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Donald L. Corbin, Justice.
Appellant Little Rock Newspapers, Inc., appeals the judgment of the Sebastian County Circuit Court imposing the jury’s verdict awarding $50,000 in damages to Appellee J. Michael Fitzhugh for his defamation claim against Appellant’s newspaper, the Arkansas Democrat-Gazette. Our jurisdiction of this appeal is pursuant to Ark. Sup. Ct. R. l-2(a)(15), as it presents questions concerning the law of torts. Appellant raises four points for reversal. We find no error and affirm.
The record reflects that on Monday, June 20, 1994, the Arkansas Democrat-Gazette printed an article on the front page of its “Arkansas” section entitled, “Whitewater counsel kicks off first prosecution.” There were two photographs included in the article ■ — • one of Charles Matthews, with the caption “Matthews” beneath it and one of Appellee, with the caption “Fitzhugh” beneath it. The substance of the article is as follows:
Wliitewater counsel kicks off first prosecution
The first case to be prosecuted by the office of Robert Fiske Jr., the special counsel in the Whitewater Development Corp. affair, is to start in U.S. District Court at Little Rock today.
But don’t look for the prominent political figures usually associated with Fiske’s investigation.
The defendants are Charles Matthews and Eugene Fitzhugh. The men are little known outside Little Rock, and their attorneys argue the case doesn’t belong under Fiske’s jurisdiction.
Matthews, Fitzhugh and former Pulaski County Municipal Judge David Hale were indicted by a federal grand jury last fall for conspiring to defraud the Small Business Administration of $900,000 through Hale’s federally licensed lending company, Capital Management Services Inc. of Little Rock.
Capital Management Services was supposed to raise capital to match money from the SBA and then make loans to socially and economically disadvantaged companies.and individuals.
Fitzhugh’s attorney, Randy Satterfield of Litde Rock, said his client’s defense is that “he’s pretty much a victim of some big scheme that Hale had going on.”
Hale helped fuel calls for the-Whitewater investigation — and Fiske’s eventual appointment in January by Attorney General Janet Reno — by alleging that then-Gov. Bill Clinton pressured him during the 1980s to make a $300,000 loan to Susan McDougal.
The president and first lady Hillary Rodham Clinton were partners with James and Susan McDougal from 1978-92 in Whitewater, a 230-acre residential development along the White River in Marion County.
James McDougal also owned Madison Guaranty Savings & Loan Association, which failed in 1989 at a cost to taxpayers of at least $47 million. Fiske is investigating allegations that money was transferred illegally from Madison accounts to Whitewater accounts.
Hale pleaded guilty to two felonies in March. His sentencing is on hold while the government evaluates his cooperation with Fiske’s investigation.
Fitzhugh and Matthews have said that if anybody defrauded the SBA, it was Hale. Yet their link to Whitewater — however small — will ensure national news coverage of their trial.
Satterfield said he has been contacted by reporters from The New York Times, USA Today and other publications.
Fitzhugh has tried unsuccessfully to have Fiske disqualified from the case, arguing the Whitewater connection has turned the trial into a “media event.”
The prosecution will be handled by two associate counsels in Fiske’s office.
Fitzhugh and Matthews are accused of using a wealthy Shreveport family’s money to help Hale misrepresent the amount of private capital held by his company. That misrepresentation allegedly allowed the company to qualify improperly for $900,000 from the SBA.
Matthews and Fitzhugh split $250,000 as their payoff, the government contends.
Fitzhugh, a Little Rock lawyer, represented a member of the Shreveport family.
Matthews, a North Little Rock lawyer and former securities dealer, handled some of the family’s investments. Matthews was a state representative and chairman of the Arkansas Democratic Party in the late 1960s.
Court papers filed by the government and defense lawyers recently indicate how the trial may proceed.
The govermnent says it can make its case without testimony from Hale.
Fiske’s office, however, said it expects defense attorneys to call Hale as a witness to discredit him.
Prosecutors have asked U.S. District Judge Stephen Reasoner to limit Hale’s testimony about his crimes to prevent distracting the jury from the “relevant issues” in the case.
“The obvious ploy is to set up Hale as a straw man,” prosecutors argued last week in a motion to limit testimony about Hale’s confessed crimes.
Satterfield said he has subpoenaed Hale.
“There’s a lot of activity about limiting his testimony, so I don’t know” whether to call him, the lawyer said.
The government also has argued that unlimited examination of Hale could damage Fiske’s investigation of other matters.
A spokesman for Fiske’s office said the prosecution hopes to present its case “within a week” but declined to respond to other questions.
Satterfield said he expects the trial to last no more than a week.
After receiving telephone calls from Appellee, the newspaper printed a correction the following day. The correction, which was printed in the lower left corner of the front page of the “Arkansas” section under the headline of “Getting it straight,” included a true photograph of Eugene Fitzhugh. The correction read:
On Monday on the front of the Arkansas section a photo of J. Michael Fitzhugh was run in place of a photo of Eugene Fitzhugh. The correct photo of Eugene Fitzhugh is shown.
Appellee filed his complaint against Appellant on September 2, 1994, alleging that the juxtaposition of his photograph against the headline and accompanying article was defamatory per se and was the result of gross carelessness on the part of Appellant’s employees. In its answer, Appellant asserted that Appellee was a public figure and that, as such, it was necessary for Appellee to prove that its employees acted with actual malice in placing Appellee’s photograph in the Whitewater article.
I. Sufficiency of the Evidence
For its first two points for reversal, Appellant argues that the trial court erred in denying its motion for summary judgment and for refusing to grant a directed verdict in its favor. Appellant contends that Appellee failed to prove that the article in question was a false statement of fact of and concerning him and that his reputation was actually harmed as a result of the article’s publication. Appellant does not challenge the amount of damages awarded to Appellee by the jury; rather, it challenges the award of any damages.
We first note that the denial of a motion for summary judgment is not reviewable on appeal. Pugh v. Griggs, 327 Ark. 577, 940 S.W.2d 445 (1997); White v. Welsh, 327 Ark. 465, 939 S.W.2d 299 (1997). Such review is not available even after a trial on the merits, as the final judgment must be tested upon the record as it exists at the time it is rendered, rather than at the time the motion for summary judgment is denied. Ball v. Foehner, 326 Ark. 409, 931 S.W.2d 142 (1996). Hence, we review only Appellant’s argument as it pertains to the trial court’s denial of its motion for directed verdict.
A motion for directed verdict should only be granted if the evidence is so insubstantial as to require that the jury’s verdict be set aside. Dodson v. Dicker, 306 Ark. 108, 812 S.W.2d 97 (1991). In reviewing the denial of a directed verdict, we give the evidence its highest probative value, viewing it in a light most favorable to the party against whom the verdict is sought. Id. The standard of review in cases of defamation, including factual findings, is whether the jury’s verdict can be supported by substantial evidence. Thomson Newspaper Publishing, Inc. v. Coody, 320 Ark. 455, 896 S.W.2d 897, cert. denied, 116 S. Ct. 563 (1995). An action for defamation turns on whether the communication or publication tends or is reasonably calculated to cause harm to another’s reputation. Id.; Little Rock Newspapers, Inc. v. Dodrill, 281 Ark. 25, 660 S.W.2d 933 (1983).
In order to establish a claim of defamation, a party must prove the following elements: (1) The defamatory-nature' of the statement of fact; (2) that statement’s identification of or reference to the plaintiff; (3) publication of the statement by the defendant; (4) the defendant’s fault in the publication; (5) the statement’s falsity; and (6) damages. Minor v. Failla, 329 Ark. 274, 946 S.W.2d 954 (1997) (citing Mitchell v. Globe Intern. Pub., Inc., 773 F. Supp. 1235 (W.D. Ark. 1991)).
A. False Statement of and Concerning Appellee
Appellant relies on this court’s decision in Pigg v. Ashley County Newspaper, Inc., 253 Ark. 756, 489 S.W.2d 17 (1973), for the proposition that in determining whether an article is libelous, we must construe the article in its entirety. Appellant asserts that in reading the present article as a whole, it cannot reasonably be construed as being a false statement of fact of and concerning Appellee. Appellant asserts that the evidence demonstrated that the article is clearly of and concerning Eugene Fitzhugh, identified in the article as a Little Rock lawyer who is not a prominent figure and is little known outside of Litde Rock. We disagree.
Whether the words, taken together with the attendant circumstances, implicate the plaintiff in the commission of a crime is a question of fact for the jury to resolve. Minor, 329 Ark. 274, 946 S.W.2d 954. The question of whether a jury may reasonably determine that the placement of a plaintiffs photograph in a potentially defamatory article was a false statement of fact of and concerning that plaintiff is an issue of first impression in this State. We thus look to other jurisdictions for guidance.
In Brown v. Tallahassee Democrat, Inc., 440 So. 2d 588 (Fla. App. 1983), cited by Appellee in his brief, the article, headlined “Prosecution rests case in Madison murder trial,” described the criminal defendant Larry Joe Johnson, but contained a photograph of the appellant Brown with the caption “Johnson” beneath it. The Florida court noted at the outset that the “allegedly defamatory publication must be considered in its entirety rather than with an eye constrained to the objectionable feature alone.” Id. at 589. In so construing the article, the court concluded that it was error for the trial court to have granted summary judgment to the newspaper because, given the juxtaposition of Brown’s photograph, the ordinary reader may have been left with the sense that Brown was guilty of or on trial for murder.
In James v. Fort Worth Telegram Co., 117 S.W. 1028 (Tex. Civ. App. 1909), the Texas Court of Civil Appeals reviewed a defamation case involving an article describing an ax-murderer, Daniel Herring, which contained a photograph of the appellant James. The court held that the article “should be construed as imputing the homicide to the man whose picture, forming a part of the publication, was identified by references to it as that of the man who did the killing.” Id. at 1029. The court went on to hold that because it was undisputed that the photograph was of James, the publication clearly imputed the killing to him.
Similarly, in Farley v. Evening Chronicle Pub. Co., 87 S.W. 565 (1905), the Missouri Court of Appeals held that whether a photograph of the appellant Farley included in a newspaper article about a person of the same name, who was described as a strikebreaker, was defamatory to Farley was a question for the jury to resolve. The court stated:
If we scrutinize yet more closely the publication of the article and the picture, the conclusion cannot be escaped that the defendant’s editor intended the readers of his paper to understand that the person whose picture was published was the person to whom the article alluded. In that sense the article meant and referred to this plaintiff, and he was intended to be described by the writer.
Id. at 570.
In accordance with the holdings espoused in the above-cited cases, we conclude that there was sufficient proof for the trial court to submit to the jury the issue of whether the article could be construed as being a false statement of and concerning Appellee. It is undisputed that Appellee’s photograph was contained in the article and that the caption under the photograph stated “Fitzhugh,” as opposed to “Eugene Fitzhugh.” It is also undisputed that the subject of the article was referred to as merely “Fitzhugh” seven different times. Several witnesses, all friends or acquaintances of Appellee, testified that they initially believed the article was about Appellee due to the inclusion of Appellee’s photograph in the article. Additionally, one witness indicated that he and his wife had wondered whether Appellee’s middle name was Eugene, which is Appellee’s brother’s name. There was thus sufficient evidence presented by Appellee’s witnesses upon which the jury could have reasonably determined that persons who were not so personally acquainted with Appellee may have been left with the permanent impression that Appellee was charged with a crime in the Whitewater scandal. We thus turn to the issue of Appellee’s proof of damages.
B. Damage to Appellee’s Reputation
Appellant argues that Appellee failed to prove specific, actual injury to his reputation because none of the witnesses testified that Appellee’s reputation had actually suffered or that they looked badly upon him as a result of the article’s publication. Appellant argues further that although Appellee may have produced evidence that generally established that any person associated with the Whitewater scandal would have been harmed, he failed to produce any evidence demonstrating that he, personally, had suffered an injury to his reputation. We disagree.
In the landmark case of Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974), the Supreme Court held that states may not permit recovery of presumed damages in actions for defamation absent a showing of knowledge of falsity on the part of the publisher or a reckless disregard for the truth. This holding applies equally to those plaintiffs who are private figures and those who are classified as public figures or officials. On the issue of proof of damages, the Court stated:
We need not define “actual injury,” as trial courts have wide experience in framing appropriate jury instructions in tort actions. Suffice it to say that actual injury is not limited to out-of-pocket loss. Indeed, the more customary types of actual harm inflicted by defamatory falsehood include impairment of reputation and standing in the community, personal humiliation, and mental anguish and suffering. Of course, juries must be limited by appropriate instructions, and all awards must be supported by competent evidence concerning the injury, although there need be no evidence which assigns an actual dollar value to the injury.
Id. at 349-50 (emphasis added). Thus, the Court left to the states the question of what particular proof of damages must be offered by the plaintiff in order to show that he or she had suffered “actual injury” as a result of the defamation. As pertains to such actions in this State, part of that question was answered by this court in Dodrill, 281 Ark. 25, 660 S.W.2d 933.
In Dodrill, which is relied upon heavily by Appellant, this court rejected the notion expressed by the Court in Gertz and later in Time, Inc. v. Firestone, 424 U.S. 448 (1976), that the Con stitution does not require proof of injury to reputation before recovery for mental suffering can be had. Instead, this court held that in Arkansas, an action for defamation has always required proof of reputational injury:
It is settled law that damage to reputation is the essence of libel and protection of the reputation is the fundamental concept of the law of defamation. The action turns on whether the communication or publication tends or is reasonably calculated to cause harm to another’s reputation. Such injury to reputation is a prerequisite to making out a case of defamation and an action lacking that claim becomes another cause of action.
Id. at 28, 660 S.W.2d at 935 (footnote and citations omitted). In support of its conclusion that there must be proof of injury to reputation, and in accordance with the holding in Gertz that damages to reputation may not be presumed in cases involving First Amendment rights, this court stated:
To allow recovery in a defamation action where the primary element of the cause of action is missing not only sets the law of defamation on end, but also substantially undercuts the impact Gertz seeks to effect. The law of defamation has always attempted to balance the tension between the individual’s right to protect his reputation and the right of free speech. To totally change the character of defamation to allow recovery when there has been no loss of the former right, would be an unjustified infringement on the First Amendment.
Id. at 31, 660 S.W.2d at 936. Undeniably, the present case is one involving First Amendment rights. As such, damages may not be presumed. The question then is how much proof of actual injury to reputation is sufficient to render the issue one for the jury to resolve.
Appellee points to this court’s subsequent decision in Hogue v. Ameron, Inc., 286 Ark. 481, 695 S.W.2d 373 (1985), in support of his assertion that there was sufficient evidence from which the jury could have concluded that his reputation was damaged. In Hogue, the appellant, an Arkansas State Police trooper, filed an action for defamation on the basis of a letter written to his superiors stating that the appellant had been photographed driving an unlicensed vehicle. At trial, the appellant testified that his reputa tion had been harmed by the ensuing investigation. Another witness testified vaguely that the appellant’s reputation had changed for the worse at about the time of the investigation. Concluding that the trial court erred in granting a directed verdict against the appellant, this court held that where there was some evidence of harm to the appellant’s reputation, it was a question for the jury to resolve. Notwithstanding the holding in Hogue, the question still remains as to what particular type of proof is sufficient to sustain a jury’s verdict in favor of a plaintiff in a defamation action. In order to resolve this question, it is necessary to look beyond the decisions of this court.
In Salomone v. MacMillan Publishing Co., Inc., 429 N.Y.S.2d 441 (N.Y. App. Div. 1980), the New York Supreme Court, Appellate Division, held that the plaintiff in a libel suit, who was a private individual, had failed to prove any damages compensable in law. The subject of the libel action was a parody of a children’s book of cartoons entitled Eloise. The original children’s book was about a fictional six-year-old girl who lived at the Plaza Flotel with her nanny. One of the book’s drawings showed a man bowing from the waist and Eloise curtseying in return, with the caption referring to the man as Mr. Salomone, the hotel manager. In the parody of the book, entitled Eloise Returns, the opening drawing shows Eloise in the men’s room of the hotel, where the walls are now covered with graffiti. On a large mirror, underneath where the girl is writing “Eloise Returns,” are the words “Mr. Salomone was a child molester.” Plaintiff Salomone was the manager of the Plaza Hotel when the original Eloise was written. He filed suit for libel against the publisher of Eloise Returns, who was shocked to learn that Mr. Salomone was anything other than' a fictional character. New York law required the plaintiff in such actions to prove damage to his reputation; evidence that the plaintiff had suffered embarrassment and mental anguish was not sufficient to support an award of damages. In concluding that the plaintiffs damages were insufficient, the court held:
He claims damages for loss of reputation and for mental anguish. He has been unable to come forth with any proof of loss of reputation because he knows of no one who believes he was a child molester or thinks less of him due to the publication. . . . While the U.S. Supreme Court, in Gertz, would appear to have allowed the states sufficient latitude to include in the definition of “actual injury” mental anguish unaccompanied by loss of reputation, this has not occurred in this state.
Id. at 442-43 (citations omitted) (emphasis added).
The holding in Salomone thus indicates that proof of damage to reputation may include: (1) Proof that people believed the plaintiff to be guilty of the conduct asserted in the publication, or (2) proof that people thought less of the plaintiff as a result of the publication’s defamatory content. We view that language as persuasive authority on the issue presented in this case, given that the law applied in Salomone parallels the applicable law in this State, requiring proof of injury to reputation above and beyond that of mental suffering or anguish. Hence, the pertinent question now before us is whether it was sufficient proof that the witnesses who read the article initially believed that Appellee was the subject of the stated Whitewater investigation. After reviewing the testimony, we conclude that the proof was sufficient.
Appellee testified that he believed that the article’s publication throughout the state had damaged his reputation. In this respect, Appellee indicated that he was aware of this because people had told him it had had an effect. He gave numerous examples of how he was harmed by the article. He stated that a fellow lawyer had driven by him and made a comment about the article and how Appellee was the subject of conversation in that lawyer’s law firm. He stated that a friend of his, Gilbert Travis, had called and wanted to know what Appellee’s middle name was and that Travis had told him that he had seen the article and thought it was about Appellee because his photograph was attached. He stated that a childhood friend, Mackie Watson, had seen him at a soccer tournament and had loudly inquired as to whether Appellee’s name was “Michael Eugene” or “J. Michael.” He stated that Watson then told him that she had spoken to Jeannie Luttrell about the article. Appellee stated further that he had been kidded about the article by some people but that he had never thought it was funny. He stated that he did not want to be connected with the Whitewater prosecution because it is a stain on the State of Arkansas and the legal profession in general. Additionally, he stated that he had had difficulty sleeping and that he would wake up during the night thinking about the article.
Jeannie Luttrell, a childhood friend of Appellee’s, testified that when she saw the article and Appellee’s photograph, she believed it was about him, even though she indicated that it was hard for her to beheve that about Appellee because of his high moral character. When asked what she believed had happened to Appellee, she explained:
I believed that he probably lost his job as a federal prosecutor when the administration changed, and that perhaps he had moved to Litde Rock, and he somehow got involved with these people. It was hard for me to beheve that because they were Democrats and Mike was Republican, but I believed it.
Luttrell stated that she had talked to some people about the article and that she had continued to beheve that the article was about Appellee until she was told by Mackie Watson, some months later in the fall of 1994, that the article was not about him.
Dr. Cole Goodman, Appellee’s friend, stated that at the time Appellee went into private practice in Fort Smith, he had an excellent reputation. He stated that when he had initially seen the June 20, 1994 article and Appellee’s photograph, he thought that Appellee must have been prosecuting the case. He stated that when he remembered that Appellee was no longer a prosecutor, he read the article. Upon seeing the name “Eugene Fitzhugh,” he stated that he thought the newspaper had confused Appellee’s name with that of his brother Eugene. In explanation of his reaction to the article, he stated: “And then I read through this and saw where these people had defrauded a significant amount of money, and my initial response then was to get perturbed at Mike for doing this.” He stated that upon rereading the article, however, he realized that it was not about Appellee.
Gilbert Travis, another friend of Appellee’s, testified that he was reading the newspaper on June 20, 1994, when he saw Appellee’s photograph with the article describing Eugene Fitzhugh. He stated that he then called to his wife and asked her what other name Appellee went by besides Mike, to which his wife responded that she did not know. He stated that he had con- eluded from the article that Appellee was in trouble. He stated that he then called Appellee to see if he could do anything to help him.
Similarly, Howard Pearson, the principal at Ramsey Junior High School and Appellee’s wife’s boss, stated that he had viewed the article as a whole as indicating that Appellee had done something wrong. He stated that he had trouble believing it, but that he did believe it because it contained Appellee’s photograph.
Asa Hutchinson, former United States Attorney and Appellee’s former boss, testified generally as to the effect of such an article on a lawyer’s reputation. When asked to relate to the jury his experience in trying to establish a private law practice in Fort Smith after having been employed as a federal prosecutor, Hutchinson stated that it takes a significant amount of time to build up a client base and that the way to generate clients was through experience and personal reputation. Hutchinson stated that from both a personal and professional standpoint, a lawyer’s chief asset is his reputation. When asked if he felt that being accused of wrongdoing in connection with Whitewater would have damaged his reputation, Hutchinson stated that “[i]t would harm anyone’s reputation.”
Robert Lutgen, managing editor of the Arkansas Democrat-Gazette, testified that the article had caused some damage to Appellee and was embarrassing to him, but that it was the newspaper’s position that the article had not caused “significant damage” to Appellee. Lutgen admitted that Whitewater was the biggest news story that the newspaper had covered since 1992. When asked to explain how much damage had been caused to Appellee, Lutgen echoed Appellee’s earlier testimony that there was probably not any way of actually measuring the damage done to him. Lutgen filially stated that it was the newspaper’s position that the article had caused “minor damage” to Appellee.
Appellee contends that Lutgen’s testimony alone is sufficient proof of damage to his reputation. Appellant, on the other hand, attempts to shrug off Lutgen’s testimony by arguing that he never specifically testified that the article had caused damage to Appellee’s reputation, but rather, only that the article had caused damage in general. We are not persuaded by Appellant’s argument. Instead, we conclude that a fair reading of Lutgen’s testimony in toto indicates that the damage to which he was referring was damage to Appellee’s reputation. A review of Lutgen’s testimony demonstrates that prior to his answering questions concerning the amount of damage sustained by Appellee, he stated that Appellant’s newspaper had the ability to severely damage a person’s reputation by printing false information about that person.
The foregoing testimony demonstrates that Appellee’s reputation was injured as a result of Appellant’s publication of the defamatory article. This proof is most evident through the testimony of the various witnesses who believed that Appellee was involved in the Whitewater investigation. The fact that some of the witnesses’ beliefs were held only for a short period of time is of no consequence to Appellant. What is significant is that those persons believed that Appellee was the subject of the article and was, thus, the target of a criminal investigation. We reject Appellant’s argument that Appellee failed to show that people thought less of him as a result of the article. The fact that the witnesses believed that Appellee was charged with a crime involving the Whitewater scandal demonstrates that they thought less of Appellee as a result of the article. Moreover, we are persuaded by Appellee’s assertion that none of the witnesses who were personally acquainted with him would have thought badly of him on a permanent basis because they were able to personally verify that he was not the person being charged with the Whitewater crimes. On the other hand, persons who were not personally acquainted with Appellee would not have been capable of verifying the truth nor would they have been known to Appellee so that he could secure their testimony for trial. We thus conclude that the trial court did not err in denying Appellant’s directed-verdict motion, as the proof presented at trial was sufficient to sustain the jury’s conclusion that Appellee’s reputation had been damaged as a result of Appellant’s negligent publication of his photograph with the article.
II. Public Figure/Actual Malice
For its final two points for reversal, Appellant argues that the trial court erred in refusing to declare Appellee to be a public figure and, correspondingly, in refusing to instruct the jury that Appellee had the burden of proving that the newspaper acted with actual malice in publishing the defamatory falsehood. Appellant’s contention that Appellee is a public figure is based upon the fact that he had been a United States Attorney for a period of some eight years. Appellee concedes that he was and still is a public figure for the limited purpose of any article or news story concerning his actions as a federal prosecutor. Fie disputes, however, that he was a public figure within the context of the Whitewater investigation, which was the subject of the defamatory article.
Evidence presented at trial established that Appellee became an Assistant United States Attorney for the Western District of Arkansas in May 1974. Appellee remained in that position until November 1985, when he was appointed as temporary or acting United States Attorney for the Western District of Arkansas, replacing Asa Hutchinson, who had resigned to run for the United States Senate. Appellee was later appointed permanently as United States Attorney for that district, a position he held until he resigned in March 1993. During his tenure as United States Attorney, Appellee had participated in several press conferences, had been named in numerous newspaper articles, and had routinely issued press releases pertaining to investigations that his office was conducting. Appellee had also been the subject of a local television news broadcast, detailing his life and work in the Fort Smith community. Additionally, Appellee had twice submitted his name for appointment to a federal judgeship approximately three to four years before the article was printed, although he was not successful in that endeavor. Appellee had never sought elective office. Appellee joined the Bethell law firm in Fort Smith in August 1993. A telephone book advertisement for the Bethell law firm identified Appellee as a former United States Attorney. Appellant asserts that such evidence demonstrates that Appellee was a public figure under the standard established in Gertz. We disagree.
Whether an individual is a public official or a public figure is a mixed question of fact and law that is for the trial court to determine. See, e.g., Gertz, 418 U.S. 323; Cornett v. Prather, 293 Ark. 108, 737 S.W.2d 159 (1987). In Gertz, the Supreme Court held that public figures normally enjoy greater access to effective channels of communication and, thus, have more realistic opportunities to counteract false statements than do private individuals. The Court described public figures as those persons who:
have assumed roles of especial prominence in the affairs of society. Some occupy positions of such persuasive power and influence that they are deemed public figures for all purposes. More commonly, those classed as public figures have thrust themselves to the forefront of particular public controversies in order to influence the resolution of the issues involved. In either event, they invite attention and comment.
Id. at 345. A private individual, on the other hand, has not accepted public office nor assumed an “influential role in ordering society.” Id. (citing Curtis Publishing Co. v. Butts, 388 U.S. 130, 164 (1967) (Warren, C. J., concurring in result)). A private individual has not relinquished his interest in the protection of his own good name, and consequently has a more compelling case for redress of injury inflicted by defamatory falsehood. Id. Fiolding that the designation of a public figure may rest on either of two alternative bases, the Court stated:
In some instances an individual may achieve such pervasive fame or notoriety that he becomes a public figure for all purposes and in all contexts. More commonly, an individual voluntarily injects himself or is drawn into a particular public controversy and thereby becomes a public figure for a limited range of issues. In either case such persons assume special prominence in the resolution of public questions.
. . . Absent clear evidence of general fame or notoriety in the community, and pervasive involvement in the affairs of society, an individual should not be deemed a public personality for all aspects of his life. It is preferable to reduce the public-figure question to a. more meaningful context by looking to the nature and extent of an individual’s participation in the particular controversy giving rise to the defamation.
Id. at 351-52 (emphasis added).
The facts of that case demonstrated that Gertz was an attorney representing the family of a juvenile who had been shot and killed by a Chicago police officer. The officer had been convicted of second-degree murder, and his conviction had generated considerable publicity. The civil litigation, brought by the family against the officer, received national attention when the respondent published an article in American Opinion, a monthly magazine espousing the views of the John Birch Society, that contained numerous inaccuracies about Gertz. The article labeled Gertz as a criminal, a Leninist, a Communist-fronter, an official of the “Marxist League for Industrial Democracy,” and an instigator of the riots that had occurred at the 1968 Democratic National Convention in Chicago. The Court concluded that based upon the facts of that case, Gertz was not a public figure, as he did not “thrust himself into the vortex of this public issue, nor did he engage the public’s attention in an attempt to influence its outcome.” Id. at 352. Rather, the Court declared that Gertz’s participation in that public issue related solely to his representation of a private client.
Since Gertz, courts have construed the term “public figure” narrowly, with a greater emphasis on the plaintiffs status as it relates to the subject of the defamation. In Time, Inc. v. Firestone, 424 U.S. 448 (1976), the Court held that the respondent, the ex-wife of Russell Firestone (the descendant of the wealthy Firestone Tire family), was not a public figure for purposes of an article in Time magazine about the Firestones’ divorce. The Court held that notwithstanding that there may have been public interest in the wealthy couple’s divorce, Mrs. Firestone was not a public figure because she had not assumed “any role of especial prominence in the affairs of society, other than perhaps Palm Beach society, and she did not thrust herself to the forefront of any particular public controversy in order to influence the resolution of the issues involved in it.” Id. at 453.
In the initial Dodrill appeal, Dodrill v. Arkansas Democrat Co., 265 Ark. 628, 590 S.W.2d 840 (1979), cert. denied, 444 U.S. 1076 (1980), this court held that the plaintiff, a Little Rock attorney who had been previously suspended from the practice of law pending his retaking the bar examination, was not a public figure for purposes of an article published in the Arkansas Democrat reporting that Dodrill had failed the exam. The evidence showed that Dodrill had not failed the exam, only that his name had been initially withheld from publication pending further investigation of his readmission by the Board of Bar Examiners. The newspaper had argued that Dodrill was a public figure within the context of the public controversy surrounding his suspension from the bar. This court rejected that argument, holding that there was no evidence that demonstrated that Dodrill had thrust himself into the vortex of public controversy or that he had taken steps to attract public attention or to achieve a degree of public acclaim.
In Ryder v. Time, Inc., 557 F.2d 824 (D.C. Cir. 1976), a case of mistaken identity, the United States Court of Appeals for the District of Columbia held that the plaintiff, Richard J. Ryder, a lawyer and former Virginia state legislator, was not a public figure for purposes of an article in Time magazine reporting that Virginia attorney Richard Ryder (actually referring to Richard R. Ryder) had been suspended from the practice of law because he had concealed stolen money and a sawed-off shotgun belonging to his client. The court held that while it was true that the plaintiff had been a public official and had been a candidate for public office, his public activities had nothing to do with the reference to Richard Ryder’s illegal activities mentioned in the article.
The Supreme Court of New Mexico concluded that the appellant Marchiondo, a well-known attorney and member of the Democratic Party, was not a public figure for purposes of his action against a journal for defamation in connection with an article containing his photograph and detailing organized crimes’ interest in New Mexico. Marchiondo v. Brown, 649 P.2d 462 (N.M. 1982). The court so held because Marchiondo had not voluntarily injected himself into the controversy on organized crime.
Likewise, the Texas Court of Appeals held that an attorney who had been appointed as a special counsel to a court of inquiry, and had served as such until about two months prior to the defamatory- news broadcast, was not a public figure in connection with a news story hnking him to the Chicken Ranch, a local club used as a front for various activities including orgies and prostitution. The court noted that the fact that the plaintiff had held a number of press conferences as special counsel for the court of inquiry did not render him a public figure within the limited context of his alleged involvement with the Chicken Ranch. Durham v. Cannan Communications, Inc., 645 S.W.2d 845 (Tex. App. 1982).
Even well-known Wyoming defense attorney Gerry Spence was deemed not to have been a public figure within the context of his defamation suit against Hustler magazine. Spence v. Flynt, 816 P.2d 771 (Wyo. 1991), cert. denied, 503 U.S. 984 (1992). The article, which was more like an editorial, blasted Spence for his representation of Andrea Dworkin in her pornography suit against publisher Larry Flynt. The Supreme Court of Wyoming held that although Spence may have been a public figure for some purposes, he was not a public figure for his representation of a client in a lawsuit.
Based upon the above-recited case law and the circumstances of this case, we conclude that Appellee was not a public figure for all purposes, nor was he a limited-purpose public figure within the context of the Whitewater investigation. Although Appellee did have some connection to the Whitewater investigation through his representation of two witnesses, the evidence revealed that he had not actually represented one of those witnesses until after the article in question had been published. Moreover, as noted by the Supreme Court in Gertz and the Wyoming Supreme Court in Spence, the mere fact of an attorney’s representation of a client involved in a matter of public controversy does not, in itself, automatically render the attorney a public figure within the context of the controversy. In short, there was no evidence presented at trial showing that Appellee had thrust himself into the vortex of the Whitewater controversy, or that he had engaged the public’s attention in an attempt to influence the outcome of the controversy.
Furthermore, Appellee did not, by virtue of his having been a federal prosecutor for eight years, occupy a position of persuasive power and influence or one of especial prominence in the affairs of society, such that he could be labeled an all-purpose public figure. While it is true that Appellee had been a public official and may have had some influence over societal affairs in Fort Smith during his tenure as United States Attorney, his public activities had nothing to do with the subject of the newspaper article. In short, there was no clear evidence presented at trial showing that Appellee had achieved such general fame and notoriety throughout the state, where the newspaper was circulated, such that would render him a public personality for all aspects of his life.
Because we conclude that Appellee was a private individual within the context of this lawsuit, it necessarily follows that the trial court did not err in instructing the jury that Appellee was only required to prove negligence, rather than actual malice.
Affirmed.
Special Justices Truman Yancey and Pat Hall join in this opinion.
Arnold, C.J., Newbern and Thornton, JJ., dissent.
Brown and Imber, JJ., not participating. | [
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Donald L. Corein, Justice.
Appellant Anthony David Smith appeals the judgment of the Marion County Circuit Court convicting him of the capital murder of his wife Christine Smith and sentencing him to life imprisonment without the possibility of parole. Our jurisdiction is pursuant to Ark. Sup. Ct. R. l-2(a)(2). Appellant raises two points for reversal, namely that the trial court erred in fading to grant his motion for mistrial due to the prosecutor’s comments during opening statement on his right to remain silent and in excluding the testimony of one of his witnesses. We find no error and affirm.
In the early morning hours of October 6, 1994, officers and medical personnel responded to a call from the Smith residence concerning a possible drowning. At the scene, they found thirty-two-year-old Christine Smith wet and lying on her back on a wooden deck next to the family’s swimming pool. She had blood coming from the back of her head and out of her nose and mouth. Her body was sent to the Arkansas State Medical Examiner’s Office for an autopsy, where it was determined that Mrs. Smith had died as the result of both a contact gunshot wound to the back of her head and strangulation. Appellant was subsequently arrested and convicted for the capital murder of his wife and sentenced to life imprisonment.
I. Prosecutor’s Remarks on Appellant’s Right to Remain Silent
For his first point for reversal, Appellant argues that the trial court erred in failing to declare a mistrial due to the following remarks made by the prosecutor in opening statement:
The presentation of this case which you’re going to hear about are the events, primarily, of the early morning of the 6th day of October, 1994. And the thing that you have to realize is that, from the start of this, Mr. Smith was the only person alive who was present. He’s the only person alive who was present on the scene. On that morning, he got an opportunity then and he will get an opportunity in this courtroom, through the tapes and the other evidence we’ll introduce, to present what he claims happened.
The prosecutor then went on to recite what he expected the State’s evidence would prove during the course of the trial, including the substance of a taped interview that Appellant gave to police that same day. At the conclusion of the prosecutor’s opening statement, Appellant moved for a mistrial on the ground that the remarks amounted to an improper reference to his right to remain silent. The trial judge denied the motion because he did not believe the reference to be significant.
On appeal, Appellant contends that the prosecutor’s remarks violated his rights under the Fifth Amendment to the United States Constitution to remain silent and not be compelled to be a witness against himself. Specifically, Appellant argues that the remarks emphasized the fact that he was the only person present at the scene and intimated that only his personal testimony could rebut the evidence against him. We do not reach the merits of this argument because Appellant failed to make a contemporaneous objection below.
In order to be timely, an objection must be contemporaneous, or nearly so, with the alleged error. Jones v. State, 326 Ark. 61, 931 S.W.2d 83 (1996). To preserve a point for appeal, a proper objection must be asserted at the first opportunity after the matter to which objection has been made occurs. Asher v. State, 303 Ark. 202, 795 S.W.2d 350 (1990), cert. denied, 498 U.S. 1048 (1991). Where the allegation of error concerns a statement made by the prosecutor during argument, the defendant must make an immediate objection to the statement at issue in order to preserve the allegation for appeal. Wallace v. State, 53 Ark. App. 199, 920 S.W.2d 864 (1996) (citing Butler Mfg. Co. v. Hughes, 292 Ark. 198, 729 S.W.2d 142 (1987)). In Butler, this court specifically rejected the Eighth Circuit'Court of Appeals’ holding in Lange v. Schultz, 627 F.2d 122 (8th Cir. 1980), that counsel may reserve his or her objection to statements made in closing argument until the end of the argument, before the case is submitted to the jury. This court held:
We decline to follow the Eighth Circuit’s position and instead require a timely objection, made at the time the alleged error occurs, so that the trial judge may take such action as is necessary to alleviate any prejudicial effect on the jury.
Butler Mfg. Co., 292 Ark. 198, 202, 729 S.W.2d 142, 144. See also Steffen v. State, 267 Ark. 402, 590 S.W.2d 302 (1997). Such reasoning is equally applicable to alleged errors made in opening statement.
Similarly, this court has repeatedly held that motions for mistrial must be made at the first opportunity. Esmeyer v. State, 325 Ark. 491, 930 S.W.2d 302 (1996); Turner v. State, 325 Ark. 237, 926 S.W.2d 843 (1996); Johnson v. State, 325 Ark. 197, 926 S.W.2d 837 (1996). In Dixon v. State, 310 Ark. 460, 839 S.W.2d 173 (1992), this court held that the appellant’s motion for mistrial based upon improper comments made by the prosecutor during opening statement was untimely because it was not macle until after the conclusion of appellant’s opening statement. This court reasoned that it was proper to deny a motion for a mistrial when the request was not made at the first opportunity, even though the motion had been preceded by two defense objections sustained by the trial court. Id. (citing Dumond v. State, 290 Ark. 595, 721 S.W.2d 663 (1986)).
Here, the particular comments were made by the prosecutor in the middle of his opening statement. Appellant did not object or move for a mistrial at the time the statements were made; instead, he waited until the prosecutor had finished his entire opening statement before bringing the alleged error to the trial court’s attention through his motion for mistrial. Accordingly, it was not error for the trial court to deny the motion as it was untimely made.
II. Exclusion of Expert Testimony
For his second point for reversal, Appellant argues that the trial court erred in excluding the testimony of Carl Rainey as an expert on the subject of firearms. Appellant contends that Rainey, who had years of experience in hunting and using firearms, should have been permitted to testify about experiments he conducted involving the firing of .22 caliber bullets into various objects to check for bullet fragmentation. Appellant contends that he was prejudiced by the exclusion of this testimony as it was relevant to counter the State’s evidence that bullet fragments found in the victim’s skull were consistent with .22 caliber bullets found in Appellant’s home. The State argues that Rainey was not an expert in firearms and that his experiments were not conducted in the same manner and under circumstances substantially similar to those surrounding the homicide. The evidence presented by the State Medical Examiner’s Office was that the gunshot wound to Mrs. Smith’s head was a contact wound.
The trial court heard argument from counsel as to Rainey’s expected testimony. Rainey would have testified that through his personal experience as a hunter in shooting animals using a .22 caliber weapon, he had never encountered a fragmented .22 caliber bullet. Additionally, Rainey would have described his experiments involving his firing .22 caliber bullets into various surfaces, such as wood, plastic, and metal, from a distance of between one to two feet, and on one occasion, from a point of contact. The only time a bullet fragmented was when Rainey fired into the metal surface; most other times, the bullet failed to even penetrate the surfaces. It was not disputed that Rainey had no academic credentials that would qualify him as an expert in the field of firearms or ballistics.
The trial court excluded the testimony on the ground that the defense had failed to establish a proper foundation demonstrating that the experiments were conducted in a scientific manner, using comparable circumstances. The trial court concluded further that Rainey’s experiences as nothing more than a hunter, lacking any formal training or expertise, did not qualify him as an expert in the field of ballistics.
Whether a witness qualifies as an expert in a particular field is a matter within the trial court’s discretion, and we will not reverse such a decision absent an abuse of that discretion. Mace v. State, 328 Ark. 536, 944 S.W.2d 830 (1997). If some reasonable basis exists demonstrating that the witness has knowledge of the subject beyond that of ordinary knowledge, the evi dence is admissible as expert testimony. Id. The general test of admissibility of expert testimony is whether it will assist the trier of fact in understanding the evidence presented or determining a fact in issue. A.R.E. Rule 702; Matthews v. State, 327 Ark. 70, 938 S.W.2d 545 (1997); Stout v. State, 320 Ark. 552, 898 S.W.2d 457 (1995). In addition, expert testimony must be relevant and not misleading or confusing to the jury. Stewart v. State, 316 Ark. 153, 870 S.W.2d 752 (1994). In determining the relevance of the testimony, the proponent must show that the evidence is reliable and sufficiently related to the facts of the case to aid the trier of fact in resolving the dispute. Prater v. State, 307 Ark. 180, 820 S.W.2d 429 (1991).
In the present case, it was undisputed that Rainey had no formal training as an expert in the field of firearms or ballistics; rather, Rainey’s knowledge came only from his experiences as a recreational hunter. It is further undisputed that none of Rainey’s experiments were conducted in a manner similar to the factual situation of the victim’s death, as he used only plastic, wood, or metal surfaces and the majority of the tests were conducted from a firing range of one to two feet, with only one test being from a point of contact. Accordingly, we conclude that the trial court did not abuse its discretion in excluding this testimony, as a proper scientific foundation was not provided and it was not demonstrated that the results of the tests would have assisted the jury in understanding the evidence presented and in determining any fact in issue.
III. Rule 4-3 (h)
In accordance with Rule 4-3 (h) of the Arkansas Supreme Court Rules, the record has been reviewed for adverse rulings objected to by Appellant but not argued on appeal, and no such errors were found. For the aforementioned reasons, the judgment of conviction is affirmed.
Newbern and Thornton, JJ., dissent. | [
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MOTION FOR RULE ON CLERK
PER CURIAM.
| Appellant Jonathan David Moss, by and through his attorney, has filed a motion for rule on the clerk. His attorney, Lynn F. Plemmons, states in the motion that our clerk refused to accept his untimely tender of the record.
This court clarified its treatment of motions for rule on clerk and motions for belated appeals in McDonald v. State, 356 Ark. 106, 146 S.W.3d 883 (2004). There we said that there are only two possible reasons for an appeal not being timely perfected: either the party or attorney filing the appeal is at fault, or, there is “good reason.” Id. at 116, 146 S.W.3d at 891. We explained:
Where an appeal is not timely perfected, either the party or attorney filing the appeal is at fault, or there is good reason that the appeal was not timely perfected. The party or attorney filing the appeal is therefore faced with two options. First, where the party or attorney filing the appeal is at fault, fault should be admitted by affidavit filed with the motion or in the motion itself. | ¡.There is no advantage in declining to admit fault where fault exists. Second, where the party or attorney believes that there is good reason the appeal was not perfected, the case for good reason can be made in the motion, and this court will decide whether good reason is present.
Id. (footnote omitted). While this court no longer requires an affidavit admitting fault before we will consider the motion, an attorney should candidly admit fault where he has erred and is responsible for the failure to perfect the appeal. See id.
In accordance with McDonald v. State, supra, Mr. Plemmons has candidly admitted fault. The motion is, therefore, granted. A copy of this opinion will be forwarded to the Committee on Professional Conduct.
Motion granted. | [
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Robert L. Brown, Justice.
This appeal arises out of the conviction of appellant, Brian White, for the offense of sexual abuse in the first degree. White received a sentence of eighteen years. He raises multiple points on appeal, none of which has merit. We affirm.
On June 29, 1994, White allegedly had sexual intercourse with a 12-year-old female, NE. The incident was reported to the police on July 9, 1994. At the time, White was on probation due to pleas of guilty that were deferred under Act 346 of 1975, the First Offenders Act.
At trial, the evidence presented by the State consisted primarily of the testimony of the victim together with medical and physical evidence. The victim testified that on the date in question, White, who was the uncle of the victim, was sent to pick up the victim and another minor, Rachel White, who was the 12-year-old aunt of the victim. According to the testimony, White and his girlfriend, Barbara Frazee, took the two girls back to his apartment where they offered the girls alcohol and marijuana, which the girls' accepted. The victim testified that she went to sleep in White’s bedroom and awoke to find White fondling her. White, she stated, eventually had sexual intercourse with her against her will. Although neither of them actually witnessed the alleged rape, the testimony of Rachel White and Barbara Frazee confirmed certain aspects of the victim’s testimony.
The prosecutor also presented physical evidence of the crime. Several items of clothing, including the underwear that the victim claimed to have been wearing that night, were introduced into evidence. These clothing articles were collected by Rogers Police Detective Gary Armstrong and sent to the State Crime Lab for testing. The prosecutor also presented the testimony of two technologists who conducted tests to determine if White and the victim suffered from any sexually transmitted diseases. The tests showed that both the victim and White had chlamydia on July 11 and 12, 1994, respectively. A pharmacist also testified that White had purchased an antibiotic on July 17, 1994, which could be used to cure chlamydia.
I. Discovery Delay
For his first issue White protests the refusal of the trial court to allow the jury to be informed or, alternatively, to instruct the jury that the prosecutor did not turn over the test results on the victim’s underwear and hairs found in the underwear conducted by the State Crime Lab until the day before the trial. The test results had been sent to the Rogers Police Department on May 26, 1995. In spite of White’s motion to compel discovery filed on January 23, 1995, White had not been told about the tests. The defense moved to exclude the evidence. Recognizing that a violation of Ark. R. Crim. P. 17.1 had occurred, the trial court offered the defense a continuance to allow time to examine the evidence and to have tests performed pursuant to Ark. R. Crim. P. 19.7. White declined and insisted that the trial proceed. The test results were admitted as part of the State’s case.
During the trial, White’s counsel first tried to cross-examine Detective Gary Armstrong on the failure of the prosecutor to make the Crime Lab report available to him until just before trial. The trial court ultimately refused to allow defense counsel to inquire into the matter and also refused to instruct the jury on when the defense received the test results. Then, during closing arguments, defense counsel argued to the jury that the reason the prosecutor had not performed DNA tests on hairs found in the victim’s underwear was that the State knew White was innocent. The prosecutor responded in his rebuttal argument that White could have performed his own tests, and White’s counsel objected based on the fact that the defense did not have time to perform any tests.
The trial court ruled that White had an opportunity to do his own tests and, in effect waived his right to argue that he did not have sufficient time to perform tests on the underwear or the hairs. We agree. The trial court’s choice of remedy under Ark. R. Crim. P. 19.7 will not be disturbed absent an abuse of discretion. Nooner v. State, 322 Ark. 87, 907 S.W.2d 677 (1995). In Esmeyer v. State, 325 Ark. 491, 930 S.W.2d 302(1996), this court addressed a situation where the State failed to disclose a witness before trial:
[A] failure to disclose that information will not warrant a reversal of a conviction absent a showing of prejudice. Alford v. State, 291 Ark. 243, 724 S.W.2d 151 (1987); Snell v. State, 290 Ark. 503, 721 S.W.2d 628 (1986). When the State fails to provide the information, the burden is on the appellant to show that the omission was sufficient to undermine the confidence in the outcome of the trial. Bray v. State, 322 Ark. 178, 908 S.W.2d 88 (1995). Prejudice, though, does not exist when the defendant already has access to the information that the State did not disclose. See Johninson v. State, 317 Ark. 431, 878 S.W.2d 727 (1994).
Esmeyer, 325 Ark. at 499, 930 S.W.2d at 307.
Here, White has been unable to show that the discovery violation resulted in any prejudice because he was offered a continuance to correct any potential prejudice. White argues that the offer of continuance was unacceptable because accepting a continuance would have, in some way, waived his speedy-trial claim. This is simply not true. A continuance charged to the defendant would have had no effect on any speedy-trial claims that may have existed at that time.
Moreover, the trial court is in the best position to evaluate the potential for prejudice based on the prosecutor’s remarks. Bullock v. State, 317 Ark. 204, 876 S.W.2d 579 (1994). In the instant case, counsel for the defense invited the State’s response in closing argument by implying that the State did not conduct further tests because it knew that White was innocent or because it did not care enough to conduct the tests. The prosecutor’s reply that White could have conducted his own tests was warranted and an accurate statement of the situation. There was no misrepresentation by the prosecutor and no abuse of discretion by the trial court in refusing to instruct the jury about the delay in furnishing the test results. See Lee v. State, 326 Ark. 529, 932 S.W.2d 756 (1996).
II. Exclusion of Medical Record
For his next point, White contends that the trial court was in error in not allowing his medical record that he tested negative for chlamydia into evidence. The record in question was the result of a chlamydia test performed on him on July 21, 1994. The record was excluded at trial because the trial court found that a proper foundation had not been laid concerning the chain of custody and the protocol followed in collecting the samples. White argues on appeal, however, that a medical record can come in under the business-record exception to the hearsay rule [Ark. R. Evid. 803(6)], and laying a foundation is not required.
We disagree with White’s conclusion. The law governing the foundation required for the introduction of evidence and chain of custody is well established:
Evidentiary matters regarding the admissibility of evidence are left to the sound discretion of the trial court and rulings in this regard will not be reversed absent an abuse of discretion. Hubbard v. State, 306 Ark. 153, 812 S.W.2d 107 (1991). We have consistently agreed that the purpose of establishing a chain of custody is to prevent the introduction of evidence that is not authentic or that has been tampered with. Pryor v. State, 314 Ark. 212, 861 S.W.2d 544 (1993). However, the trial court must be satisfied that, in reasonable probability the evidence has not been tampered with; it is not necessary that the State eliminate every possibility of tampering, (citations omitted).
Harris v. State, 322 Ark. 167, 176, 907 S.W.2d 729, 734 (1995).
We conclude that there was no abuse of discretion in the trial court’s finding that the testimony presented to establish a foundation for White’s independent test was inadequate. Both of the witnesses called by the defense testified that the procedures at the lab were reliable. Yet, neither of the witnesses could testify as to who collected the samples from White and if that person actually followed an established protocol. The sum and substance of the testimony was the trial court could not be assured of how the samples were collected, when they were collected, or even if they were taken from White. Something more must be done to establish the legitimacy of the tests than was done in this case. We have often stated that proof of the chain of custody for interchangeable items like blood must be more conclusive. See, e.g., Crisco v. State, 328 Ark. 388, 943 S.W.2d 582 (1997). The same would hold true for a swabbed sample taken in connection with a chlamydia test.
Furthermore, we agree with the State that any error caused by the exclusion of the medical record was harmless because the evidence of a test conducted on July 21, 1994, was irrelevant.
Here, the relevant dates, as shown at trial, are as follows:
• 'June 19, 1994 date of the sexual intercourse,
• July 11, 1994 the victim tested positive for chlamydia.
• July 12, 1994 White tested positive for chlamydia.
• July 17, 1994 White purchased an antibiotic that could cure chlamydia.
• July 21, 1994 White’s independent test allegedly showed that he tested negative for chlamydia.
Dr. Denman, the State’s expert in pathology, testified that antibiotics could cure chlamydia in as little as two to three days. White’s independent test was conducted on July 21, 1994, four days after purchasing an antibiotic that could cure chlamydia. The fact that he did not have chlamydia on that particular date shed no light on whether he had chlamydia on July 12, 1994.
III. Falsification of Evidence — Collateral issue
White next claims that the trial court erred in refusing to allow testimony about a concerted effort to have NE falsify evidence. White and Carol White, his sister-in-law, worked at a pawnshop owned by White’s parents. Carol White was also the grandmother of the victim, NE.
During the direct examination of Chris Fisher, defense counsel elicited testimony that the victim told Fisher that she did not have sex with White and that her grandmother, Carol White, was pressing her to pursue charges against White. Defense counsel later called Carol White as his own witness and asked her leading questions about why she encouraged the victim to press false charges. Specifically, defense counsel asked whether Carol White pursued the charges against White (through NE) “to get Brian White out of the picture.” She denied this and also denied that the charges were instigated by her to “get even” with White’s mother for not giving her the pawn shop. Defense counsel asked Carol White if she had been stealing from the pawn shop where she and White both worked, it being the theory of the defense that Carol White wanted White out of the pawn shop so she could continue stealing. The prosecutor objected to the question on grounds of relevancy and also on grounds that this was a collateral matter. The trial court sustained the objection.
Defense counsel next sought to call Katherine Ann McElroy and Ellen Wadene White (White’s mother) to prove that Carol White wanted the pawn shop, was refused it, and found a way to get even with White’s mother for not giving the pawn shop to her. The trial court, after objection by the prosecutor, refused the testimony.
Our Rules of Evidence provide that extrinsic evidence is not admissible to attack the credibility of a witness. Ark. R. Evid. 608(b). Flowever, if collateral evidence is introduced for the purpose of showing the bias of a witness, it is admissible. Bowden v. State, 297 Ark. 160, 761 S.W.2d 148 (1988); Kellensworth v. State, 275 Ark. 252, 631 S.W.2d 1 (1982).
We view this issue as being whether proof of Carol White’s motives for bringing pressure to bear on NE to institute false charges against White is a proper area for development before the jury. We hold that the trial court did not abuse its discretion in ruling as it did. Defense counsel was allowed to question Carol White about her motives. It was only when the issue of her stealing was raised that the questioning was curtailed. At that point, we agree with the trial court that defense counsel was roaming far afield. Nor do we view these circumstances where encouraging false testimony is alleged as falling within the bias exception.
With respect to extrinsic evidence to impeach Carol White herself, defense counsel attempted to call two witnesses (Katherine Ann McElroy and Ellen Wadene White) to show that Carol White had lied in her answers about wanting the pawn shop and wanting White out of the shop. To call witnesses to show that Carol White had lied about wanting White out of the pawn shop and that that was a motive for pressuring NE to accuse White falsely seems not only collateral but a confusing and convoluted area to explore before the jury. The trial court did not abuse its discretion in refusing this collateral testimony. See Ark. R. Evid. 608(b); Barnes v. State, 287 Ark. 297, 698 S.W.2d 504 (1985).
IV. Prior Felonies
White contends that the trial court erred in allowing the jury to consider during the sentencing phase the fact that he had previously been found guilty of nine other felonies and was, therefore, a habitual offender. The essence of his argument is that he had not been found guilty of the previous crimes because his guilty pleas were withheld or deferred under Act 346 of 1975, the First Offender Act.
The wording of the Habitual Offender Statute is apposite in resolving this issue:
(a) A previous conviction or finding of guilt of a felony may be proved by any evidence that satisfies the trial court beyond a reasonable doubt that the defendant was convicted or found guilty.
Ark. Code Ann. § 5-4-504 (1987) (emphasis ours). Accordingly, if the trial court is convinced beyond a reasonable doubt that a defendant was found guilty of a felony, this may be considered by the jury in sentencing.
During the sentencing phase, but prior to the trial court’s instructing the jury, counsel made their arguments to the trial court as to whether the nine Act 346 sentences should be considered by the jury for habitual offender purposes in light of the fact that the convictions were deferred. The trial court found that there was a finding of guilt by the original trial court, following the guilty pleas for habitual-offender purposes. Indeed, in the Order of Probation, the trial court had determined that the guilty pleas were voluntary and that there was a “factual basis” for the pleas. The State, as a result, urges that this meets the finding-of-guilt requirement under § 5-4-504, because the trial court in the instant case ruled that evidence of prior guilt existed beyond a reasonable doubt.
Though this is the first time that we have confronted this precise issue, we conclude that the trial court’s finding of sufficient evidence of prior guilt in this case for habitual-offender purposes was not clearly erroneous. We affirm the trial court on this point as well.
V. Speedy Trial
For his next point, White contends that his right to a speedy trial under Ark. R. Crim. P. 28.1 was violated. Both parties concede that White was tried more than twelve months after his arrest, and, therefore, the burden is placed on the State to show sufficient excluded periods under Ark. R. Crim. P. 28.3. White was arrested on July 10, 1994, and his trial began on January 22, 1996, for a total of 561 days between arrest and trial.
In meeting its burden, the State lists the following as excluded time periods:
• 14 days — September 19, 1994, to October 3, 1994. Defendant’s failure to appear. Agreed to by both parties.
• 14 days — October 3, 1994, to October 17, 1994. Defendant’s request.
• 14 days — November 21, 1994, to December 5, 1994. Arraignment order with time charged to defendant.
• 12 days - March 3, 1995, to March 15, 1995. Pre-trial order with time charged to defendant.
• 76 days — March 15, 1995, to May 30, 1995. Pre-trial order continuance granted on motion from defendant.
• 48 days — May 30, 1995, to July 17, 1995. Pre-trial order in which time was allotted to defendant to receive mental evaluation.
• 79 days — July 17, 1995, to October 4, 1995. Pre-trial order with time charged to defendant.
• 83 days — October 25, 1995, to January 16, 1996. Order excluding time due to the unavailability of the victim.
This provides a total of 340 excluded days, which is more than sufficient for the State to comply with Rule 28.
The only time period that White appears to preserve for appeal was the continuance allowed for the unavailability of the victim, NE, to testify. On October 24, 1995, the trial court entered an order granting the State a continuance because the victim was unavailable and the State had shown that it had employed due diligence in an effort to obtain the victim as a witness. The trial court stated in its order that the time would be excluded for speedy-trial purposes. White now argues that the time should not have been excluded for two reasons. First, Ark. R. Crim. P. 28.3 only allows time to be excluded when “evidence” is unavailable and a witness is not evidence. In swift fashion, however, White concedes that this proposition is contrary to our current caselaw. See Henson v. State, 38 Ark. App. 155, 832 S,W.2d 269 (1992). See also Meine v. State, 309 Ark. 124, 827 S.W.2d 151 (1992).
Secondly, White contends that the time should not be excluded because the witness was, in fact, available. According to White, the only reason the victim was “unavailable” was that she was pregnant and in a drug rehabilitation program in California. The State responds by emphasizing that defense counsel did not ask for a hearing on this precise question until the day of the trial, almost three months after the order granting the continuance was entered. The trial court refused to revisit its decision that the State had used due diligence to obtain the witness for trial. The trial court correctly applied the due diligence standard. Meine v. State, supra. Hence, there was no abuse of discretion on the part of the trial court in excluding the time attributed to the unavailability of NE.
VI. Inappropriate Testimony
Two comments by witnesses denied him a fair trial, according to White. During her direct testimony, VW, who was 16 years old, testified about her sexual relationship with White when she was 12. She testified that at one point White asked her to convince the victim, NE, to go out for the night and rent a room with him. The State asked the witness what she thought when White asked her to do that. She replied: “He was crazy.” White’s counsel objected, and the trial court overruled the objection. White contends that the trial court’s failure to instruct the jury to disregard the statement constitutes reversible error because the witness was not qualified to give an opinion on his mental state.
We disagree. There is no indication that allowing the testimony of VW without an admonition was an abuse of the trial court’s discretion. See Nooner v. State, supra. There are many things that the witness could have meant by her statement. A conclusion by a teenager that White was “crazy” falls more readily into the category of a non-technical conclusion than a medical opinion. The trial court was in the best position to determine the context and meaning of the statement, and on this point, we will defer to the trial court’s ruling.
White’s second issue relates to the direct examination of Rachel White, who testified that after charges were filed against White, his parents evicted her from a house they owned. The prosecutor asked her if she knew why she was evicted by White’s father. She replied: “Because his son raped my niece.” White objected and asked for a declaration of a mistrial. The motion was denied. White then asked the trial court to admonish the jury to disregard the statement, which the trial court did. White now contends that the statement by Rachel was so prejudicial that only a mistrial could have remedied the prejudice.
We have often stated that a mistrial is such an extreme remedy that it should not be declared 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.” See, e.g., Puckett v. State, 324 Ark. 81, 89, 918 S.W.2d. 707, 711 (1996). A trial court’s discretion to grant or deny a mistrial will not be disturbed absent a showing of an abuse of discretion, and a motion for declaration of a mistrial should only be granted when an admonition to the jury would be ineffective. Id. We have also held that an admonition can cure any possible prejudice resulting from prosecutorial misconduct. See, e.g., Sullinger v. State, 310 Ark. 690, 840 S.W.2d 797 (1992); Porter v. State, 308 Ark. 137, 823 S.W.2d 846 (1992).
We conclude that the prosecutor did not ask the question in bad faith. But even if the prosecutor’s question was inappropriate, the trial court’s admonishment cured any semblance of prejudice. There was no abuse of discretion in denying the mistrial motion.
Affirmed.
Corbin, J., not participating.
Though the age of both the victim and Rachel White was 12, Rachel White was indeed the aunt of the victim.
The judge was the same person in both instances. | [
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JIM GUNTER, Justice.
11 This appeal arises from the denial of Appellant Joshua Leallen Lofton’s motion to transfer his capital murder and aggravated robbery cases to juvenile court. We affirm the circuit court’s ruling.
On July 22, 2007, North Little Rock Police officers responded to a shooting in the Wal-Mart Supercenter parking lot on McCain Boulevard. When the officers arrived, they found Dean Warden with a gunshot wound to the neck. Warden was later pronounced dead at the scene. Officers viewed surveillance footage from Wal-Mart’s video surveillance system. The video revealed that a robbery had occurred moments prior to the shooting. Based on eyewitness testimony and the surveillance footage, the officers were able to Igdevelop a suspect vehicle, a Chrysler 800. Officers located the vehicle and its owner, Sharice Williams. The officers took Williams’s statement in which she admitted to being in the parking lot that day with then seventeen-year-old Appellant Joshua Lofton.
The officers located Appellant and read him his Miranda rights, which he waived by signing a Miranda rights waiver form. In his statement to police, Appellant said that on the day of the shooting, he and Markevius (Mark) Jackson were discussing “hitting a lick.” They decided to go to Wal-Mart and drove there with Sharice Williams. When they arrived, Appellant got out of the car, walked down an aisle of the parking lot and tried to steal a purse from a woman. The woman would not give him her purse, so he hit her in the head with a gun and ran back to the car. Appellant stated that there were people standing in front of the car and he yelled at them, “y’all are gonna have to move.” He stated that he did not want anyone to see the license plate of the car. Appellant stated that he tried to get the people to move away from the car by shooting his gun into the air. He remembered shooting the gun twice. Appellant said that it was not until later that he learned that one of the people in the crowd died from gunshot wounds.
Appellant got back into the car and he, Mark, and Sharice fled the scene. They drove around and unsuccessfully tried to buy gas with one of the robbery victim’s stolen credit cards. Appellant was eventually dropped off at a friend’s house and was picked up by his cousin and his brother. Their car was pulled over by police and Appellant was taken pinto custody.
On September 14, 2007, Appellant was charged in a criminal information with one count of capital murder in violation of Arkansas Code Annotated section 5-10-101 and one count of aggravated robbery in violation of Arkansas Code Annotated section 5-12-103. Appellant’s date of birth is October 2, 1989, and he was seventeen years old at the time of his arrest. On January 28, 2008, Appellant filed a motion to be transferred to juvenile court pursuant to Arkansas Code Annotated section 9-27-318, which was denied on March 4, 2008. On March 18, 2008, Appellant filed a timely notice of appeal. This case was assumed by our court on March 13, 2009, because it involves significant public interest.
For his sole point on appeal, Appellant asserts that the circuit court erred in denying his motion to transfer to the juvenile division of the circuit court and denying his request to extend juvenile jurisdiction. Appellant moved under Arkansas Code Annotated section 9-27-318(e) to transfer his case to the juvenile division, arguing that he does not have a significant juvenile criminal record and that rehabilitation programs available through the juvenile court are a more appropriate sentence. In deciding the motion, the circuit court is to consider the following factors:
(1) The seriousness of the alleged offense and whether the protection of society requires prosecution in the criminal division of circuit court;
(2) Whether the alleged offense was committed in an aggressive, violent, premeditated, or willful manner;
|4(3) Whether the offense was against a person or property, with greater weight being given to offenses against persons, especially if personal injury resulted;
(4) The culpability of the juvenile, including the level of planning and participation in the alleged offense;
(5) The previous history of the juvenile, including whether the juvenile had been adjudicated a juvenile offender and, if so, whether the offenses were against persons or property, and any other previous history of antisocial behavior or patterns of physical violence;
(6) The sophistication or maturity of the juvenile as determined by consideration of the juvenile’s home, environment, emotional attitude, pattern of living, or desire to be treated as an adult;
(7) Whether there are facilities or programs available to the judge of the juvenile division of circuit court that are likely to rehabilitate the juvenile before the expiration of the juvenile’s twenty-first birthday;
(8) Whether the juvenile acted alone or was part of a group in the commission of the alleged offense;
(9) Written reports and other materials relating to the juvenile’s mental, physical, educational, and social history; and
(10) Any other factors deemed relevant by the judge.
Ark.Code Ann. § 9-27-318(g) (Repl.2009). Section 9-27-318(e) permits any party to move to transfer, and an order on a motion to transfer may be appealed by any party. See R.M.W. v. State, 375 Ark. 1, 289 S.W.3d 46 (2008). The circuit court shall make written findings on all of the factors set forth in subsection (g). Upon a finding by clear and convincing evidence that a case should be transferred to another division of the circuit court, the circuit court may do so. See R.M.W., supra; Ark.Code Ann. § 9-27-318(h)(2). 15Clear and convincing evidence is that degree of proof that will produce in the trier of fact a firm conviction as to the allegation sought to be established. R.M.W., supra. This court will not reverse the circuit court’s decision unless it was clearly erroneous. Id. 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.
On appeal, Appellant disputes the circuit court’s findings on the factors enumerated in 9-27-318(g). We will analyze Appellant’s arguments as they pertain to specific statutory factors. The first factor concerns the seriousness of the alleged offense and whether the protection of society requires prosecution as an adult. In its findings, the circuit court stated that the offenses of capital murder and aggravated robbery are serious offenses and that the protection of society requires prosecution as an extended juvenile jurisdiction offender or in circuit court. Appellant, relying on Thompson v. State, 330 Ark. 746, 958 S.W.2d 1 (1997), contends that there was insufficient evidence presented to establish the seriousness of the offense; that the circuit court may not base its refusal to transfer to juvenile court solely upon the allegations contained in the information; and that there must be some evidence to substantiate the serious and violent nature of the charges contained in the | ^information.
