those witnesses on several points. The trial court ruled in favor of the State and said: “Counsel if I allowed that [surrebuttal argument], I’m afraid there would never be an end to this trial.”
The trial court is given broad discretion to control counsel in closing arguments, and this court will not disturb the trial court’s decision absent a manifest abuse of discretion. Lee v. State, supra; Mills v. State, 322 Ark. 647, 910 S.W.2d 682 (1995). In this case, there was no abuse of discretion. For one thing, defense counsel could have objected to any misstatements made by the prosecutor in her rebuttal argument. For another, the prosecutor’s arguments were logical inferences based on the testimony of the witnesses. It is logical to conclude that if a defendant testifies in a manner that completely contradicts a witness’s testimony, there is an implication that the defendant is saying the witness is lying. This easily falls within the confines of permissible argument. There was no abuse of discretion in refusing to grant surrebuttal argument.
Affirmed.
AMCI 2d 401 was given as modified at the request of defense counsel to include language from Ark. Code Ann. § 5-2-403(b) (Repl. 1993), relating to assistance in causing a particular result.
The court is aware that defense counsel did object to alleged factual misstatements during the prosecutor’s initial closing argument, and the trial court raised the issue of whether that would be a comment on the evidence by the court. | [
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Donald L. Corbin, Justice.
Appellants Jake and Bobby-Wheeler appeal the orders of the Prairie County Chancery and Probate Courts, finding that Appellees Gary Myers and Donna Kerns are the heirs of Ervin Myers to the exclusion of Appellants. This appeal was certified to us from the court of appeals on the basis that it presents an issue of first impression; hence, our jurisdiction is pursuant to Ark. Sup. Ct. R. l-2(d). Appellants’ sole point for reversal is that the trial court erred in holding that the right of adopted children to inherit from their natural ancestors is dependent upon the laws on adoption and inheritance in effect at the time of the natural ancestors’ deaths. We find no error and affirm.
The essential facts are not in dispute. Appellants and Appellees are the four surviving natural children of Ira Myers. Ira Myers was the sole child of Ervin and Mae Myers. Appellants were adopted by their stepfather Robert James Wheeler in 1961. Ira Myers died in 1973. Ervin Myers died on September 28, 1980, and was survived by his wife Mae. Mae Myers held possession of the property at issue from the time of Ervin Myers’s death until her own death in 1995.
Appellants filed a petition in the Prairie County Chancery Court on December 27, 1995, requesting that the court declare and adjudicate the rights to the possession and rental income from the property at issue. Appellees denied all material allegations contained in the petition and filed a counterclaim stating that Appellants had no interest in the property because they had been adopted and had thus ceased to be heirs of Ira Myers. While that action was pending in the chancery court, Appellees filed a petition in the Prairie County Probate Court requesting the court to conduct a hearing to determine the decedent’s heirs.
The trial court found that Jake and Bobby Wheeler were legally adopted by Robert James Wheeler in 1961 and that the temporary and final orders of their adoption were not subject to collateral attack. The trial court determined that the right to inherit property does not vest until the death of the owner and that the law in effect at the time of the owner’s death is controlling as to matters of inheritance. The court concluded further that Ark. Code Ann. § 9-9-215 (Supp. 1995) , which was passed in 1977 and was in effect at the time of Ervin Myers’s death, provides that all legal relationships between the adopted individual and his or her natural relatives, including the right of inheritance, are terminated upon the final decree of adoption. Accordingly, the trial court ruled that the application of section 9-9-215 precluded Jake and Bobby Wheeler from inheriting from their natural grandfather, Ervin Myers.
Appellants do not dispute that the law in effect at the time of Ervin Myers’s death would preclude them from inheriting any part of his estate. Thus, the sole issue for our review is whether the trial court erred in ruling that the law in effect at the time of Ervin Myers’s death is controlling as to Appellants’ rights to inherit from his estate. For the reasons outlined below, we conclude that the trial court’s ruling was correct.
Appellants rely heavily on this court’s decisions in Dean v. Smith, 195 Ark. 614, 113 S.W.2d 485 (1938), and Dean v. Brown, 216 Ark. 761, 227 S.W.2d 623 (1950), for the proposition that the law in effect at the time of adoption is controlling. Appellants’ reliance is misplaced, however, as both those cases addressed factual situations involving challenges to the validity of the adoption orders themselves. This court held in both cases that the law in effect at the time of the adoption must be applied when attempting to test the validity of the adoption order. Were Appellants questioning the validity of their adoptions in the present case, we would be required to apply the law that was in effect at the time of their adoptions. We decline, however, to extend this legal principle to their assertion that they should be recognized as heirs of their natural grandfather’s estate. Furthermore, Appellants concede that the analogy between the Smith case and the present one is weak due to the fact that in Smith, all of the relevant events, including the children’s adoptions and the death of both ancestors, occurred prior to the enactment of the law sought to be applied. Hence, the holdings in those cases are not dispositive of the issue at hand. We thus turn to our case law on the rights of inheritance in general.