We have held that a juvenile may be tried as an adult solely because of the serious and violent nature of the offense. See Otis v. State, 355 Ark. 590, 142 S.W.3d 615 (2004). Here, there was evidence presented at the hearing to substantiate the serious and violent nature of the charges contained in the information. In his own taped statement, Appellant stated that “[w]hen I got to the lady in the aisle, I tried to take her purse but she wouldn’t let it go so I hit her with the gun and ran to the car.” Detective Gravette testified that Appellant’s story that he shot his gun in the air was inconsistent with the video-surveillance footage. The surveillance footage reveals that Appellant gets out of his car, walks down one aisle of the parking lot and then begins walking back up the next aisle. The robbery victim is walking toward Appellant. The video footage is consistent with Detective Gravette’s testimony and Appellant’s statement that he took the robbery victim’s purse and hit her in the head with the gun. Appellant then runs back up the aisle toward the car. It appears from the video footage that Appellant reaches his car and turns around with his hand and arm extended toward a group of people walking down the aisle. He appears to advance toward them and then retreat. At this time, the shooting victim falls to the ground. Because there was evidence presented at the hearing to substantiate the serious and violent nature of the charges contained in the information, we hold that the circuit court did not err in its finding regarding this factor.
|7The second factor concerns whether the alleged offense was committed in an aggressive, violent, premeditated, or willful manner. In its order, the circuit court found that the victim was shot and killed in a parking lot at a Wal-Mart store. “The victim was walking towards the store and appears to have been shot while the defendant was attempting to flee after he had taken the purse from another victim and had hit her in the head with a gun.” Appellant asserts that clear and convincing evidence does not exist to prove that the alleged offense was committed in such an aggressive, violent, premeditated, or willful manner such that the matter should be prosecuted in the criminal division of the circuit court. Based on Detective Gra-vette’s testimony, Appellant’s own statement, and the video footage discussed above, the circuit court did not err in its finding regarding this factor.
The fourth factor concerns the culpability of the juvenile, including the level of planning and participation in the alleged offense. The circuit court found that Appellant had acknowledged culpability and that there were two other people involved who had not been charged but who “may have known about and participated in the planning of the crime.” Appellant asserts that the participation of Mark and Sharice and “the obvious lack of planning” that took place prior to the alleged events weighs against Appellant’s culpability and level of planning. Appellant admitted in his statement that he and Mark planned to go out and “hit a lick” and that they decided to go to Wal-Mart. Based on his own statement, Appellant was the person who committed the robbery, hit the robbery victim in the head |8twice, and shot the gun while Mark and Sharice remained in the car. Even though there were two other people involved, his own statement along with the video footage establish his culpability.
The sixth factor concerns the sophistication or maturity of the juvenile as determined by consideration of the juve nile’s home, environment, emotional attitude, pattern of living, or desire to be treated as an adult. Appellant asserts that the finding that he was sophisticated was not supported by convincing evidence, pointing to the testimony of his mother and forensic psychologist Dr. Ron Faupel. In its order, the circuit court acknowledged that Appellant has a “borderline intellectual function,” but found that he was mature for his age because he had been out the night before the incident, made decisions regarding whether he would take medication that was prescribed to him, and acknowledged extensive drug and alcohol use. The circuit court obviously afforded greater weight to Appellant’s own statement than to the testimony of Appellant’s mother and Dr. Faupel. Credibility of witnesses is an issue for the finder of fact. See R.M.W., supra. On appeal, we have no means to assess witness credibility and may not act as the finder of fact. Id.
The seventh factor concerns whether there are facilities or programs available to the judge of the juvenile division that are likely to rehabilitate the juvenile prior to the expiration of the juvenile division’s jurisdiction. The circuit court found that there were facilities and programs available to the court that would likely rehabilitate Appellant. | ^Appellant seems to assert that based on this finding, the circuit court erred in finding clear and convincing evidence to try Appellant as an adult. However, we have held that the circuit court is not required to give equal weight to each of the statutory factors. See Otis, supra. As such, it is clear that the weight to be afforded to each statutory factor is within the discretion of the trial court. Id. We cannot say that the circuit court’s order denying the motion to transfer was not supported by clear and convincing evidence solely because of its finding on this one factor.
Appellant also argues that the circuit court erred in denying his request to extend juvenile jurisdiction. Arkansas Code Annotated section 9 — 27—318(i) provides that, upon the finding by the criminal division of a circuit court that a juvenile should be transferred to the juvenile division, the criminal division may enter an order to transfer as an extended juvenile jurisdiction case. Here, the circuit court found that Appellant should not be transferred to the juvenile division. Therefore, extended juvenile jurisdiction is not applicable in this situation.
In sum, in light of the evidence presented at the hearing, Appellant has not met his burden of proving that the circuit court was clearly erroneous in denying the motion to transfer his case to juvenile court. We hold that there is clear and convincing evidence to support the circuit court’s ruling. Accordingly, we affirm.
Affirmed.
. It appears that Appellant does not dispute the circuit court's findings on the third, fifth, eighth, ninth, and tenth factors. | [
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Mehaeey, J.
The appellee brought suit in the White Circuit Court against the appellants to recover damages for an injury received on October 23, 1930.
Appellee was employed by appellant as nightwatchman at appellant’s mixing plant in White County. He went on duty on October 23d about six p. m. His working hours were from 6 p. m. to 6 a. m. Appellee kindled a small fire about 50 yards from the crane where he was injured, and then went down to the detour where A. O. Lyles was on duty, detouring traffic.
In perfoiuning his duties, appellee would make trips about the premises at intervals, and, in connection with the performance' of his duties, he carried a lighted lantern. Appellant’s equipment included a crane, which was mounted on caterpillar tracks and operated by means of a gasoline motor. Underneath, the rear part of the crane was a gasoline tank of about 50 gallons capacity. This tank had to be filled from the inside of the crane.
Under the tank was a place from which gasoline could be drained out of the tank by unscrewing a three-eighths inch plug from a drain cock. The gasoline tank was filled from ten-gallon cans, which were kept in the oil house of appellant, about 50 yards from the crane. Appellant also had a five-gallon water bucket which was used to fill the radiator of the crane.
While the appellee was with Lyles at the barricade, appellee’s seventeen-year-old son, Herbert Rogers, and Robert Akin drove up in a Ford car. Appellee got in the car with them and drove down to the mixing plant. At about 7:30 or 8:00 appellee took his lantern and went to the crane, and a quantity of gasoline was either spilled or poured on him, and was ignited, and appellee was severely burned. He was carried to the doctor’s office and then taken to the hospital at Beebe, where he remained until December 24, 1930.
It is appellee’s contention that a can partly filled with gasoline was negligently left at the crane, and that this fell on him, pouring gasoline over him, which was ignited by the lantern that he was carrying.
It is the contention of the appellant that appellee got burned while getting gasoline out of the tank under the crane, for the purpose of supplying his son’s car; that the employee, who it is alleged put the gasoline on the crane, was not engaged in labor on October 23 for the appellant, and that the witness who moved the gasoline can was not at the time working for the appellant, and that appellant was guilty of no negligence in connection with the accident and injury,'and is not liable to the appellee.
There was a verdict and judgment for the appellee, and the case is here on appeal.
Appellant’s first contention is that there is no substantial evidence to show that appellee’s injuries were caused by any negligence on the part of the appellant.
. W. H. Rogers, who is not a relative of the appellee, testified that he lived at Jacksonville, and worked for the Altman-Rodgers Company in October, 1930, and was working for appellant on the 23d -day of October, 1930, the day appellee was injured; that he was batching up the material, and that between five and six o’clock that evening he went to get his raincoat, which was lying on the crane; that there was a 10-gallon can sitting on the crane about half full of gasoline. He had to pick up the can and move it over to get his raincoat. It was a 10-gallon can, and open at that time; the sides of the. can were straight. This witness then, on cross-examination, described the openings in the crane, the situation and the place where the gasoline can was sitting, and he was cross-examined at length about the bucket or can that was on the crane, and whether the one exhibited was the same or a different one.
E. L. Walker, one of the appellants, testified • that he was working for appellant company at the time of the injury; that appellant company owned a filling station near the cranes, and that he attended to the filling station; was their gasoline man, and that it was his duty to furnish gas and oil for all the trucks and machines, and to check up when they needed it; that he usually filled the tank about 5:30, or around quitting time; that he was at the Altman-Rodgers place on the afternoon of October 23; that the mixer did not run that day, but that he was there and filled up the tank and filled up some trucks; that on the evening of October 23 he filled the gasoline tank on the crane; that he carried the gasoline from the filling station to the crane in a 10-gallon can. About the time he got through filling the tank, he had some left; the can was about half full; that it was his custom to carry any gasoline that he had left in the can to the filling station, but on that day he left the can sitting on the crane, where Rogers said he moved it to get his raincoat; that about the time he got through filling the tank some one called him, and he stepped off and carelessly forgot the gasoline can; that he did not intend leaving it there; that was the same evening that appellee got burned.
W. H. Rogers also testified that after the appellee was injured he became nightwatchman on November 6 after the accident; that in February he moved into the office and found some time.sheets under Stallcup’s desk rolled up in a bundle; he had heard the talk that Walker was not working on October 23, and that he and Pitts Morris, who was there with him, got to talking about it and looked at these time sheets, and saw that Walker had four hours on October 23d.
It appears therefore that there was substantial evidence to submit to the jury the question as to whether Walker, at the time he left the gasoline, was in the employ of the company in the performance of his duties. It is true that this evidence was contradicted by appellant’s witnesses, who testified that Walker was not working that day. Wherever the evidence is in conflict, it is the province of the jury to determine the weight of the evidence and the credibility of the witnesses, and this question was submitted to the jury under proper instructions.
This court does not pass on either the credibility of the witnesses or the weight to be given to their testimony. If there is substantial evidence to support the verdict of the jury, this court cannot set aside the ver diet, although it might appear that it was against the preponderance of the evidence.
Appellant contends that appellee got burned while getting gasoline out of the gasoline tank underneath- appellant’s crane for the purpose of supplying the Ford car in which his son, Herbert, had driven up from Beebe. There is no evidence to support this theory. In fact, the evidence introduced by appellant contradicted this theory.
The evidence of young Rogers and Akin was introduced by appellant, and their evidence contradicts this idea, and also contradicts the idea that some one else was stealing gasoline, and, when appellee went to the crane, gasoline was thrown on him. Both these witnesses testify that there was nobody present at the crane, and Alexander testified that he was where he could see the crane and saw no one about the crane. It is contended, however, that there were persons there, because witnesses testify as to statements made by appellee immediately after the accident.
The undisputed proof shows that appellee was severely burned, and witnesses, including the nurse at the hospital, testified that it was the most severe burn they had ever seen. The jury had a right to believe the appellee when he said he did not make these statements.
However, if he had made the statements and admitted it, this fact would simply have gone to his credibility as a witness, and the jury might still believe that he told the truth when he testified on the witness stand.
Appellant introduced an article in the Arkansas Democrat in which it was stated that somebody was at the crane stealing gasoline, and that they threw the gasoline over appellee.
Appellee testified that he never wrote the article, that he never authorized any one to write it, and that he knew nothing about it and did not make the statement.
It does not appear from the evidence why the doctor and nurse wanted to get a statement from appellee at the'time, when they knew he could not sign it, and his condition was such that the nurse admits that he had to lie down before he could complete his statement. She said he was sitting up in bed when he started the statement. The notary public says that he'not only did not sign the statement, but that he did not swear to it, and that he could not raise his hand, and it does not appear why the doctor and- nurse brought in a notary public for the purpose of taking his statement when he was in this condition, but, if he had made and signed the statement, and had admitted that he did, yet the jury had a right to believe his evidence, in which he described his condition, and told how the accident occurred.
The nurse, although she testified about discussing with appellee the statement published in the Democrat, finally admitted that she did not read it to him, that he did hot at any time state that he authorized the article, nor that he had any knowledge of it; that she did not read it to him, and did not tell him anything about it.
Dr. Sloan, whose statement was introduced by appellant, testified about appellee’s condition when he was at the hospital; that he came there between 7:30 and 9 o’clock on the evening of October 23, and remained in a semi-conscious condition about 48 hours, and he had considerable delirium after that. His mind was clear after he got over the shock, but he had considerable delirium all the way through, and that delirium periods kept up until some three or four weeks before he left the hospital. The burns were not healed when he left the hospital.
Appellant introduced evidence as to finding pliers, supposed to be used to take the plug out pf the gasoline tank, and introduced a can and bucket, and also evidence that the gasoline had burned right under the tank where the gasoline could be drained out, and that there was no sign of fire on the side of the crane.
It is contended by appellant that appellee was stealing gasoline, and that it kvas ignited from his lantern, and that this caused the injury to appellee. They also contend that some one else was stealing gasoline and threw the gasoline on appellee, and that this was the way it occurred.
The jury might have believed that appellee could not, under the evidence in the case, have been getting gasoline from the tank, and after getting the gasoline screwed the plug in tight. They certainly would not have believed that he put the plug in tight, as appellant’s witnesses say, after the burn, and they might have believed that, if other persons had got the gasoline and screwed the plug in tight before appellee got there, they would not have waited and thrown the gasoline on him, but would have gone on away with it.
All these are questions, however, of fact, and it was the province of the jury to determine where the truth lay.
It is next contended by the appellant that the court erred in refusing to submit to the jury the special interrogatories. They were as follows:
1. Was the plaintiff injured by a can of gasoline turning over on him, which had been left in doorway of the crane?
2. Was the plaintiff injured by gasoline thrown on him by some unknown person or persons?
3. Was the plaintiff injured as a result of removing g'asoline from the gasoline tank of the crane?
Bach one of the requests were covered by the court’s instructions to the jury, to which no objection was made by appellant.
"■ It was within the discretion of the trial court to submit to the jury the special requests or not, and the court did not abuse its discretion in refusing to require the special findings. L. R. & Ft. Smith Ry. Co. v. Pankhurst, 36 Ark. 371, 378; Surridge v. Ellis, 117 Ark. 223, 174 S. W. 537; Southern Life Ins. Co. v. Roberts, 173 Ark. 903, 294 S. W. 14; Stanley v. Smith, 135 Ark. 502, 205 S. W. 889.
The appellant does not complain about the instructions of the court nor the amount of the verdict.
We find no error, and the judgment is affirmed. | [
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McHaney, J.
On July 1, 1931, appellee’s intestate, B. M. Morgan, was driving Ms Ford coupe south, on Palm Street in North Little Rock and was crossing Second Street when his car was struck near the rear end by the Chevrolet car of appellant going east on Second Street with such force and violence as to tear off the right rear wheel of the Ford, causing it to reverse its direction, and throwing Mr. Morgan and his wife, who was riding with him, to the pavement, killing both of them. Mr. Morgan was killed instantly. Mrs. Morgan died some hours later without regaining consciousness. Separate suits were brought by appellee as administratrix of both estates for the benefit of their four minor children, the oldest being a boy 17 years of age, and the youngest a girl of 7. A recovery was also sought for pain and suffering, but, as the proof failed to develop any consciousness of either after the accident, the court properly declined to submit that element of damages to the jury. The cases were consolidated for trial which resulted in a verdict and judgment in each case of $15,000 against appellant.
Five grounds are urged for a reversal of these judgments as follows:
1. When the jury was being impaneled, counsel for appellant asked all the members of the panel if they had “any connection or relationship with the Standard Casualty & Surety Company of New York.” And further if they “had such relationship with any such company or any surety company that insures persons against liability. ’ ’ At the first intimation of such questions being propounded to the jury, counsel for appellant stated to the court in the absence of the jury that he offered to prove in the absence of the jury by its general agent for Arkansas that “none of this jury is connected with the general agency or any local agency, ’ ’ and by its general counsel that none of the jury had any interest in the company as stockholders. The court then inquired of counsel for appellee if he had any reason to believe appellant had liability insurance, and he answered that he knew such to be the fact. The two questions as above stated were then permitted to be asked the jury over appellant’s objections and exceptions. Even though appellant had made the proof offered, which he did not, and even though it be accepted as true, it would not preclude the questions, as it did not go as far as they did. The jurors or some of them might have had some relationship or connection with the particular company mentioned or some other surety company so as to make them undesirable jurors, and still not have been connected with any agency or held any stock in the particular company. We have many times held that similar questions may properly be asked the veniremen for the purpose of intelligently exercising the right of challenge. Smith-Arkansas Traveler Co. v. Simmons, 181 Ark. 1024, 28 S. W. (2d) 1052; Ellis & Lewis v. Warner, 182 Ark. 613, 32 S. W. (2d) 167; Bourland v. Caraway, 183 Ark. 848, 39 S. W. (2d) 316; Sutton v. Webb, 183 Ark. 865, 39 S. W. (2d) 865. No error was committed, therefore, in this regard.
2. It is insisted that appellee is barred from recovery because of the contributory negligence of Mr. and Mrs. Morgan. We do not review the evidence, as we think no useful purpose could be served in doing so. We have carefully read the testimony of the witnesses for both sides, and have reached the conclusion that there was very substantial evidence that appellant was negligent, and that the deceased persons were not. At least, we cannot say, as a matter of law,'that the latter were guilty of contributory negligence preventing a recovery. The court properly submitted this question to the jury, and, there being substantial evidence to support the verdict, it is binding here.
3. It is suggested that the court erred in permitting a police officer to testify over appellant’s objection that another officer arrested appellant shortly after the acci-. dent. There was no error in this regard, but, even so, it could not be prejudicial as the other officer so testified without objection, and appellant himself testified that he was arrested by such other officer.
4. Complaint is also made of the giving of certain instructions and the refusal to give certain others at appellant’s request. For instance instruction No. 2, given at appellee’s request, told the jury that if they believed from the evidence that Mr. and Mrs. Morgan were proceeding south on Palm at its intersection with Second in the exercise of ordinary care, and, while in said intersection, appellant negligently drove into same and struck the Morgan car and negligently caused their deaths without fault on their part, a recovery should be had in each case. This instruction is criticised on the grounds that it disregarded the duty imposed on them to look to the right and yield the right-of-way to cars approaching from the right. A city ordinance so provides, but we held in Murray v. Jackson, 180 Ark. 1144, 24 S. W. (2d) 960, that a vehicle having first entered an intersection had the right-of-way over a vehicle which had not, under a like municipal ordinance. In this case the evidence was sufficient to establish, the fact that the Morgan car entered the intersection first and was crossing the south rail of the street car track before appellant’s car struck it. The instruction under discussion was in line with the hold- ' ing in Murray v. Jackson by saying: “And that while in said intersection the defendant * * * drove into said intersection and ran his car against the car of B. M. Morgan and in doing so he was negligent and his negligence caused the collision,” etc. In Jacks v. Culpepper, 183 Ark. 505, 37 S. W. (2d) 94, we held that a similar ordinance does not require one who has actually entered the intersection to yield the right-of-way to one whose car is approaching but has not entered the intersection. We cannot discuss in detail all the errors argued relative to instructions, as to do so would extend this opinion beyond due bounds without accomplishing any practical result. We have examined the argument made on the several assignments and find it without substantial merit.
5. It is finally suggested that the verdicts are excessive. We do not think so. Four children were deprived of both mother and father in the same tragedy. The oldest, a boy, was 17 years of age. There were three little girls, age 14, 11 and 7. The father was earning $100 per month and was supporting and educating them with the help of his wife who looked after them and operated a grocery store in connection with the residence. They were shown to be a happy and contented family with ambition to educate and properly rear their children. The value of the counsel, advice, guidance, loving care and solicitude of both mother and father would be difficult of ascertainment in money and must be left to the sound judgment of the jury where it is not shown that such judgment has been swayed beyond reason and common sense by passion or prejudice. In addition the father was earning $1,200 per year, which was devoted to family purposes. Under these circumstances, we cannot say the judgments are excessive.
We find no error, and the judgments are accordingly affirmed. | [
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Mehaeey, J.
On May 9, 1931, the commissioners of Northern Road Improvement District of Arkansas County filed suit to enforce the payment of delinquent taxes alleged to be due the said district. To the complaint was attached an exhibit which was said to be a record of delinquent lands in said district, returned delinquent on June 9, 1930, for the nonpayment of taxes due thereon for the year 1929.
This record was properly certified to by the sheriff and collector of Arkansas County. The clerk of the chan eery court certified that the list was filed in his office August 29, 1930.
Warning’ order was published, and a number of the landowners of the district intervened, and interposed the defense that the suit was not brought within three years after said taxes became delinquent. There was a number of interveners, but the defenses interposed were identical.
Answers were filed to all the interventions, alleging that the lands in controversy stood forfeited to the State, and the district’s right to proceed to collect the taxes was suspended because the lands had been sold to the State, and therefore the three years’ statute did not apply.
There is no controversy about the facts, but only questions of law are involved. There appears to be some confusion and uncertainty about the law with reference to collection of improvement district taxes, and for that reason the law should be stated clearly, so that any doubt or uncertainty may be removed.
The Northern Road Improvement District of Arkansas County was created by act 247 of the Acts of 1919. Section 6 of this act provides for the assessment of benefits, and § 7 provides that the assessment shall be filed with the county clerk, and the secretary of the board shall give notice by publication for two weeks in a newspaper, published and having a bona fide circulation in the city of Stuttgart.
Said notice must advise the landowners of the filing of the assessment, and that it is open for inspection, and fix the time when they may be heard by the commissioners. The act permits a reassessment not oftener than once a year.
Section 13 of the act fixes the time when the assessments are payable between the first Monday in January and the 10th of April in each year. The section also provides that the collector shall not embrace such taxes in the taxes for which he shall sell the lands, but he shall report such delinquencies to the board of commissioners of said district, which shall add to the amount of tax a penalty of '25 per cent., and said board of commissioners shall enforce the collection by chancery proceedings in the manner provided in §§ 23 and 24 of act 279 of the Acts of 1909. The owner has five years in which to redeem from said sale.
Appellee concedes that, if the improvement district could proceed to enforce or foreclose its lien before the assessments are formally returned as delinquent, then the three years’ statute of limitations has run, and this case should be reversed.
Section 6695 of Crawford & Moses’ Digest provides that the words “forfeited” and “forfeiture” shall be construed to mean and apply to lands which were sold for nonpayment of taxes according to law, etc.
This court has said: “Of course, the forfeiture to the State of lands for general taxes necessarily suspends the enforcement of the special tax lien as long as the title remains in the State, but, as the lien, under the terms of the statute, is not extinguished, and continues until the special taxes are paid, the same can be enforced when the land goes back into private ownership. This construction of the statute gives full recognition to the State’s paramount right of taxation, and in nowise detracts from the dignity and power of the State as against subordinate governmental agencies.” Turley v. St. Francis County Road Imp. Dist. No. 4, 171 Ark. 939, 287 S. W. 196.
This court, in a later case, said: “Sale to the State of lands for nonpayment of general taxes suspends the enforcement of the special road tax lien so long as the title remains in the State; but such lien, under Crawford & Moses’ Digest, § 5433, may be enforced when the land goes back to private ownership.” Wyatt v. Beard, 179 Ark. 305, 15 S. W. (2d) 990.
In the case above cited the sales to the State were valid. These cases were referred to and the rule announced by them approved in Hopper v. Chandler, 183 Ark. 469, 36 S. W. (2d) 398.
The appellant suggests that the court, in its former decision, overlooked § 2 of act 261 of the Acts of 1925. That act, however, applies only to road improvement districts which embrace lands in five or more counties, and therefore has no application here.
The lien for improvement district assessments shall be in the manner provided in §§ 23 and '24 of act 279 of the Acts of 1909. These sections provide that the assessments shall be payable between the first Monday in January and the 10th day of April in each year. The act then provides that the collector shall report delinquencies to the board of commissioners; that they shall add the penalty, and enforce the collection by a suit in the chancery court.
The question is, when did the lands become delinquent? There can be no doubt that the assessments are payable between the first Monday in January and the 10th day of April.
Section 4 of act 534 of the Acts of 1921 is as follows: “When the board of commissioners, or any one authorized by law to file suit for the collection of such delinquent taxes, desires to commence said suit, they shall obtain a certified copy of said list from said clerk, which shall be filed with the complaint and taken as a part thereof, and the clerk, for making said list, shall be entitled to ten cents per tract, which shall be taxed as costs in said suit. No suit for the collection of such delinquent taxes shall be brought after three years from date same became delinquent.”
It appears from that act that, whether the taxes have been extended or whether the collector has made any report, the board of commissioners, if they desire to commence suit, shall obtain a certified copy of the list from said clerk, and file this list with the complaint, and it will be observed that under said section no suit shall be brought after three years from the date same became delinquent. When the law fixes a day for the payment of taxes, and the taxpayer fails to pay on or before that day, he is delinquent. These acts themselves indicate that, because they require the sheriff to report the delinquency. Unless they were delinquent, there would be no delin quency to report, and a delinquent tax means a tax overdue and unpaid.
‘ ‘ To constitute a legally delinquent tax on land, three things are necessary: First, that the land is subject to taxation; second, that a tax authorized by law has been levied on it in the manner provided by law; third, that the tax remains unpaid after the time appointed by law for its payment. To make out a tax delinquent, each of these things must be shown — each is as essential as either of the others.” Chauncy v. Wass, 35 Minn. 1, 30 N. W. Rep. 826; 18 C. J. 475.
It seems clear that when the statute fixes the 10th of April as the last day for payment, and provides that the commissioners may secure the list from the clerk before bringing suit, the intention is to authorize suit to be brought at any time within three years after the failure to pay at the time the taxes are due.
We have heretofore held that when lands have been sold to the State, the lien for assessments was suspended, and could be enforced after the lands went back to private ownership. Of course, this meant valid sale. A void sale would not suspend the statute because if void, it is a nullity, binding on no one. But if the collection of improvement district assessments Is suspended by a valid sale to the State and not by a void sale, the commissioners would be required to determine in each instance whether a tax sale was valid or void. This, in many instances, might require expensive lawsuits because, in many instances, no one could say whether the sale was void or not.
We therefore hold that, when taxes are not paid at the time fixed by law, they are delinquent, and the commissioners may secure the certified list from the clerk and proceed to enforce collection. If the lands have been sold to the State, the sale for improvement district taxes will be subject to the paramount right of the State. There can then be no confusion or doubt about the time and manner of inforcing liens for assessments in improvement districts.
When all the acts are considered together, it seems clear that this was the intention of the Legislature.
In this case, three years having elapsed after the taxes became delinquent before suit was brought, such suit was barred by the three years statute of limitations.
The decree of the chancery court is therefore reversed, and the cause remanded with directions to dismiss the complaint. | [
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McHaney, J.
On March 23, 1931, appellant sued appellee in unlawful detainer, alleging that she was the owner and entitled to immediate possession of a certain house and lot in McRae, Arkansas; that appellee rightfully entered into the possession of said lot under an oral rental contract with her and her husband, but wrongfully refused to pay the rent or surrender possession,, and that she is holding over without authority and with force; that due notice and demand in writing had been made for the possession thereof, which was refused; and that the rental value was $15 per month. She prayfed judgment for $50 damages and $15 per month for rent from February 1, 1931. At the same time appellant filed bond to obtain immediate possession, which was approved, and writ of possession was issued and served. Appellee filed bond for a like sum to retain possession, with R. L. Ernest as surety, which was approved and accepted. Thereafter appellee filed an answer, denying all the material allegations of the complaint, but alleged in addition that she had rented the property from appellant and her husband and had paid the rent in advance to June, 1931, at which time she had vacated the property. On July 24, 1931, appellant filed an amended complaint, in which she alleged, in addition to the matters set out in the original complaint, that she had left her household and kitchen furniture in the building rented by appellee for her use, and that, while the property was in her possession same was destroyed by fire. She prayed damages, in addition to the rent, in the sum of $375 for the personal property destroyed by fire.
On a trial the jury found in appellant’s favor for the sum of $260 damages to the personal property and $40 for rent. No judgment was entered on the overruling of the motion for a new trial, but thereafter, on September 5, 1931, the court entered a judgment nunc pro tunc against appellee in the sum of $260' for damages to the personal property and $40 for rent, making a total of $300, but against her bondsman for the sum of $40 only, the amount of the .judgment for rent, and refused to enter judgment against him for the $260 damages to the personal property. Appellant excepted to the refusal of the court to enter judgment against the bond in the sum of $260, and has appealed from that judgment.
Appellant filed no motion for a new trial, and there is no bill of exceptions in the record. The only question presented is the liability of Mr. Ernest as surety on appellee’s bond to retain possession for the destruction of the personal property by fire while in her possession. Said bond is conditioned as provided by law as follows: “Now, if the said Opal F. Cook shall recover judgment for the possession of said property in said action, and the said Lynn Barber shall deliver possession thereof to said Opal F. Cook, and shall satisfy any judgment rendered against her therein, then this bond to be void; otherwise, to remain in full force and effect.”
We think the court correctly construed the bond not to be bound for the payment of the judgment rendered in excess of the rent. While it provides that he “shall satisfy any judgment rendered against her therein,” this means that he shall satisfy any judgment covering the rental value of the property and any damages accruing to appellant by virtue of the unlawful possession. There would be no more reason for holding the bond liable for the destruction of the personal property than there would be for the destruction of the house. The statute, § 4847, Crawford & Moses’ Digest, does not contemplate that the bond shall be liable for the destruction of the property by act of Grod or other cause not due to the negligence of the principal. Moreover, the bond was given long before the property was destroyed and was not in the contemplation of the parties. Compare Lacy v. London, 89 Ark. 250, 116 S. W. 207; Brooks v. Buie, 71 Ark. 44, 70 S. W. 464.
In Turner v. Vaughan, 152 Ark. 475, 238 S. W. 1059, we said: “We find no authority for holding that mere wrongful occupancy of premises infers liability for injury that may occur from any causes during the period of such occupancy. There must be some relation between the wrongful detention and the loss or injury which occurred during that period. Unless the loss occurs through some negligent or wilful act or omission of the wrongdoer, there is no causal connection between the wrongful act and the injuries to constitute one the proximate cause of the other. It has been held that in actions of ejectment for the wrongful detention of property only such damages to the freehold itself are recoverable which amount to waste.”
So here there must be some relation between the wrongful detention and the damages appellant may recover therefor. No such relation is shown to exist in this case, and appellant was not entitled to recover against the bond for such damages. We do not mean to say that the judgment against appellee was 'proper, as she has not appealed, but appellant is in no position to complain because she obtained relief to which she might not be entitled.
We find no error, and the judgment is affirmed. | [
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Hart, C. J.
Yeo Gray was convicted before a jury charged with the murder of Raymond Cromer in Drew County, Arkansas, and his punishment was fixed at life imprisonment. From a judgment rendered on the verdict he has appealed.
The evidence was legally sufficient to support the verdict. The court tried the case under the usual instructions governing cases of homicide of this kind. It is earnestly insisted, however, that the court erred in allowing certain testimony to go before the jury. Raymond Cromer made a dying declaration as to the circumstances attending the killing, which was reduced to writing by the sheriff. It is not claimed that the dying declaration which was reduced to writing is incompetent, but it is claimed that the dying declaration made by the deceased to his father which was not reduced to writing is incompetent. We do not agree with counsel in this position. Dying declarations, either oral or written, or partly oral and partly written, are competent evidence to go before the jury as to the facts and circumstances immediately at tendant upon the homicide. Underhill’s Criminal Evidence, 3rd ed., § 180. If any part of the declaration is inadmissible, it may be stricken out on motion of the defendant. This court has uniformly held that such declaration may he admitted to prove the circumstances attending or leading up to the homicide. Newberry v. State, 68 Ark. 359, 58 S. W. 351; Rhea v. State, 104 Ark. 176, 147 S. W. 463; Moore v. State, 125 Ark. 177, 188 S. W. 3.
The admissibility of dying declarations is for the court to determine, and the weight and credit to he given them is for the jury. Burns v. State, 155 Ark. 1, 243 S. W. 963. The record shows that the dying declaration written by the sheriff and the oral dying declaration made to the father of the deceased were substantially the same. But, if they were not the same, the differences between them would have been merely matters affecting the credibility to be given to them as evidence.
It is next insisted that the court erred in allowing the sheriff to testify that the deceased gave him a red dice, and the deputy sheriff to testify that a match to it was found in the coupe in which the deceased was riding at the time he was shot and killed. We think the testimony was competent. The sheriff was allowed to testify as to the deceased giving him the red dice because it was a matter immediately leading up to his statement about the circumstances of the killing. The deceased also told the sheriff that he would find a similar dice in the coupe in which the deceased was riding at the time he was shot. The deputy sheriff found such a dice, and the testimony was competent as tending to corroborate the dying declaration of the deceased.
' We find no reversible error in the record, and the judgment will therefore he affirmed. | [
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Butler, J.
Mrs. Allie Heard, the appellee, who lives on a farm in the vicinity of Malvern, was visiting relatives in California in the month of December, 1930. When she desired to make the return trip home, she was informed by a railroad agent at Redlands, California, that, by purchasing a through ticket to Little Rock instead of to Malvern, she could get excursion rates and her fare would be cheaper, and that she would be put off at Malvern when she indicated that she wanted to do so. At the same time she was told what train to take and at what point it would be necessary for her to change trains. Appellee purchased a ticket as suggested by the agent and began her journey. She was not put off at Malvern or carried to Little Bock, but was put off at Arkadelphia.
Appellee brought suit against the appellant alleging a wrongful ejectment from the train at Arkadelphia, and that in ejecting her the conductor of the train was guilty of rude and insulting conduct; that he jerked her from the train to the sidewalk where she would have fallen had she not been supported by the negro porter who was standing there; that she was injured to such degree that a malady from which she had at one time suffered and of which she had been cured, recurred, and that she had never been well since that time. She further alleged that as a result of the insulting conduct of the conductor and the manner in which she was ejected from the train she was humiliated. She prayed punitive damages in addition to compensatory damages.
An answer was filed denying all the material allegations of the complaint, and alleging, as an affirmative defense, the negligence and carelessness of the appellee in getting on the wrong train when, by the exercise of ordinary care she would have known that the train upon which she elected to ride did not stop at Malvern.
The material evidence in the case in behalf of the appellee was contained in her testimony and that for the appellant in the testimony of the conductor who operated the train from Texarkana to Little Bock and his negro porter. The testimony was in direct and sharp conflict, but as the jury accepted the testimony of the appellee as true and rejected that of the conductor and porter where it was in conflict with that of the appellee, under the settled rule we must accept the judgment of the jury if there is any substantial evidence in support, of the conclusion reached.
The material testimony of the appellee, briefly stated, is as follows: She lives on a farm near Malvern, and visited relatives in California in the year 1930. About the 20th of December of that year, she went to the railroad office at Redlands, California, and told the station agent that she wanted to purchase a ticket from there to Malvern. She was informed by the agent that by purchasing a ticket through to Little Rock she could have the benefit of a special rate which would be considerably less than if she bought a ticket to Malvern. She was also informed at that time that she could get off at Malvern, notwithstanding the fact that her ticket read to Little Rock, and she was given instructions as to what train to take and where to transfer on her journey. It was necessary for her to change trains at El Paso, and there she informed the railroad officials of her intention of proceeding to Malvern, Arkansas, and was directed as to what train to take and again told that she would be put off at Malvern on indicating a desire to that effect. She made no further change after leaving Port Worth, but the train crew was changed at Texarkana, and from there on through Malvern and Little Rock the train was controlled by the conductor, Charles A. Guidici. When he made his first round after leaving Texarkana, the appellee presented her ticket and told him that she wanted to get off at Malvern. He left, and a little later came back and informed her that the train did not stop at Malvern, but that he would put her off at Prescott. Some argument ensued and the appellee refused to get off at Prescott. Later on the conductor told her that he was going to stop the train at Arkadelphia and put her off there. She told him of the instructions she had received in California and throughout her journey, explaining that her husband would be waiting* for her at Malvern and insisting that she be put off there. The conductor, however, continued to refuse to do so, insisting that she would have to get off at Arkadelphia. The appellee then said that if she was not allowed to get off at Malvern as she wanted to do, she would prefer to be taken on to Little Rook. The conductor became obstinate and insisted that he would put appellee off at Arkadelphia, and that he would neither let her get off at Malvern nor take her on to Little Rock.
Witness was traveling alone, and became perturbed by the domineering conduct of the conductor, and when Arkadelphia was reached, over her protestations, the conductor took her grips and bundles, took her by the arm and led her down the aisle displaying great ill humor and speaking roughly and insultingly to her in the presence of a number of passengers in the coach who heard her begging him to either let her off at Malvern or take her on to Little Rock. The conductor, however, continued to lead her down the aisle and through the door of the car on to the platform, and there seized her by the arm and violently jerked her downward as she was stepping off the train, causing her to fall and to suffer injury to her side. She would have fallen to the ground had she not been caught and upheld by the negro porter, who expressed concern for her situation and offered assistance, but the conductor reprimanded the porter and ordered him to board the train which continued on its way leaving appellee alone on the platform at Arkadelphia.
The agent at Arkadelphia offered her some assistance and advised her to go to a hotel and not to spend the night in the station. She explained to him why she was at Arkadelphia and told him that she had been compelled to get off there against her will. The agent called Little.Rock to ascertain why this was so, and, after talking a while, told the appellee “that things were all balled up that night, and he would have to find out about it later.” Appellee testified that the conduct of the conductor, while she was on the train and while she was being ejected from it, and his language frigiitened and greatly embarrassed her, and that, when she found herself in a strange town alone at night, her humiliation and fear increased; that she finally secured the services of a cab driver who first took her to a private dwelling where she hoped to spend the night; that she was denied admission there, and then was taken to a hotel where she spent a wakeful night in pain and much discomfort. After having paid for her lodging at the hotel and the price of a ticket hack to- Malvern, the appellee did not have sufficient money to buy her breakfast and left without eating. Her side gave her pain, and she continues to suffer. Prior to this occasion she had suffered from a disorder peculiar to her sex, but she had been cured and had had no symptoms of the disorder for more than a year. Immediately after her experience the malady recurred. Appellee and her husband are "people of moderate financial circumstances. She therefore administered her own remedies in her own way, depending on the experience she had gained when she was ill before. Not obtaining relief, she consulted with physicians, who prescribed for her, but she had not been relieved. Appellee is a housewife and accustomed to do all the-work, but since the recurrence of her illness she has been able to do only a part of it. These facts show that the appellee suffered an actionable wrong by being put off the train at Arkadelphia over her protest and against her will.
The appellant has assigned as error the introduction of that part of the appellee’s testimony in which she told of the information she had received in California and along the way by which she directed her conduct. It is insisted that this testimony was incompetent because the appellant company was not bound by any declaration of agents of other railroads in California, New Mexico and Texas. The court so told the jury. But it must be remembered that, in addition to the denial of the allegations of the wrongful conduct of appellant’s conductor, an affirmative defense was interposed — i. e., that appellee was herself negligent in purchasing a ticket to Little Bock, when her destination was Malvern, and in taking a train which did not stop at the latter point. The evidence, therefore, was competent for the purpose of showing exercise of ordinary care by appellee in purchasing her ticket and in the conduct of her journey. She remained on'the same train she took at Port Worth, at which place she had received instructions to the effect that traveling on that train she might get off at Malvern. The court limited the jury’s consideration of this testimony to the question of the exercise of ordinary care on the part of the appellee, and we are of the opinion that it was properly admitted for that purpose.
Objections were made and exceptions saved to that part of the testimony of appellee relative to the alleged wrongful conduct of the conductor in the presence of other passengers and the fact that she could hear their comments. This, of course, rendered the humiliation of appellee greater and was competent testimony on the question of punitive damages.
Objection was also made to questions being propounded the conductor and requiring him to return ansivers relative to any efforts he made to get in touch Avith his train dispatcher at Little Rock for permission to stop his train at Malvern after he learned that appellee Avas on the train through mistake and under the impression that she would be put off at Malvern. Some-of the questions Avere not ansAvered and others only in an indirect manner, but from the answers given the inference arose that no such effort was made, the witness explaining that he was under no duty to make any such effort, and that it Avas inconvenient for him to do so. The conductor testified regarding his customary effort to accommodate passengers and as to his politeness to them and to appellee. These questions were permissible on cross-examination as tending to negative the claim he made as to his conduct toward passengers generally and to appellee in particular.
Objections were saved to the giving of instructions requested by the appellee, the modification of certain instructions requested by the appellant, and to the giving of them as modified, and to the refusal to grant other instructions requested by the appellant. These objections are preserved and argued in appellant’s brief. It would serve no useful purpose, however, to discuss in detail the arguments advanced by the appellant to sustain its contention in these particulars. Suffice it to say that we have examined the instructions with care, and find no prejudicial error in any of them, as they fully and fairly presented the law governing the issues in the case.
The principal contention made by the appellant and the one we deem worthy of ¡most serious consideration is that the compensatory damages awarded were excessive, and that the evidence did not justify the award of exemplary damages. It is argued with much earnestness that the appellee was not injured but was just angry because she had to get off the train and spend the night at Arkadelphia. Doubtless the appellee was angry, but, if her testimony is true, and it has been accepted as true by the jury, it is not unreasonable that she was in this frame of mind. Her testimony as to her alleged injuries and their resultant effect, however, was not disputed by any evidence (except that she made no complaint of physical suffering to the cab driver or the hotel keeper that night), and goes much further than the suggestion of appellant indicates. This testimony has already been set out, and it is unnecessary to restate it. In our opinion it is sufficient to justify the damages awarded by the jury.
"Where the element of wilfulness or conscious indifference to the feelings of others is manifest, damages in addition to compensatory damages are justified by way of punishment for the willful misconduct, although the personal injury inflicted be but slight. Barlow v. Lowder, 35 Ark. 492. Where there are no circumstances which tend to mitigate or excuse insulting and profane language to another, malice will be implied, and where a personal injury is inflicted, although it be but slight, punitive damages are justified when the conduct attendant upon it shows a willful disregard of the rights and sensibilities of the person injured.
Here the evidence tends to show that the party injured was a woman traveling alone with no one to pro tect her, and that without any justification or excuse, but as a result of an ill-governed temper, the conductor in the presence of other passengers used language to, and about, the appellee calculated to embarrass and humiliate her, if not to put her in actual fear. This, coupled with the violence with which the conductor ejected her from the train, warranted the jury in concluding that the conduct of the conductor was willful and malicious and a wanton disregard of the safety of the appellee. Railway v. Davis, 56 Ark. 51, 19 S. W. 107. There is no fixed rule, nor indeed can there be, for measuring the amount of exemplary damages a jury may award. It must be left largely to their own judgment according to the circumstances of the case. In the instant case the trial court heard the evidence and observed the manner and demeanor of the witnesses upon the stand and refused to interfere with the verdict of the jury. We are therefore unable to say that such verdict was excessive or that the trial court erred in holding that it was not. There is substantial evidence to support the verdict, and, no error appearing, the judgment is affirmed | [
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Hart, C. J.,
(after stating the facts). The chancery court erred in its finding and decree. ■ The law is well settled that, where a creditor receives from his debtor the note or bill of a third person, the presumption is that he takes it by way of security. Bank of Hatfield v. Bruce, 164 Ark. 576, 262 S. W. 665; Hume v. Indiana Nat. Life Ins. Co., 155 Ark. 466, 245 S. W. 19.
The record shows that appellant had made advances to appellee with which to make a rice crop and took a mortgage on the crop to secure the payment of the indebtedness. Appellee sold the crop and delivered to appellant an instrument called a trade acceptance on McGill Brothers for $4,920.89. The acceptance appears on the face of the instrument, but the amount was not paid because, before it became due, McGill Brothers, on whom it was drawn, became insolvent. According to the evidence of appellant, the draft or trade acceptance upon McGill Brothers was not received by it as an absolute payment. The source of payment provided having proved unproductive, appellant had the same recourse upon appellee as it had in the beginning. There is no evidence that appellant intended to release appellee. The draft or trade acceptance upon McGill Brothers and their acceptance were equivalent in legal effect to the receipt by appellant of a bill or note of McGill Brothers drawn to the order of appellant.
In Akin & Company v. Peters, 45 Ark. 313, it was held that the acceptance by a creditor of the note or bill of a third party for his debtor’s debt does not discharge the debtor, unless so specially agreed by the party. In discussing the question the court said “Prima facie such an instrument is conditional, not absolute payment. It operates only as a collateral security. It does not take the place of the debt, but is placed in the hands of the creditor to make him safe. And,'in the event of the nonpayment of the security, the debtor remains liable for his own debt. If the transaction has any greater efficacy — as of course it may have by special agreement of the parties — it is for the debtor to, show it. Extinguishment of his own debt does not follow as a consequence, unless that was a part of the contract.”
It is also insisted that the draft was not presented when due and notice given of the nonpayment within the time prescribed by our Negotiable Instruments Act. The draft was accepted for payment by McGill Brothers on May 11, 1931. The manager of the Rice Growers’ ■Credit Corporation took the draft to St. Louis with him and offered to deposit it with its bank, the Intermediate Credit Bank of St. Louis, with which it did business. The bank refused to accept the draft as a deposit, but stated that they had better leave the draft with the bank for collection. This was done.
On the back of the draft we find the following indorsements — C. A. Walker, R. B. Westbrook, Rice Growers’ Credit Corporation, by R. B. Westbrook, Sec’y; Pay to the order of People’s Nat. Bank of Stuttgart, Ark ansas; for collection and remittance Federal Intermediate Credit Bank of St. Louis, Mo., by Wood Netberland.
The draft was protested for nonpayment on May 13, 1931. The protest notice was mailed to C. A. Walker at Stuttgart, Arkansas, which was his postoffiee address. The postmark shows May 14, 1931.
A check must be presented for payment within a reasonable time, the question of what is a reasonable 'time depending upon the circumstances of the particular case. Federal Land Bank of St. Louis v. Goodman, 173 Ark. 489, 292 S. W. 659; George H. McFadden Brothers’ Agency v. Keesee, 179 Ark. 510, 16 S. W. (2d) 994; and Board of Directors of St. Francis Levee District v. Hagan, 180 Ark. 33, 20 S. W. (2d) 314.
The draft was presented within a reasonable time under the circumstances of this case by the bank at St. Louis with which it was left for collection. The draft was duly protested on the 13th day of May, 1931, and the postmark of the protest notice was May 14, 1931. The postoffiee address of C. A. Walker was Stuttgart, Arkansas, where the draft was protested and where the protest notice was mailed. This was' sufficient notice of dishonor under our statute. Crawford & Moses’ Digest, § 7869. . '
In the application of these well-settled principles of law, it follows that the court erred in dismissing the appellant’s complaint. Therefore the decree will be reversed, and the cause remanded for further proceedings in accordance with the principles of equity and not inconsistent with this opinion. It is so ordered.' | [
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Kirby, J.
The only question for determination here is whether the setting* aside and cancellation of a deed made in fraud of judgment creditors bars the wife’s inchoate right of dower, she having joined in such conveyance relinquishing her right of homestead and dower.
Appellants insist that the court erred, after cancelling the deed executed by herself and husband conveying the lands to Miss Audrey Marks, and the one from Miss Audrey Marks to intervener, Mrs. Flote Elliott, as fraudulent conveyances, in decreeing that her right of homestead and dower be subjected to the lien of appellee’s judgment and sold with the land in satisfaction thereof, foreclosing and barring her rights therein.
The statutes provide for the endowment' of the wife in the lands whereof her husband was seized of an estate of inheritance unless the same shall have been relinquished in legal form, and also that no conveyance of such lands by the husband without the assent of his wife evidenced by acknowledgment of such conveyance as required by law shall pass the estate of a married woman, and no judgment or decree recovered against him shall prejudice the right of his wife to her dower or preclude her from recovery thereof if otherwise entitled thereto.
The general rule applicable herein is set out in 19 C. J., page 529, as follows:
“Although there is authority to the contrary, it is very generally held that where a conveyance or deed executed by a husband or wife is set aside as fraudulent as to the husband’s creditors, the wife’s dower in the land is restored. It is not material whether she participates in the fraudulent intent or not; in either case her right to dower is revived.” See also Rickett v. Bolton, 173 Ky. 739, 191 S. W. 471; and Huntzicker v. Crocker, 153 Wis. 38, 115 N. W. 340, and cases cited therein.
Certainly when the deeds executed by her in relinquishment of her dower and homestead in his lands under the statute are held to be void and set aside as fraudulent, they could be of no binding effect to convey her dower and homestead interest therein, and her status remained as though no such deeds had been executed so far as his said creditors are concerned.
Appellant waived no right by intervening in the cause nor was she put to any other action to determine whether she would defend the action as claiming to be the owner of the lands under a valid conveyance or claiming only the right to her dower and homestead interest therein upon the cancellation of the conveyance as fraudulent, the remedies being in no wise inconsistent.
The court erred in holding otherwise, and the decree is reversed and the cause remanded with directions to enter a decree in accordance with this opinion. | [
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Hart, C. J.,
(after stating the facts). Under our rules of practice, in equity exhibits to the complaint control its averments, and may be looked to for the purpose of testing the sufficiency of the allegations of the complaint. Moore v. Exelby, 170 Ark. 908, 281 S. W. 671.
The general rule is that, where a deposit is made in a bank with the distinct understanding that it is to be held by the bank for the purpose of furthering a transaction between the depositor and a third person, or where it is made under such circumstances as give rise to a necessary implication that it is made for such a purpose, the deposit becomes impressed with a trust which entitles the depositor to a preference over the general creditors of the bank, where it becomes insolvent while holding the deposit. See case notes to 31 A. L. R., at page 473; 39 A. L. R. 930; 57 A. L. R. 386; and 60 A. L. R. 336.
Among the many cases cited in support of the rule is Covey v. Cannon, 104 Ark. 550, 149 S. W. 514. In that case, the general rule was stated by the court substantially as above. It was held that, where checks, given as part of the purchase price of lands, and either made payable to a certain bank or indorsed to it, and where delivered to the bank to 'be held until the sales were completed, with no intention that the checks should be cashed and the money deposited to the credit of the drawers, tké deposits were special, and the relation of debtor and creditor was not established, though the bank cashed the checks and mingled the proceeds with its funds. It was further held that, where a hank has mingled trust money with its own funds, money paid from such fund for its own purposes will be presumed to have been paid from its own money and not from the trust funds; hut, where the mingled fund is at any time reduced below the amount of the trust fund, the latter must be regarded to that extent as dissipated, and sums subsequently added from other sources cannot be treated as a part of the trust fund.
In that case, as here, the account was marked, “escrow,” and the court in its opinion recognized that this showed that the bank received the fund upon the express condition that it was not to be mingled with its own funds, and that it was intended by the parties that it should be a trust fund. The checks were given to the bank with the understanding that they were to.be held for the seller until the transaction was completed and delivered to him. Hence this act constituted a deposit for a special purpose, and, as such, was impressed with a trust entitling the vendor to preference on the bank’s insolvency, provided he could trace the funds or their equivalent as pointed out in the opinion. The court said: “It was not the purpose nor intention of Mason or Cannon, upon placing the checks and drafts with the contracts of purchase and the deeds to be held in the bank and delivered when the trades were consummated, that the checks should be cashed and the money deposited therein to their credit, and the bank did not understand that such was the purpose, as clearly shown by its marking the account ‘escrow’ in each instance. This was all done without the knowledge of either of the parties, and doubtless for its own convenience to identify the fund. Said deposits, in any event, were not general, but special, deposits for a particular purpose. The funds were so placed to the credit of these individuals as depositors without right and authority, and wrongfully mingled with the funds of the bank. The ordinary relation of debtor and creditor was not thereby established, nor did the funds lose their character as trust funds by being so wrongfully used and commingled with the funds of the bank.”
Other cases recognizing the principle will be found •in the case note to 31 A. L. R., pp. 476-478.
In Shulz v. Bank of Harrisonville, (Mo. App.) 246 S. W. 614, in a similar case, the bank marked the deposit slip with the word “escrow,” and it was held to constitute a special deposit impressed with a trust.
Again, in Bank of Rison v. Layne & Bowler Company, 173 Ark. 368, 292 S. W. 126, the court held that an escrow agreement with a bank, providing that the deposit in escrow should be paid out only to plaintiff company engaged in drilling a well for a depositor, was not ultra vires.
See also Brogan v. Creip, 116 Kan. 506, 227 Pac. 261, 37 A. L. R. 126, and case note.
But it is insisted that such holding would be contrary to the rule announced in Blalock v. Bank of McCrory, 170 Ark. 597, 280 S. W. 650, where it was held that money deposited under a special act in a certain bank, to the credit of the county treasurer, to pay the expenses of a special election to be held on the question of the removal of the county seat, created the relation of debtor and creditor between the bank and the county treasurer. There was nothing in the account to show that the parties intended it to be a special deposit. The record shows that the sum of $400 was deposited in the bank, “subject to the check of the county treasurer, for the purpose of paying the expense of said election.” The court expressly passed over the question as to the validity of the provision of the statute in regard to the deposit of funds by the citizens of the town of MoOrory, on the ground that no issue was raised on that feature of the case. Continuing, the court said that the funds had been deposited in the bank and thereby came into the hands of the treasurer, and, like any other deposit, created the relation of debtor and creditor between the appellant as treasurer and the bant as depository. No reference was made to the case of Covey v. Cannon, supra, and this indicates that the court had no intention whatever of overruling it.
Here a copy of the account is placed in the record, and it shows that the parties intended that it should be a special deposit. We are of the opinion that the deposit : n this case is a prior claim, as defined in § 1, subdivision 4, of act 107 of the Acts of 1927, which reads as follows:
“The owner of a special deposit, expressly made as such in said bank, evidenced by a writing signed by said bank at the time thereof, and which it was not permitted to use in the course of its regular business.”
We are of the opinion that plaintiff’s claim should be regarded as a special deposit and treated as a trust fund, and that he should have been awarded a preference under the statute. Therefore the decree will be reversed, and the cause will be remanded for further proceedings in accordance with the principles of equity, and not inconsistent with this opinion. | [
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McHaney, J.
The only question presented for our determination by this appeal is the validity of a contract between appellant Bank Commissioner and appellant Gordon by which the latter was employed as attorney to represent the former in the liquidation of the People’s Bank & Trust Company of Morrilton, insolvent, at a stipulated fee per month as follows: “$200 per month for the first six months following the closing of said bank; $225 per month for the next six months; $150 per month for the second year; and $100 per month for the third year. This contract was presented to the chancery court for its approval on the petition of appellants and the remonstrance of certain officers and depositors of said bank, and the court declined to approve same, and held that proper fees would be allowed said attorney from time to time when it was definitely determined what service had been rendered. It appeared in evidence that approximately 90 per cent, of the bank’s bills receivable had been hypothecated with other banks to secure loans, and that the court had made a consent order that the expense of collecting such collateral held by other banks must be paid out of same, and should never be borne by the 10 per cent, of such bills receivable as remained in the bank unpledged which latter amounted to about $46,000. The court found that said contract was improvident and declined to approve it.
We think the court was correct in so holding. The Bank Commissioner is without power to fix attorney’s fees by agreement with attorneys in the liquidation of insolvent banks, and his agreement in this regard is not binding on the court, but is suggestive merely. Section 723, Crawford & Moses’ Digest, provides that “the compensation of the special deputy commissioner, counsel, employees and assistants, and all expenses of liquidation shall be fixed by the commissioner, subject to the approval of the chancery court on notice to the officers of such bank,” etc. He is given the power to appoint (§ 5, act 627 of 1923), but may fix compensation subject to the approval of the court. The contract in question was, therefore, not valid and binding without the approval of the court, a matter resting in its sound discretion.
Furthermore we think the court did not abuse its discretion in refusing its approval. In the very nature of things, no one could tell in advance the amount of work and skill that would be required of counsel in the liquidation of this bank. Practically all its notes receivable were held by other banks in which the insolvent bank had a possible equity, of doubtful value, as were also the unpledged notes. No doubt litigation would result in some matters, but the extent and nature of it was doubtful. The court would undoubtedly be in a better position to allow compensation as the work progressed. As we said in Shackleford v. Arkansas Baptist College, 181 Ark. 363, 26 S. W. (2d) 124: “Neither the trial court, nor this court on appeal, is bound by the testimony of appellant and his expert witnesses in determining the value of his services.” We there further said: “In Jacoway v. Hall, 67 Ark. 345, 55 S. W. 12, it was held that the judge could act upon his own knowledge in fixing reasonable compensation, and that this court would not overturn his finding unless clearly erroneous.” See also other cases cited in the Shackleford case.
The matter of fixing compensation for counsel finally rests in the sound discretion of the trial court, and we are of the opinion that the court did not abuse its discretion.
Affirmed. | [
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McHaney, J.
This is an appeal from a judgment of the circuit court of Logan County awarding a writ of mandamus on the petition of the county judge and Fred Stacy against Joe Z. Stanfield, county treasurer of said county, by which the treasurer was ordered and directed to pay, from the funds in his hands arising under the provisions of act 63 of the Acts of 1931, the warrant of the petitioner, Fred Stacy, drawn on a fund in the county treasury resulting from the turnback from the State Highway Fund in the State Treasury to the credit of the county highway fund. This judgment also approved and confirmed the order of the county court of Logan County made and entered on August 6, 1931, hereinafter mentioned, and dismissed the interventions of the First National Bank and other interveners.
In 1930 a large number of warrants were issued against the county highway fund of Logan County for right-of-way, materials, supplies, and labor payable in 1931, and in 1931 a large number of the same kind of warrants were issued against said fund payable in 1932, all of which are still outstanding and aggregate more than $35,000. On August 6, 1931, there was on deposit in the county treasury, to the credit of the county highway fund, $3,000, and the county .judge made an order creating what was designated as “County Road Fund Special under act 63,” and it was ordered that the funds already on hand and all funds thereafter to be received by the treasurer under the provisions of said act 63 of 1931 be credited to said fund, and directed the clerk to charge the county treasurer with all funds on hand and which were thereafter to be received from the State Treasurer to said special fund. The order further designated certain county roads as “farm-to-market roads.” The clerk was further ordered and directed to receive and file all claims properly presented against said “County Road Fund Special under act 63,” and, when ordered paid by the court from said fund, to issue his warrant upon the treasurer against said fund, and that the treasurer should pay same from said fund only. The effect of the order was to create a new fund out of which warrants thereafter to be issued should be paid, and was virtually a repudiation of the warrants then outstanding in the hands of the interveners and others in the amount of more than $35,000, as aforesaid. It appears that only the funds received from the State Treasurer and commonly referred to as turnback from the State Highway Fund go into the county treasury to the credit of the county highway fund, and that there is no money in said fund arising from taxes or otherwise in Logan County in said county highway fund. The three-mill road tax of Logan County does not get into that fund, as it is prorated to the several road districts in the county and spent under the direction of the county judge through road overseers. Thereafter appellee Stacy filed a claim with the county clerk in the sum of $88 for road work done by him which was presented to the county court and allowed against the newly created fund. The court directed the clerk to issue his warrant in Stacy’s favor for said sum, and directed the treasurer to pay same out of the new fund so created, which the treasurer declined to do. The treasurer also refused to obey the order of the court to transfer the money then on hand to the credit of the new fund, and refused to pay the Stacy warrant because of the warrants already issued and outstanding in the hands of interveners and others, which had been issued against the county highway fund prior to the date of Stacy's warrant. The treasurer and interveners appealed from the order of August 6th to the circuit court, and that case, as also that for the petition for mandamus, were heard together in the circuit court with the result heretofore stated. This appeal challenges the correctness of that judgment.
We think the judgment of the circuit court awarding the writ of mandamus against the treasurer, in dismissing the interventions, and in approving the order of the county court of Augmst 6, 1931, was erroneous and must be reversed on the authority of Anderson v. American State Bank, 178 Ark. 652, 11 S. W. (2d) 444; Burke v. Gullege, 184 Ark. 366, 42 S. W. (2d) 397; and Hastings v. Pfeiffer, 184 Ark. 952, 43 S. W. (2d) 1073. In the last-mentioned case we said: “We are of the opinion that it is immaterial by what name the fund was called, where it is shown that the ‘county highway fund’ and the ‘Clay County road fund’ were received from the same source, derived from the same character of taxation and devoted to the same purpose.” Both the cases of Burke v. Gullege and Hastings v. Pfeiffer were dealing with the turnback fund under act 63 of 1931. This act is the authority relied upon by the county judge in the instant case to support his order of August 6th. As already stated, the county highway fund of Logan County, depends entirely for its revenue on act 63 of 1931, and the effect of the order was thereafter to make it impossible for the outstanding warrants against the county highway fund ever to be paid, and we think the county court had no authority to make such order. It is regrettable, of course, that a county judge would issue warrants on the county highway fund in excess of the revenue accruing to said fund during the current year, and especially to make them payable during the term of a new administration, but this is a matter for legislative action and not for the courts. We*held in the case of Anderson v. American Bank, supra, that the fund in the county treasury received from the State as turnback is not county revenue, but State revenue, and that the provisions of the amendment to the 'Constitution prohibiting counties from going in debt had no application to this fund. By act 63 of 1931 a tax of 6 cents a gallon is levied on gasoline, and it is also provided that, after deducting the refund on gasoline used for other than road purposes, the fund shall be divided and deposited in the State Treasury, five-sixths to the credit of the State Highway Fund and one-sixth to the credit of a fund to be known as “county highway fund,” and a further fund of 12% per cent, of the net proceeds derived from the sale and delivery of State highway notes or bonds for the years 1931 and 1932, except such as are sold to pay off short-term notes, shall be deposited in the State Treasury to the credit of the county highway fund. And the act further provides for a distribution of the funds in 'the treasury to the credit of the county highway fund to the counties on a basis therein fixed. The possibility of treating this county highway fund so raised as county revenue 'and thereafter subject to the provisions of amendment No. 10 has suggested itself to us, but we have reached the conclusion that this result does not follow in view of our decisions in the Burke and Hastings cases, and this view is strengthened by the provisions of § 6 of said act 63 of 1931, which provides “that, should the revenue produced under act 65 of the Acts of 1929 be less than $7,500,000 for any year, then, and in that event, such deficit shall be taken from the county highway fund for such year, before an allotment to the counties is made as provided for in this act. It being expressly understood that all funds derived from the operation of this act or from the operation of said act 65 of the Acts of 1929, shall be applied first to the payment of State highway notes or bonds and coupons issued hy the State of Arkansas under the provisions of act 11 of the Acts of 1927, and under the provisions of act 65 of the Acts of 1929.” Therefore the conclusion is irresistible that the fund thus created for the benefit of the counties is in fact a State fund which may be taken and used hy the State in the payment of its outstanding obligations. In this view, said fund continues to be a gratuity provided by the State for the benefit of its subdivisions.
The next question for decision is the order in which the outstanding warrants may he redeemed. The court ordered the payment of Stacy’s warrant out of the fund on hand without regard to the prior outstanding warrants in the hands of interveners and others. Section 2 of the act of December 17,1846, digested as § 2007, Crawford & Moses’ Digest, provides: “That all county scrip, and every warrant now issued, or which shall be hereafter issued, in cancellation of any county scrip, in any county of this State, according to the provisions of the forty-first chapter of the Rev. Statutes, headed, ‘county treasurers,’ shall be redeemed and paid by the county treasurer in the order of their number and date, and that no scrip or warrants shall he thus discharged in preference to any of older dates, or until all of a prior date are paid, provided the county treasurer upon whom said scrip and warrants are drawn shall not be able to meet all demands against him.” This section applies in this case as the treasurer is not able to meet all demands against him drawn on the county highway fund. We think it applies in all such cases and not merely to warrants issued in cancellation of scrip or warrants previously issued. Otherwise injustice might, probably would, result on account of favoritism. This view is strengthened by a reading of § 3 of said act. It provides “that all county scrip or warrants * * * shall be received, irrespective of their number and date, in payment of all taxes, duties, fines, penalties and forfeitures, accruing to said county.” The necessary inference is that, except for the purposes named in § 3, all scrip or warrants shall be redeemed in the order of their number and date, if the treasurer is not able to meet all demands. No distinction is to be made between scrip and warrants, as the terms are used interchangeably in the act. This meaning of the act was recognized by this court in Crudup v. Ramsey, 54 Ark. 168, 15 S. W. 458, in an opinion by Judge Hemingway, where he said, in reference to the act of 1846, now under consideration: “This is a part of an act which provided that warrants should be paid in the order of their number, and that no warrants should be paid until all of a prior date had been paid or provided for. * * * Its manifest purpose was to provide that warrants should be received in payment of taxes and dues to the county, even though there were prior warrants, not paid or provided for.” And the same meaning of the act was recognized in Graham v. Parham, 32 Ark. 677, 694, where Mr. Chief Justice English used this language: “County warrants shall be redeemed and paid by the county treasurer in the order of their number and date, and no warrant shall be thus paid until all of a prior date are paid, provided the county treasurer upon whom the warrants are drawn shall not be able to meet all demands upon the treasury.' Acts December 17, 1846, § 2; Gantt’s Dig., § 1042.” This cannot be avoided by making warrants payable in the future.
It appears therefore that the learned trial court erred in awarding the writ of mandamus against the treasurer, in dismissing the interventions, in ordering the Stacy warrant paid ahead of others, and in sustaining the order of the county court of August 6, 1931.
The judgment will be reversed, and the cause remanded with directions to dismiss the petition for mandamus, vacate and hold invalid the order of the county court of August 6, 1931, and to order the treasurer to pay all valid outstanding warrants on the county highAvav fund in the order of their number and date. | [
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Smith, J.
Joe Selz owned a house and lot in MeG-ehee, which he mortgaged to- the Equitable Building & Loan Association, hereinafter referred to as the association. He sold the property to Daugherty, who took out a fire insurance policy in the sum of $2,500, payable to the mortgagee, the association, as its interest might appear. The history of the title to this property is not clear, but it appears that Selz was indebted to a bank in McGlehee which failed, and, when the assets of the bank were sold by the State Bank Commissioner, they included the equity of Selz in this property, which was sold to Boscher, subject to the mortgage to the association, and Boscher, for the consideration of $50, executed a quitclaim deed to the property to Mrs. "White.