This court has long recognized the principle that a living person has no heirs. In Wallace v. Wallace, 179 Ark. 30, 13 S.W.2d 810 (1929), this court held:
In the strictly proper sense of the word, no one is an heir until after the death of the ancestor, and the word signifies one who has succeeded to a dead ancestor; it is used to express the relation of persons to some deceased ancestor, and cannot be applicable to one whose ancestor is living.
Id. at 34-35, 13 S.W.2d at 812 (quoting 29 C.J. 290). Similarly, in Purinton v. Purinton, 190 Ark. 523, 80 S.W.2d 651 (1935), it was observed that the rights of the decedent’s family to inherit from the decedent were fixed and vested as of the date and time of the decedent’s death. More recently, this court has reiterated that the right to inherit property is a right that accrues upon the owner’s death and that “[o]n a person’s death, the rights of his heirs become vested and may not be impaired by subsequent legislation.” Lucas v. Handcock, 266 Ark. 142, 153, 583 S.W.2d 491, 496 (1979).
Correspondingly, in Estate of Caisson, 289 Ark. 216, 710 S.W.2d 211 (1986), upon which the trial court relied for its ruling, this court was presented with the issue of whether the adoptive or blood heirs of an intestate decedent may inherit the estate of an adopted child. As is true in the present case, in Caisson, the trial court determined that the law pertaining to descent and distribution at the time of the decedent’s death was controlling. This court agreed with the trial court, stating:
We do not hesitate to hold that the law in effect at the time of the death of the adopted child is controlling on matters of inheritance. To hold otherwise would create a myriad of problems and confuse the law.
The right to inherit property does not vest until the death of the owner and the devolution of property is controlled either by common law or statute.
Id. at 217, 710 S.W.2d at 212 (emphasis added). Appellants attempt to distinguish this holding on the basis of the relationship of the parties to one another. In effect, they argue that because the facts presented in Caisson involved the estate of an adopted child, as opposed to the present facts where the estate is that of a natural ancestor, the holding of that case cannot be applied to the issue at hand. Although, arguably, the holding in Caisson was necessarily tailored to the facts of that case, we believe that same rationale should be extended to the present case.
Thus, notwithstanding whether the adopted person is the heir or the ancestor or, correspondingly, whether the natural relative is the claimant to the estate or the decedent, the law in effect at the time of the death of the ancestor is controlling on matters of inheritance. As was stated in Caisson, “[t]o hold otherwise would create a myriad of problems and confuse the law.” Id. at 217, 710 S.W.2d at 212. We have found much support for this conclusion amongst the holdings of other jurisdictions. See, e.g., Black v. Washam, 421 S.W.2d 647 (Tenn. Ct. App. 1967); Hamilton v. Butler, 397 S.W.2d 932 (Tex. Civ. App. 1965); In re Williams, 144 A.2d 116 (Me. 1958); In re Trainor’s Estate, 256 N.Y.S.2d 497 (N.Y. Surr. Ct. 1965).
Accordingly, because Appellants’ rights to inherit from their natural relatives could not have possibly vested until the time of Ervin Myers’s death in 1980, the law in effect at the time of his death is controlling. The trial court thus correctly concluded that section 9-9-215, which had been in effect since 1977, prohibited Appellants from inheriting from Myers’s estate.
Affirmed.
This section was previously codified as Ark. Stat. Ann. § 56-215 (Supp. 1977). There have since been changes in that provision, however, they are not relevant to the issue presented in this case. | [
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Annabelle Clinton Imber, Justice.
The appellant, Willie Gaster Davis, appeals his judgments of conviction for first-degree murder, robbery, theft of property, and false imprisonment. On appeal, he argues that the trial court erred in failing to suppress his statement and that uncounseled misdemeanor convictions were impermissibly introduced against him during sentencing. We find no error and affirm.
Because Davis does not challenge the sufficiency of the evidence on appeal, we provide only a brief recitation of the facts adduced at trial. Traci Noble testified that she was best friends with the victim, Nikki Muse. On April 21, 1995, Muse (who was driving) and Noble went out riding in a white Grand Am belonging to Noble’s sister. They eventually went to Dumas to find Odis Madden, “Mane,” a friend of Noble’s. While driving in Dumas, they saw some boys on the corner who flagged them down. Noble explained that they were looking for Madden, and the boys answered that they could show them where he lived. Noble and Muse allowed these three boys to enter the back seat of the vehicle, although Noble said that neither she nor Muse knew who they were.
Noble testified that these boys led them to a dead-end street, and told them that Madden lived at a house that did not have lights on at the time. The boy on Noble’s side of the car began to get out of the vehicle, pulled her out of the car, and grabbed the gold chains she was wearing, telling her to “give him my money.” Noble testified that the boy on Muse’s side of the vehicle “[did] the same thing with her, Nikki.” Noble later identified the man behind her who took her chains as Willie Spencer. She thought the boy in the middle, who ran away, was named Bryan. The third boy pushed Muse into the passenger seat, sat in the driver’s seat, and drove away. Noble saw this boy demand money from Muse, who in turn gave money to him. Noble testified that there was no doubt in her mind that Muse did not want to go with this boy. She never saw Muse alive again. She made an in-court identification of Davis as the man who demanded money from Muse and drove off with her. Noble managed to ultimately escape from Spencer after which she contacted the police. At the police station Noble was shown a photo lineup and eventually identified Davis as the man who drove off with Muse.