Daugherty assigned the insurance policy to Boscher, who appears not to have assigned it to Mrs. White. The insurer was not advised of these transfers of the property and assignments of the policy covering it.
Default was made in the payments due the association, and a suit to foreclose its mortgage had been brought, in which all the parties above named were made defendants, and on October 25, 1930, while this suit was pending, the insured property was damaged by fire.
The association advised the insurance company of the fire, and the insurer referred the claim therefor to Scott, its adjuster, for settlement.
Several letters were exchanged and conversations had between Scott and the attorney for the association. In one of these conversations Scott expressed the opinion that the fire damage amounted from $2,200 to $2,250', but the attorney insisted that the damage was greater than the face of the policy. When this difference of opinion arose, Scott asked the attorney to have an estimate of the damage prepared. The insurer appears to have been within its contractual rights in making the demand of proof of loss. The estimate was made, and the report thereon showed a fire damage greater that the face of the policy. This proof of loss was furnished within the sixty days allowed by the policy for making settlement thereof. The insurance company does not appear thereafter ever to have denied its liability for the full amount of the policy, and appears to have been concerned only in so making payment as to discharge its liability to all claimants under the policy.
As we understand the record before us, Scott offered to make a draft payable to the association, and to all persons who had at any time owned the title to the insured property after the issuance of the insurance policy, but this was not satisfactory to the attorney. On January 2, 1931, the attorney wrote Scott a letter, which recited substantially the facts hereinabove set forth in regard to the title. It was stated in this letter that “the indebtedness of the association is far in excess of the amount of the insurance, and I hope that your insurance company will find it proper to make a check to the building association without mentioning the names of the other parties, as that would cause us to have to bring suit in order to get rid of them. I see no reason why it should be necessary to place their names on the check, as they have no interest whatever.”
Scott answered this letter under date of January 5, 1931, and the liability of the insurance company for the face of the policy was conceded and its intention to pay declared. This letter refers to the foreclosure proceeding at the time of the fire, and suggests action be taken to protect the insurance company against the claims of all parties to this proceeding. Scott, for the insurance company, expressly waived any defense against liability arising out of changes of ownership of which the com.pany had not been advised, and, by way of settlement, made the following proposition: “We can secure possibly the signatures of Mr. Roscher and Mrs. White to a draft after its issuance, but we will also have to secure their signature to a proof of loss before the draft can be issued, unless you go into court and secure a judgment and an order of the court for this money to be paid over to the Equitable Building & Loan Association. Your further advices in regard to this matter will be greatly appreciated.” There appears in the record a letter from the attorney for Mrs. White in which demand was made for $100 of the insurance money.
The attorney for the association testified that he regarded the statement of Scott that the fire damage was less than the face of the policy as a denial of liability, and that he felt under no obligation to secure the indorsements of Roscher and Mrs. White to the draft, and he thereafter brought suit in Desha County, where the insured property was located, for the face of the policy, with interest, penalty and attorney’s fee. Thereafter the insurance company proposed to file, and did file, in the Pulaski Chancery Court an interpleader’s bill, in which all persons herein named were made parties, and it was prayed that all parties be required to make proof of any interest claimed in the proceeds of the insurance policy. This bill appears to have been filed by consent, and for the reason that the matter could be disposed of at an earlier date than would be done by prosecuting the suit in Desha .County. Upon filing the interpleader’s bill in Pulaski County, the suit in Desha County was dismissed. The association filed an answer to this interpleader’s bill, in which it claimed the entire policy and prayed an assessment of penalty, interest and attorney’s fee. The amount of the policy was paid into court, and it was ordered that the same be paid to the association, and, in addition, a penalty and attorney’s fee was also allowed, together with interest, and this appeal is from the allowance of the penalty and attorney’s fee.
We think, under the facts stated, that it was error to assess a penalty and attorney’s fee. The statute allowing a penalty and attorney’s fee was not intended to cover cases such as this. There was no failure to pay within the meaning of the statute. The insurer had the right to demand proof of loss, although the adjuster had expressed the opinion that the loss was less than the face of the policy. When this proof was made, and the loss was shown to be greater than the face of the policy, the insurer admitted its full liability and offered to pay, and demanded only that it be protected in its payment against all persons claiming an interest in the policy. This demand was not unreasonable. There was a foreclosure suit pending at the time of the loss by fire, in which it was alleged that the parties thereto had or claimed such interests in the property as required them to be made parties to the foreclosure proceeding. The insurer offered, without suit, to make a check payable to all these parties for the full amount of the policy, or to pay that amount into a court before which all parties were present, and to expedite the settlement thus proposed it later brought, at its own expense, a suit for that purpose, and paid into the court the full amount of its liability. The principles announced in the cases of North State Fire Ins. Co. v. Dillard, 88 Ark. 473, 115 S. W. 154; Federal Union Surety Co. v. Flemister, 95 Ark. 389, 130 S. W. 574; and Massachusetts Bonding Ins. Co. v. Home Life & Acc. Co., 119 Ark. 102, 178 S. W. 314, apply.
Under the circumstances herein stated no penalty or attorney’s fee should have been assessed, and that portion of the decree is reversed, and that cause of action is dismissed, and the costs of this appeal will be assessed against appellee. | [
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Mehaffy, J.
This suit was brought under the Federal ' Employers ’ Liability Act for personal injuries which appellee alleged were caused by the negligence of the appellant.:
He alleged that, while' in the discharge of his duty as fireman in the defendant’s yards on a switch engine, it became necessary for him to mount the tender for the purpose of measuring the oil contained in said tender, and, while he was in discharge of his duties about 9:3'0 o’clock at night, he stepped in some crude oil that had been carelessly and negligently spilled on top of the tender by agents, servants and employees of appellant; that it was dark, and he was unable to see the crude oil; that as he stepped into the oil he slipped, lost his balance, and fell forward, so that his left foot canght in the bracket on the edge of the tender, throwing him into the small place between the tender and the engine cab; that he was severely injured, crushed and bruised; that his hips, sides, pelvis and back were badly wrenched, bruised and sprained; that his injuries are permanent; that he suffers, and will continue to suffer the balance of his life, mental and physical pain; that, after receiving* his injuries, he continued to work as fireman for about three days, and was then forced to give up his employment on account of the pain being so severe, and go to appellant’s hospital, where he remained for about ten days, and where he returned for treatment at intervals over a period -of about eight months; that he was told, when he was discharged from the hospital, by appellant’s physician and surgeon that he was not permanently injured, but was merely sore and bruised, and that this would leave him after he had returned to work. His condition became worse, and he cannot perform any labor.
Prior to his injury, he was strong and healthy, thirty-two years of age, a locomotive fireman, and able to do the manual labor connected with 'same; that, as a result of his injury, he is wholly incapacitated and will so continue in the future; that appellant was negligent in failing, refusing, and neglecting to furnish a safe place in which to work; that appellant knew, or by the exercise of care could have known, that crude oil spilled on top of the tender of the locomotive was dangerous and unsafe; that appellant’s physician advised appellee to return to work, and relying on this advice, he did return to work, and in so doing, aggravated his condition.
The appellant answered denying all the material allegations of the complaint as to liability and damage, and alleged that the condition, if it did exist, was obvious, and appellee assumed the risk.
Appellant, as a further defense and bar to the plaintiff’s cause of action, interposed the defense of á compromise settlement and release.
According to the testimony of the appellee, he was a locomotive fireman for the appellant, a married man, and thirty-two years of age. At the time of his injury, in February, 1930, he was firing on a switch engine at the Biddle yards at Little Rock. He was called to report for duty at 9:30 in the evening. The name of his engineer was Eubanks.
The engine was fired with crude oil, and was filled before appellee went to work. He got there about 9:15 and'went to his engine, No. 1823. No one was on the engine when he got there that night. His duty was to get on the engine and look at the supplies, the water, oil and fire-boxes. The oil is measured before the engine starts out, and again when it comes in. The first thing he did when he got to the engine was to look at the fire-boxes and the water in the boiler. He then went to measure the oil. They are supposed to fill the tank before the fireman gets there. He had to get up by the ladder of the water tank. He got up on the engine and looked at the fire-box and water, and then went to measure the oil, and looked at the oil gauge. There was no light on the cab, but he could hold up the rod and see the oil on the rod. As he let the rod down, he turned around and his right foot slipped from under him, causing him to fall between the engine and the tender under the cab. After he had fallen down, he caught the grab iron and pulled himself loose. He then sat down and did not get up any more until around 2 o’clock. He could hardly get up then.
The engineer was absent, and the switchman was not there at the time of the accident. Appellee’s brother-in-law came up about the time he fell.
The oil that had spilled was about two inches deep, and on the ledge of the water tank. There was a rim or hip on the side of the engine, and you could not see the oil because there was no light in the cab. If there had been a light in the cab, he could have seen it. Engineers will not leave the light on the cab because it blinds them, and they took them out. There was a light about 20 feet away, but the raised place on the engine caused a shadow so that he could not tell what was there. They spill oil occasionally, but they always take the engines to the steam hose and wash the oil off. They neglected to do this that night.
Appellee then described his injuries, and his treatment by the appellee’s physician and surgeon, Dr. Runyan, and the physician told him he would get all right, to take exercise.
About 15 or 20 days after he was hurt, he tried to work again. The physician told him, that, if he would do this, he could work the soreness out; that he did not think it amounted to anything, and to go back and make a trip or two. He was released from the hospital to go back and work a day or so and then return to the hospital. He made about three trips and was again examined by Dr. Runyan, but he got worse all the time. He made the trips that the doctor told him to because he was poor and needed the money.
After he was taken out of employment by appellant, he drove a truck between Little Rock and Hot Springs for Terry Dairy 'Company, and got his brother to help him. He could not have done the work by himself. His brother did the loading and unloading. His condition did not improve, but grew worse.
He received the check for $40, but did not see any letter. The mail came and his wife opened it, and brought the check to appellee, and she misplaced the letter. He was in the hospital once before about two months when his thumb was mashed off, and they kept him on the pay roll; sent him a check every month. When check was handed to him by his wife, he thought that they were paying him as they did before, and indorsed the check. The doctor had told him he was going to get all right.
He did not know there was any statement in the check about the injury when he indorsed it. He did not know that there was any release sent to him. He thought the cheek was sent as they sent him checks before when he was injured. He did not read it and would not have settled, and would not have cashed the check, if he had known that it. was sent to him in final settlement. He did not know how badly he was hurt at that time, and would not have settled then. His wife told him the check was for $40, and he indorsed it, but did not look at the face of it. Witness had signed a statement which was presented to him, introduced in evidence, and read to the jury. The statement signed by him, among other things contained the following:
“When I made this step, I swung down with my right foot, and when I did I missed the upper deck on engineer’s side and went down to the lower deck of the engine and at the time I felt a pain in my left groin and hip. The reason that I missed the upper deck was because I was such a large man that the opening between the cab and tank of this engine was not quite wide enough for a man of my size to get down through. I weigh 210 pounds and am broad, and I suppose that the opening between the back of the cab of this engine and the front of the tank was about 16 inches wide.”
The statement was dated March 17, 'but was made earlier. Witness then identified time slips which were introduced in evidence, showing the trips that he made after this injury.
Witness had not taken the engine out of the round house. The hostlers fill the engines with water and oil, take them up and wash them off, and put sand on them, but they did not do it in this instance. The engine was at the place where witness was supposed to get it. The gauge showed it was full of oil. The oil was spilled all over the ground. He did not notice the oil until he had fallen. After he fell he stepped back upon the deck, and there was oil on his feet and hands. Oil was scattered all along on the tank, pretty thick for three or four feet. He discovered the oil by the light when they backed up. If there had been a light on the cab of the engine, he would have seen the oil and called the round house men to clean it up.
Witness then identified a letter which he had received from the claim agent in which it is stated that on April 5 a draft and release in the sum of $40 on account of his injuries had been sent him.
Several witnesses testified in behalf of plaintiff corroborating most of his statements, and physicians testified about his injuries, and testified that they were permanent.
A number of physicians for the defendant testified to the effect that they did not think the injuries were permanent. A number of other witnesses testified on behalf of the appellant, their testimony being in conflict with some portions of appellee’s testimony.
The appellant also introduced the following draft:
“Form 1631-A-5-28-200 bks. No. 74916
“THE CHICAGO, ROCK ISLAND & PACIFIC RAILWAY COMPANY
“$40.00 Little Rock, Arkansas, April 5, 1930.
“Pay to the order of J. O. Matthews forty and no/100 dollars for full settlement of any and all claims growing out of his injuries sustained at or near Biddle, Arkansas, on or about February 27, 1930, while employed as fireman. 30-12080.
“TO CARL NYQUIST, Treasurer,
“The C. R. I. & P. Ry. Co.
“Chicago, 111.
“(Signed) W. J. Flaherty,
“Inspector & Adjuster.”
There was a verdict and judgment in favor of the appellee in the sum o'f $10,000 less $40.
A motion for a new trial was filed by appellant and an additional motion on the grounds of newly discovered evidence. Both motions were overruled, and the case is here on appeal.
' The appellant relies on a release, and states that the evidence was not sufficient to create an issue of fact for the jury’s determination as to the validity of the compromise settlement.
In the first place, there is no evidence that any settlement was ever made. The appellant’s witnesses do not claim that a settlement was made, or that any agreement was ever made with appellee, except they say that the statement in the face of the check was a settlement.
According to the evidence of appellant’s witnesses, appellee not only did not sign the release which he was requested to sign, but positively refused to sign it.
Appellee’s testimony is that when the check came, his wife opened the envelope, brought him the check or voucher folded, and told him that it was a check for $40 and he indorsed it. He did not see the release, and did did not see the face of the check. According to his testimony, he thought they were sending him checks as they did when he was injured once before, and for that reason indorsed it without looking at it. He testified that when he was injured once before the appellant kept him on the payroll, and sent him a check every month, and he thought that they were doing the same thing when he received this check.
This evidence about having received cheeks monthly when he was injured before is contradicted by appellant’s witness, the claim agent, but this was a question of fact for the jury, and what appellant calls a compromise was appellee’s indorsement of the check which had been sent him, although there is no evidence that any agreement had ever been reached, or that the amount of $40 had ever been discussed or mentioned.
The appellant’s witness himself testified that appellee stated he wanted $100 and the witness, the claim agent, declined to give it, and appellee went away. No reason is given by the claim agent for fixing the amount at $40 and sending appellee a check.
Appellant cites and quotes at length from Odrowski v. Swift & Co., 99 Kan. 163, 162 Pac. 268, and states that the decisions of the Supreme Court of Arkansas are in harmony with the Supreme Court of Kansas in the case cited. The cases cited in Odrowski v. Swift & Co., supra, sustain the contention of appellee in this case, and none of them, we think, supports the contention of appellant.
In the case relied on by appellant, the employee alleged that the release was procured by misrepresentations made by the company’s physician, but the employee in that case did not testify that he was induced to sign the release because of the statement of the physician, but that he signed it without knowing what it was or without reading it. There was no evidence of any fraud, and he was not indorsing the cheek, but signing a release, and the court in that case recognized the rule that the modern tendency is to extend, rather than to restrict, the power of courts to grant relief against contracts induced by unfair dealing. But in that case there- was,no misrepresentation made, no effort to get him to sign the release, but he signed it voluntarily without reading it.
One of the cases cited by the Kansas Court is Ladd v. C. R. I. & P. Ry. Co., 97 Kan. 543, 155 Pac. 943. In that case the company’s physician examined the injured party and stated to her that he found no bruises or permanent injuries or broken skin, but that her neck was swollen, and directed her to go home and bathe her neck in hot water, to take the swelling out. Some days after this, the claim agent of the railway company went to the home of the injured party, paid her '$5, and procured her signature to a release. The court held the release was not binding, and said:
“Authorities are ample to sustain an avoidance of this release on account of the mistake of fact made by the plaintiff.” It then cites many cases to support the rule announced.
Appellant cites also 2 Black on Rescission & Cancellation, § 384. This author, however, says in § 389: “In regard to cases of this sort, it is said that settlements made with injured employees immediately after the accident are not looked on with favor by the courts, and that, while the law favors the adjustment of controversies fairly made, yet settlements of claims for personal injuries made with persons who are poor, and without the aid of counsel, or the benefit of independent advice, should be closely scrutinized.”
In this case, the undisputed evidence shows that there was no settlement at all.
Counsel also cite and rely on Kansas City Sou. Ry. Co. v. Armstrong, 115 Ark. 123, 171 S. W. 123. In that case the injured party wrote into the release herself the following: “I understand that I am settling all claims against the Kansas City Southern Ry. Co.”, and then signed the release. The court said in that case: ‘ ‘ They were expressly contracting with reference to injuries received on a certain occasion, the claim was unliquidated, and the contract shows that the parties intended to settle all matters between them relating to that incident. ’ ’
In the instant case there is nothing to show that the parties intended to settle. The only claim the appellant makes is that there was a statement in the face of the check that it was in settlement of his injuries, but, as we have already said, the undisputed evidence shows that appellee did not know this. It is also shovm that appellee refused to make a settlement or sign a release.
Appellant calls attention to 23 R. C. L. 385-386. On page 395 of 23 R. C. L., it is stated: “A nominal or grossly inadequate consideration for a release will be given serious consideration as affecting the question of fraud in its procurement. When due weight is given to other surrounding conditions, and there is evidence that the consideration is inadequate, it is a circumstance which, in connection with other circumstances, may be submitted to the jury, and, i'f grossly inadequate, it alone is sufficient to carry the question of fraud or undue influence to the jury, and where there is inadequacy of consideration, but it is not gross, it may be considered in connection with other evidence on the issue of fraud, but will not, standing alone, justify setting aside a contract or other paper writing on the ground of fraud. And therefore, on the question of fraud vel non in inducing an employee to accept benefits from a relief department in release of the master’s liability for negligent injuries, his situation, conduct, and surroundings at the time, as well as the amount received, may be considered.”
On page 397 of 23 R. C. L. it is stated: “There cannot be a release of a cause of action for personal injuries without unequivocal acts showing expressly or by necessary implication an intention to release. Generally the construction of the release as to the actual intent of the parties presents a question o’f fact to be determined from the surrounding conditions and circumstances, construed with reference to the amount of consideration paid and the language of the release itself. The amount of consideration paid should have considerable force in determining whether the release was simply paying the releasor for loss of time or some other specific element of damage, or whether it indicated payment of a substantial sum in consideration of which the releasee secured himself against all further developments and the releasor assumed the risk thereof.”
This is a statement of the principle of law governing in cases where injured parties sign a release where the act of the party is deliberate. The evidence in the instant case shows clearly that appellee never intended to sign a release for $40.
Appellee also calls attention to 53 C. J. 1213. The statement of the law in this volume, however, is substantially the same as in R. O. L.
Attention is next called, to Texas Co. v. Williams, 178 Ark. 1110, 13 S. W. (2d) 309. In that case, however, the injured party not only signed a release, but was paid a substantial sum, $1,500, and the court stated that he admitted signing the release agreement, but that he signed it without knowing its contents. That was wholly different from indorsing a check as appellee did in this case, and refusing to sign a release. In that case he admitted he signed a release, and was able to read and write, and understand the nature of a contract.
This court, in Barham v. Bank of Delight, 94 Ark. 158, 126 S. W. 394, said: “The moment the plaintiffs indorsed the check and collected it, knowing that it was offered only upon a condition, they thereby agreed to the condition, and were estopped from denying such agreement. ’ ’ In that case the undisputed evidence showed that the check was indorsed by the party, knowing at the time that it was offered upon condition. He knew what the condition was, he accepted it, and agreed with the other party.
There is no evidence in the instant case tending to show that there was ever any agreement, or that appellee ever saw the face of the check. There is no evidence' that he saw the letter said to have been written, or that he saw the release sent to him to sign, or that he knew of the existence of either of them.
This court said in another case: “Of course, if she accepted a sum, however small, as compensation for her personal injuries, or if she had signed the written release with a full knowledge of its contents, she could not recover at all, whether she offered to return the money or not, for a contract, fairly entered into, for the settlement of an unliquidated claim for damages would bar the right to recover more.” St. L. I. M. & S. R. Co. v. Smith, 82 Ark. 105, 100 S. W. 884.
It certainly cannot be contended under the evidence in this case that appellee signed a release with full knowledge of its contents. If lie had been handed a release or had been told it was a release he was signing, or if he had known that he was signing a release, he would be bound whether he read it or not, unless there were other reasons for holding it void, but certainly the mere indorsement of a check would not, of itself, show that the appellee signed a release with a knowledge of the facts.
It was said: “This court has frequently held that a release executed by an injured party, relying upon the mistaken opinion of the physician of the party responsible for the injury, that it was slight and temporary, and not permanent, is not binding upon the party making it.” Mo. Pac. Ry. Co. v. Elvins, 176 Ark. 737, 4 S. W. (2d) 528.
It is true that the plaintiff stated that, if he had known it was a release, he would not have signed it any way, but testimony clearly shows that the company’s physicians told him that his injuries were not serious, and he would be well in a few days. It is wholly unimportant whether they were honestly mistaken or not. The presumption is that they were. If they made the statements to appellee, and he relied on them, it would be sufficient ground to set aside the release, even if appellee had known it was a release he was signing. If he did not know it, and simply indorsed the check in the ordinary way, a check like others he had received from the same company, he would have no reason to believe that it contained a release, and the release would not be binding.
It is next contended by the appellant that the undisputed testimony shows that plaintiff assumed the risk. The undisputed testimony shows that he got his engine where he was supposed to get it, that the hostlers had prepared it for him, that he did not know there was any oil on it, and that he could not see it because there was no light. The undisputed evidence also shows that prior to this time, if the hostlers spilled oil, they took the engine to the steain hose and washed it off. The appellee did not know there was any oil on the engine, and he had no reason or knowledge of facts that would cause him to believe there was any danger.
It is next contended by the appellant that the court erred in the instruction given to the jury at the request of appellee. It is contended that instruction No. 1 given at the request of the appellee was erroneous, and the specific objection to that was that the paragraph in said instruction, submitting the question as to whether or not oil had been spilled, through the negligent acts of agents or servants of the defendant, or had been permitted to remain through the negligence of defendant’s agents or servants, for the reason that there was no evidence upon which to submit this issue to the jury. In other words, the specific objection to this instruction is that there is no evidence that appellant was guilty of any negligence in spilling the oil or permitting it to remain there.
The appellee testified that he went to the engine where he was supposed to take charge of it, and that the oil was spilled on it, that the oil was put in by the hostlers, and that when they spilled oil it was their custom to take the engine and clean it off. • He testified that Eubanks was his engineer, and neither Eubanks nor the hostler, who put the oil in, and who it was alleged spilled it, nor any other witness was called to contradict this testimony of appellee.
No reason appears why the hostler who put the oil in that night did not testify. There was therefore ample evidence to submit the question to the jury, as was done in instruction No. 1.
No argument is made as to the other instructions. ~We have carefully considered all the instructions, and reached the conclusion that the court committed no error in giving or refusing instructions.
It is next contended that the court erred in overruling defendant’s objection to the argument of plain tiff’s counsel. There was no prejudicial error committed ■by the court here. Pac. Mutual Life Ins. Co. v. Ware, 182 Ark. 868, 33 S. W. (2d) 46; Ark. P. & L. Co. v. Hoover, 182 Ark. 1065, 34 S. W. (2d) 464; Booth v. Racey, 171 Ark. 561, 285 S. W. 29; Black Bros. Lumber Co. v. Person, 163 Ark. 40, 258 S. W. 976; F. Keich Mfg. Co. v. Wallace, 171 Ark. 647, 286 S. W. 815.
The court did not err in overruling appellant’s motion for a new trial. Jewel Coal & Mining Co. v. Whitner, 170 Ark. 393, 279 S. W. 1031; N. W. Ark. Farmer’s Mutual Tornado Ins. Co. v. Osborn, 180 Ark. 757, 22 S. W. (2d) 387; Bradley Lumber Co. v. Beasley, 160 Ark. 622, 255 S. W. 18; Carden v. Montgomery, 171 Ark. 1000, 287 S. W. 183.
There was substantial evidence on which the jury could find that the appellant was. negligent, and that appellee indorsed the check in the .manner and under the circumstances described by him, and the findings of a jury, if based on substantial evidence, will not be disturbed by this court.
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Smith, J.
Without reciting or reviewing the conflicting testimony appearing in the record in this case, we announce our conclusion to he that the preponderance of this testimony establishes the following facts:
J. W. Starling was engaged in farming a tract of land which he had contracted to buy, and the title to which was involved in a suit argued and submitted on the same date on which the instant case was submitted in this court.
The Hamner-Edwards Company, hereinafter referred to as the company, made advances to Starling to enable Starling to cultivate the land, and these advances were secured by a chattel mortgage on Starling’s mules and a horse, upon his farming tools and implements, and upon all the crops grown on the farm.
On March 7,1930, a settlement was had of the farming accounts, and it was agreed that the balance then due was $2,189.06. To secure this balance, a note was executed to cover, not only the balance, but the anticipated advances for the year 1931. The note thus executed was for the sum of $4,500, and bore interest at the rate of ten per cent, per annum from date until paid. It appears, however, that the true intention of the parties was that the mortgage should cover the amount which might be due upon foreclosure of the mortgage, and that the note was executed in order that the company might use it as collateral in securing advances made to it, and not to otherwise evidence the debt. This was in accordance with the custom under which they had previously operated.
The company was engaged in the general furnishing business, and it was contemplated that the advances should consist principally of supplies sold Starling at the company’s store, although advances in money were made during the year 1931 slightly in excess of $700. Monthly statements were furnished to Starling of all advances. Groods were sold and charged at cash prices, and, on August 1st, a full and final settlement of the account was rendered, to which there was added 10 per cent, of the total “for time,” as that item appeared on the account. This 10 per cent, charge was made only at that time. This addition was made to the cash advanced as well as to the price of the goods sold, and was the method employed to increase the credit prices 10 per cent, above the cash prices. The correctness of this account does not appear to have been questioned by Starling.
On January 2,1931, Starling died. He was survived by his widow and certain children begotten by her. He ivas also survived by certain children by a former marriage. Starling’s affairs Avere badly involved, and litigation was threatened between the widow and her children and Starling’s children by his former marriage.
An appeal was made by Mrs. Starling to M. M. Hamner for advice and assistance. M. M. Hamner was not connected with the company, although the senior member of that firm was his relative, and M. M. Hamner had sold the farm to Starling, which the latter operated.
M. M. Hamner interceded for Mrs. Starling and made an agreement with the company by which its debt secured by the chattel mortgage was to be reduced to $2,500, which was to be paid in the following manner: Starling had left certain life insurance payable to his widow. M. M. Hamner agreed to pay the company $1,000, and pursuant to that agreement paid the company $1,000 in cash, and as security therefor took an assignment of the chattel mortgage and the debt which it secured to himself. The balance of $1,500 was to be paid by Mrs. .Starling when she collected her insurance, and the insurance was collected, but Mrs. Starling declined to per form her agreement, which had been evidenced by a written memorandum thereof. She refused to comply with this agreement by paying the $1,500 which she had promised to pay, and, upon her cross-examination as a witness, declined to state why she did not do so. We think it fairly inferable from the testimony to say that two reasons induced this decision: The first was that she had adjusted her differences with her stepchildren, but the principal reason was that the mortgaged property was not worth the money which she had obligated herself to pay.
Although the company’s mortgage and the debt which it secured were assigned to M. M. Hamner, we think there was no intention on his part to foreclose it until after Mrs. Starling refused to perform her contract. The mules were in thin order, and Mrs. Starling had no feed for them, and they were collected and turned over to M. M. Hamner with Mrs. Starling’s consent. There was nothing to do with these mules but to feed them until farming operations began.
Upon the advice of M. M. Hamner, Mrs. Starling qualified on March 3, 1931, as administratrix of her husband’s estate, and she approved the claim of Hamner against her husband’s estate, and it was allowed and classed by the probate court. However, an appeal was later prosecuted from this probate order, which appears to be pending and undisposed of in the circuit court.
On March 24,1931, (at which time Mrs. Starling had definitely declined to perform her contract by paying the $1,500 out of the insurance money which she had then collected) this suit was filed by M. M. Hamner to foreclose the mortgage which had been assigned to him. The company, as assignor of the debt and the mortgage securing it, was made a co-plaintiff. -
The chancellor found that the debt secured by the mortgage at the time of the rendition of the decree from Avhich this appeal comes was- only $3,700. Just how this amount was arrived at is not clear, unless the court struck out of the account the charge for cash money ad vanced. Upon this finding it was decreed that “M. M. Hamner do have and recover of, from and against the property above mentioned (in the mortgage) the snm of $3,700 * * V’ and that the lien of M. M. Hamner against said property “was superior and paramount to any rights of any of the other parties hereto.” No personal judgment was rendered against any one, and the sale of this mortgaged property was ordered. Pursuant to this order of sale, the mortgaged property was later sold by the commissioner appointed to make the sale for $700.
Various defenses were interposed to this foreclosure suit, which we now proceed to discuss.
It is insisted that the mortgage, if otherwise valid, could not be held as security for any amount in excess of $2,500, the consideration for its assignment which M. M. Hamner assumed and agreed to pay. This would be true if Mrs. Starling had performed her agreement in regard to its transfer. But she did not do so.
If Mrs. Starling’s written agreement in regard to the assignment of the mortgage be treated as an obligation on her part to pay $2,500, she did not pay it. On the contrary, she repudiated that obligation and refused to perform it. Treating this obligation as a promise to pay, or even as a promissory note, did not enlarge her rights. It is settled law that giving a promissory note for a debt is not a payment of the debt unless, by agreement of the parties, the note is taken in payment of the debt. This is true even of a note executed by a third party. Bank of Hatfield v. Bruce, 164 Ark. 576, 262 S. W. 665; Hume v. Indiana Life Ins. Co., 155 Ark. 466, 245 S. W. 19, and cases there cited. The contract between Mrs. Starling and M. M. Hamner for the ultimate assignment of this mortgage to her for a consideration of $2,500 was, in effect, annulled by her refusal to perform the contract entitling her to the benefit of the reduction in the debt, and M. M. Hamner was, and is, as the court below decreed, the legal holder of the mortgage and the debt which it secures.
It is unimportant whether M. M. Hamner has paid to the company all of the $2,500 or not. He is obligated to do so, and his assignor, the company, was a party to the foreclosure proceeding and made no question as to M. M. Hamner’s ownership of the mortgage, and the company is bound by the finding of the court that M. M. Hamner is in fact the owner of the mortgage.
It is insisted that M. M. Hamner converted the mortgaged property to his own use without foreclosing the mortgage, and thereby became liable for its actual market value at the time of the conversion, and should be charged with this value. It may be said that the testimony is in irreconcilable conflict as to the value of the mortgaged property, but the fact remains that when sold by the commissioner under the foreclosure decree the mortgaged property brought only $700.
We do not, however, pass upon the question of the actual market value of the mortgaged property, for the reason that we do not find, nor did the court below find, that there had been any conversion of it. The testimony established the fact that, after making his agreement with Mrs. Starling, Hamner took possession of the mortgaged property, but, as default had been made in the payment of the debt secured by the mortgage, he had the right to do so. Thornton v. Findley, 97 Ark. 434, 134 S. W. 627; 33 L. R. A. (N. S.) 491; Lee Wilson & Co. v. Crittenden County Bank, 98 Ark. 384, 135 S. W. 885; Barron-Fisher-Caudill Co. v. Rhoda, 126 Ark. 556, 191 S. W. 229.
We do not find that Hamner took possession of the mortgaged property as the owner thereof. There is but little question that Hamner would have turned the mortgaged property over to Mrs. Starling had she complied with her contract.
One of the items of the mortgaged property to which testimony was especially directed was that of the cottonseed which Starling had on hand at the time of his death, and this testimony confirms our view that there was no conversion. After the date of the alleged conversion, an agueement was reached between Hamner and Mrs. Starling’s representative that Hamner should use the seed and pay fifty cents per bushel for them, which appears to have been a most reasonable allowance on that account. It is true that Hamner took possession of the mortgaged property on February 10, 1931, but, as we have said, this was for the purpose of taking care of it, and not for converting it to his own use. Indeed, at that time Hamner was expecting Mrs. Starling to comply with her original contract and would, no doubt, have delivered the property to her, had she performed this contract by paying the $1,500 as agreed.
It is also insisted that the debt was usurious and void for that reason, and that the usury consisted in taking the note above mentioned. But we do not agree with this contention. The monthly statements furnished Starling in his lifetime, and the testimony in the case, show conclusively that the note was only an estimate of what the. account would finally be, and was in the nature of an accommodation note which the company might use as collateral, and that it was at all times the intention of all the parties that the final indebtedness would be determined from statements of the account.
The 10 per cent, addition to the account was dated on August 1st, at which time the crops had been “laid by, ’ ’ and the advances ceased and the credit items would thereafter be in excess of the debit items. There could be, and was, no usury in adding 10 per cent, to the cash price of goods which were not sold for cash, but on credit. Brakefield v. Halpern, 55 Ark. 266, 15 S. W. 190; Blake Bros. v. Askew & Brummett, 112 Ark. 514, 166 S. W. 965; Standard Motors Finance Corporation v. Mitchell Auto Co., 173 Ark. 879, 293 S. W. 1026, 57 A. L. R. 877.
The foreclosure suit was based upon the account, and not upon the note, but, if the note were held to be usurious, this would not affect that portion of the account incurred for goods purchased, and would invalidate only such portions of the account as were based upon the loan of money. Usury cannot be predicated upon the charge of a profit of more than 10 per cent, for goods sold on credit. Atkinson v. Burt, 65 Ark. 316, 53 S. W. 404; Tillman v. Thatcher, 56 Ark. 315, 19 S. W. 968; Briggs v. Steel, 91 Ark. 458, 121 S. W. 754.
The account, on August 1, 1931, amounted to $4,687.73, and the decree, rendered December 29, 1931, found tbe indebtedness secured by tbe mortgage to be $3,700. The difference between these items is $987.73, which is greater than the money advanced and the price of the cottonseed combined, so that, if the note were usurious, the judgment is for a sum no greater than the balance due, exclusive of the money advanced (the only items against which the plea of usury could be asserted), and that of the seed also. To constitute usury, there must be an agreement requiring the borrower to pay, and entitling the lender to receive, a higher rate of interest than that allowed by statute for the loan or forbearance of money, and the plea of usury cannot therefore be sustained. Cheairs v. McDermott Motor Co., 175 Ark. 1126, 2 S. W. (2d) 1111.
The decree appears to accord with the preponderance of the testimony, and it must therefore be affirmed, and it is so ordered. | [
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McIIaney, J.
An execution from the Pine Bluff Municipal Court on a judgment in favor of appellee against appellant of March 23, 1931, was returned unsatisfied. In June, 1931, a certified transcript of said judgment was filed with the clerk of the Cleveland Circuit Court, upon which execution was issued by said clerk, and the sheriff levied same on certain real property owned by appellant in that county. Thereafter appellant filed his schedule claiming the property levied upon as his homestead exempt, which was disallowed by the clerk, and the matter was presented to the court sitting as a jury. The court disallowed the claim of exemption as a homestead on the ground that appellant had moved away and abandoned his homestead, and that same was subject to execution. This appeal is from that judgment.
Appellant was the only witness examined. He testified that the 20 acres of laud was his homestead, and had been for about 20 years; that he had lived upon said land all that time until 1929 or 1930; that his first wife died while they were living there as also one child who predeceased his wife, and that he continued to live there about two years after his wife’s death; that he then moved to Pine Bluff to work where he had lived about a year; that he did not abandon his homestead, but was temporarily away at work, intending to return to it at an indefinite time, when he married again; that he had been married the second time about five months, but that he and his present wife had not lived on said land, but had been on it several times, and intended to move back ‘ ‘ this fall, ’ ’ when he g’ot money to move on; that he never did move all his household goods from the property, his cooking utensils and plow tools still being there in the custody of his relatives who rent the premises; that he re-covered the house on said land about six months ago at a cost of $75; and that he paid his personal tax for 1931 at Pine Bluff, in Jefferson County.
On this evidence the court found that appellant had abandoned his homestead, and this appeal challenges the sufficiency of the evidence to support the finding and .judgment. The rule in this court in this kind of case is the same as in any other case tried before the court sitting as a jury, and that is, that the finding of the court is entitled to the same weight as the verdict of a jury, which this court will not disturb if there is any substantial evidence to support it. Creekmore v. Scott, 179 Ark. 1113, 20 S. W. (2d) 177. In this case we think there is some substantial' evidence of abandonment. Appellant, on the death of his wife, was left without a family. Later he went to Pine Bluff to work, intending, as he says, to return when he married. If he had never married again, the presumption is, from that statement, that he would not have returned. In other words, his intention to return to his homestead was not unqualified, definite and certain, such as the law requires. In the case last cited, we said: “This court has uniformly held that an abandonment of a homestead is almost, if not entirely, a question of intention, which must be determined from the facts and circumstances attending each case. The court has further held that a removal from the homestead maybe caused by necessity, or for business purposes, and that, if the owner has an unqualified intention to preserve it as a homestead and to return to it, his removal cannot result in the abandonment of the land as a homestead. Gazola v. Savage, 80 Ark. 249, 96 S. W. 981; Caldcleugh v. Caldcleugh, 158 Ark. 224, 250 S. W. 324, and cases cited.”
The evidence further shows that appellant had been married to his second wife five months and had not moved back to his homestead! and had paid his 1931 personal taxes in Jefferson County. These are circumstances tending to show abandonment, and abandonment of a homestead may be proved by conduct, circumstances, and actions, as well as by direct testimony. Lilly v. Lilly, 178 Ark. 324, 11 S. W. (2d) 765; Creekmore v. Scott, supra. Tested by these rules, we cannot say there is no substantial testimony to support the finding and judgment of the circuit court.
Affirmed.
Kirby and Mehaeey, JJ., dissent. | [
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McHaney, J.
School District No. 45, until the passage of act No. 169 of 1931, p. 476, was a common school district in Pope County with a board of three directors, composed of C. B. Wait, Jr., E. E. Easley and B. P. Beaumont. In June, 1930, director Easley left Arkansas for Oklahoma, either temporarily or permanently, and an election was called under § 8914, Crawford & Moses’ Digest, to fill the vacancy caused by the removal of director Easley, and held on July 6,1930. At this elec tion Lee Cams was elected, took the oath of office as such, and his election certified to the county board of education. At a meeting held in September the county board of education declared the election void, and refused to recognize him as director: The appellee was teaching the school in the district during the year 1930-31, and on April 9, at a meeting of the hoard, of which all tie directors were notified and at which directors Beaumont and Cams were present, Wait being absent, a contract was made with appellee to teach a seven months’ school in 1931-32, beginning July 6, for two months, with an intermission, and five months to be taught in the fall and winter, at a salary of $90 per month. At the regular school election in May, 1931, after the above contract .had been entered into, a new board of six directors was elected under the provisions of act 169 of 1931, and this new board refused to permit appellee to teach the school, or to recognize her contract with the old board. She thereafter brought this suit to recover $630 as damages for breach of the contract. At the time of the trial only two and one-half months of the school term had elapsed, and the court instructed a verdict against appellants for $225, the salary that had accrued at the time of the trial, and refused to permit a recovery for the four and one-half months still to run. Upon this verdict judgment was entered, from which both parties have appealed.
Appellants demurred to the complaint,' which was overruled, and this is assigned as one of the grounds of error on the direct appeal. The basis of the demurrer is act 169 of 1931. It is contended that, by reason of said act, which became effective on March 25,1931, all districts having either more or less than six directors were left without a governing body from the effective date of said act until the third Saturday in May, when the regular election for directors was held and six new directors were elected for each such district in the State. This contention is untenable, as it is manifest from said act that the Legislature did not intend to remove the directors of such school districts until the new directors were elected, in accordance with § 43 of said act. Said section provides that the school directors in all districts which were not dissolved by the provisions of said act, “the school directors now in office, shall continue to' serve until the next annual school election.” School District No. 45 was not dissolved by the provisions of said act, and the directors thereof continued to serve as such until the election in May. The court properly overruled the demurrer.
On the merits of the case, we are of the opinion that the court correctly directed a verdict in appellee’s favor, unless director Cams was not a director, and that the action of the board in making- the contract with appellee is void. We are of the opinion, however, that Cams was a de facto director, if not de jure, and that appellee was not required to inquire into his authority to act in order to preserve the validity of her contract. We have had occasion to pass upon the same or similar questions in the cases of Gardner v. North Little Rock School Dist., 161 Ark. 466, 257 S. W. 73, and Carroll v. Leeman Special School District, 175 Ark. 274, 299 S. W. 11. The reasoning- adopted by the court in these cases applies with equal force here.
On the appeal of appellee, all that need be said is that she was not entitled to recover the full amount she would have earned under the contract at the time this case was tried because she may have since that time obtained other employment which would reduce the amount of her recovery subsequent to the trial.
The case will therefore be affirmed, both on the appeal and the cross-appeal. | [
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MoIIaney, J.
Appellee sued appellant for damages for the injury and death of his infant son, seven years of age, caused by the alleged negligence of appellant in driving its automobile truck against that of appellee while driving along a highway between Warren and Monticello, both traveling in the same direction. The accident occurred on the 26th day of December, 1930. The appellant’s bread truck was driven into the rear end of appellee’s truck with such force and violence as to dislodge and throw to the ground several persons riding on the rear of appellee’s truck. Appellee, his wife and three children were riding in the cab of the truck, the little son, Wayne, sitting between his mother and father with his feet hanging down and his back some distance from the back of the seat. It is alleged that the impact from the collision threw the child back against the back of the seat in such a way as to injure the back of his head and neck near the base of the brain, causing a severe and painful injury, from which he died on January 16, 1931. Appellant denied the material allegations of the complaint, and the case was tried to a jury, which resulted in a verdict and judgment against appellant in the sum of $5,000 for the benefit of the estate for pain and suffering, and in the sum of $3,806.50 “for the benefit of the next of kin for medical bills, funeral expenses and loss of services during minority. ”
For a reversal of the judgment, it is first insisted that the evidence is insufficient to support the verdict; that it does not show that the deceased received any injury in the accident; and that it was impossible for the deceased to have received an injury at the place alleged by reason of the accident. It is true that at the time of the accident, which is undisputed, appellee did not know that his son had received an injury and did not know it for some days thereafter, although he knew that his little son was complaining* about his head hurting him. At the time of the accident, as stated above, four or five persons riding on the rear of the truck were thrown out, and all the others except the deceased got out of the car on account of the accident. Appellee soon discovered that there was no .substantial damage to his car, and, although his car was knocked 40 or 50 feet down the road and they were all considerably shaken up, appellee did not know any person had been seriously injured. Dr. Smith, who examined the child about eighteen days after .the accident, testified that the child had an injury at the back of his neck, about the edge of the hair and that such injury was caused from a lick received in that place. The evidence further shows that the child began complaining about his head shortly after the accident, and that he continued so to complain until his death. Shortly after the accident appellee discovered that bloody water was coming from the child’s ears and nose, took the child to a physician who made a perfunctory examination and prescribed a wash for the bloody discharge. This physician was not advised that the child had been in an accident, as it did not occur to appellee at that time that lxe was suffering from an injury received therein. We think the evidence was sufficient to take this question to the jury under all the facts and circumstances, especially so in view of the fact that the child did not get out of the truck with the others during the excitement caused by the accident, and began to complain of his head hurting him only a short time after leaving the place of the Occident. Nor do we think we can say as a matter of law that' it was impossible for the child to have received the injury it did receive in the place and in the manner stated. This was a question for the jury. The evidence when viewed in the light most favorable to appellee, as we must do in determining its sufficiency, was such that the minds of reasonable men might differ as to the cause of the injury, and we cannot set the verdict aside on this account.
It is next insisted that there is no sufficient showing that the truck that caused the accident was appellant’s property, was being used at the time of the accident in its business, or' that the driver of the truck was in its employ and that he-was engaged in the business of appellant at the time of the accident. It is undisputed that the truck that caused the accident had appellant’s name printed or -painted thereon. It is further undisputed that this truck, or a like truck bearing* the name of appellant, ^raveled over this highway daily. The evidence further shows that a short time prior to the accident, while appellee and another were in Warren they saw this same truck and the same driver who caused the accident delivering bread or other articles of merchandise to a customer in Warren. We think this evidence sufficient to establish the fact that the truck belonged to appellant, and that it was being operated at the time of the accident by its employee, and that this was sufficient to raise the inference that at the time of the accident he was acting within the scope of his employment and in the furtherance of his master’s business. Casteel v. Yantis-Harper Tire Co., 183 Ark. 912, 36 S. W. (2d) 406; Mullins v. Ritchie Grocery Co., 183 Ark. 218, 35 S. W. (2d) 1010; Terry Dairy Co. v. Parker, 144 Ark. 401, 223 S. W. 6. The facts established were sufficient to take this question to the jury, aside from the admissions of appellant’s counsel made in his opening- statement to the jury.
It is next argued that the verdict, both for the value of the services of the deceased during minority and for pain and suffering, was excessive. It appears that appellee incurred $56.50 for medical attention and funeral bills. There was a net amount of recovery for loss of services of $3,750. It is argued that this amount is excessive because it amounts to nearly $400 a year or approximately $1.25 for every working day for fourteen years. In Morel v. Lee, 182 Ark. 985, 33 S. W. (2d) 1110, we allowed a recovery for pecuniary damages in the sum of $2,500. In this case, however, the child was the son of a small farmer, well developed and a strong able-bodied boy. While he had not reached that age that his services would be of very great value, he was able to run errands, do chores and numerous other things about the farm of value to appellee. It is well known that a boy, so reared by a father in poor or moderate circumstances, is required to work, and, when quite young, must do a man’s work in assisting his father to make a living for the family. It is true that they are required to go to school a portion of the year, but it is quite usual in farm communities to so arrange the terms of school as to permit the children to assist their parents in the growing and gathering of crops. We have reached the conclusion that the amount of the verdict in this respect was a question for the jury, and it does not appear to be so excessive under the circumstances stated as to justify us in reducing it. Neither can we say that the judgment for pain and suffering is excessive. On the contrary, it appears to us to be a moderate allowance. The child lived 21 days after its injury, and a number of witnesses testified that it suffered continuously, having to be rested on a feather bolster and that although during this time it was taken to physicians for examination two or three times, it finally reached the point where the physician had to come to see it, and at that time it was too near death to be taken to a hospital for an X-ray.
The only other question we find it necessary to discuss is that relating to the hypothetical question asked Dr. Wm. B. Grayson, an expert witness. 'Before putting Dr. Grayson on the stand, a number of witnesses had testified regarding the accident, how it occurred, the actions and demeanor of the child, its complaints of injury and to other facts and circumstances relating to the manner of the supposed injury. There was no conflict in any of this testimony. Dr. Smith was examined and testified that he had personally examined the child and found a bruised place on the back of his head near the base of the brain which was caused from an injury. Dr. Grayson was then put upon the stand and asked whether he had been sitting in the court room all day and had heard all the witnesses testify, and he answered that he had been in the court room, and thought he had heard them all; whether he had paid attention to the testimony as given by all the witnesses with reference to the manner of the alleged injury to the child, the symptoms that were shown by him, the appearance of his body, and he answered that lie liad. He was then aslced this question: “If this testimony is found to be true, Dr. Grayson, we want to ask you what, in your opinion, based on this testimony as you have heard it, and upon your experience and knowledge as a physician and surgeon, was the cause of the death, in your opinion of Wayne Wyman?” The witness was permitted to answer the question over the objections and exceptions of appellant that the child’s death was caused by traumatism which is considered an injury due to a blow direct or indirect. Appellant objected to the question on the ground that numerous witnesses had testified to different conditions and symptoms, and that the evidence was in conflict so that it was impossible for his answer to show what testimony he believed or accepted or what he did not, or upon what conditions or symptoms he based his answer. We have read the testimony carefully, and we fail to find any substantial conflict in the testimony as to how the injury occurred. In addition, it is argued here now that his answer was based in part upon the testimony of Dr. Smith, but at the time it made no objection to the question on that ground. It is true that the better practice is, in eliciting the opinion of an expert witness, to ask a hypothetical question detailing all the undisputed facts which must be included and all the facts assumed to have been established by the party propounding the question may be included, if relevant. Taylor v. McClintock, 87 Ark. 243, 112 S. W. 405; Newport Mfg. Co. v. Alton, 130 Ark. 542, 198 S. W. 120; Mo. State Life Ins. Co. v. Fodrea, ante p. 155. An expert cannot be asked his opinion upon disputed questions of fact except upon hypothetical statement, unless he is personally acquainted with the material facts in the case. Ringlehaupt v. Young, 55 Ark. 128, 17 S. W. 710. It was held in that case that there are two methods of eliciting the opinion of an expert on matters not depending upon general knowledge, but on facts not testified of by himself, and one of them is that the witness is present and hears all the testimony, and the second is to ask a hypothetical question. The same rule was announced in St. L. I. M. & S. R. Co. v. Williams, 108 Ark. 387, 158 S. W. 494, where it was said: “If the expert has been present and heard all the evidence as to the symptoms and appearances, detailed upon the trial, he may give his opinions upon the fact so stated, if they be found true by the jury, but cannot himself judge of their truth.” Appellant argues that the holdings in both cases are dicta, but, whether they are or not, such seems to be the general rule where the witness is present and heard all the testimony, which is not in conflict. It is argued that Dr. Norman testified that the child was suffering from infantile paralysis, but Dr. Norman did not testify until after Dr. Grayson had given his opinion on the facts then in evidence. Assuming that appellant’s objection to the question asked Dr. Grayson covered the testimony of Dr. Smith and that his argument now made against the expert’s testimony as being based on another expert’s opinion, our holding in the Mo. State Life Ins. Co. case, supra, is contrary to appellant’s contention. Dr. Smith did not testify as an expert witness. He gave his diagnosis from a personal examination. He was not asked any hypothetical question, and the opinion of Dr. Grayson cannot be said to be based in part on another expert’s opinion.
Other assignments of error are suggested and urged for a reversal which we have examined and cannot sustain. No useful purpose could be served by a discussion of them, and we therefore refrain from doing so.
We find no error, and the judgment is accordingly affirmed. | [
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Smith, J.
Appellee recovered a substantial judgment to compensate an injury -which he sustained as he was walking across the .tracks of the defendant railroad company in Bald Knob, along Elm Street, which crossed the tracks, when he stepped on a small rock or piece of gravel, which caused his ankle to turn and twist his knee in such a manner as to break the cartilage in his knee cap.
We copy from the record his statement as to the manner in which he'was injured: “When I got there (at the crossing), there was a gravel train, a work extra, that was on the crossing, and they had cut, I suppose, the Main Street crossing at the old depot. After they cleared the crossing probably six or eight feet, I started across. The work train had gone in on the passing track and let the Memphis train go out on the north Y, and let it connect to the coaches going south. They were spreading ballast, I think, between Bradford and Oliphant. The work extra train began to cut the crossing and let the traffic over, and the various vehicles that had been tied up there started across. I started across, and I stepped over the first pile of 'gravel that they strowed' there, and I stepped over it, which was about eighteen inches from the rail. I got over that with my left foot, and I stepped with my right foot to get over, and .just as I started to make that step this work extra stopped. When they stopped, it created a noise, and, of course, I looked up to see what the noise was, and the car started back. I was standing between the rails, and, before I could get back and when I stepped over, I stepped on this rock.”
Appellee described the rock upon which his foot turned as “a liver shape or a kidney shape gravel, a large sized gravel.” He stated that “on the outside of the road (where he was injured) there was quite a stretch of them (gravel).” He also testified that the railroad company was using the gravel in raising its tracks* and that dump cars of two kinds were employed. One was a “center dump car,” which so opened that the gravel which it contained would be spread in the center of the track between the rails. The other was a “side dump car,” which so opened as to spread the gravel it contained on the outside of the rails.
He was asked: “How long had there been rock on that crossing?” And he answered: “At various times there would be a little in spots there, but that evening (the day of the injury) was the only time I ever seen that amount of rock there.” He was asked: “How large was this particular gravel?” and he answered: “Something like as big as my fist.”
He was interrogated in regard to a written statement he had signed relating to his injury, and, on his motion, this writing was introduced in evidence. This statement contained the recital that “This rock, in size, was something like a three-inch rock, such as would fall off a gravel train,” and the further statement that “I remember that I saw these rocks scattered along before I reached there, but the particular rock that caused my ankle to turn had rolled off a little ways from the bunch.”
Appellee had previously been employed by the railroad company for seventeen years in the bridge and building department, and was thoroughly familiar with the work in connection with which the gravel was being used.
A witness introduced by appellee testified that some of the gravel were as large as eggs, and he had noticed them along the track for a week or ten days before appellee was injured.
The cause was submitted to the jury under instructions which declared it to be the duty of the railroad company to maintain its crossing in a safe condition for use by the public. The duty of railroads in this respect has been frequently defined in numerous decisions of this court, and no useful purpose would be served by reviewing them, as the instructions appear to conform to the law thus announced.
We are of the opinion, however, that appellee’s injury was a mere accident for which the railroad company should not be held liable. The work in which the railroad company was engaged — that of spreading ballast— was both proper and necessary, and was in progress at the time of appellee’s injury, and the probability that a pedestrian would be injured by the presence of one of these small stones appears to us to be too remote to predicate a cause of action thereon.
It has been frequently stated by this and other courts that, in order to warrant a finding that negligence is the proximate cause of an injury, it must appear that the injury was the natural and probable consequence of the negligence or wrongful act, and that it ought to have been foreseen in the light of the attending circumstances. St. Louis, K. & S. E. R. R. Co. v. Fultz, 91 Ark. 260, 120 S. W. 984; Ultima Thule Ry. Co. v. Benton, 86 Ark. 289, 110 S. W. 1037; Helena Gas Co. v. Rogers, 104 Ark. 59, 147 S. W. 473; St. Louis, I. M. & S. Ry. Co. v. Copeland, 113 Ark. 60, 167 S. W. 71; Miller v. M. P. Ry. Co., 9 La. App. 477, 121 So. 241; Meeks v. Graysonia, N. & A. R. R. Co., 168 Ark. 966, 272 S. W. 360.
If it be said that the jury was warranted in finding that it was negligence for the railroad company to permit particles of gravel to fall from its train, we are, neverthe less, of the opinion, that the probable injury of appellee was not a consequence which ought to have been foreseen, and there is no liability unless the testimony suffices to sustain a finding that such a consequence should have been anticipated.
In the case of Lee v. Central Railroad & Banking Co., 86 Ga. 231, 12 S. E. 307, it was said by the Supreme Court of Georgia: “It cannot be incumbent on railroad companies, or any one else, in such a world as this, to keep the whole face of the earth on which servants and employees are to execute their functions clear of every object that may cause an employee to slip up or be thrown down. Such a rule would require that farmers should keep their premises clear of corncobs; for a cob, when stepped upon, may roll under the foot and produce a fall. So of small stones, and sometimes sticks or other rubbish. ’ ’
In the case of Atchison, T. & S. F. Ry. Co. v. Calhoun, 213 U. S. 9, 29 S. Ct. 321, the Supreme Court of the United States quoted from Pollock on Torts, 8th ed., 41, as follows: “If men went about to guard themselves against every risk to themselves or others which might by ingenious conjecture be conceived as possible, human affairs could not be carried on at all. The reasonable man, then, to whose ideal behavior we are to look as the standard of duty, will neither neglect what he can forecast as probable, nor waste his anxiety on events that are barely possible. He will order his precaution by the measure of what appears likely in the known course of things.”
We conclude therefore that appellee’s injury was the result of a mere accident for which the railroad company should not be held liable.
The judgment must therefore be reversed, and, as the case has been fully developed, it will be dismissed. It is so ordered. | [
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MoTIaney, J.
Appellants, Municipal Improvements Districts of Benton, Arkansas, filed suit in the Saline Chancery Court on September 8, 1931, to enforce the collection of delinquent improvement taxes. The complaints for this purpose were signed by M. H. Holleman, as solicitor. The appellee intervened in these suits, alleging that he is the city attorney of the city of Benton, duly elected, qualified and acting; that appellants are local improvement districts, one the water district, the other a sewer district, organized under the general improvement district laws of the State, and are situated wholly within the corporate limits of said city, which is of the second class; that act 224 of the Acts of 1931 provides that the attorney representing the municipality shall he the attorney for all improvement districts in the city; that appellants attempted to employ said Holleman as attorney to represent them, for which he was to he paid, and that such employment is illegal and without authority of law or of said intervener. The prayer was for an injunction against appellants and Holleman to prevent them from proceeding further as attorney and client, from collecting any further money or fees for representing appellants, etc. Appellants demurred to the intervention, which was overruled by the court, and, on their declining to plead further, decree was entered for appellee, declaring him to be the attorney for said districts and entitled to the emoluments and fees as attorney for said districts from October 16, 1931, from which is this appeal.
It is contended by appellants that act 224 of the General Assembly of 1931 is unconstitutional and void. It provides that, in all cities of the second class and incorporated towns, the attorney representing the municipality ‘ ‘ shall be the attorney for all boards and commissioners of all local improvement districts within said city or incorporated town.” It further makes it the duty of said attorney to advise with such boards at any time needed “and do all things enjoined upon him by said board of commissioners, and do and perform all legal duties pertaining to said formation and operation of said improvement districts. And shall represent said board of commissioners in all suits brought for or against said board of commissioners.” His compensation is fixed at such fees as may be agreed upon, and his total compensation in any one year in all improvement districts is limited to $1,200.
It is said, that the act is so vague, indefinite and uncertain that it is impossible to apply it to the affairs of local improvement districts, and that to give effect to the act it will be necessary for them to assume a legislative function. It is further argued that, while it is made the duty of the city attorney to perform all duties enjoined upon him by the boards of improvement, it does not provide that the board shall enjoin any duties upon him, and that it fails to provide any means by which to determine what fees shall be charged by or paid to the city attorney, nor any rule to determine what shall be a reasonable fee in any matter, and that all these things constitute the delegation of legislative authority in violation of article 5, § 1, Constitution of Arkansas. We do not agree with appellants in these contentions. The act was passed in the interest of economy in the organization and operation of improvement districts in cities of the second class and incorporated towns. It provides specifically that he shall represent all improvement districts in such municipalities, both in their formation and operation, and in all suits brought for or against them, and that such fees shall be paid as may be agreed upon, not to exceed $1,200 from “such districts in any one year.” This does not constitute the delegation of legislative authority.
Municipal improvement districts are under the supervision and control of the city or town council. They are required to make annual settlements showing all collections or disbursements. Crawford & Moses’ Digest, § 5718. On a settlement made, any taxpayer may file exceptions, and, whether filed or not, it is made the duty of the city council to examine same and disallow all unjust charges and credits, if any there be, and the council’s adjustment thereof is subject to re-examination in the chancery court. Crawford & Moses’ Digest, § 5719. And in suits for the collection of delinquent taxes, the attorney’s fee is fixed by the chancery court and taxed as costs against the delinquent property. The city attor ney, being a city officer, elécted by'the people of the whole municipality, was a proper person in the view of the lawmakers to be made the attorney for all such districts, and no doubt the Legislature thought such an act would avoid the payment of extravagant attorney’s fees, as is illustrated in Martin v. Street Imp. Dist. No. 324, 167 Ark. 108, 266 S. W. 941, and Martin v. Street Imp. Dist. No. 349, 178 Ark. 588,11 S. W. (2d) 469. Boards of improvement are creatures of the city or town councils by virtue of legislative authority, and the Legislature has the right to prescribe the manner in which they shall perform their duties.
It is also said that the act violates § 4, art. 16, of the Constitution, which provides that the “General Assembly shall fix the salaries and fees of all officers in the State, and no greater salary or fee than that fixed by law,” etc. This section of the Constitution has no reference to the fees of an attorney representing improvement districts, and the case of Nixon v. Allen, 150 Ark. 244, 234 S. W. 45, cited by appellants, is not in point. The Legislature does not fix the fees of the city attorney, nor has it attempted to fix the fees of such attorney while acting for boards of •improvement, except to fix the maximum he may be paid annually by all improvement districts. Another objection made to the act is that it is unequal in its application, and restricts the right to contract. Boards of improvement, being the creatures of the city or town councils through legislative authority, may be limited in their right to contract or otherwise by legislative authority.
It is finally insisted that, even though act 224 be constitutional, appellee does not plead facts sufficient to bring him within its provisions. We think appellants are wrong in this contention. The act was approved March 26,1931. It became effective ninety days after the Legislature adjourned, which would have made it effective sometime in June. By the decree of the court, it was made effective as to appellants October 16, 1931, and they are in no position to complain. The suits brought by Hollé man were not brought until September 8, 1931. So any contract made with Holleman subsequent to the effective date of the act was without binding force, and appellee had the right to have it so declared.
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Humphreys, J.
Appellee brought suit against the Southwestern Bell Telephone Company, appellant, and others to recover damages in the sum of $30,000 for an injury received by him from a telephone wire stretched across State Highway No. 67 near Beebe, which struck and threw him from a load of hay on which he was riding. It was alleged that appellants and the other defendants had moved the wire, and in replacing it had negligently lowered its position, thereby causing the injury.
A separate answer was filed by appellant and two other defendants, denying the material allegations of the complaint, and later appellant filed an amendment to its answer, pleading in 'bar of the cause of action against it that a settlement and compromise of the cause of action had been made by appellee with one of its codefendants, Southwestern Bell Telephone Company.
No pleadings were filed by the other defendants, and the cause was tried to the jury, resulting in a verdict and judgment against appellant for $8,000, from which is this appeal.
Appellant’s sole contention' for a reversal of the judgment is, that under the evidence it was entitled either to an instructed verdict in its favor or else to have the' issue of whether there was a settlement of the cause with appellant’s eodefendant submitted to the jury.
It requested a peremptory instruction, and, when refused, it requested the court to give instruction No. 9, also refused, which is as follows:
“You are instructed that if you find from the evidence in this case that the plaintiff entered into an agreement of settlement with the defendant, Southwestern Bell Telephone Company, that bars his action against the defendant, Altman-Rodgers Company, and your verdict must be for that company.”
Both requests were 'based upon the following eleven questions propounded to appellee, and his answers thereto:
“Q. Mr. Smith, when this suit was filed, you included as one of the defendants here the Southwestern Bell Telephone Company, or the Bell Telephone Company, and that suit, I understand, has been dismissed?” “A. Well, I don’t know anything about that. ” “Q. I will ask you, have you made a settlement with the telephone company?” “A. I haven’t.” ‘‘ Q. Do you know whether Mr. Campbell, your attorney, has?” “A. I don’t know.” “Q. Hasn’t he informed you that he made a settlement with the telephone company? ” “A. He never said anything to me about it. ’ ’ “Q. You don’t know why suit has been dismissed as to them?” “A. Mr. Campbell knows that; I don’t know.” “Q. Did you hear him make a statement here to counsel for the defendant this morning that he had dismissed as to them?” “A. No, sir.” “Q. Didn’t you sign an agreement with the Southwestern Bell Telephone Company not to sue in consideration of them paying you $500?” “A. I signed a receipt or something that Mr. Campbell wrote out there.” “Q. Didn’t you understand the consideration for you signing that was five hundred dollars?” “A. I didn’t see no five hundred dollars.” “Q. You didn’t see the five hundred dollars?” “A. I signed a receipt or something; I didn’t read nothing, and he didn’t tell me nothing. He give me his personal check for $250.” “Q. He retained half of it as his fee; yon had an understanding to that effect?” “A. We never said nothing about that.” “Q. You signed a paper agreeing not to sue the telephone company any further?” “A. I couldn’t say what it was.”
Appellant argues that the application of the rule of law announced 'by this court in the case of Coleman v. Refining Company of Louisiana, 172 Ark. 428, 289 S. W. 2, to the facts detailed above entitles it to a reversal of the judgment and a dismissal of the cause of action against it. The rule of law referred to is as follows:
“Where the concurrent negligence of two persons was responsible for an injury to a third person, a settlement by the latter of an action for such injury will bar an action against the other, although the defendants in the respective actions were not joint tort-feasors.”
The rule invoked is not applicable because the evidence relied upon does not show a settlement of the cause of action between appellee and the Southwestern Bell Telephone Company. The most it shows, and the most the jury could have found it shows, is that appellee agreed for a consideration not to sue the Southwestern Bell Telephone Company.
This court is committed to the doctrine that a covenant not to sue one of two joint tort-feasors does not operate .as a release of the other from liability. Texarkana Telephone Company v. Pemberton, 86 Ark. 329, 111 S. W. 257; Dardanelle Russellville Railway Company v. Brigham, 98 Ark. 169, 98 S. W. 969; Mahaffey v. Glover, 184 Ark. 1159, 45 S. W. 521.
No error appearing, the judgment is affirmed. | [
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Butler, J.
This is an appeal from a verdict and judgment in favor of the plaintiffs, in the two cases which were consolidated for the purpose of trial. The damage for which appellees sued was for the killing of a number of mules belonging to them caused by the operation of appellant’s train.
The occurrence out of which comes this litigation happened about eight o’clock p. m. on the 23d of August, 1930, on a straight stretch of appellant’s line of railway a short distance south of where the railway crossed the floodway of Drainage District No. 7 in Poinsett County, Arkansas, and not near or at a crossing. The track at this point ran from north to south on a long bridge or trestle and across the floodway, which was from a half to a mile wide. To the south of the floodway and nearb}’ was an inclosure in which about 100 head of mules were accustomed to pasture. On the date aforesaid a number of these mules had got out, and were grazing on the dump and tracks of the railway. The country through which the railway ran at this point was low, and the dump was elevated about fifteen or twenty feet above the level of the surrounding land. The southbound passenger train of the appellant passed over the floodway, and a short distance beyond ran into and killed ten mules, the property of the appellees, and about half a mile further south killed another mule, not involved in this suit, belonging to some other person. At the time of this happening the country was experiencing a severe and protracted drouth, and, while the land in that vicinity was. naturally low and swampy, it was very dry at this time, and there was no water about except a small quantity in the two canals which were cut down the floodway. The mules were killed on Friday, and their loss was not discovered by the appellees until a day or two afterward, when evidence of where they had been killed was found. The mules had been buried by the side of the track, and they were dug up for purposes of identification. An examination was made along the line of railroad from this point back toward the floodway, and it was found that south of the floodway a short but undetermined distance the tracks of the mules were seen, and from the distance between these tracks and the nature of the same it was concluded that they had started running south down the railroad, and had gone in this manner a distance of approximately 200 yards before reaching the place where they were killed. All of these facts are undisputed.
The engineer and fireman in charge of the appellant’s train, while admitting that their train killed the mules, testified that it was impossible to avoid the injury, because, as the train approached the floodway from ■the north, a dense cloud hung over it which proved to be about 100 to 200 feet through, and so dense that the headlight of the locomotive would not penetrate a sufficient distance ahead to give a view of an object on the track in time to stop the train or to slacken its speed in order to avoid injury; that their train was traveling at the rate of fifty miles per hour, and they entered the cloud without slackening speed, and, as they passed through, they discovered the mules on the track but they were then so close that they could not avoid running upon them. They were unable to say of what the cloud was composed— whether smoke or fog — but the engineer stated that he thought it was a little of both. Both the engineer and the fireman testified that they were keeping a constant lookout ahead, but did not say that they gave any signals when they entered, or passed through the zone of cloud, or when they saw the mules as they emerged from it. The engineer also testified that he had observed fog and smoke several times before on that part of his run, but was unable to recall having seen it at this particular point before.
There was testimony introduced on behalf of the appellees tending to show that ther.e had been no smoke recently in that vicinity, and no indications of recent fires in the woods.
Basing their contentions on the testimony of the fireman and engineer, counsel for the appellant insist that the instructions given by the court were abstract and did not present the issues in the case, and that the modification made by the court to instruction No. 4 requested by the appellant and the giving of that instruction as modified was error. They chiefly contend that there should have been a directed verdict in favor of the appellant as requested, because, as they say, the undisputed evidence affirmatively shows that the killing of the mules was an unavoidable casualty, and that the presumption of negiigence raised by the admission that the mules were killed by the operation of appellant’s train was overcome by the testimony of the engineer and fireman, which was undisputed, and which established due care in the operation of the train. Upon the last contention depends the question of the correctness or error of the instructions as those given do not depart from the principles applicable, where the statutory presumption of negligence is not overcome by direct testimony probable in itself and not in conflict with other circumstances in testimony.
"While freely conceding that, where injury is shown to have been caused by the operation of its train, a prima facie case of negligence is established which casts upon its owner the burden of proving by a preponderance of the evidence that it was free from negligence, appellant insists that, as no one saw the accident but the engineer and the fireman, their conclusion that the injury was unavoidable and the facts testified to by them must be accepted, the presumption of negligence is at an end, and the burden of showing that there was no negligence in the operation of the train is discharged.
This contention cannot be sustained. The rule that the testimony of operatives in charge of a train may not be arbitrarily disregarded by the jury does not impose upon it the duty of accepting a statement of fact as true merely because so testified. For the jury to be bound to accept such evidence as true, it must be consistent with the other testimony in the, case, reasonable in its nature, and uncontradicted in its essential points. St. L. I. M. & S. R. Co. v. Landers, 67 Ark. 514, 55 S. W. 940; St. L.-S. F. R. Co. v. Minor, 85 Ark. 121, 107 S. W. 171; K. C. So. Ry. Co. v. Simmons, 140 Ark. 80, 215 S. W. 167.
It is elementary that it is the province of the jury to pass upon the credibility of the witnesses and to determine the weight to be given their testimony. In doing this it is the duty of the jurors to consider the testimony of a witness in the light of all' the evidence, whether direct or circumstantial, and to apply to any statement made their common sense and experience. Railway Co. v. Lewis, 60 Ark. 409, 30 S. W. 765, 1135. The engineer stated that the cloud covered the track for a distance of from 100 to 200 feet, and that it was over the floodway. It is also in testimony that the mules were south of this floodway, and their tracks showed that they were running, and that they had run for perhaps 200 yards south. It is reasonable, therefore, to conclude that, if the zone of cloud existed, the mules were never within it, and injury to them might have been prevented by the exercise of ordinary care. Then, too, the jury had before it testimony as to the climatic conditions then prevailing, and that the woods had not been on fire for some time before the date of the accident, and that no one had observed any smoke in that vicinity at or about that time. It was therefore not unreasonable for the jury to infer that no fog or cloud smoke existed, as no conditions prevailed from which the cloud might be expected to have been formed, and that the killing of the animals was the result of the failure to keep the lookout required by the statute. K. C. Sou. Ry. Co. v. McCrossen, 140 Ark. 68, 215 S. W. 161.
There was further evidence showing that another mule was killed a considerable distance further south, and that the speed of the train was not slackened nor any signal given upon entering the cloud, nor any testimony as to any effort made by signal or otherwise to avoid the injury to the animals; the engineer and fireman merely contenting themselves with the statement that, when the mules were first seen, the train was so near that it was impossible to keep from striking them.
When all the evidence is considered, we are of the opinion that it was sufficient to fix liability on the appellant. Counsel call our attention to the statement made in 52 C. J. at page 23, to the effect that a number of courts hold that a railroad is liable only for gross and wanton or wilful negligence where the operation of its train causes an injury to animals trespassing upon its tracks and that other courts hold that liability attaches only for injuries recklessly, wantonly, wilfully or intention ally inflicted. This lias never been tbe law in tbis State. Under our statutes and decisions a railroad company owes tlie duty to ,tbe owner of animals straying upon its tracks to use ordinary or reasonable care to avoid injuring them, after they are discovered or might by ordinary care have been discovered by keeping tbe proper lookout. Section 8568, Crawford & Moses’ Digest; L. R. & Ft. S. Ry. v. Holland, 40 Ark. 336.
Instruction No. 4 requested by tbe appellant limited tbe duty of tbe railway company to take precautions to avoid injury to animals after their peril was discovered. Tbe modification extended that duty to tbe peril which could have been discovered by tbe exercise of ordinary care. Tbe instruction as modified was a more1 correct statement of tbe law than as requested, and there was no error in tbe modification.
Since there was substantial testimony warranting tbe submission of tbe case of tbe jury, tbe instructions given by tbe court were not abstract, as contended by counsel, and were a fair statement of tbe principles applicable to tbe testimony. Tbe record presents no reversible error, and the judgment of the trial court is affirmed. | [
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Humphreys, J.
This suit was brought in the chancery court of Clay County, Western District, by appellees, on the 17th day of December, 1928, for the purpose of having a deed, executed by W. D. Polk and J. D. Polk to certain trustees for the benefit of their unsecured creditors declared a mortgage, and for the appointment of a receiver to take charge of the property described in the deed. Certain creditors, among them Henry Lepp, filed claims and were treated as interveners in the action. The court found that the interveners had a lien upon the property, ordered same sold, and appointed a master to take evidence and report on the claims of the several interveners. Henry Lepp died, and his claim was revived in the name of De Soto Trust Company, executor of the estate of Henry Lepp, deceased, the appellant herein. The master took evidence and filed a. report allowing appellant’s claim along with others. Exceptions were filed to the report of the master allowing appellant’s claim, which were submitted to the eoui;t upon the evidence heard by the master, resulting in a decree disallowing appellant’s claim, from which is this appeal.
The theory upon which the court, dismissed appellant’s complaint is that Henry Lepp was a secured creditor of the Polks on the date they executed the trust deed lo certain trustees for the benefit of their unsecured creditors, and hence not a beneficiary under its terms. Appellant’s claim consisted of three notes executed by J. M. Sherwood to Polk, and by him indorsed to Lepp. At the time of the execution of the trust deed, this note was secured by a second lien upon land evidenced by a mortgage by J. M. Sherwood to Polk. Another of the notes was a joint obligation of the Polk brothers, Lynn S. Polk, W. D. Polk, and W. Earl Polk. The third note was executed by W. D. Polk to Henry Lepp. At the time of the execution of the trust deed, all three notes were secured by a pledge of four notes of R. B. Thurman, in the aggregate sum of $12,000, which twelve thousand dollar note was secured by a second lien on a large tract of land.
In order for appellant to have brought himself within the terms of the trust deed, he must have shown that the securities he had for his several notes were worthless, or that they were worth some amount less than the face of the notes on the date of the execution of the trust deeds. This he failed to do. Having failed to do so, appellant’s claim was properly rejected by the court.
No error appearing, the decree is affirmed. | [
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Hart, C. J.,
(after stating the facts). This is an original application for a writ of prohibition to restrain the Arkansas Chancery Court for the Northern District from proceeding further in a suit by a single .judgment creditor of the Stuttgart Eice Mill Company, a domestic corporation, with a return of execution “no property found,” to reach equitable assets in the hands of the officers of said corporation in satisfaction of his judgment.
It is contended by counsel for the petitioner that, under our mode of civil procedure, service cannot be had in a transitory action on a defendant in a county other than that of his residence, except where there is service in the county where the action is instituted on a codefendant who is jointly liable. Their contention is that there is no joint liability under the allegation of the complaint in favor of Lockridge against Wilson and McCoy. Hence it is contended that, the liability being several and not joint, the court should have sustained the motion by Wilson to quash the service of summons upon him in Pulaski County, the suit having been brought in Arkansas County. In short, it is claimed that there is no joint liability against Wilson and McCoy, and that jurisdiction could not be obtained over Wilson, a resident of Pulaski County, by joining him in a suit with McCoy, who is a resident of Arkansas County, in a suit brought in the latter county.
The general rule is that the capital stock and assets of a corporation constitute a trust fund for the benefit of creditors, which neither the officers nor the stockholders can divert or waste. This rule was recognized and followed by this court in the case of Jones, McDowell & Company v. Arkansas Mechanical & Agricultural Company, 38 Ark. 17. In the discussion of the case, the court said:
“The assets of an incorporated company are a trust fund for the payment of its debts, which may be followed into the hands of any person having notice of the trust. This doctrine was invented by Judge Story, in the case of Wood v. Drummer, 3 Mason 308, and it will constitute not the least enduring of his titles to be considered a great .jurist. It has been applied by the Supreme Court of the United States in the following cases: (Citing cases.)
“The cases in the State courts on this subject are too numerous to cite; but it is sufficient to say that the doctrine has never been denied by any court of last resort in the Union, before which the question has come, and it is as well settled as any legal principle can be.”
The court further held that a director of a corporation is conclusively presumed to know its pecuniary condition, and that his purchase of the assets will not be bona fide and without notice of the trust.
In the case of Wesco Supply Company v. El Dorado Light & Water Company, 107 Ark. 424, 155 S. W. 518, this doctrine was approved, and the court again held that the assets of an incorporated company are a trust fund for the payment of its debts which may be followed into the hands of any person acquiring them with notice of the trust.
In Nedry v. Vaile, 109 Ark. 584, 160 S. W. 880, the court again expressly approved the doctrine and held that the directors of a corporation stand in the relation of trustees to the stockholders and creditors of the corporation. The court said, however, that the purchase of the assets of a corporation by a director is only to be voided for fraud at the instance of some party in interest. This case also recognizes that chancery is an appropriate forum in which to enforce the rights of creditors.
In varying form, the principle has been before the court in other cases. To illustrate, in Carter v. Union Printing Company, 54 Ark. 576, 16 S. W. 579, it was held that a voluntary release of a stock subscription by an insolvent company is a fraud upon its creditors, whether its claims arose before or after the stock was issued.
In Spear Mining Company v. Shinn, 93 Ark. 346, 124 S. W. 1045, it was held that creditors of an insolvent corporation may, on behalf of themselves and all other creditors who may join with them, bring suit to discover assets of such corporation, and to obtain an accounting from other corporations who had assumed to pay, to the extent- of such assets, the liability of the debtor corporation.
Other cases recognizing that the capital stock and assets of a corporation are a trust fund that must be devoted to the payment of its debts, which neither the corporation nor the individual stockholders can directly or indirectly divert from this purpose, are the following: Ward v. McPherson, 87 Ark. 521, 113 S. W. 132, and Tiger v. Rogers Cotton Cleaner & Gin Company, 96 Ark. 1, 130 S. W. 585.
The Supreme .Court of the United States, in later cases than those referred to above, has reaffirmed the doctrine that the property of a corporation is a trust fund for the payment of its debts, which means that the property and assets of a corporation must first be appropriated to the payment of the debts of the corporation before any portion of it can be distributed to the stockholders. The court, in Hollins v. Brierfield Coal & Iron Company, 150 U. S. 371, 14 S. Ct. 127, quoted with approval from an earlier decision the following:
“ ‘The property of a corporation is-doubtless a trust fund for the payment of its debts, in the sense that, when the corporation is lawfully dissolved and all its business wound up, or when it is insolvent, all its creditors are entitled in equity to have their debts paid out of the corporate property before any distribution thereof among the stockholders. It is also true, in the case of a corpora tion, as in that of a natural, person, that any conveyance of property of the debtor, without authority of law, and in fraud of existing creditors, is void as against them.’ ”
In the case of Wabash, St. Louis & Pacific Railway Co. v. Ham, 114 U. S. 587, the court said that it was also true in the case of a corporation, as in that of a natural person, that any conveyance of the property of the debtor without authority of law and in fraud of existing creditors is void as to them.
In all the cases above cited, and in many others which anight be cited the court expressly recognized that courts of equity have concurrent jurisdiction with courts of law to set aside conveyances of this sort which are made in fraud of the rights of creditors. The plaintiff specifically alleges that the sale of the assets of the corporation was made by the corporation, by Wilson as president and McCoy as secretary, with the other stockholders of the corporation. The complaint alleges that the sale was made in fraud of the rights of plaintiff as a creditor of the corporation, and in this suit it is sought to discover the assets of the corporation and to appropriate them to the payment of the decree of the plaintiff against the corporation. Hence, under the allegations of the complaint, the liability of Wilson and McCoy was joint and several.
Counsel for the petitioner rely upon the principles of law decided in Hatch v. Davis, 101 U. S. 205, 25 L. ed. 885. We do not think that the principles, of law there announced control in this case. The court there said that the presence of all the stockholders might be convenient, but was not necessary. The reason given was that the liability of the subscriber for capital stock of a company is several and not joint. Hence it was held by the court that it was not necessary to make all the stockholders parties to the action in a creditor’s suit to enforce the liability of a stockholder for his unpaid subscription. The Supreme Court of the United States did not hold that, if the other stockholders had been made parties defendant in the lower court, that court would have been without jurisdiction. On the other hand, it recognized that such a course might be convenient and proper in a given case. Unpaid damages due on stock subscriptions are not the primary fund for the payment of corporate debts. Each stockholder is liable on Ms unpaid subscription only for the proportion thereof which is necessary for the payment of the debts of the corporation when the property of the corporation is insufficient for that purpose. To hold the subscriber liable, the creditor must first show that they have exhausted their legal remedies against the corporation without obtaining satisfaction, or that it is insolvent. Fletcher v. Bank of Lonoke, 71 Ark. 1, 69 S. W. 580, and Davis v. Scott, 129 Ark. 226, 195 S. W. 383.
As we have already seen, the assets of the corporation which were disposed of at the time of its statutory dissolution was a primary fund for the payment of its debts, and was subject to be reached either in law or in equity by a judgment creditor in satisfaction of his' debt.
In this view of the matter, we do not regard it as necessary to determine whether § 1728 of Crawford & Moses’ Digest was repealed by § 38 of act 250 of the Acts of 1927. The latter act was" an act to provide for the formation of corporations, the regulation of corporations, and for other purposes. Acts of 1927, p. 854. Both § 1728 of Crawford & Moses’ Digest and ^ 38 of the Acts of 1927, above referred to, were acts regulating the liability of corporations where the capital stock had been withdrawn and returned to the stockholders before the payment of the debts of the corporation. Neither act could enlarge or lessen the ancient jurisdiction of chancery in the premises. The acts could only regulate the chancery practice. In this State, from the very beginning, it has been held that' the jurisdiction of courts of equity under our Constitution is fixed and permanent, and that its .jurisdiction cannot be enlarged or abridged. Hempstead & Company v. Watkins, 6 Ark. 317, 42 Am. Dec. 696; Hester v. Bourland, 80 Ark. 145, 95 S. W. 992; Gladish v. Lovewell, 95 Ark. 618, 130 S. W. 579; Walls v. Brundidge, 109 Ark. 250, 160 S. W. 230, Ann. Cas. 1915C, 980; and German National Bank v. Moore, 116 Ark. 490, 173 S. W. 401.
The result of our views is that the chancery court of Arkansas County had jurisdiction of the case, which is the subject of this controversy, and the petition for the writ of prohibition must be denied. | [
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Humphreys, J.
This suit was brought by appellee against appellants in the chancery court of Crawford County to enjoin them from taking an additional strip of land, twenty feet wide by four hundred feet long, belonging to her for the purpose of widening a portion of State Highway No. 71 in said county, commonly known as the Mountainburg-Winslow road, under the provisions of § 5249 of Crawford & Moses’ Digest. The injunction was sought upon the ground that, in a condemnation proceeding under the provisions of said section of Crawford & Moses’ Digest, initiated on petition of the State Highway Commission on the 8th day of May, 1928, against appellee and others, an agreement was entered into between said Highway Commission and appellee to the effect that,,in consideration of $300 paid to her, the Highway Commission would appropriate for use in the construction of the road certain lands belonging to her, accurately designated on the drawing or plat, and no ■more, and that this agreement was incorporated in a judgment entered by the county court of Crawford County awarding damages in the sum of $300 to appellee for said land, which was paid to her by the comity.
Appellant filed an answer, denying that the settlement in the original condemnation proceeding- and the order entered by the county court of Crawford County incorporating same provided that no more of appellee’s land should thereafter be condemned and appropriated for the purpose of widening said highway, but, on the contrary, that the settlement and order simply fixed the amount to be paid for the land particularly described therein and the injury resulting to the entire tract owned by her by reason of taking same.
The cause was submitted upon the pleadings and testimony adduced, from which the court found that the settlement between the parties and order entered by the Crawford County court in conformity therewith constituted an agreement by which no more land of appellee should ever be condemned for widening said highway, and thereupon permanently enjoined appellants from going upon, taking, injuring, or damaging any land or property of appellee save and except the land described in the county court order of March 3, 1930, from which is this appeal.
The language relied upon by appellee as constituting an agreement never to condemn any more of her land for the purpose of widening said highway is contained in a letter written by her attorneys to appellants’ attorneys and their reply thereto in negotiating the settlement in the original condemnation proceeding, together with language used in the order entered by the county court of date March 3, 1930, pursuant to said agreement or settlement. The material portions of the letter written by appellee’s attorneys to appellants’ attorneys are as follows: ;
“In regard to settlement of claim of Mrs. Pegg v. Crawford County: We have taken your proposition of settlement for the sum of $300 up with Mrs. Pegg, and have finally received her permission to make settlement for that amount with the following conditions understood:
“1. That the route is to go as shown by the drawing submitted to us, and no more land is to be taken than that shown, and at the points shown.”
The material portion of the letter in response thereto is as follows:
“Mr. W. T. Barry, district highway engineer, has written Judge Smalley a letter advising him that the route is exactly as set forth in section one of your letter, and that no land will he taken except as shown on the drawing heretofore submitted to you.”
The material language used in the order of the county court is as follows:
“No additional land shall be taken except as shown in green and yellow on said plat, as above set forth, and the proposed or new right-of-way lines for said road shall be as shown on said plat.
“The plaintiff, Mary B. Pegg, is to have and receive the sum of $300 as her damages for such land so taken, and the damage to the balance of her land by reason of such taking, it being expressly agreed and understood that no more land is to be taken than that shown in green and yellow on said plat, and that same is to he taken at the places shown on said plat.”
The language used in the letters and in the order as quoted above referred to the land that was then being paid for and which had been previously condemned, and had no relation whatever to lands which might be condemned for highway purposes in future condemnation proceeding’s. We are unable to discern anything in the language indicating that the State of Arkansas had surrendered its sovereign power to ever thereafter condemn any more of appellee’s land if needed for the construction of highways.
The decree is therefore reversed, and the cause is dismissed. | [
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Butler, J.
Appellant, who' owns land in Cotton Belt Levee District No. 1, hereinafter referred to as the district, brought this suit against the' directors of the district, to restrain them as such directors from issuing and delivering bonds of the district in payment of, rights-of-way required for the relocation of certain parts of the system of levees Avithin the district.
The pleadings in the case disclose the folloAving facts: The district Avas organized by the county court of Phillips County under the provisions of chapter 109, Crawford & Moses’ Digest, and pursuant to the authority thus conferred the directors of the district have built twenty-four miles of levees alongythe west bank of the Mississippi River to protect the lands of the district from overfloAV by that stream. Prior to the passage of the National Flood Act by the Congress of May 15, 1928, the cost of the levees Avithin the district was borne as folloAA,'s: one-third by the district.and two-thirds by the Federal government. Since the passage of this act the entire cost of construction of levees along the front line of the Mississippi River from Cape Girardeau, Missouri, to “Head of Passes” is borne entirely by the Federal government, but the Federal act provides that the local levee districts shall provide, Avithout cost to the United States, all rights-of-Avay for levee foundations and levees. Recent surveys by the corp of engineers of the United States army, having supervision of levee construction, discloses that there are several miles of leAme Avithin the district Avhich avíII haAre to be relocated or set back on account of the caving banks of the Mississippi RiA^er, and tentative contracts have been made by the Federal government with Amrious contractors to build the levees so relocated, but, in accordance Avith the provisions of the flood control act above referred to, the Federal government has demanded of the district’s directors that they acquire, at the cost of the district, the necessary rights-of-Avay and foundations for such relocated levees. The damages to the landoAAmers A\diose lands must be taken for the purposes stated harm been adjusted be tween the district and the landowners, and the sum of money required for this purpose is $50,000. The district can pay these damages only by the issuance of the bonds of the district. It has no money available for this purpose at this time from any other source. On account of the general depression and the lack of a suitable market for securities of this character, the district is unable to sell these bonds except at a great discount, but the landowners have agreed to accept these bonds at par in payment of their damages. The requirements of the statute in the matter of procuring the assent of the landowners to the bond issue have been complied with.
The point raised in the landowner’s complaint is that the district has no authority under the law to issue and deliver bonds in payment of this right-of-way. A demurrer was filed to this complaint, and a demurrer was filed by the plaintiff landowner to the answer of the district, and the cause was heard upon these demurrers. The court sustained the demurrer to the complaint and overruled the demurrer to the answer, thus holding, in effect, that, under the allegations of the pleadings set out above, the district had and has the authority to issue its bonds for the purpose stated.
Full power to construct: the levee is conferred by chapter 109, Crawford & Moses’ Digest, title “Levees.” The power is there conferred not only to acquire necessary rights-of-way, but to pay the construction cost of the levees themselves, and pursuant to this power rights-of-way were acquired and the levee constructed. The power to construct and maintain these levees is not exhausted by their original construction, but is a continuing one, and incidental thereto the right exists under the statute to relocate and reconstruct levees, as the exigency of the case may require. It was so expressly decided in the case of West v. Cotton Belt Levee Dist. No. 1, 116 Ark. 538, 173 S. W. 403.
That case involved this identical district. The relocation of certain levees in the district had then, as now, become necessary on account of the encroachments of the Mississippi River, and there was involved in the former case the power of the district to assess and collect betterments to pay the cost thereof. The district there proceeded under the same statute which it has here invoked.
In holding that the district had the power to relocate the levees and to assess and collect betterments to pay for this new work, it was there pointed out that § 4938, Kirby’s Digest, (which is now a part of chapter 109, Crawford & Moses’ Digest) provides that it shall be the duty of the directors of the district to determine what work is necessary to protect the district from overflow and to do that work, and the acquisition of right-of-way, Avhich must be paid for, is a necessary part of this work.
Discussing the continuing poAver of the directors in this behalf, it Avas pointed out in that case that the eAmrshifting, yet always present, danger of OAmrfloAv makes it imperative that the directors of the district shall have the broadest, latitude in dealing with the situation, and for this reason the construction of the lerdee is never completed, as work is constantly necessary to be done on it for the purpose of accomplishing the results intended by the organization of the levee district, and it Avas there said that if the poAver Avere exhausted by a single exercise the purpose of the statute Avould be defeated.
It is pointed out that, Avhile chapter 109, Crawford & Moses’ Digest, authorizes the issuance of bonds, it is silent as to the manner of their disposition, and it is insisted therefore that the bonds must be disposed of pursuant to the poAArer there implied, which can only be to sell the bonds for cash to the highest bidder, and Avith the cash derived from such sale to construct the improvement.
We think hoAveAmr that the poAver of the directors is not thus limited. There may be, and no doubt there is, an implied limitation on the poAA-er of the directors in this behalf, Avhich avouIc! prevent them, at the suit of any landowner in the district from disposing of the bonds in a manner amounting to waste, but under the allegations of the pleadings before us this is not the case here. On the contrary, the bonds are being disposed of at par.
It is true the pleadings before us do not disclose how the right-of-way was acquired, whether by condemnation or otherwise, but this is an unimportant detail. The case of Young v. Red Fork Levee District, 124 Ark. 61, 186 S. W. 604, held that the act of February 24, 1905 (Acts 1905, page 143) was a general law and applied to all levee districts in the State, whether organized under general or special statutes. Under § 1 of this act (which appears as § 3933, Crawford & Moses’ Digest) the power is conferred upon the directors of all levee districts “to enter upon, take and hold any lands or premises whatever, whether by purchase, grant, donation, devise, or otherwise, that may be necessary and proper for the location, relocation, construction, repair or maintaining any line of levees” which may be necessary in promoting the purposes of the district.
There is no allegation that the landowners whose lands are to be taken for the new right-of-way are to be paid an excessive price for their lands, and the good faith of the directors is not questioned. The plaintiff landowner by this his suit questions only their authority and power to pay these damages with bonds even at par.
The case of Hopson v. Hellums, 108 Ark. 460, 158 S. W. 771, has no application to the facts in this case. It was there held that act 279 of the Acts of 1909 did not contemplate that-by a single offering a contract might be ■let for the construction of the proposed improvement, to be paid for in the bonds of the district, by a single bid which disposed of both the bonds and the work. The reason for so holding was that some bidders might desire to bid on the construction work who would not be able to handle a bond issue, while other bidders might not want their purchase of bonds hampered with the contractor’s obligation ■ to construct the improvement, and there would be therefore no common basis for these two classes of bidders.
Here we have no question of different landowners offering their lands for right-of-way purposes, and no question of competitive bids is involved. We have only the question of the power of the district to take the lands of a particular owner and to pay him therefor with bonds of the district. We think the district has this power, and the decree of the court below, which accords with this view, must be affirmed, and it is so ordered. | [
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Mehaffy, J.
This suit was originally filed by appellee against appellant for $175 with interest, penalty and attorney’s fees.
Appellee filed an amendment to his complaint in which he asked judgment for $2,675 together with 12 per cent, penalty and $400 attorney’s fees. He alleged that the appellant, in consideration of the payment to it by the appellee, of an annual premium of $40, delivered to appellee its policy of accident insurance, attaching a copy of the policy to his complaint. He further alleged that on January 5, while said policy was in full force and effect, appellee was accidentally injured in an automobile accident, wherein two cars ran together, thereby inflicting injuries to his head, hips, back, chest and forehead, and breaking and crushing ribs, and causing internal injuries, which have totally and permanently injured him; that as. a result of the injuries he has been totally and permanently injured from January 5, 1931, and will continue so.
He further alleged a performance of all the conditions of said policy on his part, and that he gave appellant due notice and proof of his injuries, and made demand for payment, which appellant refused to pay, and asked judgment against the appellant for the amount alleged to be due under the policy.
Appellant filed answer in which it denied all the material allegations in the complaint, and alleged that at the time of the accident there was no policy of accident insurance in force.
One of the clauses in the policy reads as follows: “If such injuries as described in the insuring clause shall wholly and continuously disable the insured for one day or more, and so long as the insured lives and suffers said total loss of time, the association will pay a monthly Indemnity at the rate of eighty ($80) dollars.”
The appellee testified that he was 58 years old, and that his occupation was and had been for some time, that of running and working in a filling station at Waldron; prior to that time he had been a blacksmith; that his policy was issued to him in 1924, and was in force at the time of his accident and injury. All premiums had been paid since the policy was delivered to him. He paid $12 when the policy was delivered, and $10 every quarter thereafter; early in 1931 he was injured in an automobile accident at Waldron; that he was confined to his home on account of the injuries sustained for about six weeks, and was treated by Dr. Duncan; that since the accident he had been unable to fix or repair heavy casings or tires, or to grease cars; that before the accident he could do this work; when he lifts anything heavy or pulls with his right arm. it hurts his side; two or three ribs and his breast bone were broken on the right side; he spit up 'blood for a week, and does not sleep or lie on his rig'ht side, as he could before the injury.
Some of the ribs were caved in, and this was shown to the jury. A copy of the policy was introduced in evidence. Dr. Duncan had treated him since January 26, 1931.
Mr. Harris and a boy named Chandler, appellee and his son worked at the filling station; appellee’s son was the proprietor; Mr. Harris does the heavy work. Immediately after the injury he told his son to notify the company.
Mack Bird, son of appellee, testified that he was the cashier of the bank of Waldron and had been paying his father’s premiums for seven or eight years;'that on December 30,1930, he mailed a check for $10 to appellant; the check was mailed in a long envelope, with the Bank of Waldron printed thereon; that it was addressed to the appellant at Omaha, Nebraska. It was drawn on the bank at which witness worked, and had been paid and canceled. His father was injured on January 5.
He testified that in September or October, 1930, he paid the premium to appellant’s collector at Waldron; he sent a letter to the company with the check on December 30, 1930. He did not have a copy of the letter. He testified that he did not mail the cheek in the envelope attached as an exhibit to the deposition of Grace Welch, but that he mailed a notice of the accident in an envelope similar to the one attached to her deposition. He mailed the notice of the accident the day after his father was injured.
The check sent on December 30, to Little Bock, was deposited in Omaha, Nebraska, and paid by the Bank of Waldron, and did not show that it ever went to any bank in Little Rock.
T. R. Harrison testified that he sold policies and collected premiums for appellant, and that sometimes he would remit to appellant by his own check or by a cashier’s check, charging 10 per cent. Appellant would send witness a list of policyholders in Waldron twelve or fifteen days before premiums were due; that he collected $10 every quarter from appellee on the policy sued on; that he wrote the policy, and that the application was dated January 29, 1924. He said if the premium due January 1, 1931, was not paid until January 5, 6 or 8, the policy hadlapsed.
Dr. Duncan was introduced and testified as to appellant’s injuries, and also introduced a statement made to the company. Dr. Bevil also testified about the injuries to appellee.
Grace Welch, a witness for the appellant, testified that she was mail clerk for the appellant in its home office in Omaha, Nebraska, and had been for six years; that all premiums which were paid direct to said office by mail were brought to her; that she received a premium on January B, 1931, in the amount of $10 from appellee. She introduced an envelope in which she said the check came, and she testified also that a reinstatement blank came in the same envelope; that the reinstatement blank showed premium paid on January 6, 1931. She testified that there was no other policy issued to appellee, and that appellee’s policy had lapsed on October 1, 1930, for nonpayment of premium due on that date, and that it was not reinstated until January 8, 1931.
The deposition of C. E. Forbes, witness for appellant, was introduced and in said deposition he testified that the policy had lapsed. He also introduced a letter in which he said that appellee had been notified that his policy had lapsed. This witness also testified that the appellee had no other policy of insurance with appellant.
The deposition of Thelma Webber was introduced. She testified that she was a stenographer and bookkeeper for appellant in the office at Little Bock, Arkansas, and received all checks and remittances from policyholders which were sent to the Little Bock office; that the Little Bock office received a premium on July 4, 1930, and that no other premium was received until April 1, 1931; that the records at Little Bock showed that the policy was in force until October 1, 1930, and that it was reinstated on January 6, 1931. She had a card showing appellee’s payments, and this card constituted all the records in her office with reference thereto. There was no correspondence between the Little Bock office and the Omaha office with reference to appellee’s claim. The only record she had in her office showing remittances of appellee on his policy, was that contained on the card which she exhibited, and it was attached to her deposition.
She also testified that T. B. Harrison was appellant’s collector and furnished by the home office with a list of policyholders whose premiums were due, and that Harrison, after collecting, would remit to the Little Bock office; that the home office sent out notice of premiums due, and that her office notified policyholders of the lapsing of their policies; she did not remember whether she had sent a lapse notice to appellee or not. Her records did not show how the premium was paid on January 6.
Alva Hall testified that he lived in Waldron, was connected with the Chevrolet Company who sold Chevrolets, and waited on the public in servicing, selling, greasing and oiling ears, and running a general garage and repair business; that about two hours before he testified, Mr. Grannaway brought a Cadillac or Packard car, and witness took the right front tire therefrom and weighed it; that it weighed 54 pounds.
Numerous instructions were given by the court, and there was a verdict and judgment for appellee in the sum of $2,675, 12 per cent penalty, and attorney’s fees. This appeal is prosecuted to reverse said judgment.
Appellant states that it defends the suit on two grounds: first, that the policy sued on had lapsed, and was not in force on January 5, 1931, the date of the injury; and second, that the appellee was not totally and permanently injured.
It was contended by the appellant that the policy lapsed on October 1, 1930, because of nonpayment of dues, but the appellant concedes that the finding of the jury against appellant on this point is conclusive. There is therefore no necessity to call attention to or discuss the evidence on this question.
Appellant however contends that the premium due January 1, was not paid until January 8, and that the policy lapsed because of the failure to pay the premium due January 1, 1931, and was therefore not in force on January 5, at the time of appellee’s injury.
Mack Bird, a witness for appellee, testified that he had been sending the premiums for his father for seven or eight years, and that on December 30, 1930, he sent a check to the company for $10; that the check was mailed on the night of December 30, in a long envelope of the Bank of Waldron, and that he wrote a letter.
The check dated December 30, was introduced in evidence and showed that it was deposited in the bank at Omaha, on January 8. The witness testified that he mailed it to the office at Little Rock. Witnesses for appellant testify that the check for the January premium was not received until after the injury.
C. E. Forbes, assistant secretary of the company at Omaha, Nebraska, testifies that the policy was reinstated on January 6. Of course, it could not have been reinstated if appellant’s theory is correct, until the check and reinstatement application was received.
Grace Welch, the mail clerk at the home office in Omaha, Nebraska, testified that all premiums that came to that office by mail were brought to her desk, opened, and a record made of them, and that she received the premium on January 8, 1931.
The evidence of the appellee shows that on the 6th, the day after the injury, a notice of the injury was sent, and Grace Welch introduced an envelope in which she says was inclosed the check for the premium and the reinstatement application, but which the appellee’s witnesses say was the envelope in which the notice of the injury was sent.
The two witnesses for appellant disagree as to the time when the premium was received, and their testimony is in conflict with the testimony of the appellee that the premium was paid on December 30, 1930. It is undisputed however that the check was dated December 30, 1930, and it is also undisputed that notice of the. injury was mailed to the office at Omaha.
The evidence being in conflict as to whether the premium was paid or whether the policy had lapsed, this was a question of fact for the jury, and at the request of the appellant the court gave the following instruction: “If you find from the evidence that premiums on the policy sued on did. not reach the defendant’s office in Omaha, Nebraska, or its Little Rock office, on or before noon of the first of January, 1931, that the policy lapsed at that time, and the plaintiff cannot recover for his alleged injuries, unless he has shown by a preponderance of the evidence that said premium was so received before plaintiff’s alleged injury of January 5, 1931.”
The question therefore whether the policy was lapsed was submitted to the jury under an instruction requested by the appellant, and the jury’s finding on this question is conclusive. There was substantial evidence to-support the verdict. The jury are the judges of the weight of the evidence and the credibility of the witnesses.
The next question, and the most difficult one, is whether the appellee was wholly and continuously disabled. The undisputed evidence is that appellee was 58 years old; that, .before he went to work for his son in-the filling station, he was a blacksmith; and the undisputed evidence also shows that, while he did some light work at the filling station for his son, he did not receive any salary or wages, and he testifies that he was unable to do any heavy work; that his -ribs and breast bone were broken, and that it caused him pain and suffering to attempt to do any lifting or any heavy work.
Dr. Duncan testified that appellee had two broken ribs, and there might have been more than two; that he was nervous, and also testified that the breast bone was fractured; that he spit blood for a time, and Dr. Bevil testified that he found the sixth rib had been fractured and was bent down, and made a kind of depression, and it was pointed out by Dr. Bevil to the jury where and ■how appellee was injured. He testified at length as to appellee’s condition, and that the injuries were permanent, and it seemed very reasonable that as a result of the injuries he was incapacitated from doing his work in any way. He also testified that appellee would never get any better.
The evidence showed that his rib was bent, his breast bone broken; that these injuries would cause him pain and suffering, and would disable him from performing the work that he had theretofore done. Of course, he is not entirely helpless, and after his injury endeavored to do some work, but his condition was such that he could not do the heavy work without constant pain.
Total disability does not mean that he is unable to do anything.
The general rule and that adopted by this court is stated in Kerr on Insurance, p. 385, as follows:
“Total disability must, from the necessity of the case, be a relative matter, and must depend largely upon the • occupation and employment in which the party insured is engaged. One who labors with his hand might be so disabled by a severe injury to one hand as not to be able to labor at all at his usual occupation,- whereas a merchant or prefessional man might, by the same injury, be only disabled from prosecuting some kinds of business pertaining to his occupation. Total disability does not mean absolute physical disability on the part of the insured to transact any kind of business pertaining to his occupation. Total disability exists although the insured is able to perform a few occasional acts, if he is unable to do any substantial portion of tbe work connected with his occupation. It is sufficient to prove that the injury wholly disabled him from the doing of all the substantial and material acts necessary to be done in the prosecution of his business, or that his injuries were of such a character and degree that common care and prudence required him to desist from his labors so long as was reasonably necessary to effect a speedy cure.”
A careful reading of the evidence in this case shows that appellee’s injuries were of such a character and degree as to wholly disable him from doing all the substantial and material acts necessary to be done in the prosecution of his business, and that common care and prudence would require a man in his condition to desist from the kind of labor he had performed prior to his injury. '
This court, in a decision of the Mo. State Life Ins. Co. v. Snow, ante p. 335, quoted with approval the rule above set out, stating that it had been followed many times since by this court, and stated: “Of course, such a provision in a policy does not require that the insured shall be absolutely helpless or insane, but there must be such disability as renders him unable to perform all the substantial and material acts in the prosecution of a gainful occupation.”
The clause as to total disability in the case last referred to stated that the disability must be such as to prevent the insured then and at all times thereafter from engaging in any gainful occupation.
The disability clause in the policy here involved states that he shall be wholly and continuously disabled, or for so long as he suffers said total loss of time.
Appellant calls attention and quotes from Aetna Life Ins. Co. v. Phifer, 160 Ark. 98, 254 S. W. 336. The court said in that case: “Appellant’s contention for reversal of the judgment is that the undisputed evidence showed appellee had not become wholly, continuously and permanently disabled. We think there is substantial testimony in the record tending to show that appellee was totally" and .permanently disabled, according to Mr; Kerr’s definition of total disability when used in indemnity insurance policies.”
The rule announced in Kerr on Insurance is quoted with approval in that case. Industrial Mut. Ind. Co. v. Hawkins, 94 Ark. 417, 127 S. W. 457, 29 L. R. A. (N. S.) 635, 21 Ann. Cas. 1029.
Appellant next quotes from Smith v. Supreme Lodge of Order of Select Friends, 62 Kan. 75, 61 Pac. 416, and tliat court said, among other things: “Whether an injury constitutes a total disability is ordinarily a question for the jury,” but the court also stated in that particular case from the facts alleged and the well known requirements of plaintiff’s occupation, it is clear that he is not totally and permanently disabled from carrying it on.
In the above case the insured was a pharmacist, and suffered an accidental gun-shot wound in the left arm, and it became necessary to amputate the arm at the shoulder joint. The policy in that case provided, among other things, that the loss of one hand and permanent crippling of the other would constitute total and permanent disability. The insured suffered the loss of one hand, but there was no injury to the other hand. His right hand was uninjured, and the court said to hold that that was a total disability under the policy would be to alter the contract.
The next case relied on by appellant is Lobdill v. Laboring Men’s Mutual Aid Association, 69 Minn. 14, 71 N. W. 696, 38 L. R. A. 537, 65 Am. St. Rep. 542. The court in that case said that the cases which have placed a construction upon the term “total disability” might seem to be divided in two' classes, vis: those which construe- it liberally in favor of the insured, and those which construe it strictly against him. The court also said in that case, in speaking of the acts that the insured performed, that the frequency and nature of acts would be for the consideration of the jury in determining whether he was totally disabled, and that the evidence in the particular case justified the jury in finding that he was, for the full 17 weeks, wholly disabled within the meaning of the policy.
The next case relied on by appellant is Metropolitan Life Ins. Co. v. Blue, 222 Ala. 665, 133 So. 707. In that case the court said: “We have had occasion to consider total disability or total disablement in accident policies.” In U. S. Casualty Co. v. Perryman, 203 Ala. 212, 82 So. 462, there was a sprain of thé knee joint. ■ “The insured did not at the time think it serious, and proceeded in good faith to do his usual work in part, but, becoming worse, he did become wholly disabled for a time, and it appeared that, with due regard to his own care, he should not have worked from the beginning. We held such evidence would support a finding of total disability from the beginning, and that entering upon his work, although it may have aggravated the trouble, being in good faith, worked no estoppel against him.”
The court, in the same case, also said: “Total disability may exist, though it is physically possible for insured to perform occasional acts as part of his employment or business.”
In the instant case, the appellee did not think at first that he was totally and permanently disabled, and he undertook to do some work, but this would not work an estoppel or disentitle him to recover if the evidence was sufficient to justify the jury in finding that he was totally disabled.
The next case relied on is Marchant v. N. Y. Life Ins. Co., 42 Ga. App. 11, 155 S. E. 221. The court in that case said: “The fact that the plaintiff attempted for a season to carry on this line of employment before ascertaining his disability to do so, and refraining from such employment, should not prevent a recovery for benefits thereafter accruing under provisions of the policies; and this is true even though such employment had been his only occupation.”
The next case relied on is Bachman v. Travelers’ Ins. Co., 78 N. H. 100, 97 Atl. 223. In that case the court, after calling attention to the evidence, said: “With this evidence in the case, it was a question of fact whether the plaintiff did or did not have substantial and valuable earning capacity during that time. ’ ’
Total disability does not mean absolute helplessness. If construed in that sense, .the policy would be worthless; it would not mean anything. A man might be totally disabled in the sense that this term is used in insurance policies, although he was able to go about, go to places of business, and perform light work occasionally. He might be able to do these things and still be totally disabled in the sense that he could not wait on the trade in such a manner as to retain it, and, if one is so disabled that he cannot perform the substantial and material acts in the prosecution of his occupation, he is totally disabled.
Appellant calls attention to the following Arkansas cases which discuss the question here involved and adopt the rule above set out: Ætna Life Ins. Co. v. Phifer, 160 Ark. 103, 254 S. W. 335; Industrial Mutual Ind. Co. v. Hawkins, 94 Ark. 417, 127 S. W. 457, 29 L. R. A. (N. S) 635, 21 Ann. Cas. 1029; Brotherhood of Locomotive Firemen & Enginemen v. Aday, 97 Ark. 425, 134 S. W. 928, 34 L. R. A. (N. S.) 126; Great Eastern Casualty Co. v. Robins, 111 Ark. 607, 164 S. W. 750; American Life & Acc. Assn. v. Walton, 133 Ark. 348, 202 S. W. 20; Ætna Life Ins. Co. v. Spencer, 182 Ark. 496, 32 S. W. 310.
In the last case the court said: “His business was such that he could not profitably conduct it by merely supervising it and hiring others to perform the' work. * * * His loss in this respect was the very object in taking out the insurance. Hence, when the character of the business, together with the attendant circumstances, is considered, we are of the opinion that reasonable minds might reach the conclusion that the insured was totally and permanently disabled within the meaning of the policy as above defined, and that the jury was warranted in finding a verdict in his favor.”
In this case there was substantial evidence tending to show that appellee could not perform the work without great pain and suffering, and some of the work he could not do at all, and we think the evidence was such as to make it a question of fact for the jury, and the jury’s finding- is conclusive here.
At the request of the appellee, the court gave an instruction, which was not objected to, defining total disability, and, under the instructions not'objected to, the jury found for the appellee.
We find no error, and the judgment is affirmed. | [
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Butler, J.
The appellee was appointed by the Pulaski Chancery Court as commissioner to sell certain real property under foreclosure proceedings, and was directed by the court to publish the time, terms and place of sale in some newspaper published in Pulaski County, Arkansas, having a bona fide circulation therein. The appellee selected a publication in Little Bock, known as The Daily Legal News, in which to publish the notice, and this suit was instituted to restrain him from publishing the notice in that paper, on the ground that The Daily Legal News was not a newspaper having a bona fide circulation within the meaning of § 6807 of Crawford & Moses’ Digest, providing that all advertisements and orders of publication required by law or order of any court, etc., “shall be published in some newspaper and having a bona fide circulation in the county in which the proceedings are had.”
In the court below it was stipulated that The Daily Legal News is printed and published in the city of Little Rock, Pulaski County, is a member of the Associated Court & Commercial Newspapers of the United States, and has been classified in the post office at Little Rock as second-class mail matter since December 15, 1931. It is not a subscriber to the Associated Press News, and has no correspondents and reporters outside of the city of Little Rock. It only occasionally publishes news of a general nature, but specializes in news relating to the courts, real estate, statistical news and that concerning business transactions in Pulaski County. It carries notice of incorporation matters filed in the county clerk’s office and the office of the Secretary of State, and publishes a list of marriages and births in Pulaski County, the daily market report, local weather forecast, a list of automobile licenses issued, building permits, and notices of fires occurring in the city of Little Rock. It is published daily excepting holidays and Sundays, and its subscription rate is $20 per year. It is a four-page publication, 14 xll inches in size, with four columns to each page. It has three hundred and four subscribers confined to business and professional men and associations of that character. It is mailed to twenty cities other than Little Nock and North Little Nock and to eleven other states, and is carried for sale at Peckham’s News Stand on Main Street in the city of Little Nock. It is estimated by the publishers that around a thousand persons have access to, and read, the paper each day, but it is not shown how many of the papers are sold from the news stand.
The above is a summary of the stipulation, which contains sufficient facts to show the character of the publication. Upon these facts the court found that The Daily Legal News was a newspaper within the meaning of the statute and the order of the court, and denied the relief prayed.
After an examination of the authorities called to our attention by the appellant and the appellee, we are of the opinion that the contention of the appellant ought to have been sustained, and that the trial court erred in holding otherwise. The primary purpose for the printing of legal advertisements and notices of sale of property under orders of a court is to give to the notice the widest publicity practicable. Therefore the definition of a newspaper, within the meaning of the statute, is to be taken In its popular sense, which is one to which the general public would resort in order to be informed of the news and intelligence of the day, and which is published at stated intervals and carries reports of those happenings of general importance and interest to the ordinary individual. Kerr v. Hitt, 75 Ill. 51; Lynn v. Allen, 145 Ind. 584, 44 N. E. 646, 33 L. R. A. 779, 57 Am. St. Rep. 223; In re Herman, 183 Cal. 153, 191 Pac. 934; Hanscomb v. Meyer, 60 Neb. 68, 82 N. W. 114, 48 L. R. A. 409, 83 Am. St. Rep. 507; Times Printing Co. v. Star Publishing Co., 51 Wash. 667, 99 Pac. 1040, 16 Ann. Cas. 414.
An examination of the cases cited by the appellee, and particularly those contained in the annotation at page 542, 68 A. L. R., discloses no case that departs from the general definition as stated above. In Kerr v. Hitt, supra, in holding that a certain publication was a newspaper of general circulation, the court in effect said that, although the chief object of the publication was printing notices of legal news, yet it contained besides this other items of news of general interest; and in Pentzel v. Squire, 161 Ill. 346, 43 N. E. 1064, 52 Am. St. Rep. 373, it was held that a weekly publication containing reports of decisions of various courts and a digest of cases, but also containing news of a general nature of current events and of general importance to the public, was a newspaper within the meaning of a statute similar to ours. In all the cases upon which the appellee relies, the courts, in holding a publication to be a newspaper in which publication of legal notices was authorized, was such a one as carried “literature of a general kind and a limited amount of general news and current events,” and, “besides court proceedings, short telegraphic dispatches of general interest. ’ ’
As stated in 20 R. C. L., at page 203, cited by the •appellant: “It is difficult, if not impossible, to determine with clearness and exactness where the lines of demarcation should be drawn between a newspaper, in a legal and common acceptation of the term, and the numerous publications devoted to some special purpose, and which circulate only among a certain class of the people, and which are not within the purview of statutes requiring publication of legal notices in some newspaper.”
We think the test in determining the question is whether or not the publication regularly carries the record of events occurring of general interest to the public as a whole, and those publications which do carry such items might be properly designated as newspapers, although some special purpose or class of happenings be the chief object to which the publication is devoted. The reason for the test we have suggested becomes apparent when the object for which notices are printed is con sidered, i.e., that they he given wide and general publicity, and publications cannot reasonably be expected to be generally read when they have no news of general interest, but are restricted to events of interest only to a few classes. There are numerous cases which support this view, among which are the cases cited, supra, and Beecher v. Stevens, 25 Minn. 146; Reagan v. Duddy, 25 Ky. 1664, 78 S. W. 430; Times Printing Co. v. Star Publishing Co., 51 Wash. 667, 99 Pac. 1040, 16 Ann. Cas. 414.
An examination of. a copy of The Daily Legal News, which is exhibited, shows that that particular issue carried no news items of a general nature, and it was stipulated that ‘ ‘it only occasionally publishes news of a general nature” This stipulation, when considered in connection'with the news in which the paper specialized and the subscription price of $20 per year, warrants the conclusion that it was intended for only limited circulation among certain classes of our citizens, and is devoted to a special purpose, and therefore is not a newspaper as contemplated by the statute. Having concluded that The Daily Legal News is not a newspaper, it is unnecessary to determine whether it had a circulation within the meaning of the statute.
For the error indicated, the decree is reversed, and the canse remanded with directions to grant the relief prayed. | [
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Hart, C. J.
The only issue involved by this appeal is whether or not the chancery court erred in confirming a sale of real estate under a mortgage foreclosure. The record shows that the National Savings & Loan Associa- ■ tion brought a suit in equity against Adolph Daniel to foreclose a mortgage on certain lots in the city of "Warren, Arkansas. Judgment by default was rendered in favor of the plaintiff against the defendant for $2,434.85 with interest at the rate of nine per cent, per annum from November 1,1930. Tift decree provided that, if the judgment was not paid within twenty days, the clerk of the court should be commissioner to make the sale according to the terms of the decree.
The decree was rendered on the 2d day of February, 1931.' One of the attorneys for the plaintiff asked the clerk if he would notify plaintiff of the exact date of sale, and he promised to- do so. On the 21st day of February, 1931, she wrote him asking for the exact date of sale. She inclosed a self-addressed envelope for reply, and her letter had a return card on it. Having- received no reply to this letter, on March 10,1931, she again wrote the clerk about the matter and did not receive a reply to this letter. She wrote again on April 15, 1931, and received a reply stating that the sale had been made on March 28, 1931. This was duly confirmed by the court over the objection of the plaintiff.
Among the grounds for refusing to confirm, the sale, plaintiff set up that the property had been sold for an inadequate price, and that, if it had known the day of sale, it would have had a representative there who- would have bid the mortgaged indebtedness for the property. Other evidence for the plaintiff tended to show that the property was worth $2,500, and that it only sold for $750. It was also shown that the plaintiff offered to relinquish its indebtedness against the defendant if the latter would execute a quitclaim deed to the property. This offer was refused.
It was shown on behalf of the purchaser at the foreclosure sale that the property was not worth more than $1,000. The clerk of the chancery court and his deputy both denied receiving the first two letters written them by the plaintiff’s attorney relative to the date of sale. They stated that they certainly would have answered the letters, had they been received. The clerk testified that the plaintiff’s attorney might have asked him about notifying the plaintiff of the exact date' of sale, but that he did not remember it. He did not deny her testimony. The decree was had at the first term of the chancery court after his election.
A majority of the court is of the opinion that the trial court erred in confirming the.sale to the purchaser. They think that the case falls squarely within the principles of law to the effect that, where the sale is for an inadequate consideration and where the circumstances attending the sale work out a harsh result against an interested party, the court should refuse to confirm the sale, although the purchaser himself had been guilty of no fraud or misconduct in the matter: They think that the fact that the commissioner agreed to notify the plaintiff’s attorney of the day of sale and did not do so brings the case within the principles of law so often applied by this court. Moore v. McJudkins, 136 Ark. 292, 206 S. W. 445; Chapin v. Quisenberry, 138 Ark. 68, 210 S. W. 341; Bauer v. Wade, 170 Ark. 1020, 282 S. W. 359; Hawkins v. Wood, 179 Ark. 845, 18 S. W. (2d) 371, and cases cited.
Mr. Justice Humphreys, Mr. Justice Butler and the writer are of the opinion that it was the duty of the plaintiff to keep itself informed of the progress of the case, and that it was negligent in not taking other means to ascertain the date of sale after it did not receive a reply to the letter of March 10, 1931, the sale not havingtalcen place until March 28, following*.
It follows that the decree of the chancery court must he reversed, and the cause will he remanded for further proceedings in accordance with this opinion, and not inconsistent with the principles of equity. | [
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McHaney, J.
Appellee sued appellant for damages, and in Ms complaint alleged that on the 22nd day of November, 1930, he purchased from appellant a piece of cheese loaf to be used and consumed as food; he ate a portion thereof and immediately thereafter became violently ill, sick at his stomach, causing a continuous emission therefrom for more that 12 hours, accompanied by a high temperature, followed by nervousness and nervous rigors; and since that time he has been unable to retain any substantial food in his stomach, but has been forced to exist on a very restricted diet; that said cheese loaf was unfit for human consumption, was poison and caused him to be stricken with ptomaine poison; that -the servant of appellant knew said food was unwholesome, and that he was buying same for food, and that he relied upon the recommendation of said servant that said food was wholesome and nutritious. Appellant denied all the allegations of the complaint. A trial resulted in a verdict and judgment for appellee against appellant in the sum of $3,000.
For a reversal of the judgment appellant first argues that the court erred in giving instructions 2 and 5 at the request of appellee for the reason, it is urged, that the action was based upon a breach of implied warranty that the food sold was fit for consumption, whereas the two instructions mentioned defined the duty of appellant to exercise ordinary care in the sale of food for human, consumption to s.ee that the food they sell is reasonably fit for the purpose for which it is intended, and that, if appellant’s employee knew, or, by the exercise of ordinary care, could have known, that the cheese loaf sold was unfit for human consumption, defendant would be liable. It is said that these two instructions are at least confusing to the jury, as instructions 1 and 3 given at appellee’s request are based on the theory of implied warranty, and that it permitted appellee to recover on a theory not alleged in the complaint. Only a general objection Avas made to instructions 2 and 5, and the objection now argued is not raised by a general objection. The instructions complained of were correct declarations of law, were not inherently wrong, and a general objection fails to raise the question now argued. This court has held that the retail dealer of food for immediate consumption may be liable for damages both for a breach of implied Avarranty and for negligence in failing to use ordinary care. Heinemann v. Barfield, 136 Ark. 456, 207 S. W. 58. Therefore the rule relating to breach of implied Avarranty does not relieve- appellant from the exercise of ordinary care.
Complaint is also made to instruction No. 9. This instruction told the jury, in substance, that, if appellee Avas suffering with stomach trouble at the time he ate the cheese loaf, but the unwholesome cheese loaf aggravated or accentuated his condition, causing him to suffer the disorder from which he complains, if any, still appellant Avould be liable. In other Avords, even though appellee might be sick, or his stomach in poor condition, appellant would have no right to sell him unwholesome food causing him to suffer ptomaine poisoning. We think no prejudice resulted to appellant in this regard. It defended on the ground, first, that the cheese loaf was pure and wholesome, and, 2d, that any illness suffered by appellee was caused by a prior condition of his stomach. No specific objection was made to this instruction, and we think it correctly states the law applicable to the facts in this case. Appellant Avould have no right to sell even a sick man poisoned food. See St. L. I. M. & S. R. Co. v. Steel, 129 Ark. 520, 197 S. W. 288, for similar rule. Moreover, the court instructed the jury in No. 3 given at appellant’s request, that if they believed from the evidence appellee suffered with a. stomach trouble at the time he bought the cheése loaf; that same was pure and wholesome; and that the trouble he suffered after eating it was due to his then condition and not to the unwholesomeness of the food, the verdict should be for appellant. We are therefore of the opinion no error was committed in this regard.
It is next urged that the testimony of Dr. Ponder, an expert witness for appellee, was incompetent. Dr. Ponder sat in the court room, heard appellee and Dr. Harrod, his physician, testify concerning his symptoms and was asked to state whether or not in his opinion appellee’s condition as testified to by him and Dr. Harrod could be attributed to food poisoning. He answered that it could. It is said this was error, and that to permit the witness to base his opinion upon the testimony of Dr. Harrod would deprive it of the right of pointing out such parts of Dr. Harrod’s testimony as would be improper in a hypothetical question. No objection was made to any part of Dr. Harrod’s testimony. There was no conflict in the testimony at the time Dr. Ponder testified. We are therefore of the opinion that this point is ruled adversely to appellant by the decision of this court in the recent case of Arkansas Baking Co. v. Wyman, ante p. 310.
The next assignment of error is that the court erred in giving at appellee’s request instruction No. 5-A, which reads as follows: “The court instructs you, notwithstanding evidence may have been offered seeking to impeach the testimony of the plaintiff, yet, notwithstanding such impeaching evidence, the jury are the sole and exclusive judges of the weight and credibility of a 11 the witnesses who have testified in this case.” It is said that this is an instruction upon the weight of the evidence and unnecessarily stresses the fact that the jury could disregard the impeaching evidence. Appellant introduced a number of witnesses who testified that appellee’s reputation for truth and morality was bad, and some of them said they would not believe him on oath on a matter in which he was interested. We do not think this instruction amounts to a comment on the weight of the evidence, and, while it mentions the fact that impeaching evidence had been introduced, the concluding part of the instruction is that “the weight and credibility of a]l the witnesses who have testified in the case” was for their exclusive determination. This is not a comment upon the weight of the testimony, nor do we think it emphasizes any particular testimony, as it applied to all the witnesses in the case. Cases cited by appellant holding that it is error for the trial court to emphasize any particular testimony do not apply.
It is finally insisted that the verdict is excessive and that the amount thereof resulted from certain improper remarks made by counsel for appellee, who stated that it was possible that an insurance company might have protected appellant against loss in this case. Objection was made to the language, which the court sustained and specifically instructed the jury to disregard it. In addition counsel himself withdrew the remarks. It is admitted this cured whatever error might have been committed in this regard, but that such statement, when taken in connection with the evidence of pain and suffering and loss of time, caused the jury to render a larger verdict than it might have otherwise been. We cannot agree with appellant in this regard. While the evidence is unsatisfactory and was in sharp conflict, we have reached the conclusion that there is substantial evidence to support the verdict which is not clearly excessive, and that the judgment must be affirmed. It is so ordered. | [
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Smith, J.
On December 29, 1931, appellants filed exceptions to the final report of Lee Gr. -Sims as liquidating agent of the insolvent Bank of Ratcliff, and caused notice of those exceptions to be served on Sims on January 1, 1932. A denfurrer to these exceptions was filed on January 14, 1932. This demurrer was not disposed of, as on the same day an amended pleading was filed which enlarged1 and made more specific the original exceptions to the liquidating agent’s report. A demurrer was also filed to this amended pleading, which alleged that it did not state facts sufficient to constitute a cause of action, and that the court was without jurisdiction of the action. The demurrer was sustained, and this appeal is from that decree.
Upon a suggestion of the diminution of the record in this case, there was issued a writ of certiorari, and the response of the clerk of the chancery court has brought before us the entire proceedings in the chancery court relating to the liquidation of the insolvent bank.
The. appellants seek by their pleadings in this cause to- question the fees allowed the liquidating agent and certain fees paid attorneys, and the allowance of certain credits claimed in the final report of the liquidating agent.
. The proceedings in the chancery court, stated chronologically, are to the following effect: After taking over the bank as an insolvent institution, the Bank Commissioner filed in the chancery court a petition for an order to sell certain assets of the bank at private sale, and to compound certain debts regarded as ba'd or doubtful. An order granting the prayer of this petition was made June 2; 1930. A complete inventory of. the assets of- the bank had been previously filed May '26, 1930. The bank had been taken over by the Bank Commissioner on May 20, 1930. ' ’,’''-
On April 23, 1931, a detailed report was filed showing all claims, both general and preferred, which had been filed and allowed and paid, together with a statement of all bills payable outstanding at tbe closing of the bank and of those paid since that date.
On May 15,1931, an order was asked to make a final payment of 15 per cent, to the depositors, which, it was recited, would pay the depositors in full. Attached to this petition was'the final report of the liquidating agent.
Upon obtaining the order to pay depositors, there was filed on May 25, 1931, a petition for an order directing the liquidating agent to call a meeting of the stockholders pursuant to the provisions of § 725, Crawford & Moses ’ Digest, to wind up the affairs of the bank in the manner provided by that section of the Digest. This section provides that, whenever the'Bank Commissioner has paid the depositors and creditors of a bank (excluding stockholders) whose claims have been approved and allowed, and all expenses of liquidation, he shall call a meeting, of the stockholders by giving notice for two weeks in some newspaper published in the county where the bank was located, at which meeting the stockholders shall determine whether the Bank Commissioner shall be continued as liquidator or whether the stockholders shall select an agent or agents for that purpose. At this meeting each stockholder is allowed one vote for each share of stock owned. If it is then so determined, the Bank Commissioner shall complete the liquidation of the bank’s assets. If, however, it is determined to appoint an' agent or agents for that purpose, such agent or agents are then elected by the stockholders, and such agent or agents are required to execute a bond, to be approved by the Commissioner, for the faithful performance of the trust, and thereupon the Commissioner “shall transfer and deliver to such agent or agents all the undivided or uncollected or other assets of such corporation then remaining in his hands; and upon such transfer and delivery the said Commissioner shall be discharged from any and all further liability to such bank and its creditors.”
On June 15, 1931, there was filed in the chancery court a petition by Taylor, as Bank Commissioner, and Sims, as liquidating agent, praying that they be dis charged and that the liquidating agent’s final report be approved. This petition recited that notice had been given as required by § 725, Crawford & Moses’ Digest, and that the stockholders had held a meeting pursuant thereto. The petition sets out the minutes of this meeting, which contained the following recitals:
C. O. Parker was elected chairman of the meeting, and W. R. Chastain was elected secretary. The owners of a majority of the capital stock of the bank were present. The Deputy Bank Commissioner, as liquidating agent, made a report of the present status of the assets of the bank. A motion was unanimously adopted naming Parker, Chastain and John Baker, appellants herein, as agents of the stockholders “to determine the manner in which further liquidation shall be handled, ’ ’ and to employ such assistants as may be necessary for that purpose, and, pursuant to this purpose, they had employed Chas. X. Williams and Paul X. Williams.
This petition recited that the remaining assets so to be liquidated “are listed in a statement attached to this petition, and marked Exhibit A.” This statement, made Exhibit A, contains a list of all the creditors, to which objection is now made. On the same day Parker, Chastain and Baker, as agents of the stockholders, filed in the chancery court a certificate of their appointment of Chas. X. and Paul X. Williams as liquidating agents, pursuant to authority conferred at the stockholders’ meeting, to complete the liquidation of the affairs of the bank. Thereafter, and on the same day, the application of Taylor, as Bank Commissioner, and that of Sims, as his deputy, and the certificate of appointment of the stockholders’ agents came on for hearing, and were approved by the court. This order recites that there is attached to the petition of the Bank Commissioner and that of his deputy ‘ ‘ an inventory and list of the remaining assets of the bank” which remained after the credits were allowed, which are here questioned. The Commissioner and his deputy were discharged after being directed to “turn over and deliver to Chas. X. Williams and Paul X. Williams, as such special liquidating agents, all of the assets listed as Exhibit A to the petition filed in this cause.”
It is not questioned that this order was fully complied with by the Bank Commissioner and his deputy. This order was made and entered on June 15,1931, and thereafter no further action was taken until Parker, Chastain and Baker filed their exceptions to Exhibit A of the report above mentioned.
The act creating the Fourteenth Chancery District, of which Logan County is a part (act 18, Acts of' 1927, page 55), provides that three sessions of court shall be held each year in each district of that county, and that terms for the northern district, from which this appeal comes, shall be held the third Monday in February, June and October. The June term of the court, at which time the Commissioner’s report was approved, had expired, and the October term had intervened before the exceptions of appellants to that report were filed, and no appeal has been prosecuted from the order of court made at the prior term.
The decree of the June term of the court had therefore become final, and could be vacated or modified only in the manner provided by § 6290, Crawford & Moses’ Digest. It is insisted, however, that this proceeding is authorized by the fourth paragraph of that section, which provides that the court in which a judgment or final order has been made shall have power, after the expiration of the term, to vacate or modify such judgment or order, “* * * Fourth. For fraud practiced by the successful party in the obtaining of the judgment or order.”
The original exceptions made no charge of fraud, and the fraud alleged in the amended pleading was that the liquidating agent, acting as a deputy of the Bank Commissioner, had secured the approval of his report without notice to appellants as agents of the stockholders, and by reporting to the court that there was no objection thereto, whereas appellants had not consented to its ap proval, and, had they been advised of the hearing of such" report, they would have objected to numerous credits therein taken as being excessive or unauthorized by law.