Spencer testified that on April 21, 1995, he was standing around with Willie Davis and Bryan Woods on Cherry Street in Dumas. He said that two girls approached them driving a white Grand Am; he knew the names of both girls. He testified that Noble asked them if they wanted to go riding, and if they knew where Odis Madden lived. The boys got in the car and led the girls to a dead-end street. Spencer testified that Davis got in the car first, behind Muse, then he got in, and then Bryan Woods. They directed the girls to a dead-end street, Peach Street, when Spencer grabbed Noble and took her chains; Bryan Woods then ran away. Spencer testified that he demanded money from her, but that he gave Noble her chains back.
Spencer saw Davis get out of the car telling Muse “to scoot over,” adding that Davis “[m]ight of did choke [Muse].” Spencer was then presented with his testimony from his own trial, where he testified that Davis “wasn’t acting right. As soon as the car stopped. . . he said this is a robbery and he just grabbed her.” Spencer also testified that he knew that Muse did not want to leave with Davis, and that it was Davis who directed the girls to Peach Street, which was not where Odis Madden lived.
A police officer found a vehicle matching the description of the missing Grand Am in front of 405 West Banks Street. Inside the police discovered Davis, who appeared to be asleep on a couch, as well as Muse in a sprawled position on the same couch. Muse was dead with what appeared to be blood coming from her vaginal and anal areas. At this time Davis came up off the couch and said “did you get the other two.” When asked who he was talking about, he said, “Willie Spencer and Bryant. They left with the other girl.”
While in custody, Davis gave a statement to Everett Cox, the Dumas Chief of Police, which was admitted at trial. In this statement, Davis admitted that he told Muse to give him the money that she had and that he told her to get in the passenger side of the car. Davis said that they rode around looking for Noble and Spencer, and that Muse later consented to having sex.
The medical examiner’s testimony established that Muse had neck injuries consistent with manual strangulation. Her injuries also suggested that she had been sexually assaulted.
The jury convicted Davis of first-degree murder, robbery, theft of property, and first-degree false imprisonment. The jury was unable to reach a verdict on the rape charge, and the trial court granted a mistrial on that count. For sentencing purposes, the underlying robbery and false-imprisonment convictions were merged with the first-degree murder conviction. The trial court, on the State’s motion, dismissed the theft of property misdemeanor conviction. The jury sentenced Davis to a term of life imprisonment.
1. Voluntariness of Davis’s April 28 Statement.
At the suppression hearing, Chief of Police Everett Cox testified that at 5:47 a.m. on April 22, after Davis was read his Miranda rights, Davis said that he would not make a statement. Later that morning, Davis was taken to Dumas Municipal Court for his arraignment. Cox was aware that at the time, attorney Bing Colvin was appointed as Davis’s public defender. Cox conceded that any subsequent contact with Davis would have been after the appointment of counsel for Davis. Cox testified that at 1:54 p.m. on April 22 he initiated contact with Davis in an attempt to take a statement from him. On April 23, Cox recalled that someone from the police again initiated contact with Davis in an attempt to take a statement. Cox was not sure who initiated this contact, but believed it was Investigator Donigan.
Cox testified that on April 28, Davis contacted him “through the jail,” saying that he wanted to talk with him. When asked whether anyone made contact with Davis prior to that request, Cox answered in the negative. After Cox received this request, he conducted a videotaped interview with Davis. Cox testified that on the videotape, he “asked [Davis] to state why he wanted to talk and he said that he did make initial contact with me before anything was done.” Cox added that he read Davis his Miranda rights, and that no threats or other coercive acts were directed toward Davis off of the camera. Additionally, Davis was not restrained, and he made no requests that were denied him. Davis also executed a rights-waiver form that was filled out by Cox as Davis answered the questions; Davis initialed the individual responses. Cox also wrote out the substance of Davis’s statement; Davis signed this statement at the end.
Officer Michael Donigan testified that on the afternoon of April 22, at 1:54 p.m., he came into contact with Davis to question him about the homicide. Donigan read Davis his Miranda rights from a rights form, which Davis executed. Donigan wrote down the substance of Davis’s statement. Donigan also testified that he was present at 1:19 p.m. on April 23, when he and Officer Monty Kilibrew again executed a rights waiver with Davis, however Davis declined to make a statement at this time.
Chester Lee James, Jr., an inmate at the Dumas City Jail while Davis was also incarcerated there, testified that the police contacted Davis. James recalled that either Officer Donnahoe [sic?] or Kilibrew “consulted with [Davis] at one time. . . asked [Davis]. . . why he killed the girl.” James testified that Davis became upset at this questioning. After this, the officer told Davis that he “want[ed] to make sure you get the chair.” When asked to recall how long Davis had been in jail when this contact occurred, James answered three or four days. James also testified that on April 28, he contacted the chief of police at Davis’s request.