. Section 6292, Crawford & Moses’ Digest, provides the procedure for vacating judgments under the fourth, fifth, sixth, seventh and eighth subdivisions of § 6290, and requires the filing of a complaint verified by affidavit. If the amended exceptions be treated as a complaint— which may well be done — yet it was not verified, and the court may have sustained the demurrer upon that ground, treating it as a motion to strike.
But we think there was no such fraud as required the court to vacate the decree on that ground. The law is settled that the fraud which entitles a party to impeach a judgment must be fraud extrinsic of the matter tried in the cause, and does not consist of any false or fraudulent act or testimony the truth of which was or might have been in issue in the proceeding before the court which resulted in the judgment assailed. It must be a fraud practiced upon the court in the procurement of the judgment itself. Scott v. Penn, 68 Ark. 494, 60 S. W. 235; Womack v. Womack, 73 Ark. 281, 83 S. W. 937; James v. Gibson, 73 Ark. 440, 84 S. W. 485; Boynton v. Ashbranner, 75 Ark. 415, 91 S. W. 20; Parker v. Bowman, 83 Ark. 508, 104 S. W. 158; Bank of Pine Bluff v. Levi, 90 Ark. 166, 118 S. W. 250; Williams v. Alexander, 90 Ark. 591, 119 S. W. 1130; Pattison v. Smith, 94 Ark. 588, 127 S. W. 983; Cassady v. Norris, 118 Ark. 449, 177 S. W. 10; Parker v. Nixon, 184 Ark. 1085, 44 S. W. (2d) 1088.
It is' also settled that the mere fact that a larger judgment was rendered than the facts justified does not show that a judgment was procured by fraud. The remedy for such an erroneous judgment is by way of appeal. Estes v. Lucky, 133 Ark. 97, 201 S. W. 815.
The case of H. G. Pugh & Co. v. Martin, 164 Ark. 423, 262. S. W. 308, was one in which a petition had been filed to vacate a judgment as having been fraudulently rendered. It was there said that: “The court was correct in' disposing of the appellants’ petition or motion to vacate the decree as if a demurrer had been filed thereto, and in refusing to allow appellants to introduce testimony in support of the allegations of the petition. While the petition alleges fraud, collusion, and many other irregularities, there is no allegation setting forth facts sufficient to show that any fraud was perpetrated upon the court in the rendition of its decree of foreclosure.”
Here there was no effort to introduce testimony, and the appellants stood upon their pleadings.
In sustaining the demurrer in the instant case, the chancellor had before him all the orders which he had himself previously made, and all the pleadings' upon which those orders had been made. He knew, from his own orders and the record in the case, that the liquidating agent had made a full report of all his proceedings, which report asked credit for all the items here questioned. The chancellor had before him the minutes of the stockholders’ meeting'above referred to, which recited that this report was before the stockholders at that meeting, and there is nothing in the minutes of the meeting to indicate that any objection had been or would be made to this report. All parties knew that it was the purpose of the liquidating agent in calling this meeting to secure the discharge of himself and his principal, the Bank. Commissioner, and that this order would not be made until the report of his administration had been submitted to and approved by the court, and they knew that the liquidating agent had been discharged and his successors appointed. The discharge of the Deputy Bank Commissioner as liquidating agent and the appointment of his successors occurred on the same date, and both orders were made in response to pleadings filed on that day. All parties in interest were before the court, either in person or through their chosen representatives.
Treating as true, as we must do, on demurrer, the allegations of appellants’ complaint that the representation was made to the court that there was no objection to the liquidating agent’s report, there was no fraud in this. The facts stated herein Avarranted that assumption. HoAvever, it is not to be assumed that the report Avas approved by the court, notAvithstanding this representation, without examination thereof by the court, and the judge, of course, kneAv whether he had performed his duty in this behalf.
It is insisted that the records to which we have referred Avere not offered in evidence when the court disposed of the demurrer, and that we should therefore consider only the allegations of appellants’ complaint. These records were, hoAvever, before the court. Noav, Avhile it is true that courts cannot take judicial notice of their own records in other cases pending therein, even between the same parties, it is nevertheless true that a court does take judicial notice of pleadings upon Avhich» it has passed judgment and of those judgments in the particular case then under consideration. In Williams v. Wheeler, 131 Ark. 585, 199 S. W. 927, it was said: “Again, all the matters set forth in the motion Avere a part of the proceedings and pleadings, and it Avas the court’s duty to take judicial notice of them. It was not necessary to prove them.”
Moreover, we are of the opinion that appellants have not moved with that diligence Avhich the law requires. The case of Trumbull v. Harris, 114 Ark. 493, 170 S. W. 222, was a proceeding to Amcate a judgment under § 4431, Kirby’s Digest (now § 6290, Crawford & Moses’ Digest), and it Avas there said: “It is the duty of a litigant to keep himself informed of the progress of his case, and a party seeking relief against a judgment on the ground of unavoidable casualty or misfortune preventing him from defending must sIioav that he himself is not guilty of negligence, and he cannot have relief if the taking of the judgment appears to have been due to his OAvn carelessness.” We there also quoted from the case of Izard County v. Huddleston, 39 Ark. 107, as follows: “In the ease last cited the court said: ‘The statute to vacate judgments by this proceeding is in derogation, not only of the common laAv, but of the very important policy of holding judgments final after the close of the term. Citizens must have confidence in' the judgments of our official tribunals as settlements of their controversies, and there should be some end of them. Unless a case be clearly within the spirit and policy of the act, the judgment should not be disturbed.’ ” See also Farmers’ Mut. Fire Insurance Co. v. Defries, 175 Ark. 558, 1 S. W. (2d) 19, and cases there cited.
Upon the whole case, we think no error was committed in sustaining the demurrer, and the decree must therefore be affirmed, and it is so ordered. | [
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Carretón Harris, Chief Justice.
This appeal is an effort to persuade this court to extend the rule announced in Parish v. Pitts, 244 Ark. 1239, 429 S. W. 2d 45 (Rehearing denied on July 15, 1968), to permit suits in tort against counties. On the night of October 4, 1967, Michael D. Chandler, appellant herein, was a passenger in an automobile being driven to Little Rock Air Force Base from Little Rock by an out-of-state resident. After proceeding through Jacksonville, the driver turned left onto Coffelt Road, a county public highway in Pulaski County. The driver was unable to make a 90 degree turn, and crashed into a drainage ditch on the westernmost side of old Highway No. 67, Chandler receiving serious injuries. Thereafter, appellant instituted suit against Pulaski County, Arkansas, alleging negligence on the part of the county in failing to erect and maintain effective warning or luminous signs, in failing to post a safe speed limit sign along the road, and in fail ing to give any warning whatsoever of the existence of the 90 degree turn required of western bound travelers on said road. Pulaski County demurred to the complaint and such demurrer was sustained by the trial court. This appeal questions the correctness of that ruling.
The facts in this case are very similar to those in the case of L. A. Sullivan, Administrator, Estate of Joseph Sullivan, deceased, of Pulaski County, Arkansas, handed down this date, and the reasoning in that opinion applies here with equal force. There, we point out that the General Assembly of 1969 enacted legislation which became Act 165, the legislation declaring the public policy of the (State of Arkansas to be “that all counties, municipal corporations, school districts, special improvement districts, and all other political subdivisions of the State shall be immune from liability for damages, and no tort action shall lie against any such political subdivision, on account of the acts of their agents and employees. ’ ’
Affirmed. | [
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John A. Fogleman, Justice.
Appellant was convicted of the crime of escape from The Arkansas State Department of Correction on March 2, 1969. The sole ground for reversal is the assertion that the jury verdict finding appellant guilty was contrary to the evidence. The gist of appellant’s argument here is that there was not sufficient proof as to his intent to escape.
The only witness presented hy the state was Denison Walker, a warden at the Cummins branch of The Arkansas Department of Correction. It is undisputed that appellant occupied a status such as to entitle him to fishing privileges on Sundays. On the Sunday on which the crime was alleged to have been committed, he had permission to go fishing at Beaver Hole on the prison farm. He cheeked out at the gate near the main building and proceeded to the fishing place. Some four to five hours later the warden received a report that four men were trying to escape. Appellant was apprehended at a point some four miles upriver from the prison farm after bloodhounds had been utilized for pursuit. He was hiding in some bushes along a levee about m miles from the river. He had no fishing equipment of any kind in his possession when apprehended. Walker testified that there was a gate past the north end of Beaver Hole and a fence between that gate and the river through which appellant would have had to climb or go.
Appellant testified that the fish were not biting at Beaver Hole, so he went on down the river to fish at a lock and dam where the water was confined. According to him, he had been down on the river and off the state farm several times and always came back. When he heard the dogs, he knew that they were pursuing him. His explanation for the situation in which he was found was that, realizing he was in trouble, he left his fishing equipment and started up the levee to get back to state property before anything was said to him. He denied that he had any intention of escaping, but admitted that he knew that he was violating the rules and was off the prison grounds. His explanation was that he .and other convicts had done this before and nothing was said. Yet, he would not say that the prison officials knew of these incidents which he stated were common practice among the prisoners. While he denied that he crawled through or over a fence when he left the state propery, he admitted that he went down to the river’s edge and went around it. Cassady testified that he was hoping that the dogs would pass him while he was hiding and that he could then get back to the Beaver Hole without being caught. He knew that action would have to be taken against him if he were were caught. He testified that he stayed at Beaver Hole only about 45 minutes, and that if he had been trying to escape he could have gone much farther than he did.
The punishment for escape is provided in Ark. Stat. Ann. § 41-3508 (Bepl. 1964). Since the crime is not defined by our statutes, it is necessary that we resort to common law for a definition of the crime. The crime is committed by a prisoner under lawful arrest and restraint when he goes away from his place of lawful custody before he is released or delivered by due course of law. Houpt v. State, 100 Ark. 409, 140 S. W. 294, Ann. Cas. 1913C 690. It is committed when a convict serving his term of imprisonment leaves the bounds within which he is required to remain. Jenks v. State, 63 Ark. 312, 39 S. W. 361. When the common law definition of the crime is followed, an intent to escape, i. e., to avoid the due course of justice, is a necessary element of the crime. Gallegos v. People, 159 Colo. 379, 411 P. 2d 956 (1966); Chandler v. United States, 378 F. 2d 906 (9th Cir. 1967). Criminal intent or purpose is a fact which cannot, in the nature of things, be positively known to others. It is an inference of fact that a jury may draw from the facts and circumstances existing and shown. Shell v. State, 184 Ark. 248, 42 S. W. 2d 19. The existence of the requisite intent is a question of fact for the jury when the evidence shows facts from which it may reasonably be inferred. Huie v. State, 139 Ark. 241, 213 S. W. 380.
In this case the fact that when discovered appellant was hiding ,at a place off the Department of Correction grounds when he had no permission to be there, constituted sufficient evidence from which a jury might reasonably have inferred that he intended to regain his liberty before being released in due course of law.
The judgment is affirmed. | [
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George Rose Smith, Justice.
In this condemnation proceeding the appellee is taking a 1.53-acre tract of land owned hy the appellants. Two expert witnesses for the highway department valued the land at $7,650. The landowners introduced two estimates of value, one of $14,000 and the other of $12,800. The jury’s verdict was for $8,000.
For reversal the landowners insist that the court erred in refusing to require the condemnor to answer interrogatories about the expert witnesses it expected to use at the trial. The interrogatories asked the names and addresses of the experts who had appraised the land for the highway department, their occupation, whether they were highway department employees, the date of their reports to the department, whether they were to be called as witnesses, how often they had previously testified for the department, and how they were to be compensated. The court refused to require the department to answer any of the interrogatories.
In ruling upon the matter the trial court did not have the benefit of our opinion in Bower v. Murphy, 247 Ark. 238, 444 S. W. 2d 883 (1969), which was not delivered until after the case at bar had been tried. There we held that a litigant is entitled to obtain by interrogatories the names of his adversary’s expert witnesses. The other interrogatories propounded in the court below were also proper, for the requested information was needed to enable counsel to prepare for trial by investigating the qualifications and credibility of the department’s experts. The opportunity to elicit such information by cross-examination at the trial is not the equivalent of a complete independent investigation made ahead of time.
The error must be taken to have been prejudicial unless we can say with confidence that it was not. Ark. State Highway Comm’n v. Parks, 240 Ark. 719, 401 S. W .2d 732 (1966). Here the amount' of the verdict was so slightly in excess of the figure fixed by the department’s expert witnesses that we cannot say with assurance that the award would not have been larger if the landowners had been afforded a better opportunity to explore the qualifications and credibility of the experts in advance of the trial.
Reversed. | [
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Conley Byrd, Justice.
This litigation questions the
validity of two exclusive agency contracts that were not approved by the Insurance Commissioner as required by Ark. Stat. Ann. § 66-4240 (Repl. 1966). It was commenced in the trial court by appellee American Pioneer Insurance Company, against appellees Pioneer Underwriters, Inc. and R. E. Phillips and Huey Duke for a debt owed. Appellants American Accident and Life Insurance Company and Investors Insurance Corporation were brought into the action by garnishment on the„ allegation that thev were indebted to Pioneer Underwriters, Inc., et al, for commissions due upon renewal premiums received. Thereafter there were cross complaints and counterclaims which put into issue the validity of the exclusive agency contracts, the liability of appellants upon quantum meruit and the assumed liability of Investors Insurance Corporation.
After a trial on the merits, the trial court entered judgment for 5% of the premiums received less credits for payments received or monies retained. For reversal appellants rely upon the following points:
“I. Appellees are not entitled to recover under unapproved contracts requiring prior approval of the insurance commissioner.
“II. In such cases of contracts void by statute, to permit recovery by quantum meruit is against public policy.
“III. Even were quantum meruit recovery permissible, appellees are entitled to nothing, and appellants are entitled to recover for refunds made on policies cancelled or unissued.
“IV. There is no basis for any liability to appellees by appellant Investors Insurance Corporation. ’ ’
Tbe record shows that on August 22, 1963, the management of American Pioneer Insurance Corporation also controlled the management of First American Reserve Life Insurance Company and appellant American Accident & Life Ins. Company. On that date First American Reserve Life Ins. Co. entered into an exclusive agency contract with Pioneer Underwriters to write hospitalization insurance. By the terms of that contract Pioneer Underwriters were to receive all of the initial premium plus 15% of all renewals for a period of at least two years from the date of termination.
In July, 1964, the management determined that it would be more advantageous to place the better risk hospitalization policies into American Accident & Life Ins. Company. This was accomplished through a reinsurance agreement by which American Accident gave $27,000.00 in cash, assigned a $4,991.52 account owed by Hyneman Enterprises, Inc., and assumed the liabilities of First American Reserve to Pioneer Underwriters.
In the same month American Accident entered into a new contract with Pioneer Underwriters, by which American Accident promised Pioneer Underwriters an exclusive agency contract and to pay to them 15% of the initial premiums and 5% of the total annual renewal premium income.
On July 28, 1964, American Pioneer Life Insurance Company sold its 8,263 shares of capital stock in American Accident to Floyd Shellman and Byron Prugh. As part of the purchase agreement the purchasers agreed to assume the obligation owed by American Accident to Pioneer Underwriters. Shellman and Prugh later assigned their contract to Investors Insurance Corporation upon the same terms and conditions.
Subsequent to Investors’ acquisition of control of tbe management of American Accident, tbe latter caused its attorney to submit tbe exclusive agency contract of July 2, 1964, to the Insurance Commissioner pursuant to Ark. Stat. Ann. § 66-4240 with a suggestion that the contract was not in the best interest of the company. On September 25, 1964, the Insurance Commissioner refused to approve the contract. Shortly thereafter American Accident discharged Pioneer Underwriters.
Robert M. Gannaway testified that he was in charge of the management of American Accident when it entered into the 1964 exclusive agency contract, that he discussed the terms thereof with the Deputy Insurance Commissioner and got his approval, and that American Accident obtained a financial advantage over the renewal terms in the exclusive agency contract with First American Reserve Life Ins. Company.
Richard M. Flahibe qualified as an expert in the field of health and accident insurance management. He described a two year commission of 15% on renewal premiums as being reasonable and proper. However he was not nearly as definite about the 100% commission on the initial premium.
The present management admitted that if they were not obligated to Pioneer Underwriters, they would get the $400,000 annual renewal premiums virtually commission free.
POINTS I & II: Appellants, to avoid liability under both contracts and upon quantum meruit, rely upon Ark. Stat. Ann. § 66-4240 which provides:
“No domestic insurer shall make any contract whereby any person is granted or is to enjoy in fact the management of the insurer to the substantial exclusion of its board of directors or to have the controlling or preemptive right to produce sub stantially all insurance business for tbe insurer, unless the contract is filed with and approved by the Commissioner. ...”
Obviously this statute would prevent the enforcement of the exclusive agency provision of either contract without the approval of the Insurance Commissioner, but it does not follow that the statute would prevent a quantum meruit recovery. In Gantt v. Ark. Power & Light Co., 189 Ark. 449, 455, 74 S. W. 2d 232 (1934), we said:
“. . . The general rule is that, where a contract is expressly prohibited by law, and the statute in terms declares the contract to be null and void, no recovery can be had under it, and a taxpayer has a right to maintain an action to recover back money when its officers neglect or fail to perform their duty in that respect. Capron v. Hitchcock, 98 Cal. 427; Winchester v. Frazier, (Ky.) 43 S. W. 453; Milford v. Milford Water Co., 124 Pa. St. 610.
“The status, however, of appellees does not come strictly within the prohibition of the rule just stated. The prohibitory statute here involved does not, in terms, declare the contract to be ‘null and void.’ The rule seems to be that, in the absence of the prohibitory words ‘null and void’ and where the contract has been performed by the parties in good faith, compensation may be retained measured by the reasonable value thereof. Such recovery, however, is not because of the contract, but is grounded squarely upon the proposition that valuable services having been rendered which have been accepted by the parties, it would be inequitable and unjust to permit one party to substantially gain under the contract to the great and irreparable damage of the other.”
Neither does it follow that the compensation por tion of the exclusive agency contract with First American Reserve Life Ins. Co. is not enforceable. In Hanauer & Co. v. Gray, 25 Ark. 350 (1869), we had a note payable in Confederate bonds or Tennessee money. We there held:
“. . . ‘A distinction must be taken between the cases in which the consideration is illegal in part, and those in which the promise, founded on the consideration, is illegal in part. If any part of a consideration is illegal, the whole consideration is void, because public policy will not permit a party to enforce a promise which he has obtained by an illegal act, or an illegal promise, although he may have connected with this act or promise another which is legal. But, if one gives a good and valid consideration, and thereupon another promises to do two things — one legal and the other illegal — he shall be held to do that which is legal, unless the two are so mingled and bound together that they can not be separated, in which case the whole promise is void.’ ”
The record here clearly demonstrates that the 1963 contract contains two separate and distinct promises— i. e. one for the payment of the services to be rendered by Pioneer Underwriters, and one for an exclusive agency management contract. The statute relied upon does not attempt to regulate the commission which an insurer may agree to pay to an agent for writing policies. For other cases supporting the Hanauer & Co. case, see Re Port Publishing Co., 231 N. C. 395, 57 S. E. 2d 366, 14 ALR 2d 842 (1950) where a collective bargaining contract was held enforceable to recover vacation pay although it contained a “closed shop” provision contrary to North Carolina’s “right to work” law.
POINT III. Appellants’ arguments under this point appear to be that the $130,000 initial premiums which Pioneer Underwriters received for writing the policies in the first place is sufficient consideration and also that appellants are entitled to recover from Pioneer Underwriters for premiums that appellants were forced to refund to policy holders in settlement of policy claims.
With respect to the premiums refunded, the record shows that a portion thereof has been collected in a federal district court action against American Pioneer Life Ins. Co. and appellants have made no attempt here to show what portion of the premiums refunded they are still entitled to collect. Furthermore, they appear to also be precluded by the separate and valid promises contained in the 1963 contract with First American Reserve Life Ins. Company.
On the contention that the $130,000 initial premiums received by Pioneer Underwriters constitutes adequate compensation we find no merit. Without either expressing approval or disapproval of the 100% initial premium commission paid to Pioneer Underwriters, we find that appellants are in no position to complain. The record shows that the major portion of the premiums were collected by Pioneer Underwriters when the policies were written for First American Reserve Ins. Co. and that American Accident, in purchasing the policies from First American Reserve, agreed as part of the purchase price that it would pay Pioneer Underwriters the obligations which First American Reserve recognized. The law will not permit one in such a position to retain the benefit of its agreement and at the same time question its validity. See Murray v. Murray Laboratories, Inc., 223 Ark. 907, 270 S. W. 2d 927 (1945); McBlair v. Gibbes, 17 How. (U. S.) 232, 15 L. Ed. 132 (1854).
Furthermore,, there is substantial evidence to support the trial court’s finding that the amount allowed is due upon a quantum meruit basis.
POINT IV: The contract upon which Investors Insurance Corporation relies to reverse the judgment of the trial court is not abstracted and although Investors Insurance Corporation designated the exhibited instrument as a part of the record, the exhibit has not been filed with the Clerk of this Court nor made a part of the record. It is appellant’s duty to file the instruments upon which it relies for reversal, Ark. Stat. Ann. § 27-2127.3 (Repl. 1962). In the absence of the instrument we cannot say that the trial court erred.
Affirmed.
Harris, C. J. and Fogleman, J., dissent. | [
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Frank Holt, Justice.
In this workmen’s compensation case the appellee claims he suffered compensable injuries which were inflicted upon him by a fellow employee. The Referee and Workmen’s Compensation Commission found that the appellee’s injuries were compensable and the circuit court affirmed. On appeal appellants, the employer and insurance carrier, contend for reversal that there is no substantial evidence that the assault was causally related to claimant’s employment. Appellants assert that appellee’s injuries arose out of a private matter and not his employment.
It is well settled that on appeal we test the sufficiency of the evidence in the light most favorable to the Commission’s findings and affirm if there is any substantial evidence to support the Commission’s action. Herman Wilson Lbr. Co. et al v. Lester Hughes, 245 Ark. 168, 431 S. W. 2d 487 (1968); McCollum v. Rogers, 238 Ark. 499, 382 S. W. 2d 892 (1964); Fagan Electric Co. v. Green, 228 Ark. 477, 308 S. W. 2d 810 (1958). We thus review the evidence.
The claimant, 64 years of age, had worked for the appellant-employer for approximately 9 years. On the date of the injury he was operating a rip saw machine and a fellow-employee, 22 years of age, was assisting him by stacking the lumber. They worked side by side approximately three to four feet apart. According to the claimant his fellow employee, Charles Wilson, offered to bet him a quarter that he (Wilson) had $3 worth of change in his pocket. The claimant refused the bet, stating he was not interested and that he (Wilson) should attend to his duties stacking lumber. This appeared to anger Wilson and he walked off. In about three or four minutes, while claimant’s back was turned, Wilson unexpectedly struck him on the left side of his face with an oak board about four feet long and four inches wide. The blow rendered claimant unconscious and caused severe injuries. Wilson contradicted this version of the altercation. He testified that an argument started when the claimant refused to pay him a Ipet and that claimant struck at him first. Wilson admitted striking the claimant with the board. It is undisputed that the claimant and his fellow employee had worked together in the same area for approximately two years and had never quarreled or had any trouble before, either on or off the job.
The appellants agree that the Commission properly stated the general rule pertaining to an assault by a fellow employee. The Commission said: “It is generally held that injuries resulting from an assault are compensable where the assault is causally related to the employment, but that such injuries are not compensable where the assault arises out of purely personal reasons.” Larson, Vol. 1, § 11.21 et seq.; Johnson v. Safreed, 224 Ark. 397, 273 S. W. 2d 545 (1954); Barrentine v. Dierks Lbr. & Coal Co., 207 Ark. 527, 181 S. W. 2d 485 (1944).
The appellants argue that the claimant made conflicting statements with reference to the cause of the assault. We have repeatedly held that it is within the province of the Commission to reconcile conflicting evidence and determine the true facts. Rose v. Black & White Cab Co., 222 Ark. 210, 258 S. W. 2d 50 (1953); Kivett v. Redmond Co., 234 Ark. 855, 355 S. W. 2d 172 (1962).
When we review the evidence, in the light most favorable to the Commission’s findings, as we must do on appeal, we are in agreement with the Commission when it stated:
< í * * * recorci is clear that the claimant was an innocent victim of an intentional assault by a fellow employee and in resolving the inconsistencies in the testimony of the witnesses, we find that the employee was in the place where he was expected to be; that he was performing his regular duties; that there was no aggressive act on his part and the injury sustained by claimant was a result of his employment. ’ ’
The appellants further contend there is no substantial evidence that claimant was unable to work at the time of the hearing. We cannot agree. There was testimony by the appellee, as well as ample medical evidence, that at the time of the hearing the claimant was temporarily totally disabled. He is a common laborer, uneducated, and has worked in saw mills most of his adult. life. At the time of his injuries he was operating- an electrical rip saw. As a result of the attack he has lost the vision in his left eye with the possibility of the right eye being affected. It appears that his left leg is partially paralyzed. In his words, his left foot “flaps” and is not controllable when he walks. He suffered a broken jaw and he cannot fully open his mouth. At the time of the hearing, which was approximately a year after the injury, his face was still swollen and he suffered pain. Another answer to this contention is the fact that appellants did not list this contention as a point relied upon for reversal. This is necessary according to our Rule 9(c).
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Conley Byrd, Justice.
Appellant Arkansas State Highway Commission on Aug. 3, 1967, filed its complaint and declaration of taking for 12.66 acres out of a 200 acre tract owned by appellees Vondon Dixon and Ruby Lee Dixon, his wife. The estimated just compensation was $4,500. The taking left 9.55 acres south of the interstate highway and 177 acres on the north. The Highway Commission appeals from a jury verdict of $12,000 and for reversal contends:
I. The trial court erred in permitting testimony calling for special knowledge or skill to be given by non-experts.
II. The court erred in not striking testimony of Appellee’s witnesses basing opinion evidence as to value upon speculative elements.
III. The trial court erred in permitting testimony of special damages which had not been plead.
IV. There was no substantial evidence to support the verdict.
Mr. Frank Fougerousse, Jr., a witness on behalf of the Dixons, testified that he had lived near the property since 1937 and now farmed adjoining lands. He testified that prior to Aug. 3, 1967, the lands drained well but after construction of Interstate 40 a drainage problem existed because the Highway Department had attempted to drain the lands from east to west whereas they originally drained toward the east. He stated that this will create a condition where one cannot work the land when it is wet and that the wetness will smother out and scald the crops, once the crops are up. He based his state ments upon his knowledge of the land and his knowledge of farming.
Mr. Audie Stobaugh, a farmer, testified that he was familiar with the land prior to Aug. 3, 1967, and that it was all cleared. Drainage before the taking was from the south and toward the east and the Highway Department was attempting to drain the water back to the west and from the naked eye it looked like it was uphill. He discussed comparable sales in the vicinity and arrived at a value of $400.00 per acre before the taking. He placed little or no value on the 10 acres south of the interstate because of its inaccessibility and damaged the 177 acres north of the interstate at $50.00 per acre.
Mr. A. J. Gordon, president of the board of Central Arkansas Production Credit Association, testified that he was farming 2,000 acres per year and that he had personal knowledge of the Vondon Dixon property and had for about 20 years. He had viewed the property after the construction .and after a 2% inch rain that occurred a week or week and a half before the trial. Mr. Gordon placed .a value of $400.00 per acre on the land before the taking based upon the 80 acres McKinnon bought from Ward Jackson. He placed a value of $350.00 per acre on the north 177 acres after the taking because of the drainage problem he observed, and a $50.00 per acre value on the 10 acres south of the interstate, because of its inaccessibility.
Mr. Forrest Griswood qualified as an export on valuations. He appraised the lands at $60,000.00 before the taking and $49,268.50 after the taking, for a total damage of $10,731.50. He states that he deducted $25.00 per acre on the 177 acres north of the interstate because of the drainage problem which he had viewed.
Mr. Vondon Dixon stated that he had no problem with drainage on the farm lands prior to Aug. 3, 1967. Since Aug. 3, the drainage had been considerably changed, in that the State Highway Department had put in a drainage ditch north of the farm access road trying to drain the water from the 200 .acres which naturally drained east. That the Highway Department was trying to drain the water back west which it was unable to do because of a rise in the soil from the eastern corner going west. He placed a valuation of $400.00 per acre on the tract before the taking and arrived at an after valuation of $53,622.00 for a total damage of $26,378.00. In arriving at his damages he depreciated the 177 acres on the north $100.00 per acre and the 10 acres on the south by $350.00 per acre.
Mr. Kerry Caviness, a registered professional engi neer in the employ of the Highway Department, testified that the interstate was constructed according to plans at the time of filing the action and that the drainage ,as provided for in the construction plans would not properly drain the area. He stated that the drainage problem was an oversight rather than an error and came about because of a mistake with reference to the contour of the land. He had known about the oversight for .a month or more before trial. He stated that the Highway Department had put in some drainage tile on Saturday before the trial on Monday which, together with a ditch that was to be dug, would solve the drainage problem. According to him, no change order was necessary to do the small amount of work involved.
Mr. W. E. Hayes and Mr. Zack Mashburn were called as expert witnesses on valuation for the Highway Department. Mr. Hayes arrived at a before value of $60,000.00 for the 200 acres and an after value of $55,-500.00, for a total damage of $4,500.00. Mr. Zack Mash-burn gave a before value of $55,000.00 based on a $275.00 per acre valuation and an after value of $50,300.00, for a total damage of $4,700.00. Both witnesses with commendable candor admitted that their valuations were based upon assumptions that drainage would be equally as good after as before.
Point I. Appellant argues upon the authority of Kansas City, Ft. Scott & Memphis Railroad Co. v. Cook, 57 Ark. 387, 21 S. W. 1066 (1893), and St. Louis, Iron Mt. & Southern Railway Co. v. Lyman, 57 Ark. 512, 22 S. W. 170 (1893), that it was error for appellees and their witnesses to be permitted to give an opinion about the drainage problem. We find appellant’s contention to be without merit because in this instance the witnesses testified to “matters determinable by conditions they had seen and described.” Such information does not call for special knowledge or skill and does not constitute opinion evidence.
Point II. Appellant argues that the testimony of appellees’ witnesses with reference to damages caused by the drainage problem ivas upon an improper basis —i. e., the damages were speculative because based upon matters that would occur in the future or that came into existence because of faulty construction after the filing of the complaint. In this connection it cites 4 Nichols on Eminent Domain, § 14.245(1), where it is said: “If the damage for which recovery is sought is the result of improper, unlawful or negligent construction or maintenance recovery may not be had therefor in the proceeding; the owner is relegated in such case to common law action for damages.”-
Neither the record nor appellant’s own witness sustains its position here. The record shows that the highway was in place at the time of trial and appellant’s registered professional engineer testified that it had been constructed according to the plans and specifications in existence on the date of taking. Certainly the drainage or impairment of drainage to land is a matter that a willing buyer and a willing seller would consider, and under our decision in L. R. Junction Ry. v. Woodruff, 49 Ark. 381 (1887), this would constitute an element of compensation due in an eminent domain action.
Point III. In contending that the trial court erred in permitting testimony relative to special damages which had not been pleaded, the Highway Department again relies upon the proposition that the proof was based upon damage that will occur in the future or that came into existence after the filing of the complaint in condemnation. Here again we can find no error. The requirement for pleading of special damages is to prevent surprises. In this instance the Highway Department claimed no surprise nor asked for' a continuance. The record shows that the Highway Department had known about the drainage problems for more than a month and that it had its registered professional engineer standing by to testify.
Point IV. Contrary to appellant’s contention, Ave find there was substantial evidence to support the verdict. Actually appellant’s argument is here based upon the proposition that the poor drainage was not a permanent condition. In this we point out that the landOAvner was entitled to rely upon the fact that the highway was constructed in accordance with the plans and specifications on file and that until such time as the Highway Department moved to amend the plans and specifications the trial court did not commit error in permitting the witnesses to testify to the damages that arose as a result thereof.
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George Rose Smith, Justice.
In this condemnation case the Highway Commission is taking, for Interstate 40, 12.02 acres of a 102-acre tract belonging to the appellees. The jury fixed the landowners’ compensation at $60,000. For reversal the Commission contends that the trial court should have stricken the value testimony of the landowner Hammond and that of his supporting witness Tatum. We agree.
Hammond bought about 142 acres in 1963 for $25,-000. Before the trial he had sold 40 acres for $10,000, leaving him with an investment of $15,000. He testified, however, that the value of the remaining 102 acres was $132,400 before the taking and $52,250 after the taking, making a difference of $80,150. His witness Tatum gave substantially the same figures. In fact, the testimony of the two men was so nearly identical as to values that it is quite evident that they reached their conclusions jointly-
Hammond, in putting a value of $132,400 upon land for which he had paid $15,000 about four years earlier, regarded the land as peculiarly suitable for the creation of minnow ponds by the construction of levees and for the production and sale of minnows at wholesale and retail. He put a value of $3,000 an acre upon 17 acres of ponds that had been actually completed before the taking. He put a value of $2,000 an acre upon the rest of the lowland, as a potential site for ponds, and a similar value of $2,000 upon five acres of higher ground that were to be used as the headquarters for the minnow-raising operation.
In the condemnation proceeding the Commission took the five-acre site of the proposed headquarters. Hammond testified that as a result the value of the ponds was reduced from $3,000 to $500 an acre and the value of the pond sites from $2,000 to $200 an acre. Those reductions, plus the asserted worth of the 12.02 acres actually taken, made up Hammond’s claim of $80,150. By contrast, the Commission’s two expert witnesses, neither of whom was especially qualified in the field of minnow raising, respectively fixed the landowners’ loss at $5,750 and $6,850.
We find in the record no substantial basis for Bam mond’s estimates of value, nor for those of his witness Tatum. We need discuss only Hammond’s testimony, for Tatum’s estimates of value are subject to the same criticisms. Shortly before the taking Hammond had leased some of the property for the production of minnows, but he himself had had no practical experience in that activity. Glaring gaps in his testimony include his failure to explain just why five acres are needed as a headquarters for the proposed operation; why the headquarters, if really needed, could not be built on some other part of the tract; and why the taking of the proposed headquarters site would reduce the value of the ponds and pond sites in the amounts to which he testified.
Hammond gave no reasonable basis for valuing the ponds at $3,000 an acre before the taking and the pond sites at $2,000 an acre, nor for reducing those values to $500 and $200 after the taking. He said that he had read about some sales of minnow farms in the 1950’s and 1960’s, “ranging from $800 an acre,” but he had no firsthand knowledge of any of the details, including the vital matter of comparability. His figures, as we observed in a similar situation in Ark. State Highway Comm’n v. Stanley, 234 Ark. 428, 353 S. W. 2d 173, 4 A. L. R. 3d 749 (1962), had no relation whatever to any fact in the record and were apparently plucked from the air.
On motion the trial judge instructed the jury to disregard all of Hammond’s testimony, except that as the owner of the property “he will be permitted to state in his opinion the value of this property prior to the taking and after the taking.” A similar instruction was given with respect to Tatum’s testimony. That view involves a misconception of our holding in Ark. State Highway Comm’n v. Russell, 240 Ark. 21, 398 S. W. 2d 201 (1966), which the court mentioned as a basis for his ruling. Under that decision, and the cases that have followed it, a witness’s estimates of value should be strick on entirely when he is unable to give a fair and reasonable basis for his conclusions. That course should have been followed in the court below, which would have left no testimony to support the verdict.
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George Rose Smith, Justice.
In 1962 the highway department set .about widening and paving a dirt road that passed in front of the appellees’ home in Nevada county. The landowners resisted the entry upon their property. To meet that obstacle the highway department filed this suit to enjoin the Marlars from obstructing the work. The chancellor granted the injunction but required the department to file a $10,000 bond to protect the landowners’ claim.
The case was not tried until December, 1968. The court found that the public easement was not as wide as the department asserted it to be. The landowners were awarded $5,500 as compensation for the additional right of way that was taken. This appeal is from that award.
The department relies upon two instruments to support its contention that it acquired an 80-foot easement; in 1958, but its proof falls short of showing that either; instrument was binding upon the landowners. Marlar joined a number of other landowners in conveying an easement to the highway department in 1958, but his wife’s failure to join in .a conveyance affecting the homestead rendered the instrument void. Ark. Stat. Ann. § 50-415 (1947); Autrey v. Lake, 195 Ark. 243, 112 S. W. 2d 434 (1937). The other basis for the department’s asserted easement is a 1958 county court order that purported to condemn an 80-foot right of way, but the department failed to sustain its burden of proving that the landowners had notice or knowledge of the order. Ark. State Highway Comm’n v. Anderson, 234 Ark. 774, 354 S. W. 2d 554 (1962). Until such notice is given the one-year statute of limitations against the landowners’ claim to compensation is not set in motion. Greene County v. Hayden, 175 Ark. 1067, 1 S. W. 2d 803 (1928).
Next, the appellant insists that the county court had exclusive jurisdiction to fix the amount of the landowners’ compensation. Here, however, the highway department affirmatively invoked the jurisdiction of the chancery court and filed a bond guaranteeing that it would pay “the just and full amount of any judgment or settlement that may be entered in this cause.” In those circumstances the department is not in a position to question the jurisdiction of the forum of its own choosing. (Here that rule is demonstrably just, for while this case was pending the landowners did file a claim in the county court, only to have it rejected because the county had no funds whatever with which to pay the claim.)
Finally, the department argues that the award of $5,500 is excessive. Marlar testified that the taking, and especially the destruction of two magnificent shade trees in front of his house, had decreased the value of his property by at least $10,000. Two expert witnesses testifying in his behalf fixed the damage at $6,000 and $5,000. On the other hand, an appraiser for the highway department testified that in his opinion the benefits to be derived from a paved highway were equal to the damage suffered by the landowners, so that they were en titled to recover nothing. After studying the proof we cannot say that the chancellor’s decision is against the weight of the evidence.
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Brown, J., disqualified. | [
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John A. Fogleman, Justice.
Appellant, plaintiff below, seeks reversal of a summary judgment, asserting error in the court’s finding that there was no genuine issue of material facts. We agree with the trial court that there were no genuine issues of fact as to some of the appellees; who were defendants below, but find that there are genuine issues of material facts as to others. In so holding, we -apply the well-established rules that the burden to show that there is no genuine issue of material fact is upon the moving party, that all doubts must be resolved against the judgment, that all presumptions and inferences must be resolved against the movant and that, in a case in which fair-minded men may honestly differ about the conclusions to be drawn from the testimony, a summary judgment should be denied.
Appellant was employed by appellee Field Enterprises Educational Corporation as its district manager by a contract entered into on June 19, 1963. He was employed to sell certain encyclopedias, dictionaries and other such publications, on a commission basis, in the northeastern part of the state. The contract was subject to cancellation upon thirty days’ notice in writing given by either party. The controversy from which this litigation arose began when appellant was elected to the Calico Bock School Board in 1966. Ultimately appellee Field Enterprises Educational Corporation acting through appellee L. J. Funderburk, its state manager, terminated the contract as of August 24, 1967.
Subsequently, appellant instituted this action against Funderburk; Field Enterprises Educational Corporation; Dr. Dale Hudson and John Kron, two of the other members of the Calico Bock School Board; Dr. Dean Hudson, Superintendent of the Mountain Home Public Schools and a brother of Dr. Dale Hudson; Neill Hudson, Principal of the Atkins High School, another brother of Dr. Dale Hudson; and Jack B. Con-nor, Principal of the Calico Bock Public Schools. The complaint is couched in broad general language alleging that appellees conspired to deprive him of his rights under the contract and to earn a livelihood, to injure him and to deprive him of his means of livelihood. He alleged damages as a result of conversations, letters and other activities of appellees which he alleged to be false and calculated to injure his character and reputation. He asserted that the appellees intentionally publicized false, malicious and slanderous material and wrote letters and held conversations by which they procured dismissal from his employment and caused him to be held up to public contempt, ridicule, embarrassment and humiliation.
Appellees filed a motion to require appellant to make his complaint more definite and certain but followed discovery procedures rather than pressing this motion. Other than the motion for summary judgment granted by the court, appellees have filed no other pleading.
Appellant has not, either in his pleadings or in his brief in this court, made any attempt to characterize or identify his cause of action. His brief here has been oE little assistance, .as it cites no authority to indicate what, if any, cause of action is supported by the facts disclosed. Appellees have characterized the cause of action as being one based upon the common law action for civil conspiracy or for defamation of character. We shall consider whether there are issues of material facts on the causes of action suggested by appellees, as well as a possible cause of action for damages for wrongful inducement to cause Field Enterprises not to continue a business or employment relationship with appellant.
A review of authorities pertaining to a cause of action for defamation would serve no useful purpose. Consideration of the rules of law governing the other causes of action, however, is advisable in determining whether appellees have clearly shown that there is no materia] issue of fact. Under Arkansas law, a malicious and wilful interference with contractual rights and relationships of another has been recognized as an actionable tort. Mahoney v. Roberts, 86 Ark. 130, 110 S. W. 225; Johns v. Patterson, 138 Ark. 420, 211 S. W. 387; Hogue v. Sparks, 146 Ark. 174, 225 S. W. 291; Ketcher v. Sheet Metal Workers International Association, 115 F. Supp. 802 (E. D. Ark. 1953); Tollett v. Mashburn, 183 F. Supp. 120 (W.D. Ark. 1960) aff’d. 291 F. 2d 89 (8th Cir. 1961). See also Dale v. Hall, 64 Ark. 221, 41 S. W. 761; Wakin v. Wakin, 119 Ark 509, 180 S. W. 471, According to the Supreme Court of the United States a cause of action based on interference with another’s contract with a third person without legal justification has been recognized at least since Lumley v. Gye, 2 El. Bl. 216, 118 Eng. Rep. 749 (Q. B. 1853). Arkansas v. Texas, 346 U. S. 368, 74 S. Ct. 109, 98 L. Ed. 80 (1953). The theory allowing the recovery of damages for unlawful interference with contractual relationships will also support the recovery of damages from one who, without a privilege to do so, induces or otherwise purposely causes a third person not to enter into or continue a business relation with another, at least where the means of inducement are tortious. See Restatement of Torts § 766, et seq., and Comments (1939); Calbom v. Knudtzon, 65 Wash. 2d 157, 396 P. 2d 148 (1964). This rule applies to situations in which a party induces or otherwise purposely causes another not to employ a third person as well as the situation in which the party induces or purposely causes an employer to terminate a relationship with an employee, even though the employment was at will. Restatement of Torts § 766, Com ment c. (1939). It has long been recognized in many American jurisdictions that one who, maliciously and without justifiable cause by means of false statements, threats or putting in fear or, perhaps, by means of malevolent advice or persuasion, induces an employer to discharge an employee is liable in an action of tort to the employee for the damages thereby sustained, regardless of whether the employment was for an unexpired fixed term or terminable at the will of the employer. 2 Cooley on Torts 182, § 226 (4th Ed. 1932). We find the following language of the Supreme Court of Missouri in Downey v. United Weatherproofing, Inc. 363 Mo. 852, 253 S. W. 2d 976 (1953), to be justified:
“It has now come to be the view of a majority of courts in this country that one who maliciously or without justifiable cause induces a person to breach his contract with another may be held responsible to the latter for the damages resulting from such breach. The term ‘maliciously’ in this connection alludes to malice in its technical legal sense, that is, the intentional doing of a harmful act without justification or excuse, and does not necessarily include actual malice, that is, malice in the sense of spite or ill will.
The right to perform a contract and to reap the profits therefrom, and the right to performance by the other party, are property rights entitling each party to the fulfillment of the contract by performance. And the intentional interference with the contractual relation without just cause so as to effect a breach of the contract is a wrong for which the wrongdoer may he held accountable in damages. The right of recovery for inducing a breach of a contract is but one instance of the protection which the law affords against unjustified interference in business relations. An existing contract may be a basis for greater protection, but some protection is appropriate against unjustified interference with reasonable expectancies of commercial relations even where an existing contract is lacking. The unjustifiable character of the alleged wrongdoer’s conduct and the harm caused thereby may be equally clear in both instances, but the differentiation between them relates to the scope of the privileges, or the kind and amount of interference that is justifiable in view of the differences in the facts.”
The language of the Washington court in Calbom v. Knudtzon, 65 Wash. 2d 157, 396 P. 2d 148 (1964), is also appropriate: See also Russell v. Croteau, 98 N. H. 68, 94 A. 2d 376 (1953); Dukes v. Brotherhood of Painters, etc., 191 Tenn. 495, 235 S. W. 2d 7, 26 A. L. R. 2d 1223 (1950) ; Chipley v. Atkinson, 23 Fla. 206, 1 So. 934 (1887).
“Intentional and unjustified third-party interference with valid contractual relations or business expectancies constitutes a tort, with its taproot embedded in early decisions of the courts of England, * * * (Citations omitted.)
From and with the English decisions, the tort has become engraved upon American law, generally unsullied in principle, although with some case by case distinctions. * # * (Citations omitted.)
# # *
The fundamental premise of the tort — that a person has a right to pursue his valid contractual and business expectancies unmolested by the wrongful and officious intermeddling of a third party — has been crystallized and defined in Eestatement, Torts § 766, * * *
# # *
The basic elements going into a prima facie establishment of the tort are (1) the existence of a valid contractual relationship or business expectancy; (2) knowledge of the relationship or expectancy on the part of the interferor; (3) intentional interference inducing or causing. a breach or termination of the relationship or expectancy; and (4) resultant damage to the party whose relationship or expectancy has been disrupted.”
Neither the fact that a contract is not for a fixed period nor the fact that there is no cause of action against the person who is influenced to terminate the contract, or to refuse to perform the agreement is a bar to an action against such an action. Chipley v. Atkinson, supra: Wolf v. Perry, 65 N. M. 457, 339, P. 2d 679 (1959); Annot., 84 A. L. R. 43, 60 (1933), 26 A. L. R. 2d 1224, 1258 (1952). The reason for this rule is aptly stated by Mr. Justice Hughes in Truax v. Raich, 239 U. S. 33, 36 S. Ct. 7, 60 L. Ed. 131, 1916D L. R. A. 545, 1917B Ann. Cas. 283 (1915), when he said:
“* * * It is said that the bill does not show an employment for a term, and that under an employment at will the complainant could be discharged at any time, for any reason or for no reason, the motive of the employer being immaterial. The conclusion, however, that is sought to be drawn, is too broad. The fact that the employment is at the will of the parties, respectively, does not make it one at the will of the others. The employee has manifest interest in the freedom of the employer to exercise his judgment without illegal interference or compulsion and, by the weight of authority, the unjustified interference of third persons is actionable although the employment is at will. * * *” (Citations omitted.)
We are not unaware of our decision in Purtle v. Wilcox, 239 Ark. 988, 395 S. W. 2d 758, but this decision is not in conflict with the principles above stated or the authorities above cited. There, we held that the allegations of the complaint were insufficient to state a cause of action for conspiracy to interfere with a business relationship terminable at will.
Even though one may not be liable as a direct actor in interfering with existing contracts of employment, he may incur liability as a participant in a conspiracy which results in one or more overt acts by others constituting actionable interference. A civil conspiracy is a combination of two or more persons to accomplish a purpose that is unlawful or oppressive or to accomplish some purpose, not in itself unlawful, oppressive or immoral, by unlawful, oppressive or immoral means, to the injury of another. Southwestern Publishing Company v. Ney, 227 Ark. 852, 302 S. W. 2d 538. Such a conspiracy is not actionable in and of itself, but recovery may be had for damages caused by acts committed pursuant to the conspiracy. Ragsdale v. Watson, 201 F. Supp. 495 (W. D. Ark. 1962); 16 Am. Jur. 2d 149, Conspiracy, §§ 43 & 44 (1964). A conspiracy may be shown by direct evidence of an actual agreement or understanding between conspirators, but it may also be shown by circumstantial evidence. Chapline v. State, 77 Ark. 444, 95 S. W. 477. It also may be inferred from actions of alleged conspirators, if it be shown that they pursued the same unlawful object, each doing a part, so that their acts, although apparently independent, are in fact connected and cooperative, indicating .a closeness of personal association and a concurrence of sentiment. Wilson v. Davis, 138 Ark. 111, 211 S. W. 152; Stewart v. Hedrick, 205 Ark. 1063, 172 S. W. 2d 416; Chapline v. State, supra. Any act done or declaration made by one of the conspirators in furtherance, aid or perpetration of the alleged conspiracy may be shown as evidence against his fellow conspirators. Wilson v. Davis, supra; Chapline v. State, supra.
.Defamatory statements and false statements have been recognized as improper actions giving rise to a cause of action for interference with contractual relations. Imperial Ice Co. v. Rossier, 18 Cal. 2d 33, 112 P. 2d 631 (1941); Dukes v. Brotherhood of Painters, etc., 191 Tenn. 495, 235 S. W. 2d 7, 26 A. L. R. 2d 1223 (1950); 86 C. J. S. 957, 959, Torts §§ 43, 44 (1954); Annot., 29 A. L. R. 532, 539 (1924). We have held that words, written and published, prejudicing one in his employment, are .actionable. Obaugh v. Finn, 4 Ark. 110, 37 Am. Dec. 773. The fact that the language alleged to have induced a discharge of an employee might be set forth in the complaint in such a manner as to form the basis of an action for libel or slander does not prevent the employee from maintaining an action for wrongful interference with his contract of employment. Blender v. Superior Court of Los Angeles County, 55 Cal. App. 2d 24, 130 P. 2d 179 (1942). See also Downey v. United Weatherproofing, Inc., 363 Mo. 852, 253 S. W. 2d 976 (1953).
A cause of action such as this has been recognized in this state when we held that it did not survive and was not assignable. Arkansas Life Insurance Co. v. American National Life Insurance Co., 110 Ark. 130, 161 S. W. 136. So, if, on the basis of the matter before the court on appellees’ motion for summary judgment, it can be said that any inference could reasonably be drawn that any of the appellees committed any act, not in legitimate furtherance of his own interests or otherwise privileged, that caused Mason’s employer to terminate his contract, or that two or more of them conspired to accomplish that result, and one or more of them committed an act in furtherance of that conspiracy, it was error to grant a summary judgment as to any such appellee.
Appellees state in their brief that the most that can be said is that they, acting in concert, sought to persuade appellant’s employer to discharge him. We do not agree with the appellees, however, that no cause of action can be based on this conduct. The motion upon which the judgment was granted was heard upon answer of appellant to appellees’ interrogatories, answers of appellee Dr. Dale Hudson to appellant’s interrogatories, the affidavit of appellee Funderburk, with exhibits thereto, a discovery deposition of Funderburk, a discovery deposition of appellant, and an affidavit of appellant. When these are viewed in the light most favorable to appellees a trier of the facts might find:
Fred Mason was elected to the Calico Rock School Board in 1966. In November, 1966, Funderburk, the State Manager of Field Enterprises began to receive communications derogatory to appellant from certain of the appellees. The first was a letter from Dean Hudson, dated November 7,1966. In that letter, Dean Hudson stated his assumption that it was against company policy for Field’s sales personnel to be members of local school boards, and transmitted a report that Mason had promised to see that the superintendent, principal and some of the teachers at Calico Rock were fired and had intimated that some of the school board members there had profited financially from a building program. He stated his belief in the truth of the reports, his opinion that Mason’s actions were highly unethical, his desire to buy materials so that Mason would receive no commission and his request to other school administrators not to buy from Mason or sales people under his control. Funderburk later received a letter from Neill Hudson, dated January 23, 1967. In this letter Neill Hudson expressed the opinion that Funderburk would put a stop to the confusion and ill feeling being caused by Mason, if he knew of it. He also stated that he had heard his brother Dean express a doubt that the new library at the Mountain Home School would have the World Book Encyclopedia as long as the situation existed. He also said “Fred Mason is strictly a politician in the lowest sense of the word, and as long as he is on the Board he will keep things in confusion.” When Funderburk did not answer, Neill Hudson wrote again on March 4, 1967, requesting a reply. Funderburk responded to the letter of Dean Hudson by calling at his office and discussing the controversy.
On July 21, 1967, Dean Hudson called Funderburk by telephone advising that Mason and others had filed a suit against the superintendent of schools at Calico Rock. This conversation lasted about an hour. Funderburk also received a letter dated July 20 from John Kron in which Kron suggested that Mason be called off or discharged, accusing Mason of maliciously injuring the school system and of saying to a business man that, if he thought things were fouled up, give him (Mason) another year. Connor, the high school principal, also wrote Funderburk on July 20. He accused Mason of harassing the superintendent and of trying to get the superintendent and the board to do things that were illegal.
The filing of the suit by Mason had been brought to Funderburk’s attention by his office manager before Dean Hudson’s telephone call. Funderburk also received newspaper clippings through the mail and coverage given the filing of this suit in newspapers in Izard county and Little Rock also came to his attention. On July 25, 1967, Funderburk asked Mason to resign from his position with the company, and when Mason refused to do so, gave him written notice of termination of the contract of employment. In his affidavit Funderburk stated that his decision to terminate Mason’s employment was prompted by a controversy in which Mason had become involved with some member of the Calico Rock School Board, of which he first became aware by the letter from Dean Hudson dated November 7, 1966.
It is admitted that the only acts taken in this matter by the Field Enterprises Educational Corporation were through the acts of Funderburk. In answer to an interrogatory requesting that he list with particularity each and every unlawful act L. J. Funderburk committed or in which he participated that resulted in damage, Mason stated that he “wrote derogatory letters; made malicious statements; conspired with the codefendants to deprive the plaintiff of his constitutional rights, including, but not limited to having the plaintiff fired for malicious reasons.” None of the matters before the court on the motion for summary judgment supports these general conclusions. Masoii stated that he had no trouble with his employer until he found out that Dean Hudson had written to Funderburk. He stated that Funderburk refused to give him copies of the letters written by John Kron and Neill Hudson. Funderburk did request Mason not to call on Mr. Dean Hudson because of' the controversy. Although there is some dispute as to whether or not Mason received the full 30-day notice required for termination of his contract, this is not an action against Funderburk and Field Enterprises for breach of contract. We agree with the circuit judge that there is no genuine issue as to any material fact as between Mason and Funderburk and that the summary judgment in favor of Field and Funderburk was properly granted.
To hold otherwise, would be to say that because a conspiracy is successful or contractual relations have been unlawfully interfered with, the person persuaded to act, who is also a victim, is equally liable with the conspirators or interferers.
We have searched the record carefully for any evidence of any acts by Dr. Dale Hudson from which it could be said that he had interfered with appellant’s employment or from which it might reasonably be inferred that he entered into a conspiracy with that purpose in view. Dr. Hudson stated that he read a copy of a letter by Dean Hudson after it was written and presumably mailed. He also admitted that Neill Hudson told him of having written to Funderburk some six weeks after the letter was written. There is no other indication that Dr. Hudson even had knowledge of the acts of the others in this regard. This evidence is not sufficient to support any cause of action against him. The summary judgment in his favor must be affirmed.
We cannot agree that there is no genuine issue as to any material fact as to the other appellees or that the evidence before the court on the motion discloses that the actions of Dean Hudson, Neill Hudson, John Kron and Jack Connor do not, as a matter of law, constitute either an unlawful interference, an actionable civil conspiracy or actionable defamation. We find some evidence of acts by these parties which might be found to be a tortious interference with appellant’s employment and contractual relations with his employer, or at least support reasonable inferences that they entered into a conspiracy with that purpose. In arriving at this conclusion, we take into consideration that statements in letters written by these appellees might well be found to be defamatory in nature and might even support a cause of action for defamation. In this connection we refer to definitions of the word politician as follows:
WEBSTER’S NEW INTERNATIONAL DICTIONARY, 2nd EDITION
“1. a political person; a schemer; an intriguer
3. * * * often, more or less disparagingly, one primarily interested in political offices or the profits from them as a source of private gain; # * *
SYN. Politician, Statesman. In modern usage politician commonly implies activity in party politics, especially with a suggestion of artifice or intrigue.”
WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY
“b: one primarily interested in political offices or profits derived from them as a source of private gain — often used disparagingly
THE RANDOM HOUSE DICTIONARY OF THE ENGLISH LANGUAGE
“2. a seeker or holder of public office, who is more concerned about winning favor or retaining power than about maintaining principles.
6. a person who seeks to gain power or advancement within an organization in ways that are generally disparaged.
SYN. 4. Politician, Statesman * * * these terms differ particularly in their connotations; politician is more often derogatory * * * politician suggests the schemes and devices of one who engages in (esp. small) polities for party ends or his own advantage: a dishonest politician”
Other language used in letters written by appellees might well be found or shown to be the basis for at least a jury question as to a right of recovery for defamation. See, e. g., Obaugh v. Finn, 4 Ark. 110, 37 Am. Dec. 773; West Texas Utilities Co. v. Wills, 164 S. W. 2d 405 (Tex. Civ. App. 1942); Smith v. Pure Oil Co., 278 Ky. 430, 128 S. W. 2d 931 (1939); Chambers v. National Battery Company, 34 F. Supp. 834 (W. D. Mo. 1940); Scheidler v. Brochstein, 73 S. W. 2d 907 (Tex. Civ. App. 1934). See also Leflar, Legal Liability for the Exercise of Free Speech, 10 Ark. L. Rev. 155, 170, 171 (1956).
Appellees argue that decisions in New York Times v. Sullivan, 376 U. S. 254, 84 S. Ct. 710, 11 L. Ed. 2d 686 (1964), and St. Amant v. Thompson, 390 U. S. 727, 88 S. Ct. 1323, 20 L. Ed. 2d 262 (1968), require a holding sustaining the summary judgment as to any action for damages for defamation, because the statements relied upon relate to appellant in his capacity as a public official. We cannot say that the statements refer to Mason’s official conduct, as a matter of law. Nor can we say that any issue as to malice of the appellees, their knowledge of the falsity of the statements or their recklessness in making them, are foreclosed by the motion for summary judgment and the supporting material.
Appellees’ reliance upon the cases of Raycroft v. Tayntor, 68 Vt. 219, 35 A. 53, 33 L. R. A. 223, 54 Am. St. R. 882 (1896), and Orr v. Home Mutual Ins. Co., 12 La. Ann. 255, 68 Am. Dec. 770 (1857), to support the summary judgment is misplaced. The results in both cases are reached solely upon the basis that the parties sought to be charged were engaged in the exercise of their own lawful rights. In the former case, the court recognized the cause of action for interference with an employment contract terminable at will against one interfering without having any lawful right in the matter. In the latter, it was held that where the actors had a lawful right in the matter, no liability arose because of any conspiracy among them. It cannot be said as a matter of law that either Kron, Connor, Dean or Neill Hudson was engaged in the exercise of any lawful right.
The judgment is affirmed as to Funderburk, Field Enterprises Educational Corporation, and Dale Hudson. It is reversed and the cause remanded as to Dean Hudson, Neill Hudson, Kron and Connor.
For general discussions of the tort of interference with existing or potential contractual, business or employment relationships, see 45 Am. Jur. 2d 277, Interference, §§ 1 — 65 (1967); 86 C. J. S. Torts 955, et seq., § 42 — 44 (1954) : 52 Am. Jur. 386, et seq., Torts § 42 — 44 (1944); Prosser on Torts, p. 950 et seq., §§ 123 & 124 (3rd Ed. 1964); Annot., 29 A. L. R. 532 (1924), 9 A. L. R. 2d 228 (1950).
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J. Fbed Jones, Justice.
This is an appeal by Winter C. Womack from an order of the Union County Chancery Court overruling his motion to dismiss a petition for separate maintenance filed by his wife, Doris Mae Womack. Mr. and Mrs. Womack were married on March 14, 1947, and lived together as husband and wife until June 23, 1969, when they separated because of an accumulation of difficulties stemming primarily from Mr. Womack’s interest, or at least interest which Mrs. Womack suspected he had, in a female fellow employee. Mrs. Womack told Mr. Womack to get out of their home and he did.
On August 7, 1969, Mrs. Womack filed a petition for separate maintenance, alleging that Mr. Womack had treated her with contempt, neglect and abuse systematically and habitually pursued to the extent that her condition in life had become intolerable. Mrs. Worn ack alleged the birth of three children, two of whom are still minors and in her custody. She prayed for permanent custody of the children; for a reasonable amount for the support of herself and the children; for permanent use of the homestead and automobile, and for attorney’s fees and court costs. Mr. Womack responded by general denial except as to the marraige, separation, and birth of the children. He recognized his obligation to support his wife and children and prayed that the court enter such order as under the circumstances may be proper.
The petition was set for hearing on August 25, 1969, and on that date both Mr. and Mrs. Womack testified as to his income, and their respective expenses and needs. No evidence was offered' at that hearing as to fault of the parties. This hearing was obviously in connection with temporary support, possession of property, and suit money. After the hearing on August 25, 1969, and before the chancellor acted on the petition; or at least before he entered an order in connection therewith, Mr. Womack moved back into the home, over Mrs. Womack’s objections, and on September 4, 1969, he filed a petition alleging facts and praying relief, as follows:
“Subsequent to the hearing of this matter on August 25, 1969, the defendant, Winter C. Womack, returned to the parties’ household where he is now living and is ready, willing and able to provide for his wife and children.
Therefore, this action has become moot and there is no basis for the entry of any order for support, maintenance or related matters.
WHEREFORE, premises considered, the defendant prays that the Court find that this matter is moot and an appropriate order be entered.”
It was at the hearing on this petition that evidence was first adduced by both parties as to the cause of the separation in the first place. It appears from the evidence that Mrs. Womack came into possession of letters addressed to Mr. Womack and signed by someone named “Sue.” It also appears that Mrs. Womack on one occasion observed Mr. Womack leaving a hotel with a woman by that name, and on another occasion she observed Mr. Womack and Sue having lunch together at a diner. Mr. Womack was employed in radio and he had been observed, by their older son, leaving the radio station late at night in the company of Sue, and Mrs. Womack had received anonymous letters and telephone calls pertaining to the same person. The evidence indicates that Mr. Womack first denied everything when confronted with Mrs. Womack’s accusations, but when his denials seemed only to aggravate the situation, he adopted the procedure of not denying anything. Mr. Womack contends that his relations with Sue have been of an innocent business nature and that his wife has no justification for separate maintenance.
The chancellor denied Mr. Womack’s petition by order dated September 12, 1969, and on the same date entered an order awarding Mrs. Womack temporary support in the amount of $600 per month, together with $100 per month support for the minor child at home. The chancellor also ordered Mr., Womack to pay tuition for the older son in the amount of $521 and to pay an allowance for him in the amount of $50 per month. The chancellor also ordered Mr. Womack to pay Mrs. Womack’s attorneys a fee of $750.
On his appeal to this court Mr. Womack relies on the following points for reversal:
“The order of the Chancellor in overruling the appellant’s petition to set aside separate maintenance was contrary to the evidence presented in this case and the law applicable thereto.
The order of temporary support and maintenance to appellee is exorbitant and should be reduced accordingly.
The attorneys’ fees awarded as a part of the court’s order of temporary support and maintenance is exorbitant and should be reduced to a reasonable sum.”
It is apparent from the face of the pleadings, as well as from the evidence adduced at the hearing on Mr. Womack’s petition, that this is not the type of case where Mr. Womack can moot Mrs. Womack’s alleged cause of action by simply returning to live with her against her will. Mrs. Womack did not tell Mr. Womack to leave because he was not supporting her. She alleged in her petition that he treated her “with contempt, neg^ct and abuse systematically and habitually pursued so as to make her condition in life as his wife intolerable.” Whether Mrs. Womack can sustain her allegations by actual proof remains to be seen when her petition is heard on its merits for a permanent decree of support, child custody, and property rights. The circumstances under which Mr. Womack left his wife and home are revealed by his own testimony, as follows:
“I walked in the bedroom as soon as I got there, which is a habit of mine, and pulled off my coat and there was a suitcase on the bed which my kids bad given me in 1965. My wife had followed me into the bedroom and I asked her what the suitcase was doing on the bed and she said — that is to pack your clothes in and get your blank out of here. I asked her why and she said — just get out of here. I tried to talk to her but she wouldn’t talk to me so I packed my clothes and went to the farm. On Wednesday I went back to the house to get my tie pins and I went into the bedroom and again she followed me in there and I said — Doris, why did you put my suitcase on the bed just when I thought we had everything worked out and she said — I didn’t put it there, your daughter did. I called my daughter the next day and asked her why she had put the suitcase on the bed and she said — I am tired of you making mother unhappy.”
The facts in this case present a situation wherein a wife packs her husband’s suitcase, tells him to get out and he does. The wife then files a petition for separate maintenance alleging that the husband has mistreated her to the extent that her condition as his wife has become intolerable. The husband then files a petition of his own saying that he has returned to the home and intends to stay there and support his wife and therefor his wife’s petition for separate maintenance has become moot and should be dismissed. We are simply unable to follow Mr. Womack’s reasoning on this point. It should be perfectly obvious to him that Mrs. Womack complains of something more than his being absent from the home and nonsupport. It is perfectly obvious that Mrs. Womack suspects that her husband has become interested in another woman to the extent that she, Mrs. Womack, does not want Mr. Womack back, living under the same roof with her.
Ark. Stat. Ann. § 34-1202 (Repl. 1962) provides as follows:
“Grounds for divorce. The chancery court shall have power to dissolve and set aside a marriage contract, not only from bed and board, but from the bonds of matrimony, for the following causes:
* # #
Fifth: Where either party shall be addicted to habitual drunkenness for the space of one (1) year or shall be guilty of such cruel and barbarous treatment as to endanger the life of the other, or shall offer such indignities to the person of the other as shall render his or her condition intolerable.”
Ark. Stat. Ann. § 34-1210 (Repl. 1962) provides as follows:
“During the pendency of an action for divorce or alimony, the court may allow the wife maintenance and a reasonable fee for her attorneys, and enforce the payment of the same by orders and executions and proceedings as in cases of contempt, and the court may allow additional attorney’s fees for the enforcement of payment of alimony, maintenance and support provided for in the decree.”
While an independent suit for separate maintenance may be brought and maintained under the broad powers of equity (Wood v. Wood, 54 Ark. 172, 15 S. W. 459), we are of the opinion that the petition filed by Mrs. Womack was essentially a petition for a divorce from bed and board, and the award of separate maintenance during the pendency of the action, as well as attorney’s fees, was within the sound discretion of the chancellor. Gladfelter v. Gladfelter, 205 Ark. 1019, 172 S. W. 2d 246.
In Gilliam v. Gilliam, 232 Ark. 765, 340 S. W. 2d 272, the wife filed suit for separate maintenance. The grounds alleged in the petition are not set out in the opinion, but Mrs. Gilliam testified as to physical abuse accorded her by Mr. Gilliam. In sustaining the award for separate maintenance, this court said:
“We have a long line of cases which recognize that under what is now § 34-1202, Ark. Stat. the Chancery Court has the power to decree separate maintenance to the wife.”
We do not attempt to distinguish between independent actions for alimony and those in connection with actions for divorce because that has already been done in Wood v. Wood, supra. In the case at bar allegations were made, proof was offered and the issues were tried and considered as a petition for divorce from bed and board. Tbe case lias not been heard by the chancellor on its merits, and it is recognized by all parties concerned that the order appealed from is temporary. Mr. Womack’s monthly income amounts to between $1,-100 and $1,100. Certainly a wife may not leave her husband or drive him away without cause and demand that he continue to support her. Neither may a husband force his wife to endure his conduct constituting grounds for divorce or forfeit her right to maintenance and support.
Mrs. Womack may not be entitled to separate maintenance at all when this matter is heard on its merits, but we are unable to say that the chancellor abused his discretion in the temporary awards made in this case. Mr. Womack also complains that the attorney’s fee of $750 awarded against him is exorbitant. The attorney’s fee awarded by the chancellor was in the nature of suit money and may have included fee for services in the future, as well as for services performed. Mr. Womack’s contention that the fee is exorbitant, as well as Mrs. Womack’s petition for an additional attorney’s fee on appeal to this court, may be considered and passed on by the chancellor on final hearing and disposition of this case.
Affirmed and remanded. | [
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J. Fred Jones, Justice.
This is an appeal by the defendants, Mr. and Mrs. Troxell, from a decree of the St. Francis Chancery Court setting aside the sale of real property from the Troxells to the original plaintiffs, Mr. and Mrs. Sandusky.
The Troxells owned a house and lot on the bank of Lake St. Francis and listed the property for sale with Mrs. Walker, a real estate agent. Mrs. Walker showed the property to Mr. and Mrs. Sandusky who- subsequently purchased it direct from the Troxells for $14,750. One thousand two hundred fifty dollars of the purchase price was paid in cash and the Sanduskys executed their note, secured by a mortgage on the property, for the balance of $13,500 to be paid over a 15 year period in monthly installments of $121.33 per month. The Sanduskys took title by warranty deed dated November 24, 1967, and moved into the house on that day or the next.
Lake St. Francis was formed by impounding the water in a small natural stream behind a dam across the stream. The inundated channel of the original stream was near the property involved, and a shelf or small plateau extended from the edge of the original stream to the higher lake bank upon which Troxells built the house they sold to the Sanduskys. The lakeshore was all of loose type soil and the water level of the lake fluctuated with weather conditions, sometimes rising well above the shelf leading out to the original stream bank in wet weather and leaving the shelf exposed to view in dry weather. A concrete walk was built from the house to the edge of the lake bank above the shelf and at this point the lakeshore dropped vertically from the end of the walk six or eight feet to the shelf, and then farther out toward the original stream channel, the shelf dropped more or less vertically to the bottom of the original channel. When the lake water was at its full height, the surface of the lake was only two or three feet lower than the end of the walk and the shelf on out to the original channel of the stream was inundated beneath the surface of the lake. When the lake water was at its lowest level in dry weather, the shelf, at and below the end of the walk, was exposed to veiw.
The Sanduskys were first shown the property by the agent, Mrs. Walker, in the latter part of October when the water level in the lake was low and the shelf about six or eight feet below the end of the walk was exposed. Several slabs of broken-up concrete had been placed on the shelf to prevent erosion. Soon after the Sanduskys took possession of the property and moved into the house, the level of the lake came up and during the succeeding months the action of the waves caused erosion of the lakeshore toward the house and cut the ■bank from under the end of the walk. On January 26, 1968, the Sanduskys filed their complaint for cancellation of their note and mortgage, as well as for damages, because of fraudulent misrepresentations as to the stabilization of the lakeshore line adjacent to the property. The case was tried on December 6, 1968, and the chancellor rendered a decree on March 10, 1969, finding that there was no fraud attending the transaction, but the petition was granted because of mutual mistake. The decree recites, in part, as follows:
“Soon after the purchase the buyer became aware of the erosion and instituted the action herein.
The proof was not sufficient to show fraudulent intent on the part of the Vendor; however, it is my opinion that fraudulent intent is not necessarily a prerequisite element in a question of rescission. In 228 Ark. 824, Blythe v. Coney, the erroneous assumption of the parties to a purchase contract that there was ,a sufficient supply of city water to a dwelling house to make it livable, was held to constitute a mutual mistake of a material fact giving the purchaser the right to rescind.
Herein, the buyer, when learning of an erosion problem before purchase, duly inquired, which w,as his responsibility, and was led to believe that the erosion problem was corrected by a material affirmative remedy; namely, the large concrete slabs which were shown to him.
Conceding that the Vendor had no fraudulent intent he offered the property for sale upon the basis that the erosion had been stopped; to say otherwise would be an admission that he sold the property knowing that it would wash and erode wherein he should have disclosed it to the buyer. To deny relief to the Plaintiffs thus requiring them, in addition to the purchase price, to expend a large amount for corrective measures in order to prevent further erosion and ultimate destruction of the property, would be unconscionable in my opinion.
IT IS THEREFORE CONSIDERED, ORDERED AND DECREED that the plaintiffs have and recover the sum of $1,250.00 from the defendants for the down payment on purchase price on the property described in the deed of trust; that the plaintiffs shall have restored to them the amounts paid into the registry of the court tptaling $727.98; that the deed of trust at Book 296, page 385, Records of St. Francis County as well as the note described therein shall be in all things cancelled and plaintiffs dis charged of any liability thereon; that the plaintiffs restore to the defendants the furnishings or other personal property which were in the dwelling and were a part of the sale; that the defendants ’ motion to file cross-complaint is denied; that the deed from defendants to the plaintiffs to the property described as recorded at Book 296, Page 385 of the Records of St. Francis County is cancelled; and that the plaintiffs have and recover from the defendants the sum of $63.70 costs herein expended.
All of the money payments mentioned herein shall bear interest at the rate of six percent (6%) per annum from the date of this order until paid.”
On appeal to this court the Troxells rely on the following points for reversal:
‘ ‘ The court erred in holding that under the evidence, the appellees were entitled to rescission of the sale and cancellation of the purchase money mortgage. The court erred, if rescission is granted, in failing to charge the rental value of the property against appellees.”
We are of the opinion that the decree of the chancellor is not clearly against the preponderance of the evidence as to the first point, but we agree with Mr. and Mrs. Troxell on their second point. There is considerable conflict in the evidence as to the extent of erosion, and as to the width of the shelf when concrete slabs were placed on it. There is no conflict in the evidence that there was considerable erosion of the lakeshore adjacent to the house and there is. no question that erosion presented a problem, both before and after the sale to Mr. and Mrs. Sandusky. The Sanduskys testified that the lakeshore or bank extended two or three feet beyond the end of the walk when they purchased the property and there is no testimony to the contrary. It is obvious from the photographs offered in evidence that the ground had eroded from under the end of the sidewalk. The evidence is clear that Mr. Troxell had placed ten or twelve large slabs of concrete on the ledge under the bank at the end of the walk as a protection against erosion, and the evidence is clear that all these slabs of concrete, except three, had disappeared into the deep channel of the original stream when the shelf they were on eroded from under them.
The Sanduskys testified that when agent Walker first showed them the property, there were eight or nine slabs of concrete visible on the ledge below the bank at the end of the sidewalk; that the slabs of concrete reached all the way to the end of the sidewalk and that they asked Mrs. Walker about whether the bank had been washing. Mr. Sandusky testified:
“A. I asked her this, if the bank had been washing and she said it had a little bit but they had put slabs in and it had stopped it.”
Mrs. Sandusky testified:
“A. Well, we went outside and my husband and Mrs. Walker were standing on the edge of the bank and I hadn’t gone up to the edge of the bank and I heard him say to her ‘does the bank wash’ and she said something like ‘a little bit but that is what the slabs are for’ and she said ‘that stopped it,’ so I walked over there and I looked down at the slabs and the water, you could just barely see the slabs, it was just almost on top of the slabs, you could not see what the slabs were laying on. You could just barely see the slabs.”
Mrs. Walker denied that there was any discussion about the bank eroding and denied that any questions were asked or answers made concerning it.
Mr. Troxell testified that two or three feet of the bank or lakeshore had eroded into the lake and that he placed the concrete slabs to prevent erosion. He testified as follows:
“Q. Now, Mr. Troxell has the — -I believe you testified that the high bank has come back two or three feet ... is that correct?
A. Yes, sir, I would say from 2 to 3 feet.
Q. You heard this testimony about the concrete blocks being down there?
A. Yes, sir.
Q. Was that testimony correct?
A. Yes, sir.
Q. Was the purpose of the concrete blocks to stop any bank erosion?
A. Yes, sir, to stop the slapping of the waves against the bank.
Q. And .as far as you were concerned it had stopped satisfactory?
A. I thought it had. It did a pretty good job. I didn’t go out there much in the last two years. ’ ’
Mr. Troxell testified that Mr. Sandusky asked him about the concrete slabs and that he told Mr. Sandusky he had put them there but did not know whether they would stop the erosion or not.
The evidence is clear that the lot sold to the Sanduskys was being eroded away by the waves on the lake and that Mr. Troxell put concrete slabs along the bank to prevent further erosion. Though Mrs. Walker denies that she advised the Sanduskys that the concrete slabs had stopped the erosion, or that she discussed the erosion problem with them at all, Mr. Troxell did discuss the problem with the Sanduskys and Mr. Troxell testified that he thought that the concrete slabs had stopped the erosion. The chancellor’s finding that Mr. and Mrs. Sandusky believed, as did Mr. Troxell, that the concrete slabs had, and would, serve the purpose for which they were placed by Troxell and that the property was sold by Troxells and purchased by Sanduskys on this assumption, is not against the preponderance of the evidence. Subsequent events proved that Mr. Troxell, as well as Mr. and Mrs. Sandusky, was mistaken in the belief that the concrete slabs had stopped, and would prevent, further erosion, because it is clear that they did not. As a matter of fact the shelf, or original stream bank, on which the slabs were placed, eroded out from under the slabs causing them to slide or drop into the main channel of the original stream, and the erosion of the lot from the lake toward the house continued as before.
We are of the opinion that the chancellor was correct in his interpretation of our holding in Blythe v. Coney, 228 Ark. 824, 310 S. W. 2d 485, as recited in the decree, supra. The chancellor viewed the property involved in the case at bar; he saw the witnesses and was in a position to observe their demeanor while testifying, and we are unable to say that the chancellor’s finding that there was a mutual mistake of a material fact is clearly against the preponderance of the evidence. We conclude, therefore, that the chancellor did not err in cancelling the notes and mortgage and setting aside the conveyance.
We are of the opinion, however, that the chancellor did err in not awarding a fair rental value of the property to Troxell for the period of time it was occupied by the Sanduskys. (See Dunham v. Phillips, 154 Ark. 87, 241 S. W. 361). The proprety was renting for $115 per month at the time Sanduskys moved in on the day or next day after the deed was executed on November 24, 1967, so we conclude that $115 per month was fair rental value. The case was tried in chancery court on December 6, 1968, and Mr. Troxell testified, without contradiction, that he first knew that the Sanduskys had vacated the premises two or three days before the trial. Consequently, Troxell is entitled to the rental value of the premises for 12 months at $115 per month, in the total amount of $1,380, for which he should take credit against the payments made by the Sanduskys to Troxell and into the registry of the court. With this exception the decree of the chancellor is affirmed.
Affirmed in part and reversed in part.
Harris, C. J., and Fogleman, J., dissent as to affirmance. | [
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George Rose Smith, Justice.
This is an application by the appellant, commonly called the Cotton Belt, for authority to close the railroad freight station at Fair Oaks, Arkansas. For many years the Cotton Belt and the Missouri Pacific Railroad Company jointly operated the Fair Oaks station, under an agreement made in 1912. In November, 1967, the Missouri Pacific elected to terminate the joint agreement, effective December 1, 1968. The Cotton Belt, foreseeing that the maintenance of the station would become solely its burden, gave notice of its intention to close the station. More than twenty-five electors of Fair Oaks filed a protest. After a hearing at which only one witness testified, the Cotton Belt’s request was denied by the Commerce Commission. This appeal is from a circuit court judgment sustaining the Commission’s decision.
Under the statute a station may be closed upon a showing either that it has been operated at a financial loss for the immediately preceding year or that the closing will result in operating economies consistent with public convenience and necessity. Ark. Stat. Ann. § 73-809 (Supp. 1967); Chicago, R. I. & P. R. R. v. Arkansas Commerce Comm’n, 243 Ark. 661, 420 S. W. 2d 917 (1967). Here the Cotton Belt made no effort to show that the Fair Oaks station had been operated at a loss during the preceding year. “Quite the contrary,” counsel state, “the Cotton Belt has been making a profit out of the station operation.”
Instead, the applicant assumed the burden of showing that operating economies consistent with the public convenience will attend the closing of the station. To that end the railway’s proof was directed largely toward showing that the shipping public will not be seriously inconvenienced if the station is shut down. 'The company proposes to serve Fair Oaks through its Brinkley station, thirty-three miles to the south, rather than through the present one-man facility at Fair Oaks. Some public inconvenience will admittedly result, becaiise shippers will have to communicate with the Brinkley office by mail and by telephone instead of transacting their business over the counter at Fair Oaks.
To offset that inconvenience the applicant attempted to show that its entire system is being computerized, with the result that freight cars, anywhere in the country can be located and assigned as needed within a matter of moments. That argument, however, is not wholly convincing; for there is nothing to indicate that the advantages of computerization would not be equally available to Fair Oaks shippers if their little station remained open.
We need not explore the niceties of public convenience, because that point was not the basis for the Commission’s rejection of the Cotton Belt request. Under the statute the carrier had to show that the closing of the station would result in operating economies offsetting’ any added public inconvenience. On that score the applicant made no showing whatever except to introduce an exhibit detailing the cost of maintaining the Fair Oaks agency, which amounted to $4,906 in 1967.
The Commission found that evidence to be insufficient to meet the applicant’s burden of proof. We quote the pertinent part of the Commission’s decision:
Mr. Puckett [the Cotton Belt’s sole witness] also identified Exhibit No. 2, being a statement of station expenses at Fair Oaks, Arkansas, for the year 1967 ... It is difficult to understand the purpose of this exhibit since the Applicant furnished no evidence whatever with reference to the income from the operation of the Fair Oaks station during the period of time reflected on said exhibit. In short, there is nothing before this Commission from which it can make any determination one way or the other as to operating economies. . . . There is absolutely nothing is this record to show that the Applicant has been operating at a financial loss according to standard accounting procedures for not less than one year preceding the filing of the application or that operating economies would result from the closing of the agency station. As we stated in our previous order, there is no other standard of comparison permitted. The Applicant has shown that it has not met the standard defined by the Act; as a consequence, the Commission finds [that the application must be denied.]
We are not prepared to say that the Commission was wrong in reaching the decision it did reach. There is some indication in the language we have quoted that the Commission took the view that no operating economies could possibly result from the closing of the Fair Oaks station if its operation had shown a profit. We do not regard that view of the matter as being necessarily and invariably correct, for it might be true that the closing of a barely profitable station could result in even greater profits to the system as a whole without any offsetting inconvenience to the public. That possibility, however, is not established by the record before us.
In any event, whether the closing of the Fair Oaks station will lead to operating economies must evidently depend upon a comparison of the cost of maintaining that station with the cost of supplying the same services through the Brinkley station. Obviously some expense will be involved in having the Brinkley office do the same work that is now being done at Fair Oaks. It may be that the members of the Commission, with their expertise and experience, could have balanced those comparative costs without direct proof. We, however, cannot do so. The record tells us absolutely nothing about the cost of performing the required services from the Brinkley station. Hence, for want of proof, we are unable to say that the Commission’s decision is against the clear weight of the evidence.
Affirmed. | [
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John A. Fogleman, Justice.
M. T. Lawrence appeals from judgments entered in an action on a promissory note brought by him against one W. A. Williams, who operated a Ford automobile dealership as Williams Ford Company. He asserts that there was error in permitting Benton State Bank to intervene and in denying his motion to strike and dismiss the intervention. He also contends that the court erred in discharging the garnishee, Ford Motor Credit Company. No other issue is raised on this appeal. The major premise of both points for reversal is that a “consent judgment” entered relative to a garnishment issued against the credit company in the original action constituted a final judgment against the garnishee and was conclusive as to the rights of Lawrence in funds later paid into court by the garnishee.
Since we do not agree with appellant a review of the history of the litigation is necessary. By a written instrument dated August 11, 1965, Benton State Bank was assigned all sums belonging or which might become payable, to Williams Ford Company, from a reserve account established by Ford Motor Credit Company. Lawrence filed suit against Williams on August 30,1965, and caused the issuance of a garnishment against Ford Motor Credit Company. The date of service of this writ does not appear, but an answer denying the existence of any indebtedness to Williams was verified on September 15, 1965, and filed two days later. Upon traverse of this answer by appellant, propounding additional interrogatories, the garnishee on October 14 filed a supplemental answer. In this answer the credit company admitted that it held $20,353.15 to the credit of Williams Ford Company representing dealer reserves and excise tax refunds, an estimated $4,800 in factory credits from Ford Motor Company and $1,997.12 in dealer funds, all as security for contingent liabilities of Williams Ford Company on paper hypothecated to garnishee with recourse, and a continuing guaranty of the debts of Williams Ford Company by Williams.
In the meantime, judgment against Williams in fav- or of Lawrence for $11,685.22 had been filed on October 5. On November 8, 1965, a court order labeled “judgment” was made and filed. By its terms, the garnishee was ordered to hold the funds described in its supplemental answer, apply them pursuant to agreements with Williams Ford Company, and, when all its claims there-against were liquidated to pay any excess first to Lawrence, and then to Williams, when and if the claim of Lawrence was satisfied. On April 16, 1966, appellant propounded additional interrogatories to the garnishee asking an accounting for the funds it had held. The record does not reflect any answer by the credit company.
No other action was taken until March 19, 1969, when Benton State Bank filed its complaint in intervention, asserting ownership of any balance of the funds in question by reason of the assignment previously mentioned. Its motion for intervention was granted the following day. On May 21, 1969, Lawrence filed a motion to dismiss and strike the intervention. He asserted that the intervention was untimely because filed 3% years after judgment had been entered against the garnishee.
The garnishee then paid $4,078.70 into the registry of the court and filed its motion for discharge on June 4, 1969, which was granted by the court on the same day. On June 19 the court denied appellant’s motion to dismiss and strike the intervention. On August 13, 1969, both parties moved for summary judgment. The motion of Benton State Bank was granted.
We do not agree with appellant in his assumption that the “judgment” entered on November 8, 1965, constituted a final judgment against the garnishee. Arkansas Statutes Annotated § 31-509 (Repl. 1962) provides for judgment against a garnishee after answer and determination of issues made by the pleadings “for the amount due from the garnishee to the defendant in the original judgment or so much thereof as will be sufficient to satisfy the plaintiff’s judgment, with costs.” It is clear that the judgment must specify the amount to be paid. The “judgment” entered was not a “final judement.” In Thomas v. McElroy, 243 Ark. 465, 420 S. W. 2d 530, we said that a judgment must be tested by substance and not form. We held that a judgment for money must be a final determination of the rights of the parties in an action, must specify the amount the defendant is required to pay, and must be capable of enforcement by execution or other appropriate means. Here, there was never a time, prior to the intervention, when the court could have specified the amount due, or when an execution or other such writ could have been issued.
Arkansas Statutes Annotated § 31-157 (Repl. 1962) permits any person disputing the validity of an attachment, or stating a claim to, interest in, or lien upon attached property to present his complaint at any time before the payment to the plaintiff of the proceeds of an attached debt. There can be no doubt about the applicability of this statute to this case. A garnishment is only a species of attachment. Allen v. Stracener, 214 Ark. 688, 217 S. W. 2d 620. Service of a writ of garnishment upon a debtor is an attachment of the debt or a form of levy thereupon. Moore v. Kelley, 47 Ark. 219, 1 S. W. 97. Once the intervention was filed, as permitted by the statute, the credit company could have protected itself only by paying the fund into court.
What we have heretofore said also disposes of appellant’s argument that the intervention was not permissible because the bank could have sought a remedy against the credit company in an independent action. The question is not whether it might have done so. It is whether the intervention was erroneously permitted.
Arkansas Statutes Annotated § 31-509 (Repl. 1962) provides that if issues made by a garnisher’s pleading controverting the garnishee’s answer are found for the garnishee he shall be discharged without further proceedings. Arkansas Statutes Annotated § 31-511 (Repl. 1962) provides that if the garnishee shall surrender the entire amount due upon the return day, he shall be discharged with costs. Until Williams Ford Company’s ultimate liability to Ford Motor Credit Company was finally determined, the garnishee was under no obligation to pay over any funds. The clear implication of the statutes is that when the amount due from the garnishee is determined and surrendered, he should be discharged.
We cannot say that the garnishee was not entitled to be discharged upon paying the fund into court considering the circumstances existing here and the language of the court order of November 8, 1965. An order made by the court upon a garnishee to pay money is not a judgment against him and does not determine his liability. It only confers upon the attaching creditor of the garnishee’s creditor the same right to collect what the garnishee may owe the attached creditor that the latter had against the garnishee. Penyan v. Berry, 52 Ark. 130, 12 S. W. 241. The “judgment” of November 8, 1965, cannot be anything more than an order to the garnishee to pay over an indeterminate amount of money.
In the judgment of August 13, there was a finding by the circuit court that notice of the assignment was given the garnishee on September 17, 1965. As to the points raised, this finding is of no significance because we find absolutely nothing in the record to support it, because the bank was not a party to the action at that time, and because no funds had been paid in or judgment rendered against the garnishee.
The judgment is affirmed.
While it appears that this company was a corporation, allegations by appellant that the corporation was the alter ego of Williams and that assets of the corporation should be applied to his debts do not seem to be controverted.
This order recited that both Williams and Williams Ford Company authorized the action there taken by letter attached to the supplemental answer. The letter does not appear in the record.
In view of the disposition made of this case, we express no opinion whether these funds, under the circumstances, were subject to garnishment.
At one time it was held that a personal judgment could not be entered against a garnishee in the original proceeding. See Nelson v. Blanks, 67 Ark. 347, 56 S. W. 867. | [
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Frank Holt, Justice.
Appellants, The Rendezvous Club and Bill Hammer, Manager, appeal from a circuit court order holding Hammer in contempt and padlocking the premises of The Rendezvous Club for a period of one year.
On May 3, 1967, the appellee, by the prosecuting attorney, filed a verified petition and complaint against appellants in the circuit court alleging that appellant Hammer was operating The Rendezvous Club where various violations of the law were being committed. The appellee sought a temporary and a permanent injunction to abate the alleged nuisance. A temporary order was granted by the court. The appellants filed an answer denying the allegations and asked that the temporary order be vacated. On June 15, 1967, after hearing the evidence, the court found that The Rendezvous Club was a public nuisance since it was being operated in violation of Ark. Stat. Ann. § 34-101 (Repl. 1962) in that violations of the law were being permitted on the premises. The court then revoked the club’s charter as a non-profit corporation and permanently enjoined appellant Hammer from operating The Rendezvous Club in any manner whatsoever contrary to the laws of this state. The court, however, permitted the appellant to reopen the premises to operate in a lawful manner. There was no appeal from this order. Since then The Rendezvous Club has been operated as a public place.
On January 28, 1969, the prosecuting attorney filed a motion for an order to require appellant Hammer to show cause why he should not be held in contempt of court and the premises padlocked for one year for operating The Rendezvous Club in violation of the court’s permanent injunction and in violation of § 34-101 in that he suffered and permitted violations of the law by permitting his customers to consume .alcoholic beverages in a public place, by permitting minors to consume and be in possession of .alcoholic beverages, and by contributing to the delinquency of minors. The appellants duly filed a response resisting the motion of the prosecuting attorney. On February 6, 1969, the court conducted a hearing and found that appellant Hammer had operated The Rendezvous Club in violation of the permanent injunction in that he and his employees had permitted possession and consumption of alcoholic beverages on the premises in violation of the law on the date of January 24, 1969. The court held him in contempt for violation of the court’s previous order, fined him $50 and costs, sentenced him to 30 days in jail and padlocked the premises for a period of one year.
Appellants contend for reversal that the evidence is insufficient to support the findings and judgment of the court. We cannot agree with the appellants. There was evidence that about 10 p.m. on the night of January 24, 1969, law enforcement officials conducted a raid on appellant Hammer’s place of business, The Rendezvous Club. Upon entering the door, a sign was observed which read: “Everybody bring their own bottle.” The establishment was a public place, with no alcoholic beverage license, which had a cover charge of $1.25 for a man and 75c for a woman. Inside the premises the officers observed approximately 350 customers. Appellant Hammer was behind the counter furnishing waitresses with soft drinks and ice. The premises were being used primarily for dancing. The officers observed customers who had in their possession intoxicating liquor and were publicly drinking. Approximately 16 persons were arrested. It appears that four of those arrested and paying fines for public drunkenness or possessing intoxicants ranged in age from 18 to 20. There was evidence that appellant Hammer and those working for him acquiesced in the possession of intoxicating liquor and persons drinking in this public place of business.
We agree with the trial court’s statement that: “# * * j think he [appellant Hammer] has violated my order on two grounds.” One of these violations was permitting individuals under 21 years of age to possess intoxicating liquor on the premises. It is unlawful for any person under 21 years of age to have in possession any intoxicating liquor, wine or beer. Section 48-903.1 (Supp. 1967). Another violation which appellant permitted to occur was the drinking of intoxicating beverages on these unlicensed public premises, as well as public drunkenness. Section 48-943 (Repl. 1964); Berry y. City of Springdale, 238 Ark. 328, 381 S. W. 2d 745 (1964).
We think the evidence of public drinking and possession of intoxicating liquor constitutes ample evidence of violations of the court’s previous order that the appellant must not suffer or permit a violation of the law in any manner upon the club’s premises. Section 34-101, et seq.; Vandergriff v. State, 239 Ark. 1119, 396 S. W. 2d 818 (1965).
Appellants rely primarily upon Click v. State, 206 Ark. 648, 176 S. W. 2d 920 (1944) and Alston v. State, 216 Ark. 604, 226 S. W. 2d 988 (1950). We do' not consider these cases applicable to the case at bar since they do not pertain to the violation of a permanent injunction. We consider this case as being controlled by our decision in Vandergriff v. State, supra, which involved a violation of the court’s permanent injunction.
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Carleton Harris, Chief Justice.
This appeal relates to the validity of a contingent fee contract in a domestic relations case. On November 14, 1967, George W. Mc-Dearmon, a resident of Shoffner, Jackson County, Arkansas, instituted suit for absolute divorce in the Jackson County Chancery Court against his wife, Cleo Watson McDearmon, appellant herein, a resident of Louisiana, alleging general indignities pursued to the extent as to render his condition in life intolerable. Mrs. McDearmon had already instituted a suit in Louisiana for legal separation through her attorney, Amos K. Gordon, Jr., who practiced law in East Baton Rouge Parish, Louisiana. Shortly after the filing of Mr. McDearmon’s complaint, Mrs. McDearmon retained the services of an Arkansas law firm, and this firm, on November 29, 1967, filed an answer, denying the allegations of the husband’s complaint, and asserting desertion on the part of Mr. McDearmon, as well as physical abuse. It was further alleged that, if any mistreatment toward the plaintiff existed on her part, same had been condoned and forgiven by Mr. McDearmon, and they had since cohabited, and she had been a good wife. It was further asserted that considerable property was owned by the parties, having been acquired while they lived together as husband and wife in the state of Louisiana, a state with a community property law; that the property consisted of both personalty and realty. She prayed that she he given one-half of the personal property, and one-half of the realty, and the pleading specifically mentioned a number of items of personal property presently located in the state of Arkansas. Subsequently, after Mr. Mc-Dearmon amended his complaint, appellant amended her answer, and filed a counterclaim, asking that she he awarded an absolute divorce.
Around the middle of April, 1968, Mrs. McDearmon dismissed the Arkansas law firm, and told Mr. Gordon that a Newport attorney, Claude M. Erwin, had been recommended to her, and Mr. Gordon called Erwin, and retained him. On April 22, Mrs. McDearmon, by letter, dismissed Mr. Gordon as her attorney, “because everything had been dragging and nothing had been accomplished.” According to Gordon, the appellant, on May 13, 1968, requested him to resume his representation. The lawyer testified that he had previously been dismissed four times without any pay, and he, therefore, agreed to resume as her attorney only if she met two conditions. From the record:
“I told Mrs. McDearmon that I would not consider resuming representation of her unless she gave me an unrestricted power of attorney to come up here and negotiate, if I could, negotiate a settlement of the property; also, not just to negotiate the settlement but also to sign it, because I had had too much experience with her vacillation.
“* * * the other condition which she met was that she give me a contract of employment and, in that contract, the bottom limit which I could go down to in negotiating was set forth.”
Mrs. McDearmon agreed to these conditions, and it is this contract of employment that occasions this litigation. The provisions of the employment agreement, aside from formal recitations, are as follows:
“That the parties hereto, being client and attorney at law; in a joint effort to conclude that matter known as ‘George W. McDearmon versus Cleo Watson MeDearmonNumber 5539 in the Chancery Court of Jackson County, Arkansas, do hereby agree as follows:
1) Mrs. Cleo Watson McDearmon shall give to Amos K. Gordon, Jr., a power of attorney irrevocable for thirty days from date thereof, to enter into a property settlement with her husband, George W. McDearmon on such terms and conditions as said agent may, in his sole discretion, deem necessary, desirable and/or proper or convenient, provided however, that the min imum amount under said property settlement which shall he received hy Mrs. Cleo Watson McDearmon shall be the sum of Four Hundred Eighty Thousand ($480,-000.00) Dollars.
2) The parties hereto do hereby agree that the negotiations, the manner in which same are conducted and the persons conducting said negotiations, as well as those present at the negotiations, whether or not taking part in same, shall be determined solely by Amos K. Gordon, Jr., and his judgment as to such procedures and participation in & attendance at said negotiations shall be final, these conditions being part of the consideration for which said Amos K. Gordon, Jr. agrees to continue to represent Mrs. Cleo Watson McDearmon in this matter.
3) It is further agreed that should a settlement as contemplated be executed, Mrs. Cleo Watson McDearmon will pay to Amos K. Gordon, Jr., a fee of Forty Five Thousand & no/100 ($45,000) Dollars, * * *.”
The agreement further sets out that Gordon shall negotiate and pay a compromise fee to two attorneys at Baton Rouge, Louisiana, who formerly represented Mrs. McDearmon. It is then provided:
“In the event that all efforts of Amos K. Gordon, Jr., attorney, to secure .a property settlement should fail, said attorney shall be compensated at the rate of Thirty ($30.00) Dollars per hour for the time spent in behalf of Mrs. Cleo Watson McDearmon from October 30, 1967, to the date of termination of his representation, this compensation to be in addition to all expenses incurred in pursuit of the affairs of Mrs. Cleo Watson McDearmon.”
The instrument was signed by Gordon and Mrs. Mc-Dearmon on May 13, 1968, at Baton Rouge, Louisiana.
Mr. Gordon testified that, pursuant to this agree ment, he arranged a settlement conference with counsel for Mr. McDearmon, and, on June 3, 1968, together with Mr. Erwin, went to the office of McDearmon’s attorney, and negotiated a tentative settlement, subject to the approval of McDearmon, this settlement providing that Mrs. McDearmon would receive property of the value of $481,976.50. The lawyer said he tried to discuss this settlement with appellant, but she refused to sign it. Although empowered (under the agreement and power of attorney executed by Mrs. McDearmon) to enter into the settlement himself, this could not be done because it developed that Mr. McDearmon had stipulated that appellant herself must sign it. According to Gordbn, when refusing to approve the settlement, appellant told him that she had also dismissed Erwin as her attorney.
About June 17, 1968, Gordon was discharged by Mrs. McDearmon, and he received a telephone call from Mr. McDearmon’s counsel, informing him that appellant had come to his (McDearmon’s attorney) office without representation, her husband being with her, and the two had agreed upon a settlement.
It appears that the settlement obtained by appellant was very similar to that which Mr. Gordon testified he presented to Mrs. McDearmon. Thereafter, Mr. Er win filed a petition setting out the work done on behalf of appellant and the fact that Mrs. McDearmon was unhappy with his services; he asked that an order be entered relieving Mm from further responsibilities, alleged that the reasonable value of the services rendered by him was $1,000.00, and asserted that he was entitled to a lien on the properties wMch were the subject matter of the compromise settlement. Gordon also filed a similar petition, based upon the contract heretofore quoted, and this appellee likewise gave notice that he was claiming a lien on the property. On June 21, both McDearmon and Mrs. McDearmon executed a waiver and entry of appearance, and on June 26, 1968, a decree was entered awarding appellant an absolute divorce from Mr. McDearmon, and further approving the property settlement and separation agreement entered into between the parties on June 21, 1968. The court further found that appellee Gordon fully discharged his duties as counsel for Mrs. McDearmon, and was entitled to the $45,000.00 she contracted to pay Mm, and that Gordon should have a lien upon any properties received by her in a settlement and approved by the decree of the court. It was further found that Mrs. McDearmon’s original Arkansas attorneys were entitled to a $15,000.00 fee (of wMch $500.00 had already been paid), and that the balance of $14,500.00 was due these attorneys out of the $45,000.00 sum ; further, that Mr. Erwin had been retained by Gordon, and the former should be paid from the fee awarded this Louisiana attorney. From the decree so entered, comes this appeal. Only one point is relied upon, vis., that the court erred in enforcing the contingent fee agreement. There are two questions to be determined in tbis litigation, and we proceed to a discussion of the first, which is ‘ ‘ The law of which state, Arkansas or Louisiana, is controlling?” As pointed out in 50 A. L. E. 2d 258:
“The general adopted view is that unless a contrary intention is expressed in the contract, the law of the place of performance of a contract governs the question whether it has been breached or otherwise terminated or repudiated.”
Arkansas very definitely has taken this view. In Sizer v. Midland Valley Railroad Company, 141 Ark. 369, 217 S. W. 6, this court said:
“Finally, it is insisted that the contract was made without the State and for that reason is not enforceable. But little need be said with regard to this phase of the case. The contract contemplated that it was to be performed in Arkansas, and the suit was in fact brought here. Therefore the law of this contract was in Arkansas. Midland Valley Rd. Co. v. Moran Bolt & Nut Manufacturing Co., 80 Ark. 399. In that case the court held that a contract is to be construed with reference to the law of the place of performance and not of the law of the place where it was originated.”
See also Crown, Central Petroleum Corporation v. Speer, Chancellor, 206 Ark. 216, 174 S. W. 2d 547, where we said:
“The general rule is that such a contract is to be construed with reference to the law of the place of performance, ‘and not of the law of the place where it was originated.’ ”
In the case before us, it is quite obvious that, though the agreement was executed in Louisiana, it was to be performed in Arkansas. Mr. McDearmon was in Arkansas and, except for the homeplace, all assets were in Arkansas. Mainly, the divorce case was to be heard in Arkansas, and the contract itself between Gordon and appellant recites:
“That the parties hereto, being client and attorney at law, in a joint effort to conclude that matter known as ‘George W. McDearmon versus Cleo Watson McDearmon, Number 5539 in the Chancery Court of Jackson County, Arkansas, do hereby agree as follows: * *
We think it is clear that Arkansas law should apply. This brings us to the second question, which is the principal or main question presented for determination. Appellant asserts that the contract between Mrs. Mc-Dearmon and Mr. Gordon is void as against public policy, and therefore unenforceable. The rule is set forth in 30 A. L. R. 188, as follows:
“It is the policy of the law when differences arise between parties to a marriage that no obstacle should be placed in the way of their reconciliation. Consequently, it is not fitting that it should be for the interest of an attorney that there should be no reconciliation. If compensation for an attorney’s services is contingent on the securing of a divorce, or if the amount to be paid for his services is proportioned to the amount of alimony to be received, the attorney is in such a position that his interest would be against a reconciliation of the parties.
“A contract for the payment of a fee to an attorney, contingent upon his procuring a divorce for his client or contingent in amount upon the amount of alimony to be obtained, is void as against public policy.”
A number of states are listed, including Arkansas, as following the rule, though there have been slight modifications in some of these states.
In the Florida case of Sobieski v. Maresco (District Court of Appeal of Florida, Third District), 143 S. 2d 62 (1962), the Chancellor held a contingent fee contract between client and attorney “illegal, void, and unenforceable as against public policy.” The appellate court, on reviewing the trial court decision, said:
“The principal issue presented by this appeal is the validity of a contingent fee agreement in a matrimonial action. Neither counsel, in their excellent briefs, nor this court, by independent research, have discovered any Florida decision directly on this point. It does appear, however, that a number of other jurisdictions have passed on the validity of such an agreement and have almost universally declared such employment contracts void. The chancellor’s decree, here under review, is in accord with the majority opinion that attorneys’ contingent fee employment contracts in matrimonial actions are against public policy and therefore unenforceable. See: McCarthy v. Santangelo (1951), 137 Conn. 410, 78 A. 2d 240; In re Fisher (1958), 15 Ill. 2d 139, 153 N. E. 2d 832; Dannenberg v. Dannenberg (1940) 151 Kan. 600, 100 P. 2d 667; Baskerville v. Baskerville (1956) 246 Minn. 496, 75 N. W. 2d 762; State ex rel. Nebraska State Bar Ass’n v. Jensen (1960), 171 Neb. 1, 105 N. W. 2d 459; In re Smith (1953), 42 Wash. 2d 188, 254 P. 2d 464, 5 Am. Jur., Attorneys at Law, § 166; 30 A. L. it. 189. There appears to be no good reason why Florida should not join those states which hold such agreements void and unenforceable.”
The state of California, many years ago (1900), held that such a contract was void and unenforceable as against public policy. Newman v. Freitas, 61 P. 907, Theison v. Keough, 1 P. 2d 1015 (1931). In Krieger et al v. Bulpitt, 251 P. 2d 673 (1953), a rather unusual case, the defendant husband in a divorce action entered into an agreement with attorneys under a contingent arrangement that they should receive 10% of the appraised value of all property secured for him (but in no case should the fee be less than $5,000.00, nor more than $7,500.00). The court allowed the $5,000.00 minimum, distinguishing the case from Newman and Theison, the differences being pointed out in the subsequent case of Coons v. Kary, 69 California Reporter 712. There, the court explained that:
“* * * in Krieger v. Bulpitt, 40 Cal. 2d 97, 251 P. 2d 273, a judgment based on a contingent fee contract between attorneys and an impoverished husband to defend a divorce suit was upheld, against the attack of a third-party creditor of the husband. But the Krieger case differed in important respects from the present case: the husband, unlike the wife here, did not contest the legality of the contract; the contract was to defend, not to prosecute, a divorce action; and the amount of the judgment on the contract covered only the minimum retainer and did not include any contingent recovery. Thus, the ruling in the case only determined that the particular contract was not void on its face, that the judgment on thp contract could not he collaterally attacked by a third party (40 Cal. 2d at 101, 251 P. 2d at 673), and perhaps that the minimum retainer under the contract was separable from the contingency aspect of the contract and independently enforceable.”
The court reaffirmed its earlier holdings, stating:
“Although the broad statements against contingent fee contracts in matrimonial causes in Newman v. Freitas, 129 Cal. 283, 61 P. 907, 50 L. R. A. 548, have been somewhat qualified, the policy they express is still valid, a policy explained in Theison v. Keough, supra, as designed to discourage * * the activities of an interloper who might, by reason of a separate and individual interest in the proceeds of the community, be tempted to widen the breach between the spouses. * * *’
“Moreover, the usual justification for contingent fee contracts, that they assure legal representation which otherwise would not be available, does not apply to divorce causes, where the party without funds can be awarded attorney’s fees by the court.”
California’s public policy relative to divorce was stated as follows:
“A financial interest in furthering divorce is directly contrary to California’s public policy of preserving marriages, a policy reflected in the waiting period which follows the interlocutory decree of divorce and which is designed to provide a last opportunity for spouses to become reconciled before the entry of the final decree.”
Unquestionably, the practice of entering into contingent fees in divorce cases is condemned in nearly all jurisdictions. In reciting the authorities herein, it has been our purpose to show the extent to which such contracts have been disapproved nationwide. As far back as 1911, this court adopted the same view. In McConnell v. McConnell, 98 Ark. 194, 136 S. W. 931, quoting from the Michigan case of Jordan v. Westerman, supra, we said:
‘ ‘ Public policy is interested in maintaining the family relation, the interests of society requiring that such relation be not lightly severed,, and that families shall not be broken up for inadequate causes or from unworthy motives; and where differences have arisen which threaten disruption, public welfare and the good of society demand a reconciliation, if practicable or possible; and, for these reasons, a contract which tends to prevent such a reconciliation is void.’*
Appellees recognize our view, but assert that the fee of appellees did not depend upon the success of the litigation, and accordingly, the contract was not contingent. From the brief:
“Appellee was to have been paid regardless of whether or not appellant obtained her divorce, settled her community property interest or reconciled with the husband. The contract included fees not only for work that was to be performed in the future, but also for work that had already been performed by appellee and for which he had not been paid.”
It is then argued that the contract was not contingent because it is susceptible of division, i. e., severable. From the. brief:
“In the present case, the contract was, as shown above, not contingent, was in no manner based upon a successful outcome of the litigation and gave appellee absolutely no interest in the suit and no basis for or interest in preventing a reconciliation.”
',We cannot agree with appellees. In the first place, it is evident that the contract was entered into as a matter of concluding the divorce suit filed by Mr. McDearmon; the opening paragraph, heretofore quoted, makes that fact clear. It will also be remembered that Mrs. McDearmon sought an absolute divorce in her counterclaim, and as heretofore mentioned, was awarded the divorce. To say that this contract was not entered into in contemplation of divorce, would be to place form before substance. It is true that the contract did not state that the fee for appellees was dependent upon the successful outcome of the litigation, but it could not be more clearly set out that the $45,000.00 fee sought by appellees was entirely dependent upon Mr. Gordon’s obtaining a settlement in the minimum amount of $480,-000.00. Any other holding would be violative of the plain meaning of the English language. It may be that the particular attorney here involved would not be influenced by the provision under discussion, but the policy of the law is to prevent an attorney from having a basis for discouraging a reconciliation.
As for an interest, appellees certainly have an interest in the suit; they have a financial interest in the property received hy this appellee, for they sought a lien, and the court declared a lien on such property.
We do not quite understand the argument that the contract is severable, therefore not contingent, and accordingly valid. This argument has reference to the fact that, while Provisions 1). and the first part of 3) relate to the fee of $45,000.00 based on the $480,000.00 settlement, the final paragraph in Provision 3) sets out that if the attorney fails to secure the minimum $480,000.00 property settlement, he shall be compensated at the rate of $30.00 per hour for the time spent in behalf of Mrs. McDearmon from October 30, 1967, to the date of termination of his representation. Our perplexity as to the severability argument is based on the fact that we are not asked to uphold the $30.00 per hour compensation; rather, the entire contention in appellees’ brief is that Mr. Gordon carried out the provisions of obtaining the $480,000.00 settlement, and is thus entitled to the $45,-000.00. Therefore, it makes little difference whether the contract is severable, and the per hour provision valid, for we are being urged to uphold a portion of the contract which, under Arkansas case law, is absolutely invalid. We express no opinion on the validity of the portion of Provision 3), relating to compensation at the rate of $30.00 per hour, since it is not really involved, for this clause was only effective if Mr. Gordon did not perform fully under the agreement, and he insists that he did perform, never once arguing that he is entitled to the $30.00 per hour.
We think it only fair to say that the record discloses that all attorneys, whose interests are here involved, have spent considerable time and effort in behalf of their client, the transcript disclosing no valid reason for their discharge, and nothing herein contained is intended to be construed to the effect that we are passing upon the proper amount of the fee to be award ed. That question is not before us in this litigation, and can only properly be passed upon in the first instance by the Chancellor.
For the reasons heretofore set out, that portion of the decree, awarding attorneys’ fees to appellant’s lawyers, is reversed, and the cause remanded to the Jackson County Chancery Court, with instructions that the court conduct an evidentiary hearing for the purpose of determining a fair and just fee on a quantum meruit basis.
It is so ordered.
Fogleman and Byrd, JJ., dissent.
McDearmon’s attorney testified that he informed the court of the requested appointment from Mr. and Mrs. McDearmon, and that the two came to his office, stating that they- had reached an agreement, and he was furnished a hand-written copy of the notes, went over their agreement with them, item by item, and Mrs. Mc-Dearmon was very carefully questioned about the fact that she did not want representation.
In appellee’s brief, it is asserted that the two compromise agreements were substantially identical, appellees stating:
“* * * The only difference being that under the Gordon compromise, appellant would have received one-half of all of the cash, i. e., approximately $46,324.33 while under the McDearmon compromise, she received only $32,000.00.”
This was disputed by both Mr. and Mrs. McDearmon, Mrs. McDearmon stating that the settlement arranged by Gordon was about $43,000.00 less than the minimum of $480,000.00, and Mr. Mc-Dearmon testifying that, under the proposed settlement Mr. Gordon had obtained, Mrs. McDearmon would have received $436,213.88, which was $44,000.00 less than the minimum demand.
The decree was actually signed on August 20, and was entered nunc pro tunc as of June 26.
After the appeal was lodged in this court, the Arkansas attorneys filed a motion asking that their names be removed from further proceedings in the case, and their designation as appellees stricken; this court entered an order granting the motion, and gave leave to the attorneys to release the record judgment in the trial court.
The other two rules relating to what law governs are mentioned on Pages 259 and 260, one being the law of the place where the contract was entered into, and the other being the “center of gravity” theory. Relative to the first, we find: “Whether there is a breach of contract depends frequently upon a construction of the contract. In this situation the courts have sometimes applied the rule that the construction of a contract is governed by the law of the place where the contract was made.” As to the second, it is stated: “Under a theory of comparatively recent origin, called the ‘center of gravity’ or the ‘grouping of contacts’ theory of the conflict of laws, the courts, instead of regarding as conclusive the parties’ intention or the place of contracting or performance of a contract, lay emphasis rather upon the law of the place ‘which has the most significant contacts with the matter in dispute.’ ”
Appellees make no argument as to which state’s law is controlling, contending only that the contract entered into was valid under both Arkansas and Louisiana law.
In some of the cases cited, the word, “alimony,” is also used to include a division of the property owned by the husband and wife.
In 1965, the same court in Salter v. St. Jean, 170 S. 2d 94, held that an employment agreement between attorney and client which related only to the recovery of her separate property was valid, stating:
“We approve the distinction made by the chancellor and specifically hold that contingent fee agreements in domestic relations litigation are against public policy and unenforceable as they relate to alimony or support or property settlement in lieu thereof, but that same are enforceable when they relate to the return of a wife’s separate property.”
While most states, though holding the contingent fee provision invalid, do allow the' attorney a recovery on the basis of quantum meruit, some states will not even allow that recovery in this type of case. See Baskerville v. Baskerville, 246 Minn. 496, 75 N. W. 2d 762; Jordan v. Westerman (Mich.), 28 N. W. 826. For other related cases, see 100 ALR 2d § 7, p. 1391.
The American Bar Association, at its last meeting on August 12, 1969, adopted a “Code of Professional Responsibility” to replace the old.“Canons of Ethics,” such code to become effective on January 1, 1970. This code is divided into nine canons, and there is a comprehensive discussion of each. Under Canon 2, EC 2-20, relating to contingent fee arrangements, it is stated, “Because of the human relationships involved and the unique character of the proceedings, contingent fee arrangements in domestic relation cases are rarely justified.”
Similarly to the California policy stated in Coons v. Kary, supra, Arkansas, too, has a policy of preserving marriages, as reflected by Acts 47 and 348 of the General Assembly of 1953, such acts providing for a waiting period of 30 days between the commencement of an action for divorce, and rendition of a final decree where the parties have lived together within the last 12 months’ period. | [
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Conjüey Byrd, Justice.
For reversal of this eminent-domain action appellant Arkansas State Highway Commission relies upon the following points:
“I. The trial court erred in refusing to allow appellant’s expert witness, Zack Mashburn, to testify whether he made an investigation to determine the intentions of Holiday Inn, Inc.
“II. The trial court erred in refusing the appellant’s requested Instruction No. 7.”
Under point I the record shows that counsel for appellant asked Mr. Zack Mashburn, an appraiser for the Highway Department, the following question: “Have you made any investigation to determine the present intentions of Holiday Inn?” Upon objection by counsel for appellee, the Vernon E. McMillan Estate, sustained by the trial court, the parties retired to chambers where counsel stated: “Your Honor, I would like to ask the witness if he made an investigation to determine the intentions of Holiday Inn, Inc., as of March 27, 1968, with regard to locating a Holiday Inn at the interchange of Interstate 30 and 270.” The record fails to show what the witness would have said had he been pérmitted to answer the question. The burden is on the one seeking to reverse a judgment of the trial court to show that he was prejudiced by the action of the court. Without a proffer of what the testimony would have been, we are not in a position to say that the action of the trial court was prejudicial. See City of Prescott v. Williamson, 108 Ark. 500, 158 S. W. 2d 770 (1913).
The alleged error under point II is the trial court’s refusal to give the following instruction:
“You are instructed that the law.of Arkansas requires a property owner to assess his property at 20% of its true value and you may, therefore, consider the value the landowner has placed on his property for tax purposes as evidence of its true value in arriving at your verdict. While this value is not a controlling factor, it is a factor you may properly consider.”
The only proof on the assessed value of the land is testimony of Mr. Mashburn, as follows:
“Q. Did you in making your appraisal ascertain the value at which this property is assessed for the property tax purposes? •
“A. Yes.
“Q. What was that evaluation?
“A. Eighty dollars.”
Under this state of the record there is no showing what value the landowner placed on his property for tax purposes — i. e., the only showing is the assessed value on the tax hook, which may have been the valuation of the personal representative appointed by the court, see Ark. Stat. Ann. § 84-421 (Repl. 1960), or an adjusted valuation made by the assessor, see Ark. Stat. Ann. § 84-437 (Repl. 1960). Since the instruction is predicated upon facts not in the record it was properly refused by the trial court, See Texas Pipeline Company v. Johnson, 169 Ark. 235, 275 S. W. 329 (1925).
Finding no error, the judgment is affirmed. | [
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Carleton Harris, Chief Justice.
On September 9, 1956, Isola L. Lounsberry, appellant herein, and her husband, Carl W. Lounsberry, entered into a contract with Cherokee Village Development Company, Inc., for the purchase on time of two contiguous lots in the village; subsequently, a home was constructed on the lots. On February 8, 1958, the payments to Cherokee were completed, and pursuant to tho instructions of Mr. Lounsberry to an employee of the company, George Billingsly, the deeds were prepared and, in the absence of Mrs. Lounsberry, delivered to Mr. Lounsberry, naming “Carl W. Lounsberry, a married man,” as sole grantee.
On September 24, 1966, Lounsberry died, leaving surviving him his wife, appellant herein, and Margaret Cross, a daughter of the deceased by a previous marriage, who lived in Chicago . In November, 1967, Mrs. Lounsberry instituted suit against Cherokee Village Development Company and Margaret Cross alleging that due to mutual mistake or clerical error, the deeds had been made to Mr. Lounsberry, rather than to both the husband and wife, further alleging that appellant had contributed a large part of the purchase price of the property, and asking that the deed be reformed. On January 10, .1968, Mrs. Lounsberry amended her complaint, adding the allegation that Lounsberry had obtained the execution of the deed to the lots to himself, and had defrauded appellant. Cherokee Village answered, admitting residence of the parties, and the execution of the contract but stating that it did not have sufficient knowledge or information relative to the other matters alleged to either affirm or deny; and that it had no interest in the property, and, accordingly, no interest in the question at issue. Margaret Cross answered, denying the allegations of mutual mistake or fraud, and further asserting that the purchase price was paid by her father from his own separate funds. It was also alleged that appellant knew, or should have known, of the manner in which the deed was drawn, and the prayer was that the complaint be dismissed. On hearing, the court held that appellant had not established her contentions, and the complaint was dismissed. From the decree so entered, appellant brings this appeal.
It is our view that the case must be affirmed. We have held on numerous occasions that the evidence necessary to reform a deed on grounds of mistake, fraud or mutual mistake, must be clear, cogent, and convincing. Broderick v. McRae Box Company, 138 Ark. 215, 210 S. W. 935; Flunder v. Childs, 238 Ark. 523, 382 S. W. 2d 881. Appellant first argues however that, since Cherokee Village admitted the allegations, of the complaint, there was no longer, a requirement that the evidence for reformation be clear, cogent, and convincing. We disagree for two reasons. For one, Cherokee only admitted the residence of the parties, and the fact that the contract had been entered into for the purchase of the lots. The company neither denied nor affirmed the allegations of mutual mistake or fraud, stating that it did not have sufficient knowledge. Mainly, however, we do not agree that appellee, Margaret Cross, would be bound by the admissions of Cherokee Village. Certainly, had this suit been instituted during the lifetime of Mr. Lounsberry, he would have had the right to defend against the charge of mutual mistake, or fraud, and Mrs. Cross presently stands in his shoes, and has that same right.
Appellant principally relies upon the following facts to establish her right to the relief sought:
1. She, along with her husband, signed the contract of purchase of September 9, 1956, along with a note for the balance due, and a receipt for the down payment carried the names of both Mr. Lounsberry and appellant. An agreement with Cherokee changing the property line was also executed by both parties on the same date.
2. A house was constructed on the property by Seminole Construction Company in July, 1957, and Lounsberry and appellant jointly executed a note to Seminóle for $1,761.11.
3. Several insurance policies were offered in evidence, reflecting that the property was insured in the names of both husband and wife.
This evidence is certainly pertinent to the issue at hand, and appellant asserts that these facts are very similar to those in McCollum v. Price, 213 Ark. 609, 211 S. W. 2d 895, and that the case should be controlling in the present litigation. There, W. R. Price and Pearl Price, husband and wife, had entered into a written contract to purchase a home, and a joint note and deed of trust were given to J. M. Bates, the other party to the contract. By deed, the property was subsequently convéyéd to Mrs. Price, and Mr. Price learned of this deed to his wife shortly thereafter, but took no action to correct it. After the death of Mrs. Price, her sons, by a former marriage, contended that their mother had been the owner of the home place at the time of her death, and Mr. Price had no interest in the property. This court disagreed, holding that:
“The evidence here supports the finding of the chancellor that the deed to Pearl G. Price by the vendor under the contract of purchase was procured by Mrs. Price in the absence of appellee and without his knowledge and.consent.* * *
* * #
“We think the rule announced in Roach v. Richardson, supra, is applicable here and that the written contract of sale, when considered with all the surrounding circumstances, created an equitable estate by the entirety in appellee and his wife.”
Mrs. Price had made a will in which she stated that she owned the property, and this court commented that this will was kept as a “carefully guarded secret” from Mr. Price. Another relevant circumstance in that case, which the court specifically mentioned, was that a real estate agent, who had been interested in buying the property, testified that he approached Mrs. Price about the matter, and she told him that the place belonged to her husband, and the agent would have to see him.
In the case before us, there is no testimony from “disinterested persons” that has any direct bearing on whether any fraud was committed. In fact, there is no evidence of fraud at all, and any finding to that effect would have to be based entirely on the surmise that fraud was committed simply because Mr. Lounsberry directed that the property be deeded to him. A. deed cannot be reformed on speculative evidence. There was no clerical error or mutual mistake for Billingsly, Cher okee employee, who prepared the deed, testified that he did this at the direction of Mr. Lounsberry.
Without going into detail, it definitely appears that the large part of the money used in the purchase of the lots and the building of the house was furnished by. Mr. Lounsberry, the total involved being approximately $7,500.00. Mrs. Lounsberry testified that she and her husband held a joint bank account, and she said that Mr. Lounsberry also had a separate account in a different bank. Appellant agreed that over $4,000.00 of the money spent for the lots and house came from the sale of old coins, Mr. Lounsberry being a coin collector, and she admitted that he owned a substantial amount of these coins before his marriage to her. Eleven hundred dollars ($1,100.00) was paid from the account held solely by Mr. Lounsberry. Mrs. Lounsberry further testified that she and her husband, at one time, had three safe deposit boxes at the Hardy Bank for the purpose of keeping coins, and that the deeds in question were in one of those lock boxes, designated as Box 6. She said that she had visited these lock boxes about 75 times, had been in Lock Box 6 on many occasions, and had seen the deeds in question, but had not examined them. The witness added that she and her husband had also purchased lots at Bi'smark. Missouri, and her name was on these deeds; it seems a little significant that she knew her name was on both of the Missouri deeds, but did not know that her name was not on the Cherokee deeds until after Mr. Lounsberry’s death. The Chancel lor made particular comment with reference to this testimony, saying:
“I find it very difficult to reconcile the plaintiff’s contention that she knew nothing about it whereas the deed was recorded about eight years ago and lay in a lock box to which she had constant access and to which she did enter very frequently, according to the record, and I just find it very difficult to believe that.”
Since appellant also admitted that she had paid the taxes on at least two occasions, and the record clearly establishes that the property was assessed solely in the name of Carl W. Lounsberry, it does seem that she would have noticed that the tax receipts reflected his sole ownership of the property.
This is not a case of a housewife who knew nothing about business matters. Mrs. Lounsberry was a receptionist, and later a housekeeper, at the State Hospital in St. Louis for five years; prior to that time she was in sales or demonstration work in department and grocery stores. According to her testimony, she had been in sales work all of her life until she quit in 1961, and moved permanently to Sharp County to live with her husband.
We see no great significance in the fact that the insurance policies carried the names of both persons. This is not inconsistent with Mr. Lounsberry’s separate ownership of the property. Of course, appellant would have dower and homestead rights, even thought the property was not held as an estate by the entirety, and as a life tenant, she would be entitled to the use of insurance proceeds.
Mrs. Cross testified that, while she was visiting the Lounsberrys in 1959, her father told her in the presence of Mrs. Lounsberry that he would leave the property in question to the daughter. When asked what appellant said, Mrs. Cross replied:
“She said it was ridiculous: Why would I want a summer home in Arkansas when I had my own home in Franklin Park with a husband and four children; so when would we go down there? It was utterly ridiculous for him to leave it to me, because what use would I have for it.”
The witness said that Mrs. Lounsberry made no claim to the property whatsoever. This conversation was denied by Mrs. Lounsberry who said that she never heard her husband discuss the ownership of this property in the presence of Mrs. Cross.
Aside from the fact that the deeds were recorded in February, 1958, nigh onto nine years before Mr. Lounsberry’s death, and in addition to the other opportunities that appellant had to ascertain the names of the grantees in the deeds, Mrs. Lounsberry waited over a year after the death of her husband to institute suit; even then , the suit alleged either a clerical or mutual mistake in the execution of the deed, and it was not until some time later that the allegation of fraud was made.
Where parties to a lawsuit testify directly contrary to each other, the trier of the facts is in much better position to pass on the matter of credibility. The Chancellor was apparently not too impressed by appellant’s testimony, and he found that the proof offered failed “by quite a bit to measure up to that rule [clear, concise, and convincing].” We certainly cannot say that his findings are contrary to the record.
Affirmed.
Two deeds were executed, one to each lot.
Appellant also has a daughter by a prior marriage.
Sometimes .characterized as “clear, convincing, unequivocal, and decisive.”
Emphasis supplied.
Mrs. Lounsberry testified that she had not been in the “coin business” before she met Mr. Lounsberry.
Appellant testified that her husband spent the summers at the Sharp County home from 1957 until 1961, and she commuted from St. Louis every other weekend to be with him. She stated that he did some of the work on the house himself, but had other men come and help him. | [
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J. Fred Jones, Justice.
This is an appeal by E. L. Kirkham from an adverse decree of the Pulaski County Chancery Court in a suit by Kirkham against The National Investors Life Insurance Company and Jess P. Odom, hereinafter referred to as National. Kirkham does business in North Little Rock as Arkansas Salvage Company, and National owns the old Maumelle Ordinance Plant consisting of several thousand acres of land, with fences and numerous buildings thereon, in North Pulaski County.
On March 31* 1967, Kirkham made a written offer to National as follows:
“Gentlemen:
We have inspected the following items at the old Maumelle Ordinance Plant and submit the offer listed below for the purchase of these buildings from the property:
All the cyclone fence except that running east to west along the railroad track and 50' running south on both ends $2,300
Nine buildings known as the drier line and bearing the following numbers: 320, 327, 335, 343, 350, 357, 365, 372 and 377 $ 450
Building A12 and 711 $ 5Q
Stable $ 50
Several buildings in process of demolition (five or more) $ 50
Two buildings No. 154 and No. 244 $ 100
We will pay National Investors Life Insurance Company the sum of Three Thousand Dollars ($3,-000) on execution of this agreement and will remove these items within one year of date of this agreement or automatically forfeit any right of ownership thereto. It is understood that access of workmen will be granted and that 'we act as an independent contractor and assume all risks related to removal and being upon the property. ’ ’
This offer was accepted by National on March 31, 1967.
After the offer was accepted by National, it requested that the stable and chain link fence enclosing same lie excluded from the terms of the agreement and on March 20, 1968, the original agreement was amended as evidenced by a letter from National to Mr. Kirkham as follows:
“In response to our telephone conversation yesterday afternoon, I am writing to confirm our agreement concerning your contract for salvage of materials at the Maumelle site.
We have agreed to extend your contract time for two additional months in consideration of the exclusion of the stables and the adjoining 600-700 feet of chain link fence. Thus, the expiration of your contract will be May 31,1968, instead of the present contract time of March 31, 1968.
Would you please sign and date, on the place indicated at the bottom of this letter, your acceptance of this amendment to your contract.”
Mr. Kirkham signed his acceptance of this amendment on March 30, 1968. On June 3, 1968, Mr. Kirkham was denied further access to the premises for the removal of materials under his contract and he filed his complaint setting out that weather conditions had prevented him from specifically complying with the terms of his amended contract and prayed as follows:
“WHEREFORE, Plaintiff prays that he be allowed additional reasonable time within which to remove his property as above; for the temporary order as aforesaid, same to be made permanent on final hearing. Without waiving the foregoing, for damages for defendant’s wrongful taking over of his property and for such denial of his rights, for his costs and all other equitable relief.”
National demurred to the complaint and Mr. Kirk-ham amended his complaint alleging that in consideration of his agreement to eliminate the stable and lot fence from the provisions of his original contract, National had promised to give him all the time he needed to salvage and remove the other fence and buildings; that relying on this promise he waited until his time had almost expired under the original contract before negotiating for a specific extension of time in writing, and in his amendment he prayed as follows:
“WHEREFORE, plaintiff prays for reformation of the extension on equitable grounds as aforesaid so as to allow reasonable time for removal' of his property and prevention of a forfeiture and for equitable reasonable time in any event, and that he be allowed to remove both his property concerned in the contract and his property that is separate from the contract, for his costs, and for all other equitable relief.”
At the close of Mr. Kirkham’s evidence, National moved for a “directed verdict” which the chancellor treated as a demurrer to the evidence, under authority of Ark. Stat. Ann. § 27-1729 (Repl. 1962) which provides that in any chancery case the defendant may, at the close of plaintiff’s case, file a written motion challenging the sufficiency of the evidence to warrant the relief prayed. The motion was granted by the chancellor, and on appeal to this court Mr. Kirkham relies on the following points for reversal:
“The Court erred in sustaining defendant-appellees’ demurrer to the evidence upon the closing of plaintiff-appellant’s case because:
The motion was made orally rather than in writing as required by statute, and plaintiff duly objected. § 27-1729, Ark. Stats.; Thompson v. Murdock Acceptance Corp., 223 Ark. 483, 267 S. W. 2d 11.
In sustaining the demurrer to evidence at close of plaintiff’s proof the Court held he was entitled to recover on one aspect of his case; therefore, the motion to dismiss should not have been upheld, McGuire v. Benton State Bank, 231 Ark. 608, 331 S. W. 2d 258, (concurring opinion); Arkansas State Highway Comm’n v. Scott, 238 Ark. 883, 385 S. W. 2d 636. The evidence clearly sustained plaintiff’s complaint. Werbe v. Holt, 217 Ark. 198, 229 S. W. 2d 225; and substantive authorities detailed in brief.
(1) The evidence showed excusable delay because of the unusual weather during the '2-month extension, even if not considered an Act of God.
(2) Appellant’s failure to remove his property within the original term and extension is excusable, having been caused in the first instance by the conduct of Appellees.
(3) Appellees, along with (2), are estopped by inequitable conduct from insisting upon a forfeiture of Appellant’s rights to his property and he should have reformation of the extension to allow reasonable time for removal of his property.”
We are of the opinion that the chancellor did not commit reversible error in granting the oral motion under the facts in this case. We find no substantial evidence to support a prima facie case in favor of Mr. Kirkham.