Prior to trial, the State conceded that the statements taken at 1:54 p.m. on April 22 and the one taken at 1:19 p.m. on April 23 were inadmissible because the interrogating officers could not recall who initiated the questioning with Davis. However, the trial court overruled the motion to suppress with respect to the April 28 statement, which was ultimately admitted at trial.
On appeal, Davis contends that the trial court erred in denying his motion to suppress his April 28 statement. He first argues that this court’s holding in Bradford v. State 325 Ark. 278, 927 S.W.2d 329 (1996), cert. denied 117 S. Ct. 583 (1996), mandates suppression of his April 28 statement, and alternatively argues that his waiver of rights and subsequent statement on April 28 was not voluntarily made due to the intervening police-initiated contacts.
Davis initially relies on Bradford v. State, supra, where this court held that an inculpatory statement taken without the presence of counsel, but after counsel had been appointed at a probable cause hearing, was a violation of the appellant’s Sixth Amendment right to counsel. Bradford involved an analysis of Michigan v. Jackson, 475 U.S. 625 (1986), where the United State Supreme Court held that “if police initiate interrogation after a defendant’s assertion, at an arraignment or similar proceeding, of his right to counsel, any waiver of the defendant’s right to counsel for that police-initiated interrogation in invalid.” In Bradford, the appellant had not requested counsel, but counsel had nonetheless been appointed. This court concluded that the appellant’s unawareness that she had been appointed counsel was irrelevant, “Just as a police officer who wishes to initiate an interrogation during the custody'stage must determine if a request for counsel has been made [citation omitted], simple diligence requires that police officers take pains to learn whether counsel was appointed at a probable cause hearing.” Bradford, supra.
In the present case, Davis appears to concede that the holding in Michigan v. Jackson is limited to police-initiated interrogation, yet maintains that this court in Bradford v. State, supra, did not “specify that its ruling was based on the fact that police officers rather than Bradford initiated the contact.” This argument is misplaced. A plain reading of Bradford v. State suggests that this court had no intention of broadening the Supreme Court’s holding found in Michigan v. Jackson. Rather, the question presented in Bradford was whether the appellant’s failure to actually request counsel affected her right to counsel under Michigan v. Jackson, and if knowledge of the municipal court’s appointment of counsel could be imputed to police. Davis concedes that “on April 28, 1995, it was undisputed that [Davis] initiated the contact with Chief Everett Cox.” Because Davis himself initiated contact with the police on April 28, nothing in Bradford v. State or Michigan v. Jackson mandates a result opposite of that reached by the trial court. As one treatise has noted, “Even after counsel is appointed at arraignment, a defendant may choose to waive counsel without notice or consultation with an attorney. Under Jackson, police cannot initiate the contact, but the defendant is free to initiate the contact.” David M. Nissman & Ed Hagen, Law of Confessions § 7:10 (2d ed. 1994) (citing Missouri v. Owens, 827 S.W.2d 226 (Mo. Ct. App. 1991)).
Davis alternatively argues that even if he effectively waived his right to counsel, this action was coerced by the police efforts in contacting him after the appointment of counsel on April 22 and 23. A custodial confession is presumptively involuntary and the burden is on the State to show that the waiver and confession was voluntarily made. Clark v. State, 328 Ark. 501, 944 S.W.2d 533 (1997). In examining the voluntariness of confessions, this court makes an independent determination based on the totality of the circumstances, and reverses the trial court only if its decision was clearly erroneous. Kennedy v. State, 325 Ark. 3, 923 S.W.2d 274 (1996). As explained in Mauppin v. State, 309 Ark. 235, 831 S.W.2d 104 (1992), the inquiry into the validity of the defendant’s waiver has two separate components: whether the waiver was voluntary, and whether the waiver was knowingly and intelligently made. In determining voluntariness, we consider the following factors: age, education, and intelligence of the accused, lack of advice as to his constitutional rights, length of detention, the repeated and prolonged nature of questioning, or the use of physical punishment. Hood v. State, 329 Ark. 21, 947 S.W.2d 328 (1997). Other relevant factors in considering the totality of the circumstances include the statements made by the interrogating officer and the vulnerability of the defendant. Id. In addition, the accused must have a full awareness of both the nature of the right being abandoned and the consequences of the decision to abandon it in order for his waiver to be knowingly and intelligently made. Esmeyer v. State, 325 Ark. 491, 930 S.W.2d 302 (1996).
In the present case the thrust of Davis’s argument is that the intervening police contacts on April 22 and 23 rendered his waiver and statement on April 28 involuntary. Davis emphasizes that after his initial expression of his intent not to make a statement and his appointment of counsel on the morning of April 22, the police made two separate attempts to take a statement from him. Chief Cox himself testified that this occurred at 1:54 p.m. on April 22 and later on April 23. The encounter at 1:54 p.m. on April 22 yielded a statement, not admitted at trial, while Davis did not give a statement at the interview at 1:19 p.m. on April 23. In the present case, the immediate fruits of the two police-initiated contacts were not admitted at trial. Additionally, there was a five-day gap between the police-initiated contact on April 23, and the defendant-initiated contact on April 28. To the extent that it can be argued the police-initiated contacts were an attempt at repeated questioning designed to wear down Davis’s resistance or change his mind, this five-day gap would serve to avoid the effects of repeated questioning. See Hatley v. State, 289 Ark. 130, 709 S.W.2d 812 (1986).