Ark. Stat. Ann. § 27-1729 (Repl. 1962) as originally enacted (Act 257 of 1945) provided “that upon the closing of plaintiff’s . . . proof in any cause ... in any court of chancery in this state, . . . the opposing party may file a written demurrer setting forth any of the defenses now permitted by law to be raised by said pleading. . .” (Emphasis supplied). In Kelley v. Northern Ohio Co., 210 Ark. 355, 196 S. W. 2d 235, this court held that the above italicized portion of the 1945 Act referred to the five grounds for demurrer set forth in 1411 Pope’s Digest (Ark. Stat. Ann. § 27-1115 [Repl. 1962]) and did not permit a demurrer to the evidence. The statute was amended by Act 470 of 1949 (Ark. Stat. Ann. § 27-1729 [Repl. 1962]) and noiv provides that the defendant
“May file a written motion challenging the sufficiency of the evidence to warrant the court to grant the relief prayed for on the record existing/’ (Emphasis supplied).
We first held in Werbe v. Holt, 217 Ark. 198, 229 S. W. 2d 225, and more recently in Lafayette Co. Ind. Dev. Corp. v. First Nat’l Bank, 246 Ark. 109, 436 S. W. 2d 814, that what the motion now challenges is ‘ ‘ the sufficiency of the evidence to warrant the relief prayed.” The word “written,” as applied to the demurrer under the 1945' Act, was carried forward as to the motion in the 3949 Act as amended, but we have never held the ivritten demurrer to be mandatory in every case on any of the five grounds under the 1945 Act, and Ave have never held the granting of an oral motion under the present statute to be reversible error because the motion is presented orally rather than in Avriting.
In Thompson v. Murdock Acceptance Corp., 223 Ark. 483, 267 S. W. 2d 11, and Cunningham v. Chamblin, 227 Ark. 389, 299 S. W. 2d 89, cited in Mr. Kirkham’s brief, Ave did hold that the appellants had Avaived their objections to the motions not being in Avriting by failing to object for that reason at the time of trial. In the case at bar National moved for a “directed verdict” at the close of Kirkham’s case and in granting the motion the chancellor said:
“I am going to find for the Defendant on the grounds that there was no fraud. I don’t see anything there to require reformation. There is only one thing I do see that those poles they put out there that Avere left there belong to him. Certainly they have a right, and I believe it’s stated here, by agreement or statement, stipulation rather, that they certainly are entitled to go get the poles. I presume they are still there. If they are not I Avould say they Avould give him whatever the value of the poles Avere. What he paid for them and cost of putting them there.”
The record then appears as follows:
“MR. BERRY: We are asking for the relief that we have prayed in the complaint and all we are entitled to under the complaint and we are not waiving .any of that. Now also I would like to point out to the court that there has been no written demurrer filed at the close of evidence here and I .am objecting also to the court’s ruling on that basis.
THE COURT: All right. He asked for a ruling in his favor without presenting proof and you had rested your case so I took it, I just made the ruling.
MR. BERRY: We have rested the case. I raise that objection, there is no written demurrer, no written motion to dismiss on the evidence.
THE COURT: I am granting it on his oral motion.”
We are of the opinion that in the enactment of § 27-1729, supra, the Legislature intended to provide the same rule in chancery cases as applies to directed verdicts in law cases. We are of the further opinion that it was not the intention of the Legislature to make the relief provided by the statute, dependent upon the motion therefor being in writing; especially when the motion, and the reasons therefor, are clearly understood by the parties and no prejudice to the plaintiff appears by the motion being oral. It would be placing form above substance to require National to put its motion in writing before the chancellor could properly grant it under the state of the record in this case, and we find no prejudice to Mr, Kirkham by the motion being oral rather than written in the case at bar.
The property “separate from the contract” referred to in Kirkham’s amendment to his complaint consisted of light poles he had purchased from Arkansas Power and Light Company. The poles had been removed from the ground and were stacked on National’s premises when Kirkham was denied entrance to the premises and the chancellor held that Kirkham was entitled to remove the poles. This right was not denied but was actually agreed to by National. The chancellor’s order pertaining to the light poles was not such partial recovery as to prevent the chancellor from dismissing the cause of action sued on by Kirkham. The light poles were not involved in the contract between Kirkham and National and the concurring opinion in McGuire v. Benton State Bank, 231 Ark. 608, 331 S. W. 2d 258, cited in Kirkham’s brief, is not in point. In McGuire a third party was brought into the lawsuit and justiciable issues remained to be tried between two of them after a demurrer to the evidence was sustained as to one of them.
In Werbe v. Holt, supra, where the effect of Act. 470 of 1949 was first considered and distinguished from the 1945 Act, this court said:
“What, then, is the effect of a demurrer to the evidence or a similar pleading in jurisdictions recognizing that practice? The question may arise either in equity cases, where the chancellor is the arbiter of the facts, or in cases tried at law without a jury where also the trial judge decides all issues of fact. By the overwhelming weight of authority it is the trial court’s duty, in passing upon either a demurrer to the evidence or a motion for judgment in law cases tried without a jury, to give the evidence its strongest probative force in favor of the plaintiff and to rule against the plaintiff only if his evidence when so considered fails to make a prima facie case.”
We are of the opinion that the chancellor did not base his opinion in the case at bar on the preponderance of the evidence, but that he based it on Mr. Kirkham’s failure to make out a prima facie case. No fraud was alleged and none was proven in this case and we agree with the chancellor that no cause was shown for reforming the contract of the parties.
Mr. Kirkham testified that a Mr. Robinson from Malvern first purchased most of the property and let his contract expire.
“A. * * * Mr. Robinson, as a company or an individual, I don’t know which, bought the majority of this stuff and he sublet some of the contracts or the demolition of these buildings and I bought material from some of these subcontractors and, of course, I became interested in the thing. These people told me that they had stopped them from going in there, wouldn’t let them go in any more and get the material out, so I was interested in acquiring this, so I called National Investors and I was referred to Mr. Joe Hill as being the one in charge of the property out there and. . .
# # #
A. * * * i told him i wanted all the brick out there, which I didn’t include in my written contract. * * * And some other stuff we mentioned and he said, ‘Mr. Kirkham, let me put it this way, all this stuff has been sold and paid, but they defaulted, didn’t come in and remove it, their time ran out. . ”
As to the oral agreement, Mr. Kirkham testified that soon after he entered into the original contract he had a conversation with Mr. Hill:
“We raised the subject about the stable and horse lot and he said he would like to keep it. He said his boss wanted to get some horses and put them out there.
• # •
. . . [T]he stable was a building, as well as I re member it was about 24’ wide and oh 40, 50', which was movable and we were selling those movable buildings out there and we had one similar we sold for $300.00. * * * It was narrow enough to move and low enough roof to be moved and we were selling buildings to be moved. * * * In the conversation I was reluctant to relinquish them to him and finally Mr. Hill said, ‘Mr. Kirkham, I am going to get tough with you to get this back; my boss wants it and I am going to get it if I can.’ I said, ‘I don’t know what you mean by getting tough.’ He said, ‘You have a lot of stuff out there yet, haven’t you?’ I said, ‘Yes, you gave me written permission for my men to go in and take it down.’ He said, ‘Yes, I understand, we can make it hard on you.’ I said, ‘Well, I am sure you can’ so our relationship had been very fine up to this point, I thought, and I go along to try to satisfy, and the only thing he offered me was additional time for — to relinquish this stuff, so I said, ‘Now, what are you talking about in the way of time, how much time do you mean,’ and he said, ‘All the time you need.’ The very words he used. I said, ‘Well, as far as the way we are going now I won’t need any additional time but if you want to do that, take those items back, we can cut our force and cut our expenses considerably.’ He said, ‘All right, if that’s satisfactory, that’s the way we will do it.’
* # #
THE COURT: Is there something in writing to substantiate — the reason I asked the question, this witness now starts talking about extension of time.
MR. BERRY: Yes.
THE COURT: Is there something in writing relevant to that extension?
MR. BERRY: Yes, your Honor, it did come along at a later period of time.
THE COURT: Do you have that in writing?
# * *
MR. BERRY: Yes, your Honor, the extension; yes sir.
THE COURT: Otherwise I might not allow him to continue.
MR. BERRY: Well, your Honor, there is .a later writing on the extension. Our proof on that was and we feel we have a legal authority to support us all the way, was that that extention, he had no alternative but to accept that extension and that by the inequitable conduct — we should have had an opening statement on this. We are showing, your Honor 3 3
As to the extension amendment to the original agreement, Mr. Kirkham testified:
“Q. When did they come up then with the two month situation?
A. As well as I remember the letter was dated . March 20. I don’t remember when I received it. I didn’t receive it immediately. I think it was two or three days, maybe even four or five days elapsed between the time it was dated and when I received it, and I was still reluctant to go ahead and sign it after the conversation we had had on the telephone. I kept on turning over in my mind the possibility of suing them or enjoining them to keep them from barring me from the area out there.
Q. Uh-huh. All right. Now, I hand you here a letter from Mr. Naylor, bearing the date of March 20 and bearing your signature date of March 30, 1968, and ask you if that is the letter that you were referring to?
A. Yes. * * * He just called me and asked me if I was going to sign this letter. * * * And I said that I was. This was just before I did sign it. I said I was going to sign it and I signed it and put it in the mail. * * * I carried some men out there to show them the buildings and they wouldn’t let me in and they told me I would have to call Mr. Naylor # # # I told him I come out to show some buildings to some people, prospects I had to sell them to, I wanted to take them in there, and he said, ‘Well, I hadn’t signed the contract yet and he wouldn’t let me go in,’ but I said, ‘I have signed it and put it in the mail.’ He said, ‘Well, he hadn’t received it.’ I assured him I had signed it and it was in the mail and then he told the guards I could go on in. * * * I was desperate, I didn’t have any other recourse, had to sign it or they wouldn’t let me in.”
Mr. Kirkham testified that in October, 1967, he sold his interest in the contract to third parties who defaulted in their contract with him and he had to again take over, He testified that he was never released from his own contract with National:
“I sold certain buildings and structures to these other people. The provision was that they would take them down and remove them from the property. . . I sold out to them. That’s common practice in this type of thing.”
Mr. Kirkham prepared the offer and acceptance constituting the contract entered into on March 31, 1967. He knew at the time he made his original offer that Mr. Robinson from Malvern had originally purchased some or all of the buildings under a similar contract and had forfeited his rights to them because of his failure to re move them within the agreed period. “Their time run out.” Mr. Kirkham testified that the verbal agreement for all the additional time he needed to remove the nine miles of chain link fence and at least 18 buildings, was entered into in consideration of his verbal relinquishment of claim to 700 feet of chain link fence and one movable stable building 24 feet wide by 40 or 50 feet long for which he paid $50. He says this second agreement was entered into verbally about two months after March 31, 1967. The price Mr. Kirkham paid for all the items listed in the contract, as compared with what he says was their “retail” value and what he lost in profits, is indicative that the prime consideration, insofar as National was concerned, was getting the buildings and materials removed from the premises.
The record does not disclose the amount or nature of the materials Mr. Kirkham actually did remove from the premises during the 14 months he operated under the contract as amended, but his testimony strongly suggests that he was simply taking prospective customers onto the premises and attempting to sell the buildings as they stood without having to wreck or remove them. There is no evidence in the record that Mr. Kirkham himself ever removed a single one of the buildings from the premises. “We sold right from where they were. They went in and got them. ’ ’ Mr. Kirkham insisted that the verbal agreement for an extension of time be reduced to writing and this was done. The agreement was reduced to writing on March 20, 1968, as an amendment to the original contract. The amendment provided for a two month extension of the original contract; Mr. Kirk-ham accepted the extension and defaulted under its terms. He says that weather conditions prevented his full compliance, but weather conditions were not excepted in the written agreement or in the written extension. Mr. Kirkham says that he knew he would be unable to remove all the materials within two additional months when he accepted the amendment to his contract, so it would appear that if he relied as heavily on the verbal agreement to give him all the time he needed, as he contends that he did, he would have brought his court action when he was first barred from the premises at the end of one year, rather than accepting a written amendment to the original contract and then bringing his action when the additional time provided in the amendment had also expired. Mr. Kirkham simply did what he knew Mr. Eobinson had done — “He let his time run out.”
The decree of the chancellor is affirmed. | [
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George Rose Smith, Justice.
In this proceeding the highway department is condemning, for Interstate 40, part of the appellees’ improved residential lot in the city of Plumerville. The jury fixed the landowners’ compensation at $8,000. In this court the department contends that there is no substantial evidence to support the verdict.
The taking cuts diagonally across the lot, coming within about a foot of the front corner of the house. Stobaugh valued the property at $18,000 before the taking and at $6,000 after the taking. The highway department does not question the latter figure, which is only a few hundred dollars above the corresponding figure given by the appellant’s expert witnesses.
The department does contend that Stobaugh’s initial valuation of $18,000 does not amount to substantial testimony. Stobaugh testified that he had owned and occupied the lot for about fifty years and that he had spent about $8,000 in enlarging and improving the house some six years before the trial. In view of his long familiarity with the property Stobaugh was competent, by reason of being the landowner, to give his opinion about the value of the property. Arkansas State Highway Comm’n v. Russell, 240 Ark. 21, 398 S. W. 2d 201 (1966).
Of course, it is true, as pointed out in that case, that the landowner’s evaluation must be disregarded if he is unable on cross examination to give a reasonable basis for his opinion. In the case at bar, however, counsel for the highway department did not pursue their cross examination far enough to demonstrate that Stobaugh had no reasonable basis for his conclusions. ¡Stobaugh mentioned what may have been a comparable sale, in which a house and lot was sold for $20,000. He also stated on redirect examination that he based his opinion on sales that he knew about in the city of Plumerville. Counsel for the condemnor made no effort to discredit the witness’ testimony by probing further into the basis for his beliefs. Hence the prima facie admissibility of the landowner’s opinion was not destroyed on cross examination. His testimony is sufficient to support the verdict.
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Conley Byrd, Justice.
Following the entry of a divorce decree appellant Roger L. Henry was cited into court to show cause why he should not be held in contempt of the court’s orders. The trial court found that he was not in contempt but entered judgment against him for $850 on a property settlement entered into between him and Brenda G. Henry, being the value of an automobile he allegedly failed to deliver .and an attorney’s fee of $100.00. For reversal appellant relies upon the following points:
“I. Under the record the Chancellor did not have the authority to render the judgment of $850 against appellant herein appealed from, because appellant was before the court solely on the contempt charge, and not in response to any suit for breach of contract.
II. The garnishments on the judgment should be quashed by this court because the judgment is invalid.”
The record shows that appellant’s complaint for divorce was filed on December 9, 1968, that he and appellee entered into a property settlement on December 11, 1968, and that on January 9, 1969, he was granted a divorce. The divorce decree, in so far as here pertinent, provides:
‘ ‘ That the said parties are residents of Saline County; that no children have been born of said marriage; that they have entered into a settlement in regard to their property.
It is therefore considered, adjudged, ordered and decreed that the bonds of matrimony heretofore existing between this plaintiff and defendant be and they hereby are dissolved set aside and forever held for naught.”
On March 6, 1969, appellee filed a petition setting up the divorce, the property agreement and alleged that appellant had failed to comply with the property agreement by delivering “full possession of the automobile” to appellee. The relevant portion of the petition provides:
“5. That Roger L. Henry, should he by this court required to comply with the contract made and entered into with petitioner to deliver possession of the said automobile to her.
6. That in the event Roger L. Henry no longer has the car, that he should be ordered by this court to pay petitioner a reasonable value in place of the automobile.
7. That petitioner is without funds with which to pay an attorney for the cost of this action and should be awarded a reasonable attorney fee by Roger L. Henry for the cost of this procedure, plus all court costs incurred because of this proceeding.
WHEREFORE, petitioner moves the Court to order the Clerk of this Court to issue a citation directing the plaintiff, Roger L. Henry, to appear in this Court and show cause why he should not be punished for contempt of court, and for a reasonable attorney’s fee.”
Pursuant to the petition, the trial court directed the clerk to issue the following citation.
“The State of Arkansas to the Sheriff of Saline County :
“You are hereby commanded to summon Roger L. Henry if he be found in your county, to .appear before the judge of the Saline Chancery Court, at the Courthouse in the City of Benton, Saline County, Arkansas, at 9:00 0 ’clock A. M. on the 13th day of March, 1969, and show cause, if any he has, why judgment and sentence should not be pronounced against him for Contempt of Court for failure to comply with the order of this Court. And you will make due return of this Citation on the 13th day of March, 1969. Herein fail not.”
Or March 13th appellant moved to dismiss the citation order because the decree only granted a divorce. This motion w.as overruled, as was appellant’s objection to the testimony of appellee in support of her petitioner. Thereafter appellant testified that the citation was the only notice he received to appear in court. There is nothing in the record to show that a copy of the motion was served upon .appellant or that a copy thereof was served with the citation.
Under Ark. Stat. Ann. § 34-1212 (Repl. 1962), our cases, Strasner v. Strasner, 232 Ark. 470, 338 S. W. 2d 679 (1960), recognize that equity has jurisdiction of an action for specific performance of a property settlement entered into in contemplation of divorce even in the absence of a pending divorce suit. Consequently the Saline Chancery Court had jurisdiction of the subject matter. However it does not also follow that the trial court here had a right to proceed against the person of appellant for purposes of hearing appellee’s petition.
Unlike Thomas v. Thomas. 246 Ark. 1126, 443 S. W. 2d 534, the decree here involved made no attempt to incorporate the property settlement into the decree. Under divorce decrees such as involved here the rule is stated by 24 Am. Jur. 2d Divorce and Separation § 423 as follows:
“As a general rule, .a final judgment is conclusive both as to the relief granted and as to the relief denied or withheld, and on its entry the jurisdiction of the court over the subject matter and the parties is exhausted unless preserved in the mode authorized by statute. Hence, any further judgment or order materially varying the first judgment is a nullity, except as it is rendered pursuant to the power which the court may have in opening, modifying, or vacating its own judgments and in accord with the practice prescribed for the exercise of such power. This rule has been .applied in divorce pro eeedings. But a judgment of divorce comes also within the rule that a court has full control over its judgments and may modify the same at any time during the term within which they are rendered.”
In Miller v. Miller, 209 Ark. 505, 190 S. W. 2d 991 (1945), we pointed out that notice must be given before a hearing could be held on .a motion to modify. Since that time the Legislature by Acts 1963, No. 67, § 5 (Ark. Stat. Ann. § 27-364 [Supp. 1967]) has provided:
“No Court shall hear any motion except such as may be heard ex parte unless proof of service of copy thereof upon the opposing parties as herein provided (except parties in default), and of reasonable notice of the hearing is made. Such proof may be in the form of certificate of service by counsel or the party making service and such certificate shall be prima facie evidence of service.”
As we view the record here the divorce decree terminated the jurisdiction of the court over the subject matter and the person of appellant except for the court’s inherent power to vacate or modify its decrees within term time. The citation served on appellant gave no notice of a motion to modify the decree and, furthermore, a copy of the motion was not served on appellant as required by Ark. Stat. Ann. § 27-364. Under these circumstances the court was without jurisdiction of the person of appellant to proceed with the hearing on the motion.
Appellant was unable to supersede the judgment against him and as a result thereof some garnishments have been issued. In his brief he asks that we void the garnishments. On this issue we leave him to such remedies as are provided by law.
Reversed. | [
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J. Fred Jones, Justice.
This is a boundary line dispute between adjoining landowners. H. B. Black owns the south half of the southeast quarter of Section 18 and E. L. Reed owns the south half of the southwest quarter of the same section. The two 80 acre tracts join along the west side of the west 40 of the Black tract and the east side of the east 40 of the Reed tract and the true division line, as established by survey, is not in question. An irrigation canal or ditch extends from north to south across the property and is 14 feet east of the division line between the two tracts. An old fence row also extends north and south through the area parallel with the canal and fifty-four feet east of the division line. Black started cleaning out the old fence row and repairing the north end of the canal and Reed started plowing in the canal and asserting ownership of the property between the true division line and the old fence east of the canal by adverse possession. Black filed a petition in the Arkansas County Chancery Court seeking an injunction and restraining order against Reed from trespassing on Black’s property east of the true division line. The petition was granted and Reed brings this appeal relying upon the following point for reversal :
“The findings of the lower court are against the preponderance of the evidence.”
In trying this case de novo on the record before us we cannot say that the chancellor’s decree is against the preponderance of the evidence. Black had owned the east 80 acres since prior to 1940 and Reed purchased his west 80 in 1958. Both tracts of land were practically level rice land and drained naturally to the south. Both tracts were originally enclosed with fence and the land use was rotated between rice and cow pasture. Reed removed the fences from his land soon after he purchased it and rotated his land use between rice, oats and soybeans. Both Black and Reed used the canal or ditch for irrigation purposes, but both offered some evidence that they permitted the other to use the canal. Both Black and Reed submitted testimony that they maintained the canal by discing and cleaning it out at least twice every third year when they planted rice. Black also owned a 50 acre tract south of the two 80 acre tracts, and it is undisputed that he raised rice and soybeans on this tract and irrigated it through use of the canal in question. Neither side ever saw the other actually maintaining the canal, but both offered testimony that they did so. There is no evidence as to any maintenance or use at all, of the area east of the canal between the canal and the fence.
According to one witness this area was grown up in bushes higher than his head. Mr. Reed did not know who originally dug the canal. He testified that there was a canal just east of the fence for a period of time. Mr. Verner, who had worked for Black, .and who testified as a witness for Reed, testified that he worked as foreman for the Black estate for a period of six years prior to 1961 and never did know of but one canal between the properties. He testified that he was first on the properties during “ ’37, ’38, ’39 and the 40’s,” and that there was a canal on the east side of the fence at that time, but that when he came back and worked on the property in 1956, the canal was on the west side of the fence. Mr. Yerner does not remember more than one canal. He does not say whether the canal or the fence had been moved between 1940 and 1956.
Mr. Schilling testified as a witness for Black. He testified that he worked as farm manager for Black from 1940 until he retired in 1962. He testified that between 1940 and 1945, during Mr. Black’s lifetime, a Mr. Franks surveyed the land line between the Black property and that purchased by Mr. Reed; that he and Mr. Black put up stakes at the land corners as directed by the surveyor; that a canal was dug along the east side of the division line and a fence was then constructed by Black’s employees east of the canal. He testified that he never did see Mr. Reed using the canal but thinks he did use it.
“Q. You didn’t see him using it, all you know about it is you think he used it but you really don’t know?
A. No, he didn’t use it while we were using it. It was understood that he could use it when Mr. Black’s wasn’t using it.”
Roy Maddox testified that he has been farm manager for the Black estate since 1963 and that he used the canal for the irrigation of soybeans and rice every year except 1964. He says that he disced and cleaned out the canal every year before he used it; that there was no objection to neighbors using the canal, but that he had never seen Reed using the canal since 1963.
Black’s clear record title to /the property involved is not questioned. The burden of proving title by adverse possession fell on Reed and we agree with the chancellor that Mr. Reed failed to sustain that burden. (See the numerous cases cited under “Character of Possession,” Ark. Stat. Ann. § 37-101 [Repl. 1962]).
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Lyle Brown, Justice.
This is a post-conviction appeal brought under our Criminal Procedure Rule 1. Appellant Marvin Grissom was convicted of assault with intent to kill a small child. After being committed to the penitentiary Grissom filed this proceeding, alleging in two respects violations of his constitutional rights committed- prior to and during the course of the trial. They relate to an asserted unlawful arrest and an attack on certain jurors as being prejudiced against him.
Under his first point for reversal, appellant makes two arguments. First,' he says his arrest was unlawful and in violation of his constitutional rights. He was initially arrested on a misdemeanor warrant issued by a justice of the peace charging Grissom with abusing a minor child. After further investigation and three days later, while the accused was in jail on the misdemeanor charge, he was served with a warrant for assault with intent to kill and with respect to the same incident. 'Secondly, appellant complains that during the three-day interval he was not afforded the opportunity to make bail. From the recited allegations appellant draws the bare conclusion that he should be afforded a new trial.
Each of the arrests was made by virtue of a warrant, the validity of which is not questioned; nor does appellant attempt to show any connection between the three days in jail and his trial, that is, such a connection as would establish prejudice in the trial procedure. Irrespective of the contention made, appellant subsequently made bail, appeared in court, submitted himself to its jurisdiction without protest, and announced ready for trial. The point has no merit.
The second point advanced for reversal is the allegation that some of the jurors were prejudiced against the defendant. The voir dire examination of the jury panel was made a part of the record in the Rule 1 hearing; that record shows eight pages of exhaustive questioning of the panel. Most of the questions were pro pounded by the trial judge and they reflect a thorough line of questioning which was framed to reveal any prejudice against the defendant or members of his family which might have been grounds for excusing disqualified persons from serving. The defendant was represented by chosen and experienced counsel who questioned the jury and was satisfied with their answers because he exercised no peremptory challenges. Appellant’s testimony on this point was based purely on hearsay. Additionally, three jurors called by defendant to testify at the Rule 1 hearing refuted Grissom’s contention. Appellant’s father also testified at the hearing and he did not corroborate appellant on this point, notwithstanding he was said to have firsthand information as to the possible disqualification of one juror.
Affirmed.
Fogleman, J., not participating. | [
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Carleton Harris, Chief Justice.
This litigation involves deposit certificates in two different financial institutions. The First Federal Savings and Loan Association of Fort Smith filed an interpleader action in the Johnson County Chancery Court against Y. A. Murphy, and Lewis A. Willey, Administrator of the Estate of Pearl Bailey, the association asking the court to determine the ownership of Certificate No. N-6319 in the amount of $8,000.00. In answer, both Murphy and Willey filed pleadings asserting ownership of the certificate. The Peoples Bank and Trust Company of Russell-ville likewise filed its Bill of Interpleader in the Johnson County Chancery Court, asking the court to determine the rightful owner of two certificates, one for $2,-700.00, and the other for $800.00, making a total of $3,-500.00. The cases were consolidated for trial, .and heard by the court. At the conclusion of the trial, the court decided the Federal Savings and Loan Association case in favor of Murphy, but decided the companion case, instituted by the Peoples Bank and Trust Company, in favor of Willey, as administrator. Willey appeals the decision in favor of Murphy, and Murphy appeals the decision in favor of Willey. We discuss first the disposition of the Fort Smith case.
John R. Tinsley, employed by the First Federal Savings and Loan Association as Secretary, identified the certificate issued for $8,000.00 to Pearl Bailey or Y. A. Murphy. Mr. Tinsley testified that he did not remember under what circumstances the certificate was issued, since it was not prepared under his direction. Subsequent proof reflected that Mrs. Bailey and Mr. Murphy had gone to the savings and loan association office on a Saturday morning, and Mr. Tinsley testified that, if the transaction occurred on a Saturday, the card would have borne the date of the following Monday. He did remember a couple coming to the office on Saturday, May 22, but did not recall their appearance. However, he had the deposit slip, which was in his handwriting, and the signature card for the account. The card, dated Monday, May 24, 1965, was a joint account card designating Mrs. Bailey and Murphy as joint tenants with right of survivorship. Dividend checks bore both names, and were mailed to Route 2, Clarksville, Arkansas, Mrs. Bailey’s address. There is no evidence whatsoever that the provisions of Ark. Stat. Ann. § 67-1838 (Repl. 1966) were not complied with. The pertinent portion of that statute provides as follows:
“If the person opening such savings account fails to designate in writing the type of account intended, or if he designates in writing to the association that the account is to be a ‘joint tenancy’ account or a ‘joint tenancy with right of survivorship’ account, or that the account shall be payable to the survivor or survivors of the persons named in such account, then such account and all additions thereto shall be the property of such persons as joint tenants with right of survivorship.”
The attack made by Willey is based, not on any failure to comply with statutory requirements, but rather on the contention that Murphy exerted undue influence upon Mrs. Bailey in order to persuade her to deposit this money in a joint account with him; further, that the deposit in the joint account was a gift from Mrs. Bailey to Murphy in contemplation of marriage, and should be returned to the donor under the circumstances herein. It is also asserted that the deposit was made jointly with Murphy for the purpose of convenience.
We do not .agree with any of these contentions. Murphy had formerly been married to Mrs. Bailey’s sister, May Quatum, but the parties were divorced in about 1961, and be had accordingly been acquainted with Mrs. Bailey prior to her second husband’s death. Murphy himself testified that he lived with Mr. and Mrs. Bailey for a while, and would calculate interest for Bailey on some of the notes and loans held by the latter. The testimony reflected that Mrs. Bailey was 81 years of age at the time of her death, and appellant’s testimony is directed to a melange of contentions. Evidence was offered that Mrs. Bailey was old, and .apparently becoming forgetful and senile; that she depended upon Murphy for advice, the latter, it is asserted, taking advantage of a confidential relationship, and thus being able to defraud her of her money.
Bud Wise, a neighbor, testified that, after Mr. Bailey died, Mrs. Bailey brought papers to his home that she didn’t understand, and asked his advice. He mentioned a couple of mortgages, .and said she asked his opinion of what should be done. Wise stated that she had given him money to hold for her in the past, and on one occasion, had brought $1,300.00 in cash to his home, together with papers, leaving them with him while she took a trip to California; that he kept this property from August until October. He .also said that he accompanied her when the money was originally placed in the bank at Russellville. Referring to questions asked by the banker, Wise said:
“Oh, yeah, well he asked her did she have a will ma.de. First said, asked her did she have a husband and she told him no. He says you have any children and she told him no. He said well have you got a will made and she said no, I haven’t. And he said well you oughta have someone on here with you. And she spoke up and said what about my neighbor here. Said he lives right next to me. And I said no. And this banker spoke up and said I would be just like your neighbor. He said the thing for you to do is to have you a will made out if you haven’t got any folks to leave it to. Leave it to a church and have you a will made.”
Wise also stated that at another time, she had left $700.00 in cash with him overnight; however, he said that she did not seek his advice during the last two years of her life. The witness stated that he saw Murphy at the Bailey home many times, and that Murphy had lived there a couple of months. As to any planned marriage, Wise testified:
“Well, the only thing she told me one time she said to me she said, well said I don’t know what the neighbors thinks about him a coming and staying at nights, but says it don’t make no difference. Said we are going to get married anyhow.”
When asked when this conversation took place, the witness first said, “A couple of years ago,” but then stated:
“Well it could have been. It could have been less. I’m pretty bad about remembering things.”
Lee Feltner, 82 years of age, Mrs. Bailey’s first husband, testified that they were married in 1905, and had two children, both having died, and there was one grandchild, James Feltner. The witness stated that the last time he had talked with Mrs. Bailey was six or seven years before her death. He said that his present wife had made application for Social Security, and needed a copy of Ms divorce decree, but the clerk could not find it in the records. He then went to see Mrs. Bailey, and asked if she had gotten the divorce, and she replied that she didn’t; however, the next morning the clerk advised that he had found the record of the divorce which had been granted to Mrs. Bailey.
James Feltner, Jr., the grandson, and the only heir of Mrs. Bailey, lives in Oxnard, California. He testified that he last saw his grandmother about three years before her death, while visiting back in Arkansas, staying at her home part of the time, and with his grandfather part of the time. He said that he wrote to Mrs. Bailey and sent her presents at Christmas:
* * i stayed with her when I was a boy and I guess I was so little I got homesick for California and she said uh — I told her I wanted to go home to California. I was hot and wasn’t used to the weather nor to her type of cooking. She said, ‘Well, Jim, we don’t have the money to send you home.’ And I says, ‘Well, you’ve got a cow. You can sell that cow and get me a train ticket and send me home. ’ So she went — had a suit made of my dad’s — had it cut down, made me a suit, and. give me the new suit and I still wanted to go home. So I didn’t eat well at that time. The only thing I could eat was tomatoes and she would put them on ice and feed me those tomatoes with salt. She took me to a doctor and the doctor said well this boy is homesick, and he’s not going to eat. And I just wanted to go home.”
Feltner testified that Mr. Murphy visited in the home during the time he was back on the visit, stayed one or two nights, and had Thanksgiving dinner with the witness and his grandmother; that she indicated, by remarks, that Murphy stayed there quite a bit. As to her mental condition, the witness stated:
“Well, I would s,ay she was getting old. She was— Well, old people — I wouldn’t say that their mind is failing, but I wouldn’t say that of my grandmother. I would say that — I would say that she was getting old and forgetful and I don’t know any polite term for it, but I’d call it senile.”
Feltner reiterated his thought that she was senile, stating:
“Yes, sir, because she was scared to ride in the truck with me and I remember we was going down the road and we come to a hill and she couldn’t see over the hill, and I guess she got the idea that it was just going to drop right off into the river. We were down close to the river.”
The grandson testified that, after Mrs. Bailey’s death, when he had returned from the funeral, he made a search of the house, and found numerous letters to his grandmother from Murphy. He said he found them at various places, the attic, shoe boxes, bureau drawers, and some thrown in the corner. Twenty-five dollars in money was found; also the certificates of deposit from the bank at Kussellville. Feltner stated that his grandmother had told him at the time of his visit that Murphy had taken care of her business affairs for the last four or five years; he subsequently changed that statement, and said that he meant “three years.”
John Marlar, who lived 2% miles north oE Mrs. Bailey, and was related by marriage, testified concerning Mrs. Bailey’s physical and mental health:
“Well, since Bailey died, she just didn’t seem like herself. She just went down so fast.”
Several witnesses testified on behalf of appellee. Murphy, 75 years of age, testified that he and Mrs. Bailey would have been married at the end of the previous year, except for her death. As to the certificate of deposit, lie testified that he and Mrs. Bailey went to the First Federal Savings and Loan Association office in Fort Smith, and that all directions (as to how the account should be set up) were given by Mrs. Bailey; he testified that he had an account in Jonesboro at the Citizens Federal Building and Loan in the amount of $1,500.00, all of the money being his, but the account being in the joint names of the witness and Pearl Bailey. Murphy testified that he paid the hill for Mrs. Bailey’s funeral.
Mrs. J. E. Goodin, a neighbor, testified that she saw Mrs. Bailey every day after Mr. Bailey died; that she would drive Mrs. Bailey to town, and to the grocery store. She said that Mrs. Bailey was able to remember events from day to day, and that she mentioned loans that had been made to persons from whom she was collecting interest. Mrs. Goodin testified that Mrs: Bailey left her purse with the witness when it became necessary to go to the hospital, telling her to take care of it. She also said that she had been told that her neighbor and Mr. Murphy were planning to get married. Mrs. Goodin was familiar with the Fort Smith savings account, Mrs. Bailey having told her about it; the fact that it was a joint account was not mentioned, but the dividend cheek was made to the two.
Truman Owens, another neighbor, testified that he noticed nothing unusual in conversation with Mrs. Bailey; that he would say she had a good memory to be as old as she was. In rebuttal, Mrs. Ruby Willey, a beautician whose former husband was a nephew of Mrs. Bailey, testified that she had fixed Mrs. Bailey’s hair for a long number of years, and that following her husband’s death, Mrs. Bailey was lonely, and seemed to be “real miserable.” Nothing was said to indicate there was anything wrong with Mrs. Bailey, mentally.
We think the proof falls far short of establishing that Murphy stood in a confidential relationship and took advantage thereby. There is nothing in the record to show one affirmative act by appellee of advising, or suggesting to .Pearl Bailey where, and in what manner, to deposit her money. In letters that were found and introduced, there are no suggestions for a joint account. For that matter, it appears there were also others that Mrs. Bailey must have had confidence in, since she left money and possessions with both Mr. Wise and Mrs. Goodin. We see nothing unusual in the fact that .an elderly woman, or for that matter, anyone, who lives alone, seeks advice in business matters from friends, particularly when the nearest relative is hundreds of miles away in California, and that relative has only been in the home twice in 13 years. The law, of course, does not frown upon the seeking of advice from friends— nor does it prohibit the giving of advice. It is the overreaching — taking advantage of the trust of another— that is condemned. There is no evidence here that Mrs. Bailey was overreached — or that she was talked into doing something that she did not want to do. Certainly, it is not established that Murphy never intended to marry Mrs. Bailey and was just “leading her on.” The nearest evidence in support of this contention was the testimony of Wise, heretofore mentioned. While there may be those who condemn the marriage of people in advanced years, this is certainly the prerogative .and right of every single person, and such marriages occur every day throughout the country.
It will be noted that the majority of .appellant’s witnesses are related or connected in some manner with Mrs. Bailey’s family, but at any rate the proof is insufficient to establish the contention made by Willey in his appeal.
The issue on the appeal by Murphy with regard to the certificates issued by the Russellville bank is a much closer question. Donald Barger, Chairman of the Board and Chief Executive Officer of the Peoples Bank and Trust Company of Russellville, testified that the cer tificates of deposit were stamped by the bank “as joint tenants with right of survivorship and not as tenants in common.” Barger said that he was working at the bank one Saturday, and someone kept knocking on the door until he finally let them in. A man and woman came in, the woman introducing herself as Pearl Bailey, and introducing the man with her as Mr. Murphy. Barger said that she told him she wanted the certificates issued in both names, and he .assumed that she wanted it in a normal wording of a joint account with right of survivorship. Barger testified that he misplaced the name of the man, and wrote Mrs. Bailey a letter on February 20, 1968, asking for the name. A copy of this letter was introduced into evidence. The witness then said that he received a letter from Mrs. Bailey directing the issuance of the certificates in her name and the name of Mr. Murphy. Apparently, he thought that he had the letter, but it could not be found, and accordingly, was not offered in testimony. A copy of the reply to the Bailey letter was then offered in evidence. In this reply, Mrs. Bailey was advised that:
“* * # Both these certificates have now been changed to a joint ownership form as follows: Mrs. Pearl Bailey or Y. A. Murphy, as joint tenants with right of survivorship and not as tenants in common.
“The two certificates referred to above are returned herewith and we trust you will find them changed to your satisfaction. If for any reason there is any misunderstanding about the form of registration, please contact us promptly. * * *”
Barger identified Y. A. Murphy as the man who accompanied Mrs. Bailey on the Saturday morning. Neither a signature card for the .account nor a signature card signed by Murphy, was found. The trial court held that the statute was not complied with, and that the two certificates involved were not issued in the form required by law to vest title in Murphy as survivor. The pertinent portion of the statute, Ark. Stat. Ann. § 67-552 (Repl. 1966), reads substantially like the previous statute discussed in the Fort Smith case:
“If the person opening such account, or purchasing such certificate of deposit, designates in writing to the banking institution that the account or the certificate of deposit is to be held in ‘joint tenancy’ or in ‘joint tenancy with right of survivorship,’ or that the account or certificates of deposit shall be payable to the survivor or survivors of the persons named in such account or certificate of deposit, then such account or certificate of deposit and all additions thereto shall be the property of such persons as joint tenants with right of survivorship.”
In Cook v. Bevill, 246 Ark., handed down May 5, 1969, 440 S. W. (2d) 570, we said that there must be a substantial compliance with the “designate in writing” requirements of the act in order to effect survivorship. Under the testimony herein, we cannot find substantial compliance. This is not because the request to add Mr. Murphy’s name was by letter, rather than by the signing of a signature card; nor is our finding based on the fact that Mrs. Bailey’s letter had been lost. Rather, the testimony makes clear that the writing (letter) signed by Mrs. Bailey did not request that the certificates be issued in “joint tenancy,” or “joint tenancy with right of survivorship.”
From the record:
‘ ‘ Q. And what she furnished you then was just the man’s name?
A. Right.
Q. Was there anything else on that directing the type of account for you to set up?
A. No.”
The trial judge held correctly.
Affirmed.
Mrs. Bailey had previously been married to Lee Feltner, whose testimony will be subsequently discussed.
Mrs. Bailey had taken out the $2,700.00 certificate in October, 1964, and this is the occurrence referred to by Wise. The $800.00 certificate was issued to her in January, 1966.
The divorce was granted in 1926. | [
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Lyle Brown, Justice.
This litigation arose from an intersection collision between an automobile driven by Deborah McAlister and owned by her father, Elmo Mc-Alister, and one driven by Mrs. Anna M. Bryant. The McAlisters obtained judgment for her personal injuries and his property damage, and Mrs. Bryant appeals. Appellant contends she was entitled to a directed verdict and further asserts error in the court’s failure to give an instruction covering the McAlisters’ measure of damages.
The accident occurred in Russellville during mid-afternoon in February 1967. The only eyewitnesses were the drivers, and their testimony as to the details of the mishap was brief. There were no obstructions, shrubbery or otherwise, to the drivers’ vision of the intersec tion. Deborah McAlister was driving east on M Street, which was paved. From her right and driving north came the Bryant car on Greenwood Street, which was not hard-surfaced. Miss McAlister said she approached the crossing at eighteen miles per hour; that she looked both ways and, seeing nothing, entered the intersection; and that thereafter the Bryant car suddenly came in front of her “like a streak” and they collided in or near the southeast quadrant. “She just came in front of me and there was no possible w,ay I could stop or do anything to avoid it, because I was already there.”
Mrs. Bryant was employed as a bookkeeper for a truckstop. She had left her office to get some sandwich trays in preparation for an employees’ meeting that night and intended to return to the truckstop with the trays. She testified she entered the intersection after looking both ways and seeing no traffic. She fixed her speed at between twenty and thirty miles an hour but said she slowed down considerably as she entered; that just at that point she realized something was approaching from her left; ,and that when she saw the McAlister car it was right on her. On cross-examination she conceded that she was concerned about a hole of muddy water on the north side of Greenwich and was anxious tq miss it because she had just had her car washed. It was also brought out that within a matter of weeks she had another accident at the same crossing and while proceeding in the same direction.
The investigating officer testified that the intersection was uncontrolled. He could not precisely fix the point of impact but he was positive the McAlister car struck the Bryant vehicle. In his opinion no skid marks were made prior to impact, but thereafter both cars skidded. It was his best judgment that the cars collided in the southeast quadrant, which was Mrs. Bryant’s lane of traffic.
Appellant argues there is no substantial evidence upon which the jury could have based its verdicts for appellees. In resolving that issue the evidence must be viewed in the light most favorable to appellees. According to Miss McAlister, she lawfully entered the intersection and was the first of the two vehicles therein, and Mrs. Bryant suddenly appeared in front of the Mc-Alister car after Miss McAlister had traversed most of the southwest quadrant. Taken at face value, her testimony made a case for submission to the jury. Then there was evidence from which the jury could have concluded that Mrs. Bryant entered the intersection at a speed that was unreasonable under the circumstances; that her concentration on missing the muddy hole caused her not to observe a proper lookout before entering and that she did not in fact see the McAlister car until the moment of impact. Also the jury could have concluded that Deborah McAlister could have exercised a more careful lookout and yet thought that Mrs. Bryant’s negligence exceeded the negligence of Miss McAlister. The verdicts were general and awards were returned for much less than the amounts sought. The attack upon the substantiality of the evidence is without merit.
Secondly, appellants allege that the court committed error by not instructing the jury on the elements of damages with reference to any recovery to be awarded the McAlisters. The abstract makes no reference whatsoever to the giving or refusing to give any instructions. The only way of resolving the point would be for each of our judges to proceed to examine the trial record and read most, if not all, the instructions. Of course we are protected from such an ordeal by our Rule 9, requiring abstracting of all material necessary to an understanding of the issues on appeal.
Having concluded that the two points advanced for reversal are without merit, we find it unnecessary to reach a technical point raised on appeal by appellees.
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Lyle Brown, Justice.
Julius H. Jolly was awarded judgment for $9,500 in a personal injury suit against Joseph A. Furrow. The latter expired subsequent to the trial and his executor brought this appeal. The sole error asserted is excessiveness of the verdict.
For some five years appellee had been a route salesman for Independent Linen Company, servicing accounts in several cities in the Forrest City area. In January 1968 he was making a delivery to Tri-County Farmers Association in Brinkley. He had parked on TriCounty’s parking lot, opened the rear door of his panel truck, and was about to step up into the truck to obtain merchandise when Mr. Furrow’s car backed into appellee. The impact pinned appellee’s left leg between the back step of the truck and the bumper of the Furrow car. Appellee sustained a fracture of the larger bone and just above the ankle. Defendant below made no effort at the trial to establish any negligence on the part of plaintiff, Jolly. The evidence, summarized in the light most favorable to the jury award, is as follows:
1. Julius H. Jolly. He was twenty-eight years old and a high school graduate. At the time of the accident he was making $115 per week. He was hospitalized at Brinkley for fifteen days. It was five days before the swelling subsided; during that time a cast was applied to the back of the leg. Then a full cast was applied from the knee to the toes, that cast being worn for some twenty days. He was permitted to go to his home in Forrest City from the hospital at Brinkley and thereafter was treated by Dr. Collins in plaintiff’s home town for reasons of convenience. An orthopedic specialist, Dr. Mitchell of Memphis, examined the patient on three occasions in 1968. The total medical expenses were $789. For fifteen weeks he was wholly incapacitated, during which time his wages would have been $1,725.. Two months after the accident the knee-to-toe cast was replaced by a cast with a walking heel. After approximately one month that cast was removed and he was permitted to walk only with the aid of crutches. After three additional weeks he returned to work.
Jolly stated that the severe pain which he endured all during recuperation had subsided considerably but insisted at the time of trial, some fifteen months after the mishap, that it was routine for him to soak the foot in salt water after each day’s work to reduce soreness and swelling. He complained of some stiffness each morning which could be relieved only by limbering exercises. He also complained that he had had to restrict those playground activities which he formerly enjoyed with his children.
2. Dr. Morgan Collins, practicing physician in Forrest City. Appellee became his patient when the latter returned home from Brinkley. X-rays in March 1968 revealed a fracture of the distal tibia. The bone alignment was good and healing was normal. However, the calcium formation was insufficient to sustain normal weight-bearing. A walking heel was therefore fitted to the cast. One month later the cast was removed and the patient was advised to walk with crutches. Some fifteen weeks after the accident pain and swelling were present in the ankle and foot, not at the fracture site. The patient was advised he could return to work but to continue the use of crutches. As late as July 1968, appellee complained of continued swelling and pain, which were to be expected, because of calcium loss due to inactivity of the foot while in cast.
A final examination before the trial (fifteen months after the accident) revealed these findings: Patient continued to complain of some swelling and pain, particularly after a day’s work. The doctor found muscular atrophy of three-quarters of an inch at the calf of the left leg; patient did not have full flexion and extension of the left foot, lacking five degrees of normal; the abnormality in flexion and extension would be noticeable to appellee when he was in such positions as squatting and lifting to a high degree. Dr. Collins concluded that those three conditions resulted in ten percent permanent functional disability to the lower left leg. He could not predict when his patient could reasonably be expected to be free of intermittent pain.
3. Dr. B. G. Mitchell of Memphis examined appellee on three occasions. He found the muscular atrophy as described by Dr. Collins; he explained that the continued swelling.after a day’s work was normal; the calcium content of the bone appeared considerably deplet ed, from which pain was to be expected; and it was his opinion that the continued pain and stiffness indicated a more complicated post-traumatic atrophy than usually found in this type of injury. The doctor could not predict when the pain would completely subside, stating that injuries in weight bearing extremities could produce pain and discomfort over a period of several years. He agreed with Hr. Collins as to the percentage of functional disability.
The elements of damages submitted to the jury were the nature and duration of the injuries, medical expenses, loss of wages, and pain and suffering. When we consider those elements (all of which have been summarized) along with appellee’s substantial life expectancy and his vocation which required considerable physical activity, we cannot say the award evidences jury prejudice or that it shocks the conscience of the court. What we recently said in Hartford Acc. & Ind. Co. v. Warren, 246 Ark. 323, 438 S. W. 2d 31 (1969) is appropriate here:
We have no means for accurate measurement of pain and suffering. Nor do we have any means of determining the exact impact of a 10 percent disability upon the future earnings and earning capacity of one whose livelihood is earned through physical activities. In view of the evidences of pain exhibited by Warren, his hospitalization and his disability, we are unable to say that the judgment for $12,000 evidences passion or prejudice on the part of the jury or that it shocks the conscience of the court. Consequently, we cannot reverse the judgment on this basis.
Appellant compares the award in this case with the amount appellee would have received for the same injury under the provisions of our workmen’s compensation law and reasons that the verdict should, in light of the disparity, be reduced. The analogy is without merit. The concepts of tort recovery and compensation benefits are so distinctly different that they cannot be compared favorably. For example, the object of tort recovery for an injured person is to restore the claimant to what he has lost, including disfigurement, pain, and mental anguish; a compensation plan proposes principally to give the claimant a sum (in addition to medical) “which, added to his remaining earning ability, if any, will presumably enab1 e him to exist without being a burden to others.” Larson Workmen’s Comp. Y. 1, § 2.50. The same authority, in § 2.00, summarizes the basic differences thusly:
Workmen’s compensation is fundamentally different from strict tort liability in its basic test of liability — work connection rather than fault; in its underlying philosophy — social protection rather than righting a wrong; in the nature of the injuries compensated; in the elements of damages; in the defenses available; in the amount of compensation; in the ownership of the award; and in the significance of insurance.
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John A. Fogleman, Justice.
Appellant, a former member of the Rogers police department, appealed the judgment dismissing appellant’s complaint for recovery of “equalization pay” under Act 133 of the General Assembly of 1955 [Ark. Stat. Ann. §§ 19-1713’ and 1714 (Repl. 1968)] for 13 annual legal holidays which occurred each year during the period of his employment. The dismissal was entered upon the sustaining of appellee’s special demurrer. The court’s action was premised upon its conclusions that appellant could not sue the city upon a statutory liability, and that his action was precluded, in any event, by Amendment No. 10 to our Constitution. Incidentally, the circuit court construed §§ 19-1713 and 1714 to mean that appellant, and others similarly situated, ■ were to he given additional pay only for those holidays upon which they worked.
Appellant’s first point for reversal is an assertion that the act in question entitled policemen to additional pay for all legal holidays recognized by the state rather than just for those holidays on which they actually worked. We disagree with the circuit judge on this point. We take the language of the statute to be clear and unambiguous in the statement of a legislative intention that all policemen be paid additional compensation for all legal state holidays regardless of whether they actually worked on each of those holidays. The pertinent part reads:
“From and after the passage of this act all policemen shall be paid for the thirteen (13) Arkansas legal holidays as set forth in Section 69-101 and 69-104 of the Arkansas Statutes.”
This declaration was a statement of public policy by the legislative branch of our state government and a directive to the municipalities of our state.
Appellant’s second point is directed to the circuit judge’s holding that appellant is limited to remedies such as mandamus to city authorities, at least until the General Assembly implements the statute by granting the right to individual policemen to bring suits against the city. We agree with appellant that he is not so limited. Suits have been brought against municipalities on various contractual liabilities in numberless cases which have reached this court without the question of a city’s immunity from suit having been raised. The only immunity from suit that has actually been recognized in this state was in cases wherein tort liability was asserted. See discussion in opinions in Parish v. Pitts, 244 Ark. 1239, 429 S. W. 2d 45. Where a city is acting in a proprietary, rather than in a governmental capacity, there has never been any immunity from any liability. Arkansas Valley Compress & Warehouse Co. v. Morgan, 217 Ark. 161, 229 S. W. 2d 133; Collie v. City of Fort Smith, 73 Ark. 447, 84 S. W. 480. We held in Wayland v. Snapp, 232 Ark. 57, 334 S. W. 2d 633, that a city authorized to mortgage its property is subject to foreclosure on breach of the condition, overruling the contention that such an action woiild be in violation of Article 5, Section 20 of our Constitution making the state immune from suit. Suits against counties, the agencies of our state government most comparable to cities, are limited only by Act 16 of 1879. Prior to this enactment statutes provided for suits against counties in our circuit courts. See Nevada County v. Hicks, 48 Ark. 515, 3 S. W. 524. No statute governing claims against municipalities is in effect. Yet, we have gone no farther than to say that an action will not lie against a municipal corporation as an agent of the state for governmental purposes in the absence of a statute making it liable. Jones v. Sewer Imp. Hist. No. 3, 119 Ark. 166, 177 S. W. 888; Gregg v. Hatcher, 94 Ark. 54, 125 S. W. 1007. Arkansas Statutes Annotated § 19-2301 (Repl. 1968) provides that cities may sue and be sued. Since there is a statute fixing the liability asserted by appellant, and no statute providing any other procedure for the assertion of claims against a municipal corporation, we find no greater impediment to a suit against a city upon a statutory liability than to one upon a contractual liability. We hold that the fixing by statute of a specific liability of a municipal corporation which may sue and be sued is sufficient authorization for a suit to enforce that liability in the absence of any statute providing some other procedure for doing so. The existence of the statutory right implies the existence of an appropriate remedy. Sullivan v. Little Hunting Park, Inc., 396 U. S. 806, 90 S. Ct. 400, 24 L. Ed. 2d 386 (December 15, 1969). In Wayland v. Snapp, supra, we held that the mere legislative authorization to mortgage city property also authorized a suit against the city to foreclose. We clearly said that the General Assembly might authorize suits against municipalities.
Appellee asserts that the trial court correctly held that Amendment No. 10 is a bar to appellant’s action. This constitutional provision prohibits a city from entering into any contract or making any allowance in excess of the revenue for such city for the current fiscal year. It cannot be ascertained from the face of appellant’s complaint that the allowance of appellant’s claim would necessarily cause the revenues of appellee for any year or years to be exceeded. This is a matter which may be asserted as a defense and must be supported by evidence showing the revenues of the city for the year or years involved and the allowances properly chargeable against those revenues. The burden of showing that payment of an obligation would constitute a violation of this amendment is upon the party making that assertion if a question of fact is involved. See Chestnutt v. Yates, 177 Ark. 894, 9 S. W. 2d 37; Eureka Fire Hose Mfg. Co. v. City of Ozark, 203 Ark. 709, 158 S. W. 2d 679. There is no way that this court or the circuit court could possibly ascertain, on the record, what the revenues or expenditures of the city amounted to in the year or years involved, what disposition may have been made of any surplus in any such year, or what other claims against any surplus might be outstanding. These are all factual questions to be determined whenever it is ascertained into which year or years appellant’s claim falls. See Manhattan Rubber Mfg. Division v. Bird, 208 Ark. 167, 185 S. W. 2d 268, 159 A. L. R. 1257, and cases cited therein; also, Democrat Printing & Lithographing Co. v. Crawford County, 191 Ark. 409, 86 S. W. 2d 552, and cases cited therein.
The judgment is reversed and the cause remanded for further proceedings not inconsistent with this opinion. | [
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Betty C. Dickey, Chief Justice.
This is the second appeal from an iEegal-exaction lawsuit that was filed by a group of taxpayer retirees against the appeEant, the Arkansas Department of Finance and Administration (DF&A). In our first decision related to this case, we held that after-tax contributions to retirement plans are property and are therefore not subject to income taxes. See Weiss v. McFadden, 353 Ark. 868, 120 S.W.3d 545 (2003) (Weiss I). We further held that an income tax levied against after-tax contributions pursuant to Ark. Code Ann. § 26-51-307 is an ad valorem tax on property in violation of Ark. Const. Amend. 47, and such an ad valorem tax is an Elegal exaction under Ark. Const. Art. 16, § 13. Id.
This second appeal concerns the refund mechanism fashioned by the trial court upon remand of Weiss I as well as the issue of the constitutionality of Act 380 of 1991. Both the appellee taxpayers and the DF&A proposed refund mechanisms as a remedy for taxes that had been illegally exacted from the appellees. The trial court opted for the appellees’ methodology, which allows retirees to recover the full benefit of their after-tax contributions. The DF&A appeals this ruling, asserting that the trial court erred in (1) refusing to apply the voluntary-payment rule to any illegally-exacted taxes that were paid prior to the filing of the lawsuit in 1999, and (2) refusing to apply 26 U.S.C. § 72, which prorates recovery of after-tax contributions on federal tax returns. On cross-appeal, the appellees argue the trial court erred in finding that Act 380 of 1991 does not violate the intergovernmental tax-immunity doctrine.
This suit was adjudicated in a bench trial. In bench trials, the standard of review on appeal is whether the trial court’s findings were clearly erroneous or clearly against the preponderance of the evidence. Carwell Elevator Co., Inc. v. Leathers, 352 Ark. 381, 101 S.W.3d 211 (2003). As to the appeal, although the trial court was not clearly erroneous in its refusal to apply 26 U.S.C. § 72, we agree that the trial court should have applied the voluntary-payment rule and we reverse and remand with instructions to do so. As to the cross-appeal, we affirm the trial court’s ruling that Act 380 of 1991 is constitutional. Because this is the second appeal on a case already heard in this court, we have jurisdiction pursuant to Ark. Sup. Ct. R. 1-2(a) (7).
Before addressing the appeal and cross-appeal, we note that the appellees filed a motion to dismiss this appeal, contending that the trial court’s order is not a final and appealable order because (1) it does not adjudicate claims that § 26-51-307(c) is unconstitutional under Ark. Const. Art. 16, § 5 and the Equal Protection Clause, and (2) the trial court did not enter a Rule 54(b) certificate. We disagree. Once a statute is declared unconstitutional, the statute is a nullity and in legal contemplation is as inoperative as if it had never been passed. Morgan v. Cook, 211 Ark. 755, 202 S.W.2d 355 (1947). Because we declared Ark. Code Ann. § 26-51-307(c) unconstitutional under Amendment 47, there was no need for the trial court to decide the other constitutional claims. In addition, by finding that Act 380 of 1991 did not violate the intergovernmental tax-immunity doctrine, the trial court made a final ruling on that claim as well. Finally, because all of the issues were adjudicated, a Rule 54(b) certificate is not necessary. Accordingly, we hold that the trial court’s October 1, 2003, order is a final order for appeal purposes. Therefore, the appellees’ motion to dismiss the appeal is denied.
A brief recitation of pertinent facts is necessary to an understanding of the issues on appeal. Given the complexity of the facts, we will first address the issues in the appeal of the trial court’s decision regarding Ark. Code Ann. § 26-51-307, then we will address the cross-appeal concerning the constitutionality of Act 380 of 1991.
On July 27, 1999, appellees Jimmy McFadden, William Joplin, and James French, et ah, brought an action against Richard Weiss, Director of DF&A, alleging that Ark. Code Ann. § 26-51-307(c) was unconstitutional. Section 26-51-307 provided an exemption from income tax on the first $6,000 of retirement benefits for persons filing Arkansas income tax returns, but subsection 307(c) specifically disallowed recovery of a retiree’s after-tax contributions. This, in effect, was an income tax on after-tax contributions. The taxpayers contended that the after-tax contributions were property rather than income, and asked for a declaratory judgment to that effect. Their remedy request was twofold: (1) an injunction against the State to cease the income tax on after-tax contributions when they are returned as a portion of retirement benefits, and (2) a refund to taxpayers of all illegally-exacted taxes on those after-tax contributions.
The trial court found subsection 307 (c) unconstitutional as an ad valorem tax on property, and we affirmed this decision. See Weiss I, supra. With the elimination of § 26-51-307 (c), the Arkansas income tax code is now silent as to the recovery of after-tax contributions as deductions. On remand, DF&A asked the trial court to apply 26 U.S.C. § 72, which uses an actuarial formula to prorate over a period of years the recovery of after-tax contributions as deductions on federal income tax returns. The DF&A wanted the trial court to order the use of § 72 and its prorated formula to fill the void left by § 26-51-307(c). This would allow recovery of a retiree’s tax contributions as deductions to be spread out over a period of several years, thus cutting off recovery of any tax paid on those contributions prior to 1999 when the lawsuit was filed. The appellee taxpayers opposed the use of § 72 and instead provided the trial court with their own refund methodology. Under this methodology, instead of asserting a specific amount of taxes that were illegally exacted from them, the appellees instead claim that the State denied them the benefit of being able to claim the return of their after-tax contributions as deductions from income on their Arkansas income tax returns. In other words, because the State never allowed them to deduct the contributions, their taxes have been higher than they should have been. The appellees also assert that because the State never allowed them to deduct those contributions, the contributions still remain in their retirement accounts, awaiting recovery.
The appellees’ plan, which the trial court approved, provides for the recovery of all after-tax contributions made to retirement accounts. This recovery would be spread over a period of four years, beginning with tax year 1999. Under this plan, a retiree can deduct after-tax contributions up to the amount of total retirement benefits for 1999, thus providing for a refund of any taxes paid on those retirement benefits. If there are after-tax contributions left over, those contributions may be rolled over into tax years 2000, 2001, and 2002, providing a refund of taxes paid in those years. Because all after-tax contributions will be recoverable as deductions under this plan, the voluntary-payment rule was not applied by the trial court to years prior to 1999. DF&A appeals, arguing that the trial court should have applied both the voluntary-payment rule and 26 U.S.C. § 72 to the recovery of after-tax contributions.
Voluntary-Payment Rule
It is well-settled that taxes paid prior to the filing of an illegal-exaction suit are deemed voluntarily paid. See Worth v. City of Rogers, 341 Ark. 12, 14 S.W.3d 471 (2000). As we observed in Mertz v. Pappas, 320 Ark. 368, 896 S.W.2d 593 (1995),
When taxes are paid to a government they are deposited into that government’s general revenues and ordinarily are spent within that tax year. However, when the government is put on notice that it may be required to refund those taxes, it can make the appropriate allowance for an appropriate refund. If we were to allow refunds for taxes voluntarily paid in previous years, it would jeopardize current and future governmental operations because current and future funds might be necessary for the refund.
Id. at 370, 896 S.W.2d at 594 (emphasis added).
The DF&A argued below and on their first appeal that it has taxed only income — never property — and that it never allowed any recovery of after-tax contributions as deductions. Therefore, the appellee taxpayers reason, those after-tax contributions are still in their retirement accounts awaiting recovery and no taxes have been voluntarily paid on those contributions.
The appellees further argued to the trial court that since Ark. Code Ann. § 26-51-307(c), which disallowed recovery of those contributions, has been found unconstitutional, they should be able to recover all of their after-tax contributions as deductions and “front-end load” them as amendments to their 1999-2002 tax returns that were already filed. In that way, they would get the full benefit of their after-tax contributions; then, for the years 2003 forward, their gross income would be reduced by recovery of after-tax contributions in whatever methodology the General Assembly sets forth to allow that benefit in the future. Under this theory, the voluntary-payment rule would not apply because no taxes were ever illegally exacted prior to 1999. Additionally, the appellees argue that this methodology is similar to the one fol lowed in Pledger v. Bosnick, 306 Ark. 45, 811 S.W.2d 286 (1991), in which the voluntary-payment rule was not applied.
The appellees’ argument fails for two reasons. First, the statute in question in Pledger v. Bosnick, supra, was found to be in violation of the intergovernmental tax-immunity doctrine, as set forth in Davis v. Michigan, 489 U.S. 803 (1989). We found this Davis violation was controlled by the guidance in Chevron Oil Co. v. Huson, 404 U.S. 97 (1971), which sets forth factors that are considered when determining whether the unconstitutionality of a statute will be applied retroactively. In the case of Pledger v. Bosnick, supra, we found that the Chevron factors required retroactive application of the rule; therefore, the retirees in Pledger v. Bosnick, supra, received the entire sum of money that had been taken from them under the unconstitutional law in question.
In the instant case, Ark. Code Ann. § 26-51-307(c) was found unconstitutional under Amendment 47 to the Arkansas Constitution. There was never a finding that the illegally-exacted funds violated the intergovernmental tax-immunity doctrine, so the instant case does not fall under the Chevron and Davis rubric. Thus, the voluntary-payment rule applies if taxes were paid on after-tax contributions recovered prior to 1999.
The second reason the appellees’ argument fails is because the appellees claim that their after-tax contributions still remain in the coffers of their retirement accounts; and yet, those after-tax contributions have been deducted on federal income tax returns in a prorated manner under 26 U.S.C. § 72. If a portion of appellees’ retirement benefits prior to 1999 was the recovery of a portion of their after-tax contributions for federal income tax purposes, then the appellees cannot argue that those contributions are still in their retirement accounts. The nature of their retirement benefits does not depend on whether it is a federal income tax return or a state income tax return being filed. Either the appellees have received a portion of their after-tax contributions and been taxed on those contributions as income, or they have not; and if they have received them on their federal income tax returns, then those after-tax contributions that were taxed and were received prior to 1999 are subject to the voluntary-payment rule.
The appellees argue that the DF&A’s refund methodology would require every retiree who has after-tax contributions in a retirement account to file amended returns for 1999-2002. They also argue that the DF&A’s methodology requires inclusion of the retirees’ birth dates, retirement dates, and dates of birth of their beneficiaries, in order to develop the actuarial table that would project the number of years the retirees would be receiving benefits. Appellees counter that such a methodology would be infeasible and unmanageable, because the DF&A’s own expert testified that such a method would require an extensive amount of processing time for the amended returns. Appellees posit that such a methodology would take years to complete, effectively barring the appellees from any real recovery.
However, there are other equitable ways by which a refund may be effected while still acknowledging the voluntary-payment rule. One such way would be for the appellees to file amended returns for 1999 through 2002, attaching copies of their federal income tax returns. They could adjust their income on the Arkansas returns by the amount of after-tax contributions claimed on their federal returns for those years. In this way, all taxes paid on after-tax contributions received prior to 1999 would be considered voluntarily paid; while, at the same time, the appéllees would receive the benefit of a refund of those taxes illegally exacted in 1999-2002 because they were not allowed to recover their after-tax contributions during those years.
Because the trial court erred in refusing to apply the voluntary-payment rule to illegally-exacted taxes paid in the years prior to 1999, we reverse and remand on this point with instructions to fashion a remedy consistent with this opinion.
Application of 26 U.S.C.§ 12
Next, the DF&A argues that the trial court erred in refusing to apply § 72 of the Internal Revenue Service Code, codified at 26 U.S.C. § 72, when fashioning the remedy in this case. We disagree. Ark. Code. Ann. § 26-51-404(b)(24) reads as follows:
(A) Sections 72(a), (b),and (c) of the Internal Revenue Code of 1986, as in effect on January 1,2001, relating to the exclusion from gross income of certain proceeds received under nonemploymentrelated life insurance, endowment, and annuity contracts, is hereby adopted for the purpose of computing Arkansas income tax liability.