Some courts have refused to recognize a defendant’s initiation of contact with police when it is the result of an earlier, illegal interrogation. Nissman & Hagen, supra, § 6:35 at n.91. For example, in Wainwright v. Delaware, 504 A.2d 1096 (Del. 1986), cert. denied, 479 U.S. 869 (1986), the defendant initiated a conversation and gave an inculpatory statement some forty-five minutes after an illegal police-initiated interrogation under Edwards v. Arizona, supra. That the defendant’s response came forty-five minutes afterward did not “sanitize it”. Wainwright v. Delaware, supra. The Delaware Supreme Court further explained:
Nor does the fact that the defendant’s statement was made after he was placed alone in a cell render it a purely spontaneous one. Indeed, the opportunity to mull over the effect of [the codefendant’s] accusatory statements could reasonably have had the opposite effect — to impress upon the defendant the seriousness of his predicament and the need to rebut his codefendant’s accusations. Any attempt to “spark” the accused’s initiative to make a statement in the absence of counsel through presentation of evidence will contaminate the waiver, [citations omitted],
Wainwright v. Delaware, supra.
In the present case, the record does not show that the police were attempting to “spark” Davis’s initiative in making the April 28 contact. Significantly, the defendant-initiated contact came some five days after the last police-initiated contact. The evidence also suggests that Davis voluntarily waived his rights and elected to make a statement on April 28. Davis was nineteen years of age at the time of the statement. He had completed at least the ninth grade, and could read and write. A forensic mental evaluation showed that Davis’s intellectual functioning was within the low-average range. The record also demonstrates that Davis was fully advised of his constitutional rights, as is evidenced by the execution of the rights-waiver form as well as Chief Cox’s testimony. There was little or no evidence of threats of physical violence against Davis, promises of leniency, or other misrepresentations of fact. Based on the foregoing, we cannot say that the trial court was clearly erroneous in denying Davis’s motions to suppress.
2. Admissibility of Uncounseled Misdemeanor Convictions.
During the sentencing phase of trial, the State introduced into evidence two misdemeanor convictions of third-degree bat tery that Davis obtained in 1994. Davis was only fined for these convictions, and was not sentenced to any time in prison. The record shows that Davis was not represented by counsel during these misdemeanor proceedings. On appeal, Davis argues that the admission of these uncounseled misdemeanor convictions constitutes reversible error.
Davis initially cites to Baldasar v. Illinois, 446 U.S. 222 (1980) (per curiam) (plurality opinion), overruled by Nichols v. United States, 511 U.S. 738 (1994), where the United States Supreme Court held that a constitutionally valid misdemeanor conviction obtained under Scott v. Illinois, 440 U.S. 367 (1979), could not be used under an “enhanced penalty statute” to convert a subsequent misdemeanor into a felony with a prison term. This court followed suit in State v. Brown, 283 Ark. 304, 675 S.W.2d 822 (1984), where the trial court granted the defendant’s motion to suppress three prior DWI convictions under a charge of DWI, fourth offense. The trial court suppressed these convictions because the defendant had not been represented by counsel in the earlier proceedings. This court affirmed, framing the issue as “whether [ Baldasar] bars prior uncounseled misdemeanor convictions from being used to enhance punishment for a subsequent offense.” State v. Brown, supra. This court observed that the case presented a similar situation to the enhancement statute in Baldasar, as the first DWI offense was punishable by imprisonment from twenty-four hours to one year, while the second, third, and fourth offenses were punishable in increasing ranges cumulating in imprisonment for one to six years on the fourth offense. The Brown court concluded that Baldasar controlled the facts of the case, and affirmed the trial court’s suppression of the convictions.
Davis fails to point out that in Nichols v. United States, 511 U.S. 738 (1994), the Supreme Court expressly overruled Baldasar in a case involving a criminal sentencing point assessed for a prior, uncounseled misdemeanor conviction under the United States Sentencing Commission’s Guidelines. The Court noted that “ [enhancement statutes, whether in the nature of criminal history provisions such as those contained in the Sentencing Guidelines, or recidivist statutes that are commonplace in state criminal laws, do not change the penalty imposed for the earlier conviction.” Id. Moreover, reliance on such a conviction was consistent with the “traditional understanding of the sentencing process,” recognized as less exacting than the determination of guilt. Id. Accordingly, the Supreme Court overruled Baldasar and held that a valid misdemeanor conviction under Scott v. Illinois, supra, is also admissible to enhance punishment at a subsequent conviction.
The present case does not squarely present this court with an opportunity to reconsider the continuing validity of Brown. Notably, the uncounseled misdemeanor convictions were not admitted against Davis pursuant to a recidivist or enhancement statute as contemplated in Baldasar and Brown. Rather, the misdemeanor convictions were introduced under Ark. Code Ann. §16-97-103(2) (Supp. 1995), which merely includes prior felony and misdemeanor convictions within the definition of “[e]vidence relevant to sentencing.” This statutory scheme simply allows the jury or court to exercise its discretion in considering all evidence relevant to sentencing, and does not mandate automatic enhancement due to prior misdemeanor convictions. We have no doubt that this procedure for admitting uncounseled misdemeanor convictions otherwise valid under Scott v. Illinois, supra, would withstand scrutiny under Nichols v. United States, supra. Accordingly, we reject Davis’s argument that the admission of these convictions constituted reversible error.
3. Rule 4-3(h) Compliance.
The record has been reviewed for prejudicial error pursuant to Ark. Sup. Ct. R. 4-3(h), and no reversible errors were found.
Affirmed.
Actually, Davis did not give a statement on April 23.
Both the Fifth and Sixth Amendments provide a right to counsel. Under the Fifth Amendment, the right to counsel is derived from the amendment’s prohibition against self incrimination while in custody. See Miranda v. Arizona, 384 U.S. 436 (1966). In other circumstances, there may be a Sixth Amendment right to counsel. See Kirby v. Illinois, 406 U.S. 682 (1972) (Sixth Amendment right to counsel at critical stages of the prosecution). Under Edwards v. Arizona, 451 U.S. 477 (1981), once a defendant invokes his Fifth Amendment right to counsel at a custodial interrogation, the police may not interrogate any further until counsel is provided, or the “[defendant] himself initiates further communication)].]” Michigan v. Jackson, supra, may be seen as an application of the Edwards rule to the Sixth Amendment right to counsel. See David M. Nissman & Ed Hagen, Law of Confessions § 7:10 (2d ed. 1994).
In Scott the Supreme Court held that an uncounseled misdemeanor conviction is constitutionally valid if the defendant is not incarcerated.
For subsequent Arkansas cases citing to Brown and Baldasar for this proposition, see, e.g., Neville v. State, 41 Ark. App. 65, 848 S.W.2d 947 (1993); Rodgers v. State, 31 Ark. App. 159, 790 S.W.2d 911 (1990); Steele v. State, 284 Ark. 340, 681 S.W.2d 354 (1984); Lovell v. State, 283 Ark. 425, 678 S.W.2d 318 (1984). | [
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Per Curiam.
Robert Say McIntosh, by his attorney, has filed a motion for rule on the clerk.
His attorney, Alvin D. Clay, admits in his motion that the record was tendered late due to a mistake on his part.
We find such an error, admittedly made by the attorney for a criminal defendant, is good cause to grant the motion. See In Re: Belated Appeals in Criminal Cases, 265 Ark. 964 (1979) (per curiam).
The motion for rule on the clerk is, therefore, granted. A copy of this opinion will be forwarded to the Committee on Professional Conduct. | [
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Tom Glaze, Justice.
Appellant Woodrow Davis, III, was convicted of capital murder for the shooting death of Billy Sanders on January 31, 1995. Although the State sought the death penalty, Davis was sentenced to life imprisonment without parole.
At trial the State introduced a taped conversation made on April 17, 1995, between Davis and an acquaintance, Bobby Tygart. Tygart had suspected Davis’s involvement in Sanders’s death and had offered to aid law enforcement officers in the investigation of the murder. Unbeknownst to Davis, Tygart was wired when Tygart initiated conversation and successfully obtained Davis’s statements implicating himself in Sanders’s murder. Also, as a part of the State’s case-in-chief, the State introduced into evidence Davis’s confession which officers obtained on April 18, 1995.
Davis’s only point for reversal on appeal is that the trial court erred -in refusing to exclude from evidence five segments from Davis’s and Tygart’s recorded conversation. Davis’s argument is meritless.
In addressing Davis’s point, we are met with his general contention that tibié five segments he sought to exclude at trial had little or no probative value and whatever value they might have had was outweighed by their unfair and undue prejudice. See Ark. R. Evid. 403 (1997). Davis also claims the content of the disputed segments had no independent relevance to the State’s case and tended only to show him as a bad person. See Ark. R. Evid. 404 (1997).
The only meaningful way to examine and understand Davis’s argument is to abstract all of his statements made during his conversation with Tygart, but in doing so, we sequentially number and italicize the five passages to which Davis objects:
What are you doing? Let’s go. Come here, boy. Where’s your old lady at? Fayetteville? What for? Oh yeah —. (Tygart’s aunt is in the hospital in Jacksonville; the aunt’s car is messed up, and explains to Davis this is why he got away without his wife.) Oh yeah.
You don’t got no dope? No, not, I did some crack. I used a big old rock of crack. Cocaine. Oh, let’s go get a rock. No (Davis doesn’t have any money), I was going to get twenty from you. I was gonna borrow twenty from you. You! On “E?” (Tygart’s gas gauge) Just out runrún’ around? He’s left town (referring to a man named “Johnny”). Supposed to be headed to Wisconsin.
(Tygart asks where he can get a gun.) (1) What for? I don’t man, what for? To kill somebody. If you kill somebody, book ’em and run. Talk to old Jim. He may have one. (Jim) Milam. Old Jim, he won’t tell nobody. Hasn’t got as much power does it? (referring to the car) How’s that? It ain’t (the same part of the car). Room and board up here at Cecil’s house. I’m gonna ask him about y’all’s shit. And I’ll see if I can borrow twenty dollars from him. No (Cecil doesn’t have a gun). Jim may have one. He had one that I used a time or two but, he was supposed to got rid of it. We can check ’em.
(Davis next gives directions to Tygart)
No. I’d have to go by myself (to talk to Milam; Tygart then remarks he does not want to talk to Milam). Why not? What? (Tygart responds he has a lot on his mind). I do, too. Got it from my old lady. Jim will give me fifty dollars in the morning, but he can’t get it until morning ’cause his old lady is there, and that’s why I couldn’t talk to him. (Jim is) Robert’s uncle or his nephew. He’s (Robert) out there somewhere — staying —. I ain’t seen him — Well, I seen him the other day. I went over there and seen him.
(The next portion of the conversation discusses what Robert’s Uncle is in jail for and more directions to Cecil’s).
(Tygart and Davis discuss Tygart’s requirement of being in Jacksonville by 9:00, and directions once more.)
(2) I’ll pop a motherfucker in the head. (Unintelligible) — Bull shit walks. Mother fucker pay me right. Mother fucker pay me right, I’ll pop the mother fucker for ya. But, uh, you can. Yeah. (Inaudible) have to pay right, huh. (Tygart states he doesn’t know if he could shoot a person). (3) I can. I can. I can. (Tygart asks if Davis would have bad dreams afterwards). I hadn’t. I can’t tell ya (who he shot). I got fucked up, boy. You know the mother fucker. Who? (Has Tygart figured out? Tygart says Bill.) How do you figure? I didn’t say that. You don’t know that. I’ll go to the penitentiary for life on that. Oh I figured (Unintelligible) that you looked at me (laughing) uh, yeah, Woody did (Unintelligible). Hey, man, fuckin’ planned on — paying for a fuckin’ (Unintelligible). Somebody else got paid to do it and then couldn’t. And never got it done. Never got it done and then I got in on the deal.
Uh, like I say, I got in on the deal, and it took me forever and ever, kept putting it off. Then I — ’Cause I was scopin’ him. Uh, I was sitting across the woods every morning and sitting across the road in the woods watching that mother fucker every morning in the mud, rain, cold. Shoot, about four, five or six months before I ever finally got any — Well, what it got down to, the boy that I — we was doing it for said that —. Peoples on him •— that peoples on him, and they said, you know, look, they on me. It’s either him or y’all. He said ya’ll done know too much, Said either get him, or we’re gonna get y’all. No, not you. Me and the guy I did it for.
Me and the guy that was with me that was supposed to do it, I just supposed to do all of the driving and shit. Then when it come down, he didn’t have the balls, so I had to do it. Well, shit I got — I didn’t get rid of that •— I just planned my shit out and screwed around and got by with it. There’s a reward out now over it I heard. Don’t nobody know but me, the guy that was with me and the guy that had us do it, and you. I ain’t gonna say nothing about it again. Fuckin’ took forever. Goddamn.
(Tygart then questions Davis about how he felt afterwards.)
(4) I’s real hurt. I had to go get some stuff. I went and got me a gram, phew, the whole half. Yeah (at one time). Fs pushing. Pheewwww, boy I was going. Shit. Took me a while, I have — I felt better when I got over it though. It wasn’t, ivasn’t like I thought it was gonna be. I don’t think about it. When I think about how the pussy the mother fucker acted about it. He was scared. Mother fucker went through — Yeah, damn near. He had to of, ’cause you know, Bob told him, hey man, you better come off that shit if you want to live. And he thought he’s gonna live and give me all his shit, but he didn’t live. I knew what I had to do. Mother fucker with a .357 in your side.
No, he was supposed to have (some dope). No. He bought it. He fuckin’ bought an ounce a week or two ounces a week. A kilo or something. Fucking crystal or cocaine, and he pushed it. He bought that a week. He’s got all that money stashed in his house. Cause the guy was fuckin’ his old lady, she come by and gave —. Well, he don’t no more, he’s gone. Bill got the dope, and he put it up to his pushers, mainly in Jacksonville, and then they went out, you know. He, he always passes out two or three people —.
That if I didn’t kill him, they were going to kill me for not killing him, ’cause I already knew too much. Yeah. And they’d still kill me now if I say anything. Don’t nobody know nothing but me, him and him and — the militia — These mother fuckers are worse than the militia. I ain’t lying. These mother fuckers are worse than the militia. It’s like the Mafia.
(Tygart then explains some trouble he is in.)
(5) Boy, don’t ever fucking say nothing about that shit, ’cause Goddamn, we’d both have to get killed. I ain’t lying. I ain’t lying. What was really so fucked up about it was the motherfucker was such a pussy about it, ‘cause you know, when you got a .357 in your side, you gonna suck his dick if you want — if you want. If you don’t —. It wasn’t what there was supposed to be (the money on Sanders). No, not all of it (was spent by Davis buying crack). Crystal, bought the boys some toys and shit.
Davis specifically objected to each numbered segment set out above as follows:
(1) Any reference to “If you kill somebody, book ’em and run” was not probative of any issue involved, showed Davis was nonchalant about killing a person and portrayed him as a bad person.
(2) When referring to “popping” a person for the right money, the statement made no reference to a specific person and was merely a general observation.
(3) In stating he could shoot somebody and it not bother him, it was not probative, but was highly prejudicial.
(4) His statement concerning the taking of drugs to make him feel better after shooting [Billy] did not reflect Davis’s state of mind on the day of the incident [murder] and was irrelevant to any issue at trial.
(5) His reference to using a .357 on Billy Sanders added no new information, and the remainder of the statement portrayed Davis as remorseless, which was not an issue in this case.
In reviewing Davis’s arguments in light of the full text of his statements to Tygart, we conclude the five disputed passages were highly relevant, and any prejudicial effect they had were clearly outweighed by their probative value. In fact, to remove those segments challenged by Davis would only cause confusion regarding the meaning of the remaining portions of his conversation with Tygart that were introduced without objection.
The importance of the full text of Davis’s April 17, 1995, conversation with Tygart is best illustrated because his .statements to Tygart corroborate Davis’s April 18, 1995, confession. While Davis does not challenge on appeal the trial court’s ruling that allowed his confession into evidence, Davis argued at trial that his confession should have been suppressed because it was not voluntarily, knowingly, and intelligently given. In his closing argument to the jury, Davis’s counsel argued that Davis’s confession resulted from some type of coercion. Moreover, Davis also offered testimony reflecting that Sanders’s employer had received a prior death threat on Sanders’s life from a man other than Milam, Reeves or Davis, who claimed Sanders had been seeing the man’s wife.
Davis’s confession very clearly related how he, Robert Reeves, and Reeves’s uncle, Jim Milam, killed Sanders. Milam was the one who initiated the plan by contacting Reeves. Milam gave Reeves a 30-30 rifle, but Reeves did not do the “job.” Milam then offered money to Reeves and Davis if they would kill Sanders. Davis and Reeves made several morning trips to woods located near Sanders’s house, but Reeves still would not shoot Sanders. Davis said that, after Reeves and Davis failed to kill Sanders, Milam threatened them that “it was either Bill (Sanders) or us.”
Davis’s confession detailed the day of Sanders’s murder, setting out how each party participated. Milam furnished a .357 pistol to Davis and Reeves; afterwards Davis and Reeves found Sanders, driving his truck into his employer’s car lot on the morning of January 31, 1995. Reeves and Davis got into Sanders’s truck and proceeded to drive to a landfill in Pulaski County. Milam drove his vehicle to the landfill to join them, and after Reeves, Davis, and Sanders arrived, Milam shot Sanders in the head while Sanders was still in his truck. Reeves then placed Sanders’s truck in gear so it would roll off and submerge into a water hole. Davis and Reeves had taken Sanders’s ring and $300.00 in cash. Davis said the cash was split equally between him, Reeves and Milam, but Davis’s wife’s stepfather later pawned the ring.
In sum, Davis argues the five disputed segments prejudicially placed before the jury evidence and general observations that had no relevance to any issue at trial. Those segments considered along with Davis’s confession show Davis’s part in Sanders’s murder and that Davis’s statements to Tygart related to his past participation in that murder. As far as Davis’s expressed concern that his mention of a .357 pistol to Tygart added nothing new to the State’s case, the State was not limited in the amount of proof it could introduce to prove its case. Instead, the rule is that relevant evidence may be excluded only if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, misleading the jury, or by considerations of undue delay, waste of time or needless presentation of cumulative evidence. Ark. R. Evid. 403. Here, considering the record before us, we are unable to say the trial court abused its discretion in rejecting Davis’s argument that the probative value of the State’s evidence was outweighed by danger of unfair prejudice or needless cumulative evidence. Again, to the contrary, we beheve the jury likely would have been confused or misled if the five segments objected to had been excluded from evidence.
Pursuant to Ark. Sup. Ct. R. 4-3(h), the record has been examined in its entirety, and no other rulings adverse to Mr. Davis involving prejudicial error were found. We affirm.
Davis’s entire conversation with Tygart was recorded on three tapes, but the trial court excluded a substantial portion of the conversation as being irrelevant.
There are seven to eight additional abstract pages containing statements of Davis to Tygart, but those statements were introduced at trial without objection and are unnecessary to recite for purposes of this opinion.
Davis also argued his due process right was violated because Tygart had been provided some compensation or reward for his cooperation. However, Tygart had received no compensation or reward at the time of trial. | [
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33,
77,
77,
-105,
-35,
122,
116,
-82,
-16,
117,
93,
21,
124,
32,
-114,
-108,
-109,
-19,
40,
-122,
-13,
-61,
1,
34,
101,
-51,
-18,
93,
87,
120,
-101,
-119,
-108
] |
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