(B) Annuity income received through an employment-related retirement plan shall not be subject to the provisions of § 26-51- 404(b). The income shall instead be subject to the retirement income provisions of § 26-51-307.
Ark. Code Ann. § 26-51-404(b)(24) (Supp. 2003).
In Weiss I we held that both Ark. Code Ann. § 26-51-404(b) (24) (B) and § 26-51-307 are plain and unambiguous and we gave these statutes their plain meaning. The express terms of § 26-51-404(b)(24)(A) clearly state that nonemployment-related retirement plans are covered under IRS Code § 72, while the express terms of § 26-51-404(b)(24)(B) clearly state that employment-related retirement plans are subject to § 26-51-307. The retirement plans at issue are employment-related; therefore, § 26-51-307 governs them.
Subsection (c) of § 26-51-307 was the only subsection of the statute that addressed recovery of after-tax contributions. With the invalidation of subsection (c), the DF&A urges that a “void”now exists in the tax code with regard to after-tax contributions in employment-related retirement plans. The DF&A argues that the trial court should have applied § 72 to fill that “void” because, as it states in its argument, “it is logical to assume the General Assembly would have intended” for § 72 to be used as a guide.
There is nothing in § 26-51-307 to indicate that the General Assembly intended that § 72 be applied to recovery of after-tax contributions in employment-related retirement plans. We will not read into a statute a provision not put there by the General Assembly. Neeve v. City of Caddo Valley, 351 Ark. 235, 91 S.W.3d 71 (2002); State v. Goss, 344 Ark. 523, 42 S.W.3d 440 (2001). We thus hold that the trial court did not err in refusing to apply 26 U.S.C. § 72 to employment-related retirement plans.
Cross-Appeal— Constitutionality of Act 380 of 1991
The sole issue on cross-appeal is the meaning of Act 380 of 1991. Issues of statutory interpretation are reviewed de novo, as it is for this court to decide what a statute means. Mississippi Transmission Corp. v. Weiss, 347 Ark. 543, 65 S.W.3d 867 (2002).
The appellee taxpayers alleged that Act 380 of 1991 is an unconstitutional violation of the intergovernmental tax-immunity doctrine. Act 380 provided for a one-time four percent increase in retirement benefits to some members of the Arkansas Public Employees Retirement System (APERS), the Arkansas State Police Retirement System, and the Arkansas State Highway Employees Retirement System, and their beneficiaries. The appellees assert that Act 380 was not actually an increase in retirement benefits but was, instead, a disguised tax rebate for state retirees. Since Act 380 does not provide for any such increase in benefits for federal retirees, the appellees argue that Act 380 violates the intergovernmental tax-immunity doctrine, which prohibits states from taxing income earned by federal employees differently than income earned by state employees. 4 U.S.C. § 111(a). The crossappellee, Arkansas Attorney General, intervened to defend Act 380.
The Attorney General filed a motion for summary judgment, arguing that Act 380 is clear and unambiguous, and it is a benefit increase that does not violate the intergovernmental tax-immunity doctrine. The cross-appellant taxpayers also filed a motion for summary judgment, claiming that the language of Act 380 was ambiguous and the trial court should go behind the plain language of the statute to find the design and intent of the legislature was to provide for a tax rebate for state government retirees.
The trial court found that Act 380 is clear and unambiguous and granted the Attorney General’s motion for summary judgment, and the trial court did not address the cross-appellants’ motion for summary judgment or the merits of their claim. The cross-appellants appeal that ruling, contending that even if the language of Act 380 is clear and unambiguous, the trial court should have looked beyond the plain meaning of the act to determine its “design and effect.” We disagree.
It is well established that the first rule in considering the meaning and effect of a statute is to construe it just as it reads, giving the words their ordinary and usually-accepted meaning in the common language. Cave City Nursing Home, Inc. v. Arkansas Dept. of Human Serv., 351 Ark. 13, 89 S.W.3d 884 (2002). When a statute is clear, we will not search for legislative intent; rather, that intent must be gathered from the plain meaning of the language used. Id.
The cross-appellants rely heavily upon Vogl v. Dept. of Revenue, 327 Or. 193, 960 P.2d 373 (1998), which was decided in the wake of state legislative action that followed the United States Supreme Court’s decision in Davis v. Michigan, 489 U.S. 803 (1989). In Davis v. Michigan, supra, the U.S. Supreme Court held a Michigan statute unconstitutional because it exempted the benefits of state retirees from taxation, but did not exempt the retirement benefits of federal retirees. In response to Davis, Oregon passed a statute which increased by up to four percent the Oregon Public Employees Retirement System benefits, and repealed the full tax exemption of state government retirees’ benefits. In Vogl v. Dept. of Revenue, supra, the Oregon Supreme Court held the Oregon statute was an unconstitutional violation of the intergovernmental tax-immunity doctrine because it was merely a tax rebate designed to offset the effects of the Davis decision.
The Oregon statute differed from Act 380 in that it expressly stated that the four percent increase in retirement benefits was in response to the Davis decision subjecting Oregon retirees’ benefits to income taxation. See Vogl v. Dept. of Revenue, supra. The plain and unambiguous language of the Oregon statute provided tax relief to state retirees that was not available to federal retirees. Moreover, the Oregon statute was part of that state’s tax system. Act 380, on the other hand, contains no such language:
SECTION 1. (a) On July 1, 1991, the monthly retirement benefit payable to retirants and beneficiaries of the Arkansas Public Employees Retirement System, who retired June 1,1991, or before, shall be increased by four percent (4%) of the benefit payable on June 1,1991.
(b) The increase in benefits provided above shall be added to the monthly benefit after the annual post-retirement increase based on the consumer price index has been applied, and the increase in subsection (a) of this section shall be added to the base annuity of the retirant or beneficiary.
1991 Ark. Acts 380.
Sections 2 and 3 of Act 380 read identical to Section 1, except that Section 2 applies to State Police retirees and Section 3 applies to State Highway retirees. Unlike the Oregon statute, Act 380 was never part of the Arkansas tax code. Furthermore, the Emergency Clause of Act 380 stated that state retiree benefits were inadequate and the increase was to overcome undue hardship to retirees and their beneficiaries. There is no mention in Act 380 of an attempt to offset the repeal of a tax exemption. In fact, while the Arkansas tax code is codified at Title 26 of the Arkansas Code, Act 380 of 1991 is codified at Title 24, in Ark. Code Ann. § 24-4-612 (APERS retirees), § 24-5-126 (State Highway retirees), and § 24-6-224 (State Police retirees). Thus, these increases were not part of the tax code. Furthermore, a cursory glance at Sections 4, 5, and 6 of Title 24 shows that Act 380 of 1991 was only one of several benefit increases that have taken place over the years.
In asking us to look to the “substance of the benefit” even if the language of Act 380 is plain and unambiguous, the cross-appellants invite us to look into the motives of the drafters of tíre Act. This we will not do. When a statute is not ambiguous, we will not interpret it to mean anything other than what it says. Cave City Nursing Home, Inc. v. Ark. Dept. of Human Serv., supra. We decline the cross-appellants’ invitation to look beyond the plain language of Act 380 and affirm the trial court’s ruling that Act 380 of 1991 is plain and unambiguous and does not violate the intergovernmental tax-immunity doctrine.
In sum, we affirm the trial court’s ruling that Act 380 of 1991 does not violate the intergovernmental tax-immunity doctrine; we affirm the trial court’s refusal to apply 26 U.S.C. § 72 to after-tax contributions in employment-related retirement plans; and we reverse the trial court’s ruling that the voluntary-payment rule did not apply to taxes paid on after-tax contributions and remand with instructions to fashion a remedy consistent with this opinion.
Affirmed in part, reversed and remanded in part. | [
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Betty C. Dickey, Chief Justice.
Bonnie Weiss Medlin appeals a Polk County Circuit Court order entered on May 21, 2003, granting visitation rights to Jesaca and Jamee Weiss with their half-sister Raegan, appellant’s daughter. The trial court ordered visitation to be concurrent with that of noncustodial parent Tim Weiss, father of all the girls, as set forth in the trial court’s order ofMarch 10, 1999. The trial court further added that visitation rights of the siblings shall be pursuant to Ark. Code Ann. § 9-13-102 (Supp. 2002). This court affirms the trial court, clarifying the March 10,1999 order delineating parental visitation rights, but reverses the trial court as to sibling visitation rights pursuant to § 9-13-102.
Bonnie and Tim Weiss married on October 30, 1993, and had one child, Raegan. They were divorced on March 10, 1999, and custody of Raegan was given to Bonnie, with visitation for Tim from 6 P.M. Friday until 6 P.M. Sunday on alternate weekends. At the time of the divorce, Bonnie neither requested, nor was awarded, child support. Later in 1999, Tim remarried his first wife, Ronda, with whom he had had two daughters prior to his marriage with Bonnie. When Tim’s out-of-town job required that he leave at noon on Sundays Bonnie demanded that Raegan be returned early to her care, and would only allow sibling visitation with the two half-sisters in Bonnie’s home.
On November 21, 2002, Bonnie filed a petition asking for child support for Raegan, and Tim counterclaimed that Bonnie “has consistently failed, refused and neglected to allow visitation with the parties’ minor child.” On December 26, 2002, Ronda filed a motion to intervene on behalf of Jesaca and Jamee, half- sisters, asking that they be allowed to exercise visitation with Raegan during Tim’s regular visitation times, whether Tim was there or not.
At a hearing on March 12, 2003, Weiss testified that his job required that he travel to other states and he was away from his home during certain times while Reagan was in his care, namely Sunday afternoons. Tim, Ronda, and the half-siblings wanted Raegan’s visitation to continue until 6:00 P.M. Sunday; therefore, they filed the petition seeking third party visitation rights under Ark. Code Ann. § 9-13-102 (Supp. 2002), which provides:
The circuit courts of this state, upon petition from any person who is a brother or sister, regardless of the degree of blood relationship, or, if the person is a minor, upon petition by a parent, guardian, or next friend in behalf of the minor, may grant reasonable visitation rights to the petitioner so as to allow the petitioner the right to visit any brother or sister, regardless of the degree of blood relationship, whose parents have denied such access. The circuit courts may issue any further order which may be necessary to enforce the visitation rights.
The trial court, in an April 2, 2003 letter to the parties, recognized that Ark. Code Ann. § 9-13-102 suffers, on its face, from the primary deficiency referenced in Linder v. Linder, 348 Ark. 322, 72 S.W.3d 841 (2002), in that the statute provides “no special weight to parent’s decision”, and that the statute suffers from an absence of a “best interests” standard. The trial court distinguished Troxel v. Granville, 530 U.S. 57, 120 S. Ct. 2054 (2000), and Linder, saying, in those cases, it was the right of a single custodial parent to be free of state intrusion in the parenting of a child. Here, the trial court continued, the dispute is between two fit parents, both parents have fundamental interests in parenting decisions, and the dispute is, essentially, which parenting decision should be given weight. The trial court also distinguished Seagrave v. Price, 349 Ark. 433, 79 S.W.3d 339 (2002), where there was only one fit parent. The trial court in this case noted, “[t]he sibling visitation statute, when applied in this situation, simply allows the court to give weight to the parenting decision of the noncustodial parent,” and ended the letter by questioning the appropriateness of Bonnie’s restrictive view of Tim’s visitation time.
On April, 10, 2003, the trial court denied Bonnie’s motion to dismiss and granted Ronda’s motion to intervene. The trial court, in its May 28, 2003 order, denied the constitutional chai lenge, and allowed half-sibling visitation concurrent with the March 10, 1999 order, setting out Tim’s parental visitation rights with Raegan. The trial court found that Bonnie “offered no convincing testimony for objecting to visitation between Raegan Weiss and her half sisters, Jesaca Autum Nikole Weiss and Jamee Dianah Lea Weiss.”
The sole point on appeal is appellant’s argument that “this statute is unconstitutional as written and as so applied to Bonnie Medlin under the facts of this case.” In support, she cites a number of cases addressing visitation rights with miñor children, beginning with Linder, supra, in which she quotes this court, “One of the substantive components that has emerged for the Fourteenth Amendment’s guarantee of due process of law is the liberty right of a parent to have and raise children.” Id at 342. Flowever, neither the Linder case nor any other case to which appellant refers are cases in which there are two fit parents, as there are here. In Re Custody of Nunn, 103 Wash. App. 871, 14 P.3d 175 (2000); Herbist v. Swan, 102 Cal. App. 4th 813, 125 Cal. Rper.2d 836 (2002); McGovern v McGovern, 201 Ariz. 172, 33 P.3d 506 (Ariz. Ct. App. 2001); State Department of Social and Rehabilitation Services v. Paillet, 270 Kan. 646, 16 P.3d 962 (Kan. 2001); Roby v. Adams, 68 S.W.3d 822 (Tex. Ct. App. 2002); Wickham v. Byrne, 199 Ill.2d 309, 769 N.E.2d 1, (Ill. 2002); Neal v. Nesvold, 2000 OK 90, 14 P.3d 547 (Okla. 2000); Hawk v. Hawk, 855 S.W.2d 572 (Tenn. 1993); Roth v. Weston, 259 Conn. 202 (2002). Both parents, as the trial court says, have fundamental interests in parenting decisions, and the dispute is essentially, which parenting decision should be given weight. The liberty right of a parent to rear a child applies to both parents, and neither the state nor the absent parent has the right to intrude upon the decisions a fit parent makes while the child in his or her custody regarding what is in that child’s best interest or with whom she can associate.
The trial court, in that April 2, 2003 letter to both attorneys, recognized that the “sibling visitation statute, on its face, suffers from the primary deficiency identified in Linder, that is, no special weight to parent’s decision” and also suffers from an absence of a “best interests of the child” standard. We agree that the language of the statute may require revision by the legislature or its constitutionality addressed in some future case appealed to this court, but we decline to rule on it in this matter.
We review chancery cases de novo on the record, but we do not reverse a finding of fact by the chancery court unless it is clearly erroneous. Lake View School District No. 25 v. Huckabee, 351 Ark. 31, 91 S.W.3d 472 (2002). A finding of fact by the chancery court is clearly erroneous when, although there is evidence to support it, the reviewing court on the entire evidence is left with a definite and firm conviction that a mistake has been committed. Lake View, supra; Huffman v. Fisher, 337 Ark. 58, 987 S.W.2d 269 (1999).
The appellant may challenge the constitutionality of the sibling visitation statute, but the real issue here is whether one parent can make decisions that impinge on the visitation rights of the other. The trial court questioned the appropriateness of requiring that the appellant’s father, Tim Weiss, be physically present during all hours of his visitation period. The court determined Raegan’s half-sisters could exercise visitation with her during that time, between 6:00 P.M. of Friday and 6:00 P.M. on Sunday, when the father had visitation rights pursuant to the March 10,1999 order. That order, signed by both Tim and Bonnie Weiss Medlin, allowed reasonable and liberal visitation by the father with Raegan, with no requirement that the father be continually in the presence of Raegan during each hour of those forty-eight hour visits. Tim Weiss, during those visitation periods, has the right, as a fit parent, to decide what is in the child’s best interest, including visitation between and among his daughters, in his own home, without his being physically present.
The fact that the trial court clouded the issue of parental visitation rights by ordering concurrent sibling visitation rights under Ark. Code Ann. § 9-13-102 requires that this case be reversed and remanded for the trial court to amend its order consistent with this court’s decision.
Affirmed in part, reversed and remanded in part.
Imber and Hannah, JJ., concur. | [
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Robert L. Brown, Justice.
Appellant Paul E. Hanlin appeals his judgment of conviction for rape and his sentence of twenty-two years in prison as well as the denial of his motion for a new trial. He argues the following points on appeal: (1) the evidence was insufficient to support the verdict; (2) the circuit judge abused his discretion in admitting hearsay statements that Hanlin was accused of another rape in another state; and (3) the circuit judge abused his discretion in refusing to allow Hanlin to delve into the victim’s sexual history, when the prosecutor was permitted to do so. We reverse and remand this case for further proceedings.
The facts in this matter were developed at trial. Delvin Hanlin, brother of Paul Hanlin, testified that his daughter, L. H., was the rape victim. Kathy Hanlin is Delvin Hanlin’s wife and the mother of L. H. Paul Hanlin lived off-and-on with Delvin Hanlin and his family from April 1997 until May 2000. In October 1997, they were all living in a trailer park in the outskirts of Jacksonville. During the evening of October 12, 1997, Delvin and his wife left their trailer home to celebrate their birthdays, and Paul Hanlin (hereinafter referred to as Hanlin) remained with the two children. At the time, L. H. was twelve years old, and her brother was ten years old.
L. H. testified that Hanlin sent her brother to bed early and offered her “some beer and some weed.” She said that the beer and the marijuana made her feel “kind of funny.” She related to the jury that Hanlin took her inside the trailer home, madé her lie on the couch, and then “got on top of’ her. He took off her pants, pulled down his pants to his kneecaps, and “inserted his penis inside” her. L. H. testified that she tried to “push him off’ of her, but he “kept saying please repeatedly.” After the rape, she went straight to her room, and her mother and father returned around 10:30 or 11:00 that night. The following day, L. H. told her younger brother what had happened, but she did not tell her parents, because Hanlin had told her that he would hurt her family if she did so.
On February 14, 1998, D. B., a friend of L. H.’s, told L. H. that her step-father had raped her. L. H., in turn, told D. B. that Hanlin had raped her. D. B. told L. H. that “it’d be okay and that she needed to tell her mother or her dad.” L. H. testified that Hanlin raped her a second time sometime after October 1997 in the same trailer home.
Hanlin later moved to Alabama with his girlfriend Maggie McDaniel and her three children. In 1998, he told S. M., Maggie’s daughter, who is three months older than L. H., that he had had sexual intercourse with L. H. On December 31, 1998, or January 1, 1999, S. M. told her mother, Maggie, about the rape of L. H., and Maggie called her sister in Arkansas, Debbie Stringfellow. Late in the evening on May 7, 2000, Debbie Stringfellow and her husband approached Kathy Hanlin with the news that Hanlin had raped L. H. The next morning, Kathy Hanlin took L. H. to a private park, and in response to her mother’s questioning about whether anyone had ever hurt her, L. H. answered that Hanlin had raped her. Kathy Hanlin and L. H. then went to a friend’s house to call Delvin Hanlin and the Jacksonville Police Department to file a report.
On May 9, 2000, Kathy Hanlin and L. H. met with Officer Barry Davidson, a patrolman with the Jacksonville Police Department. Officer Davidson’s report included the fact that L. H. had said Hanlin gave her two beers but did not state that L. H. had said Hanlin gave her marijuana. Detective Jackie Harper of the Jacksonville Police Department also interviewed L. H. and her parents as well as Maggie McDaniel and her daughter, S. M., in Alabama by telephone. Detective Harper received the written statements of Maggie McDaniel and S. M., which were prepared by Alabama authorities.
That same day, Officer Davidson conducted a “traffic stop” on Hanlin who had a traffic warrant outstanding against him for non-payment of fines. Officer Davidson read Hanlin his rights and told him that he was being investigated for rape. Hanlin denied the rape allegations, and Officer Davidson told him not to return to his brother’s house.
On May 12, 2000, Dr. Jerry Jones, a child-abuse specialist with Arkansas Children’s Hospital, examined L. H. She was fourteen-years-old at the time. He performed a genital and anal examination using a colposcope and testified that the anal exam and external genital exam were normal. However, he stated that L. H.’s hymen had a “deep notch” in an area “that is commonly injured when a child has been sexually abused.” According to Dr. Jones, the notch was not fresh and had healed “the best it could.” Dr. Jones further testified that L. H. had started her menses when she was thirteen-years-old and that a tampon possibly could have caused the tear and resulting notch. He said that possibility, however, was “quite low because this would have been extremely painful.” Dr. Jones wrote on his chart following his examination of L. H. that this finding was “highly suspicious” of an object “having passed between the labia, the lips on the outside, into the genital cleft and striking the hymen and injuring it.”
On May 13, 2000, Detective Harper talked with Hanlin, who provided her with his address and telephone number. Detective Harper set a meeting date with Hanlin for additional questioning for either May 16 or May 19, 2000. Hanlin failed to attend the meeting. Detective Harper was unable to reach him, and on September 27, 2000, an arrest warrant was issued for the rape of L. H. On April 17, 2002, Hanlin was arrested and he was subsequently charged with rape.
Prior to commencement of the jury trial on October 15, 2002, the circuit judge ruled that defense counsel would not be allowed to ask about L. H.’s sexual history after the physical examination by Dr. Jones in May 2000 and that the prosecutor would not be allowed to discuss any criminal allegations about the rape of another girl in Alabama.
As part of the State’s case, L. H. described the events surrounding the rape in question. She testified that she had never had any sexual contact with anybody before the night that Hanlin raped her, and she agreed that nobody had done anything like that to her before. She added that she had no sexual contact with anybody between October 1997, when Hanlin raped her, and May 2000, when Dr. Jones examined her. She added that she was still a virgin when Hanlin raped her but that she had had “consensual” sex on her sixteenth birthday. A motion for directed verdict on insufficiency of the evidence was made by defense counsel and denied.
Before defense counsel began Hanlin’s case~in-chief, he asked the circuitjudge whether he could explore L. H.’s sexual abuse in Texas in 1995, because the prosecutor had opened the door to this line of questioning by Dr. Jones’s testimony and by L. H.’s testimony that she had never had sexual contact with anybody before October 1997. The circuit judge denied the motion and said that such evidence would violate the rape-shield law.
The defense called Detective Jackie Harper as its first witness. Detective Harper testified that L. H. never said anything about Hanlin’s giving her marijuana but that L. H. knew he had penetrated her with his penis. Detective Harper also testified that she had learned from the statements of S. M. and Maggie McDaniel, which were prepared in Alabama, that Hanlin told S. M. that he engaged in sexual intercourse with L. H. The court initially ruled that Hanlin had opened the door to inquiry about everything in S. M.’s statement, even though Hanlin’s counsel argued that he was merely trying to establish how Delvin and Kathy Hanlin received the news about L. H.’s rape in January 1999.
Later, when the prosecution was cross-examining Detective Harper, defense counsel objected to the prosecutor’s questions about S. M.’s statement and Hanlin’s raping her in Alabama. The circuit judge advised the prosecutor: “Leave it alone right there.” He sustained defense counsel’s objection for “anything further.”
On redirect examination, defense counsel posed a question to Detective Harper that dealt with how S. M. told her mother about the rape of L. H. and how her mother told Debbie Stringfellow in Arkansas, who, in turn, told Kathy Hanlin. In the course of framing that question, defense counsel said that S. M. had talked to her mother in December 1998 “and told her some things.” Before recross-examination, the prosecutor moved again that defense counsel had opened the door to explore S. M.’s rape in Alabama, and defense counsel objected. The circuit judge allowed the prosecutor to do so but said, “I think you’re making reversible error,” and added, “[d]o what you want to do, at your peril.”
The prosecutor then had Detective Harper testify on recross-examination that, according to S. M.’s written statement given to Alabama police officers, on December 24, 1998, Maggie McDaniel had gone to work and left S. M., her sister, and her brother with Hanlin. Her brother and sister had gone to bed, but S. M. and Hanlin were watching television in Maggie’s bedroom. Hanlin was smoking and drinking and began rubbing S. M.’s shoulders and breast. S. M. moved away, but Hanlin told her to return and lie down. He touched S. M.’s breasts again, inserted his fingers into her vagina, and put his mouth on her vagina. He asked S. M. if she wanted him to put his penis inside her vagina, she said yes, and he did. Following the testimony, defense counsel moved that this testimony be struck and the jury be admonished that it could not consider the testimony in assessing Hanlin’s guilt. The circuit judge ruled as follows: “Well you’ve gotten in hearsay on hearsay on hearsay on hearsay and I think she’s just made reversible error, but that’s her call, so I’m not going to do it.”
Hanlin took the stand and denied ever having sex with L. H. or doing anything sexual with her. He said L. H. had been “touched” by a friend of her parents when they lived in Texas, and Delvin and Kathy Hanlin told Hanlin not even to hug L. H. The prosecutor immediately objected and defense counsel said he would not pursue that line of questioning.
The circuit judge denied Hanlin’s renewed motion for directed verdict at the close of all the evidence. The judge also denied defense counsel’s mistrial motion based on the admission of the hearsay statement about the rape of S. M. in Alabama.
The jury found Hanlin guilty of rape and sentenced him to twenty-two years in prison. His subsequent motion for a new trial based on errors related to the hearsay testimony about the Alabama rape and the alleged sexual abuse of L. H. in 1995 in Texas was denied.
I. Insufficiency of the Evidence
Hanlin first argues that there was insufficient evidence to support the verdict. He claims that he moved for a directed verdict at the close of the State’s case and again at the close of all the evidence, in compliance with Ark. R. Crim. P. 33.1(a). He challenges the evidence that was presented by L. H.’s testimony, because he says that it was inconsistent with what she told police officers, friends, and family. He also challenges the circumstantial physical evidence suggestive of abuse and the hearsay statement regarding S. M.’s rape.
The standard of review for a challenge to the sufficiency of the evidence was recently set out in Sera v. State, 341 Ark. 415, 434, 17 S.W.3d 61, 73, cert. denied, 531 U.S. 998 (2000):
The test for determining sufficiency of the evidence is whether there is substantial evidence to support the verdict. On appeal, we will review the evidence in the light most favorable to the appellee and sustain the conviction if there is any substantial evidence to support the verdict. 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. Only evidence supporting the verdict will be considered.
Due to double-jeopardy considerations, this court reviews the issue of sufficiency of the evidence prior to other issues raised on appeal. See, e.g., Jones v. State, 349 Ark. 331, 78 S.W.3d 104 (2002). This court has made it perfectly clear that evidence from a witness who testifies to what he or she saw, heard, or experienced is direct evidence. See Mills v. State, 351 Ark. 523, 95 S.W.3d 796 (2003). With regard to a rape conviction, the testimony of a rape victim, standing by itself, constitutes sufficient evidence to support a conviction. Id. See also Laughlin v. State, 316 Ark. 489, 872 S.W.2d 848 (1994).
In the instant case, the victim, L. H., testified to what occurred and identified Hanlin as the person who raped her. Dr. Jones testified that L. H.’s hymen had an injury consistent with sexual abuse. There was also evidence presented that Hanlin fled the jurisdiction after being notified of a meeting with Detective Harper to discuss the alleged rape. Flight is probative evidence of guilt. See, e.g., Howard v. State, 348 Ark. 471, 79 S.W.3d 273, cert. denied, 537 U.S. 1051 (2002); Marshall v. State, 342 Ark. 172, 27 S.W.3d 392 (2000). The evidence was clearly sufficient to support the rape conviction.
II. Hearsay Evidence Involving S. M.
Hanlin argues that the circuit court abused its discretion by admitting hearsay evidence, over his objection, that he had raped S. M. in Alabama. He points out that even the circuit judge stated that he believed admitting the statement regarding S. M.’s rape was reversible error and that the judge had previously ruled on motions in limine that the statement was hearsay and inadmissible.
Our standard of review on matters relating to the admissibility of evidence was set out in Harmon v. State, 340 Ark. 18, 30-31, 8 S.W.3d 472, 480 (2000):
This court has repeatedly recognized that matters pertaining to the admissibility of evidence are left to the sound discretion of the trial court, and we will not reverse such a ruling absent an abuse of that discretion. See, e.g., Bell v. State, 334 Ark. 285, 973 S.W.2d 806 (1998); Bailey v. State, 334 Ark. 43, 972 S.W.2d 239 (1998). Nor will we reverse absent a showing of prejudice, as prejudice is not presumed. Hill v. State, 337 Ark. 219, 988 S.W.2d 487 (1999); Bell, supra.
Hanlin’s argument, boiled down to its essence, is that a statement made by a twelve-year-old girl to Alabama police officers that he raped her was highly prejudicial, considering that the girl was not present in the courtroom and subject to cross-examination and that Hanlin was never charged with that crime in Alabama. He claims that the statement was admitted merely to prove bad character and to bolster the State’s case against him. Hence, the testimony was more prejudicial than probative under Arkansas Rules of Evidence 403. He further contends that the statement was hearsay under Arkansas Rules of Evidence 801, because it was an unsworn statement made to Alabama police officers and offered to prove the truth of the matter asserted that he had raped S. M. He adds that S. M.’s hearsay statement does not fall within any hearsay exception.
Hanlin also underscores the fact that the judge reversed himself twice on'this matter, knowing full well that admitting S. M.’s statement was reversible error. The judge first ruled that Hanlin opened the door to admitting these statements on cross-examination. Then he sustained defense counsel’s objection to any allegations made against Hanlin by S. M. in Alabama. And then later, he ruled that the prosecutor could elicit testimony from Detective Harper, gleaned from the Alabama statement about what S. M. told her mother, because defense counsel opened the door to this cross-examination.
The State relies on our decision in Harmon v. State, supra, to support the circuit judge’s ruhng. In Harmon, the circuit judge admitted evidence over the defense counsel’s objection that was elicited during the prosecutor’s cross-examination of a police investigator about that investigator’s affidavit of probable cause used to obtain the arrest warrant. In our review, this court looked at the testimony and trial counsel’s colloquy with the judge and determined that the circuit judge did not abuse his discretion in admitting the evidence, because the defendant opened the door to the testimony. We further held that the testimony was not being offered for the truth of the matter asserted but was introduced to show what information the investigator relied on in preparing his affidavit.
The instant case is distinguishable from the Harmon case in that here the hearsay statement made by S. M. in Alabama about her rape was offered by the State for the truth of the matter asserted. The Harmon case is also distinguishable on the question of when the door is opened for hearsay testimony. In Harmon, defense counsel called the police officer who prepared the affidavit of probable cause and specifically asked him about what a witness to the battery had told him, which led to his affidavit. When the prosecutor, on cross-examination, asked that same police officer about other witnesses mentioned in the affidavit and whether they had identified the defendant, defense counsel objected on hearsay grounds. The prosecutor countered that defense counsel had opened the door for inquiry into what all witnesses had told the police officer about the beating. This court affirmed.
The facts of the Harmon case are entirely different from the case at hand. Here, defense counsel posed the following question to Detective Harper:
Just so this is clear for the jury because I got a little confused there and I want to make sure they’re not, [S. M.], in Alabama talked to her mother in December of ’98 and told her some things. Her mother at some point in time and we’re not sure when, called her sister, Debbie, in Arkansas. And Debbie in Arkansas at some point in time, apparently, possibly, reported to you, at least around May, told [L. H.]’s mother what she had heard, right?
It is clear to this court that defense counsel’s question pertained only to how the information about L. H.’s rape started with S. M., who conveyed it to her mother, who then conveyed it to Debbie String-fellow in Arkansas, who told Kathy Hanlin. That question had absolutely nothing to do with the rape of S. M. in Alabama but only had to do with the rape of L. H. Accordingly, we fail to see how defense counsel opened the door to what S. M. told Alabama authorities about her own rape.
We hold that the circuit j udge abused his discretion in permitting the prosecutor to inquire into a statement received by Detective Harper relating to S. M.’s rape in Alabama. Not only was the testimony double or even triple hearsay, but the effect of it was to label Hanlin as a person of bad character who had engaged in similar activity previously. Bad character evidence is generally inadmissable unless it fits within some recognized exception. See Ark. R. Evid. 404; Alford v. State, 223 Ark. 330, 266 S.W.2d 804 (1954).
We are, of course, aware of the pedophile exception to Arkansas Rules of Evidence 404(b) and have summarized that exception as follows:
We have further stated that testimony is admissible pursuant to Rule 404(b) if it is independently relevant to the main issue— relevant in the sense of tending to prove some material point rather than merely to prove that the defendant is a criminal or a bad person. In recognizing the so-called pedophile exception to Rule 404(b), this court has approved allowing evidence of similar acts with the same or other children in the same household when it is helpful in showing a proclivity for a specific act with a person or class of persons with whom the defendant has an intimate relationship. Mosley v. State, supra, citing Free v. State, 293 Ark. 65, 732 S.W.2d 452 (1987). The rationale for recognizing this exception is that such evidence helps to prove the depraved sexual instinct of the accused. Greenlee v. State, 318 Ark. 191, 884 S.W.2d 947 (1994).
Berger v. State, 343 Ark. 413, 419, 36 S.W.3d 286, 290 (2001).
The problem with this court’s application of the pedophile exception, sua sponte, is that it was not raised by the State before the circuit judge or in this appeal. Thus, Hanlin has not had an opportunity to address it or raise any defense to it. Though this court will go, on occasion, to the record to affirm for a different reason, typically this is done when that alternative reason was raised by a party and has been developed at the circuit court level. See, e.g., Johnson v. State, 343 Ark. 343, 37 S.W.3d 191 (2001); Heagerty v. State, 335 Ark. 520, 983 S.W.2d 908 (1998). We have also affirmed for a different reason when the documentary evidence in the record clearly gave us a basis for doing so (State of Washington v. Thompson, 339 Ark. 417, 6 S.W.3d 82 (1999)), or when a statute, not argued by either party, is used by this court to affirm the trial court’s determination (Robinson v. State, 274 Ark. 312, 624 S.W.2d 435 (1981)). This court has been resolute in stating that we will not make a party’s argument for that party or raise an issue, sua sponte, unless it involves the trial court’s jurisdiction. See, e.g., Ilo v. State, 350 Ark. 138, 85 S.W.3d 542 (2002). Moreover, we will not consider an argument unless it has been properly developed. See Haire v. State, 340 Ark. 11, 8 S.W.3d 468 (2000). Though the Ilo and Haire opinions address the development of an issue by the defendant, we believe the same rationale should apply to the State. In short, under these circumstances, for this court to raise a new theory or ground for affirmance on our own motion such as the pedophile exception would deprive Hanlin of his right to be heard on the issue. This we will not do.
Our decision not to raise the pedophile exception, sua sponte, is bolstered by the fact that we have before us no direct proof establishing that the rape of S. M. occurred in Alabama. In cases where this court has applied the pedophile exception, the other victims typically testified at trial about the defendant’s actions, or there was other direct proof of those offenses. See, e.g., Spencer v. State, 348 Ark. 230, 72 S.W.3d 461 (2002); Munson v. State, 331 Ark. 41, 959 S.W.2d 391 (1998); Mosley v. State, 325 Ark. 469, 929 S.W.2d 693 (1996); Free v. State, 293 Ark. 65, 732 S.W.2d 452 (1987). But here, all that was presented at trial was the unsworn statement of S. M. taken by Alabama authorities and relayed to Detective Harper, which is triple hearsay. The Alabama statement is not even part of the record in this case but was simply conveyed to the jury through the testimony of Detective Harper. Sufficient proof of the rape of S. M. was, therefore, lacking.
III. Rape-Shield Law
Though we reverse and remand for further proceedings because of the prejudice caused by the statements about the Alabama rape, we feel constrained to address the rape-shield issue. We do so, because the same issue may be presented on retrial.
After the State’s case, Hanlin sought to introduce evidence that L. H. had been sexually abused in 1995 in Texas and that the 1995 abuse caused the damaged hymen. The circuit judge denied the oral motion to allow this evidence following L. H.’s testimony about her virginity. The judge noted that defense counsel had not followed the rape-shield procedures required by § 16-42-101 in that he had failed to make a rape-shield motion in writing and had not had a rape-shield hearing.
Hanlin urges that the circuit judge committed prejudicial error by denying him the right to recall L. H.’s parents for the purpose of questioning them on whether L. H. was sexually abused in Texas in 1995. He further argues that the circuit judge abused his discretion by allowing the prosecutor to open the door and offer L. H.’s testimony of her virginal status but then by denying the defense the opportunity to rebut that testimony. According to Hanlin, the situation was made even worse because of the linkage between L. H.’s virgin testimony and Dr. Jones’s medical history about L. H.’s damaged hymen.
Though we confess to having some question about whether the prosecutor in fact did open the door to proof regarding L. H.’s prior sexual history, see Marcum v. State, 299 Ark. 30, 771 S.W.2d 250 (1989), we will not address this issue.
Our rape-shield law clearly provides that a “written motion” must be filed by the defendant with the court at any time prior to the time that the defense rests. See Ark. Code Ann. § 16-42-101(c)(1) (Repl. 1999). This was not done. Hanlin argues that he was placed in an untenable position and was not able to file a mitten motion because the trial was well underway. We have no doubt that it would have been somewhat difficult to file a written motion. Nonetheless, that is a mandatory requirement of the statute, and Hanlin was required to comply. We hold that the circuit court did not abuse its discretion in denying Hanlin’s motion to introduce proof of the 1995 sexual abuse due to his noncompliance with our rape-shield law.
Reversed and remanded.
Dickey, C.J., Corbin and Hannah, JJ., dissent.
Hanlin apparently was arrested and placed in jail for nonpayment of traffic fines. The record is silent on the conditions of his release from jail.
The dissent claims that this opinion does not explain away a colloquy between defense counsel and Detective Harper concerning S. M. The dissent is incorrect about that colloquy. It clearly refers to Hardin’s admission to S. M. that he had had sexual intercourse with L. H., which S. M. relayed to her mother,Maggie McDaniel.There is no reference in the colloquy to Hanlin’s sexual intercourse with S. M. Indeed, the next question asked the detective by defense counsel was: “And then her mother indicates that she immediately called her friend, Debbie, here in Arkansas when she found out from her daughter.” All of this pertains to how the word got back to the Hanlins that Paul Hanlin had raped L. H. | [
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Robert L. Brown, Justice.
This is an appeal from a judgment in favor of appellees Diane Owens and Alisa Main and against appellants Northport Health Services, Inc., and Kristy L. Unkel. The judgment specifies that (1) Diane Owens was entitled to judgment against Northport and Unkel for $67,740 for wrongful termination and $200,000 for defamation; and (2) Alisa Main was entitled to judgment against Northport and Unkel for $65,000 for defamation. Northport and Unkel raise the following points on appeal: (1) they are entitled to judgment as a matter of law on the defamation claims, because there was no substantial evidence that actionable defamation occurred or that either Owens or Main suffered damage to their reputations; (2) the evidence was insufficient to support any award of damages to Owens or Main on their defamation claims; (3) Northport is entitled to judgment as a matter of law on Owens’ claim of wrongful discharge; and (4) the verdict amount in favor of Owens on her wrongful-discharge claim is excessive and against the clear weight of the evidence. We affirm.
Diane Owens and Alisa Main are licensed practical nurses. Owens worked for Northport from March 1999 to April 2000. Main was also employed by Northport in 2000 and worked there until she was terminated in April 2000. Northport is an Alabama corporation that owns nursing homes. One of its facilities is Fayetteville Health and Rehabilitation (Fayetteville Health) located in Fayetteville. At all times relevant to this case, Unkei was director of nursing at Fayetteville Health.
During her tenure at the nursing home and prior to April 2000, Owens complained about the nursing care of several certified nurse assistants. She made her complaints directly to Unkei as her superior. Main also complained about the abuse and neglect of the residents to Unkei. At trial, Unkei admitted she had received complaints about the nursing care from both Owens and Main. Prior to April 21, 2000, Owens testified that she complained to the Office of Long-Term Care about the abuse and neglect at Fayetteville Health.
On February 2, 2000, at least six certified nurse assistants (CNAs) wrote a three-page letter to the nursing home administrator at the time, Ralph Johnson, in which they complained about Owens and the difficult work environment she created, including the fact that she asked the CNAs to do tasks they were not licensed to do. In April 2000, there were three incidents where the CNAs complained that Owens and Main had abused or neglected the nursing home residents. On April 5, 2000, Garnette Jones, an Alzheimer patient, allegedly fell from her bed. One CNA allegedly saw Owens observe the incident and fail to fill out an incident report for the fall. However, Owens was not listed on the sign-in sheet for work on that day. Throughout the following two weeks, Ms. Jones complained of hip pain. She was transported to Washington Regional Medical Center and diagnosed with a hip fracture.
Alisa Main was accused of two incidents. On April 12, 2000, she was accused of failing to give a resident, Peggy Neff, her medication. However, one CNA making the allegation, Erika Crabtree, was not listed on the sign-in sheet as working that day. And on April 14, 2000, she was said to have told a resident, Lydia Davis, to “sit the fuck down.”
Following the overnight shift which ended at 6:00 a.m. on April 21, 2000, seven or eight CNAs met with Unkei and assistant director of nursing, Dawna Wilder, for breakfast at a local restaurant and told them that Owens had failed to document Ms. Jones’s fall and that Main had used foul language toward a resident and had failed to administer medications to another.
Later that morning, Unkel and Wilder met with Ken Waldele, the current administrator of the nursing home, to discuss the CNAs’ complaints against Owens and Main. Wilder and Unkel then searched the nursing home records to determine whether Owens had documented the fall or whether anyone had documented Main’s behavior. Unkel and Wilder found nothing in the nursing home records. At 5:00 p.m. that same day, Wilder and Unkel met again with the administrator. Wilder testified at trial that this was when the administrator instructed them to report the suspected abuse to the Office of Long-Term Care and the Fayetteville Police Department. The timing of the report, however, is disputed by the evidence. Owens and Main were suspended from work at the nursing home. On April 24, 2000, they were fired.
On May 23, 2001, Owens and Main sued Northport and Unkel and alleged, among other causes of action, wrongful termination and defamation. They prayed for back pay and benefits; reinstatement to their former positions or front pay and benefits; compensatory damages for humiliation, emotional and mental distress, physical injury, damage to reputation, and intentional infliction of emotional distress; and punitive damages. Northport and Unkel answered and pled the affirmative defenses of immunity and good faith, that Owens and Main were at-will employees, and that the defamation claim should be dismissed for failure to prove actual injury to reputation.
Northport and Unkel then moved for summary judgment against Owens and Main and asserted the defense of qualified immunity. The motions were not 'pursued, and the appellants obtained no ruling from the circuit court.
The matter was tried to a jury over four days. At the trial, Owens and Main presented testimony that Owens had made abuse complaints against various CNAs before the complaints were made against her in April 2000; that nurses’ notes were missing from the nursing home files from March 6 to April 16, 2000; that April 2000 acuity reports and incident reports were also missing; that Diane Owens was not listed on the nurse’s sign-in sheet for April 5, 2000, when she supposedly failed to chart Ms. Jones’s fall, and that the nursing home knew that complaint was false; and that Erika Crabtree did not sign her name to a sign-in sheet for April 14, 2000, when she complained that Main had verbally abused a patient.
At the conclusion of Owens’s and Main’s case, Northport and Unkel moved for a directed verdict on the basis that it had qualified immunity from such a lawsuit and that good faith was presumed. They further contended that Owens and Main were at-will employees. The circuit court denied the motions and ruled similarly when the motions were renewed at the close of all the evidence.
The case was submitted to the jury on eighteen special interrogatories, and the jury returned all verdicts in favor of Owens and Main. Judgment was subsequently entered and damages awarded as previously related in this opinion. Northport and Unkel appealed to the court of appeals, and the judgment was affirmed. See Northport Health Servs., Inc. v. Owens, 82 Ark. App. 355, 107 S.W.3d 889 (2003). On the issue of Northport’s and Unkel’s qualified immunity, the court of appeals held that the appellants had waived this defense by not obtaining a ruling from the circuit court on their summary-judgment motions and by not appealing a denial of their motions by interlocutory appeal to an appellate court. Northport and Unkel next petitioned this court for review, which we granted. When we grant review, we treat the matter as if the appeal were originally filed in this court. See, e.g., Hisaw v. State Farm Mut. Auto Ins. Co., 353 Ark. 668, 122 S.W.3d 1 (2003).
I. Defamation
a. Qualified Immunity
We first address Northport’s and Unkel’s claim that they were required to report abuse under Arkansas law and, thus, were entitled to qualified immunity for all such reports. They argue that they preserved their immunity defense both before and during the trial and that the court of appeals simply erred as a matter of law in holding that they waived this defense by not obtaining a ruling on their summary-judgment motions or appealing the issue by interlocutory appeal to an appellate court. They add that affirming any judgment in favor of Owens and Main would undercut the statutory immunity and have a chilling effect on reports of abuse and neglect by health care providers.
We agree with Northport and Unkel that they preserved the issue of qualified immunity. According to the court of appeals, our cases have required that any denial of a motion for summary judgment on the issue of qualified immunity must be appealed by interlocutory appeal or be waived. The court of appeals relied in particular on Ozarks Unltd. Resources Coop., Inc. v. Daniels, 333 Ark. 214, 969 S.W.2d 169 (1998), and Robinson v. Beaumont, 291 Ark. 477, 725 S.W.2d 839 (1987). We disagree with the'court of appeals’ ruling that either case mandates an interlocutory appeal. Rather, both cases provide that an interlocutory appeal may be pursued in the event that a summary-judgment motion based on qualified immunity is denied.
In the case at hand, motions based on statutory immunity were filed by Northport and Unkel but not pursued. Nonetheless, Northport and Unkel raised the defense of qualified immunity in their answers to the complaint and in their directed-verdict motions at trial. We hold that the defense was preserved for purposes of appeal, and we modify the opinion of the court of appeals (Northport Health Servs., Inc. v. Owens, 82 Ark. App. 355, 107 S.W.3d 889 (2003)), on this point.
b. Good Faith
Northport and Unkel next claim that not only were they immune from suit when they reported Owens and Main for abuse and neglect, but Arkansas law presumes their reports were made in good faith. They argue that there was no proof at the time they made their reports that they knew the reports were false and that Arkansas law does not require them to test the veracity of the reports before making them. Indeed, they contend that that would run counter to the requirement that the reporting be immediate.
The Omnibus Long-Term Care Reform Act of 1988, now codified at Ark. Code Ann. §§ 20-10-1001 — 20-10-1010 (Repl. 2000 & Supp. 2003), was enacted by the General Assembly to “provide protection for those citizens residing in long-term care facilities to assure the residents the highest quality of life while protecting their health and welfare.” Ark. Code Ann. § 20-10-1002 (Repl. 2000). The protection of long-term care facility residents is governed by Act 1181 of 1999, now codified at Ark. Code Ann. §§ 20-10-1201 — 20-10-1209 (Repl. 2000 & Supp. 2003). Under this subchapter, every licensed facility must keep full records on all residents, including medical records and records of their personal and social history. See Ark. Code Ann. § 20-10-1203(8)(A) (Repl. 2000). Long-term care residents have specific rights under Act 1181, which include entitlement to adequate and appropriate health care and protective and support services. See Ark. Code Ann. § 20-10-1204(a)(8) (Repl. 2000). Act 1181 also grants immunity from civil liability to persons who complain about a violation of a resident’s rights “unless that person has acted in bad faith or with malicious purpose.” Ark. Code Ann. § 20-10-1204(d) (Repl. 2000).
Abuse and neglect of adults is also a criminal offense and is governed by our Criminal Code. See Ark. Code Ann. §§ 5-28-101 — 5-28-310 (Repl. 1997 & Supp. 2003). The reporting of adult abuse is covered specifically under Ark. Code Ann. §§ 5-28-201 — 5-28-221 (Repl. 1997 & Supp. 2003). Section 5-28-203 of that subchapter deals with people who are required to report abuse and states the following:
(a) (1) Whenever any ... facility administrator, [or] employee in a facility,... has reasonable cause to suspect that an adult has been subjected to conditions or circumstances which would reasonably result in abuse, neglect, or exploitation, as defined in this chapter, he shall immediately report or cause a report to be made in accordance with the provisions of this section.
(2) Whenever a person is required to report under this chapter in his capacity as a member of the staff, [or] an employee in a facility, ... he shall immediately notify the person in charge of the institution, facility, or agency, or his designated agent, who shall then become responsible for making a report or cause a report to be made.
‡ ij: ‡ ‡ ‡
(b)(1) ....
(2) A report for abused or neglected adults residing in a long-term care facility shall be made immediately to the local law enforcement agency for the jurisdiction in which the facility is located, and to the Office of Long-Term Care of the Division of Economic and Medical Services of the Department of Human Services pursuant to regulations of that office.
(3) The Office of Long-Term Care shall notify the central registry and the office of the Attorney General.
Ark. Code Ann. § 5-28-203(a)(1)-(2) & (b)(2)-(3) (Repl. 1997).
Under the Criminal Code, immunity from liability and suit is also provided for those reporting, if the report is made in good faith:-
(a) Any person, official, or institution participating in good faith in the making of a report, the taking of photographs, or the removal of an abused adult pursuant to this chapter shall have immunity from liability and suit for damages, civil or criminal, that otherwise might result by reason of such actions.
(b) The good faith of any person required to report cases of adult abuse, sexual abuse, or neglect shall be presumed.
Ark. Code Ann. § 5-28-215 (Repl. 1997).
The question before us is whether Northport and Unkel acted in good faith when reporting their complaints about Owens and Main. In one of the special interrogatories posed to the jury, the jury found that Northport’s publication of claims of abuse by Owens and Main was not made in good faith. We, therefore, must examine whether substantial evidence supported this verdict by the jury. See, e.g., Advocat, Inc. v. Sauer, 353 Ark. 29, 111 S.W.3d 346 (2003).
Testimony at trial revealed that Northport was on notice by April 17, 2000, that Ms. Jones had fallen from her bed and suffered a hip fracture. Northport also knew that Owens was a very detail-oriented person and had thoroughly filled out incident-report forms in the past. Northport knew that sign-in sheets for April 5, 2000, did not show Owens working on the day of the alleged fall and that sign-in sheets did not show that Erika Crabtree was working on April 14, 2000, the day that Main, according to Crabtree, allegedly abused one resident verbally. The jury was also made aware that pertinent documents were missing from the Fayetteville Health files and that only a few employees of the nursing home had access to those files, including Dawna Wilder and Kristy Unkel. Finally, Northport never took statements from Main or Owens in connection with the claims made against them.
From the evidence, the jury could reasonably have concluded, without resorting to suspicion or conjecture, that Northport acted in bad faith when making its report to the Office of Long-Term Care and to the Fayetteville Police Department, and, thus, waived its qualified immunity under § 5-28-215.
c. Damage to Reputation
Northport argues that it is entitled to judgment as a matter of law on Owens’s and Main’s defamation claims, because there was insufficient evidence presented at trial of actionable defamation. This court recently set out the elements for defamation:
A viable action for defamation turns on whether the communication or publication tends or is reasonably calculated to cause harm to another’s reputation. The following elements must be proved to support a claim of defamation, whether it be by the spoken word (slander) or the written word (libel): (1) the defamatory nature of the statement of fact; (2) that statement’s identification of or reference to the plaintiff; (3) publication of the statement by the defendant; (4) the defendant’s fault in the publication; (5) the statement’s falsity; and (6) damages.
The allegedly defamatory statement must also imply an assertion of an objective verifiable fact. In order to determine whether a statement may be viewed as implying an assertion of fact, the following factors must be weighed: (1) whether the author used figurative or hyperbolic language that would negate the impression that he or she was seriously asserting or implying a fact; (2) whether the general tenor of the publication negates this impression; and (3) whether the published assertion is susceptible of being proved true or false.
Faulkner v. Arkansas Children’s Hosp., 347 Ark. 941, 955-56, 69 S.W.3d 393, 402-03 (2002) (internal citations omitted).
Northport and Unkel primarily contend that Owens and Main failed to offer evidence showing that they suffered damage to their reputations resulting from any defamatory publication. Both parties cite this court to Ellis v. Price, 337 Ark. 542, 990 S.W.2d 543 (1999), as authority for proving damages in a defamation case. In Ellis, the appellee filed a complaint against two individuals who had accused her of adultery when she was three-months pregnant. She alleged that the assertion was defamatory and specifically had defamed her reputation in the eyes of her husband. The jury found in favor of appellee and assessed damages for $80,000, which comprised compensatory and punitive damages. We said:
A plaintiff must establish actual damage to his reputation, but the showing of harm is slight. A plaintiff must prove that the defamatory statement(s) have been communicated to others and that the statements have detrimentally affected those relations.The law does not require proof of actual out-of-pocket expenses.
Ellis, 337 Ark. at 549-50, 990 S.W.2d at 547 (internal citations omitted). After examining the testimony presented at trial, we held that substantial evidence existed that the appellee’s reputation in the eyes of her husband had been harmed.
Our case of Hogue v. Ameron, Inc., 286 Ark. 481, 695 S.W.2d 373 (1985), is also on point. In Hogue, appellant, a state trooper, sued appellee for defamation after appellee wrote to the director of the state police complaining that appellant had driven an unlicensed vehicle and had yelled obscenities at him. The circuit judge granted a directed verdict in appellee’s favor, because appellant failed to prove damages. This court reversed and remanded, because the evidence presented at trial constituted “some evidence of injury to [appellant’s] reputation, and it was enough to get that issue to the jury,” relying on appellant’s own testimony and of one other witness that appellant’s reputation had been harmed by the ensuing investigation of the incident. Hogue, 286 Ark. at 483, 695 S.W.2d at 374.
In the case at bar, Owens and Main testified that it was difficult for them to obtain comparable employment after reports were made to the Office of Long-Term Care and the Fayetteville Police Department of their abuse and neglect of patients. Linda Millspaugh, a registered nurse who runs a consulting business that provides assistance and consultation services to nursing home facilities, was called as an expert witness on behalf of Owens and Main to testify to this very point. Ms. Millspaugh testified that she would not hire someone at a nursing home who had been reported for adult abuse or neglect. The jury in this case found by a preponderance of the evidence that the defamation had been published and that publication of defamatory statements proximately caused Owens and Main damages. We hold that the testimony of Owens, Main, and Linda Millspaugh constituted substantial evidence and supported a finding of publication and damage to reputations.
II. Remittitur for Defamation
Northport and Unkel next contend that, if the judgment on liability for defamation stands, the evidence was insufficient to support the damage awards of $200,000 (Owens) and $65,000 (Main), because no one witness testified that either Owens’s or Main’s reputation changed or was damaged in connection with any third party. Thus, they claim the damage awards are too high, and remittitur is proper and appropriate under United Ins. Co. of America v. Murphy, 331 Ark. 364, 961 S.W.2d 752 (1998). More specifically, they argue that the $65,000 awarded to Main was excessive, because she obtained employment as a licensed practical nurse immediately after her termination by Northport and because she failed to link her alleged emotional injuries to the publication of defamation. Moreover, according to the appellants, the damages for Main should be reduced to $10,000.
In addition, they maintain that the $200,000 awarded to Owens was excessive, because she voluntarily chose to make herself unavailable for any nursing jobs in the nursing-home industry apart from geriatrics and because she failed to link any emotional damage to the publication. Similarly, they contend that the damages awarded to Owens should be reduced to $10,000.
This court has looked to two factors in assessing whether compensatory damages are excessive and a remittitur is warranted. See Union Pacific R.R. Co. v. Barber, 356 Ark. 268, 149 S.W.3d 325 (2004); Advocat, Inc. v. Sauer, 353 Ark. 29, 111 S.W.3d 346 (2003); United Ins. Co. of America v. Murphy, 331 Ark. 364, 961 S.W.2d 752 (1998); Builder’s Transp., Inc. v. Wilson, 323 Ark. 327, 914 S.W.2d 742 (1996). We examine whether the damages are excessive and appear to have been awarded under the influence of passion or prejudice under Ark. R. Civ. P. 59(a)(4) and, secondly, whether the award shocks the conscience of this court. See id.
In the instant case, the jury heard evidence that the CNAs and Northport had a motive to report Owens and Main for abuse and neglect, because Owens and Main were in the process of reporting them to the Office of Long-Term Care. It heard evidence that while claims were made against Owens and Main for abuse and neglect, they could not be substantiated by the facility’s records. It heard evidence that many pertinent records were missing from the nursing home’s files. And it heard evidence that both women had difficulty obtaining comparable nursing positions as a result of the defamation. The jury was privy to the base pay and experience of Owens and Main and could calculate appropriate damages in connection with the defamation. We hold that the appellants have failed to establish either that the damage awards were excessive and the result of passion or prejudice or that they shock the conscience of this court.
III. Wrongful Discharge
Northport and Unkel next urge that Owens’s wrongful-discharge judgment was in error, because she was an at-will employee and her actions do not fall within the public-policy exception to the at-will employee doctrine created in Sterling Drug, Inc. v. Oxford, 294 Ark. 239, 743 S.W.2d 380 (1988), and M.B.M. Co. v. Counce, 268 Ark. 269, 596 S.W.2d 681 (1980). Specifically, they contend that Owens’s intra-office complaints cannot form the basis of a claim of wrongful discharge, because she failed to show that Northport held any animus toward her before her termination. As a corollary point, Northport contends that Owens failed to mitigate her damages by seeking substantially equivalent employment, as required in Sellers v. Delgado College, 902 F.2d 1189 (5th Cir. 1990) (citing Ford Motor Co. v. EEOC, 458 U.S. 219 (1982)).
Owens counters that she was a “whistleblower” and that she had reported abuse and neglect perpetrated by the CNAs at the nursing home to her superior, Kristy Unkel. This was what she was required to do under §§ 5-28-203, 20-10-1002, 20-10-1003(b), and 20-10-1007(a). Moreover, she claims that her “whistle-blower” status places her squarely within the public-policy exception to the at-will doctrine. See Sterling Drug, Inc. v. Oxford, supra; M.B.M. Co. v. Counce, supra.
The Sterling Drug case seems especially pertinent to the case at hand. There, an at-will employee (appellee) filed suit against his former employer (appellant) for wrongful discharge, alleging that the appellant had forced the appellee’s resignation because appellee had reported appellant to the General Services Administration for submitting false information during GSA contract negotiations. The jury returned a general verdict for appellee for $201,700 in compensatory damages and for $150,000 for punitive damages. In recognizing the public-policy exception to the employment-at-will doctrine, we said:
an at-will employee has a cause of action for wrongful discharge if he or she is fired in violation of a well-established public policy of the state. This is a limited exception to the employment-at-will doctrine. It is not meant to protect merely private or proprietary interests.
294 Ark. at 249, 743 S.W.2d at 385. We continued by saying that “the public policy of the state is contravened if an employer discharged an employee for reporting a violation of state or federal law.” 294 Ark. at 250, 743 S.W.2d at 386. This court then examined the testimony presented at trial and concluded that sufficient evidence was presented to show that the appellant engaged in a continuous campaign to force appellee’s resignation, because the appellant believed that the appellee had reported it to the GSA for pricing violations. Based on this evidence, we held that the verdict was substantially supported by the evidence.
The Long-Term Care Act clearly establishes the State’s public policy of protecting adults in long-term care facilities from abuse and neglect. As part of the Act, Owens was required to make a report if she suspected that an adult at the nursing home had been abused or neglected. Testimony at trial revealed that Owens had made several complaints to Unkel about the CNAs and their treatment of the nursing home residents; that she had made a similar complaint to the Office of Long-Term Care; that the CNAs about whom Owens complained met with Unkel and her assistant for four hours and compiled complaints against Owens; that there was no documentation to back up these complaints, which means the jury could have believed that they were made in bad faith; that residents had never complained about Owens; and that she was a detail-oriented person with twenty-seven years of nursing experience.
We hold that substantial evidence existed that Owens was wrongfully terminated in retaliation for her complaints against the CNAs in the nursing home and, thus, in violation of the public policy of this state.
IV Remittitur for Wrongful Discharge
Northport argues that the $67,740 verdict on Owens’s wrongful-discharge claim should be vacated, or, in the alternative, remitted to at most $10,000, because she failed to mitigate her damages by seeking other employment as a nurse in a field other than geriatrics. Owens testified at trial that she had promised herself and her deceased grandmother that she would only work in geriatrics. For that reason, she eschewed other nursing jobs, other than home care.
Owens responds that the verdict amount for her wrongful-discharge claim was not excessive and not against the clear weight of the evidence, because the amount was calculated by economist Don Market as the amount of lost earnings and benefits sustained from the date of her termination until the time of trial minus any earnings made by her since her termination by Northport. She adds that the jury was instructed on the law based on this formula. Owens further urges that the extent of mitigation of damages is a jury question under Harris Const. Co. v. Powers, 262 Ark. 96, 554 S.W.2d 332 (1977), and that Northport and Unkel failed to carry their burden to show that Owens failed to mitigate. She points to evidence that she mitigated her losses by starting a cleaning business and doing some home healthcare. She added in her testimony that it would have been extremely difficult to find a job in the nursing business for geriatrics after Northport’s wrongful termination and defamation.
Owens correctly states the measure of damages. In the Sterling Drug case, this court first stated the measure of damages in a public-policy wrongful-discharge action:
the sum of lost wages from termination until the day of trial less the sum of any wages that the employee actually earned or could have earned with reasonable diligence is the general measure of damages in a public policy wrongful discharge action. In addition, an employee can recover for any other tangible employment benefit lost as a result of the termination. Future damages are not recoverable.
294 Ark. at 251-52, 743 S.W.2d at 386-87. In the instant case, the jury was correctly instructed on the law, and it found in its special verdicts that Owens was wrongfully discharged in violation of the State’s public policy and that she had suffered damages for wrongful termination amounting to $67,740. We disagree that this damage award is the proper subject of remittitur, and we affirm the circuit court.
Circuit court affirmed.
Court of appeals affirmed as modified.
Unkel testified that they made the reports before talking to Waldele. Wilder testified that they reported at 5:00 p.m., after conducting an investigation and giving the results to Waldele, who then ordered them to report. The Fayetteville police reports have 11:50 a.m. as the time of the reports by Wilder. The Office of Long-Term Care has 12:00 p.m. as the time of the reports by Unkel. | [
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Robert L. Brown, Justice.
Appellants City of Rockport XVa ^and certain taxpayers and citizens of the City appeal from an order finding that it had not complied with Arkansas Code Annotated § 14-40-2002 (Supp. 2003), in providing, or taking substantial steps to provide, requested municipal services to certain landowners who had since been annexed into the City of Malvern. Malvern and the landowners whose property was annexed are the appellees in this matter. Rockport raises four points on appeal: (1) the subject properties were not appropriate for annexation into Malvern under the procedures set out in Ark. Code Ann. §§ 14-40-2001— 14-40-2005 (Supp. 2003); (2) the detachment and annexation statute does not require that a municipality actually provide the services requested, but rather that the services be made available; (3) Rockport complied with the statutory requirements; and (4) the circuit court erred in finding that a stipulation of facts was agreed upon by the parties. We affirm.
The appellee landowners all own real property which, prior to this lawsuit, was located in Rockport. In 1999, Act 779 of 1999, now codified at Ark. Code Ann. §§ 14-40-2001 — 14-40-2002 (Supp. 2003), was enacted to provide the procedure for the annexation of land into an adjoining municipality in order to obtain municipal services. After passage of Act 779, the appellee landowners filed their statements under the Act in which they asserted that Rockport did not provide necessary services, including sewer service, a municipal water department, 24-hour police protection, 24-hour fire protection, animal-control programs, a street department, and a street-sweeper service. The statements said that the landowners’ land was contiguous to Malvern and that Malvern did provide these services. The landowners requested Rockport to commit within ninety days to taking substantial steps to making those services available and to continue to take such steps to provide that service within a reasonable time. The landowners subsequently requested annexation to Malvern to obtain those same services.
Rockport did respond to several landowners through its mayor by letter dated October 21, 1999, which stated that the city was making continued efforts to obtain sewer services. Thereafter, in 1999 and 2000, Malvern adopted several resolutions in which the city committed to making the requested services available to the landowners and in which it accepted the landowners’ property into the corporate city limits of Malvern.
On November 30, 2000, Rockport filed a second substituted and amended complaint for declaratory judgments. The complaint challenged the several Malvern resolutions annexing the landowners’ properties under Act 779 of 1999 and sought a declaratory judgment declaring the various resolutions “illegal, null, and void[.]”
Following motions to dismiss filed by several of the defendants/appellees named by Rockport, the circuit court, in a letter opinion, granted the motions as against all individual party plaintiffs on the basis that they had no standing to bring the action. Subsequently, the court entered a second letter opinion in which it concluded that although the prior rulings stood, Rockport could raise the issue that Malvern’s adoption of the annexation resolutions did not comport with the requirements of Act 779. An order of dismissal was entered memorializing these decisions and recognizing that a third substituted and amended complaint had been filed on February 16, 2001.
On July 3, 2002, a joint stipulation of facts was agreed to by the parties and by their counsel. The purpose of the stipulation was to avoid the necessity of calling witnesses and the general expense associated with a trial.
On July 11, 2002, Rockport’s attorneys filed a joint motion to withdraw from representation. On July 17, 2002, the appellees filed a response and asserted that they objected to any withdrawal “unless . . . Rockport makes it clear that it does not intend to withdraw from the settlement [to submit all issues for decision by stipulation] in this matter.” The circuit court granted the motion to withdraw the same day. Present counsel for Rockport entered their appearances on September 23, 2002.
A hearing was held on December 26, 2002, regarding the stipulation of facts, at which time an oral motion was made by the appellees to enforce the joint agreement made by the parties on July 3, 2002, to submit the matter on a stipulation of facts. Evidence was presented by both sides, and trial briefs were filed with the court. On December 31, 2002, judgment was entered by the circuit court which approved the annexations. The court concluded in pertinent part:
2. The parties are bound by a stipulation of fact per defendant’s Exhibit 1 or 2. The Exhibits differ only on slight detail and either represents the substance of the stipulation of these parties.
3. The City of Rockport is bound by the stipulation because the same was made by its attorney acting within the course and scope of his employment; and, for the further reason that the city was bound by the agreement ofits Mayor, who, as the chief executive officer of the city, was authorized to make a binding stipulation of facts.
6. More than three years have passed and Rockport has not provided nor taken substantial steps to provide the following municipal services:
a. The City of Rockport has never had a sanitary sewer system for residents and does not now. . . .
10. Plaintiffs have not met their burden of proof in showing the services requested by the defendants were already available or were reasonably available or that Rockport has otherwise complied with Act 779 of 1999.
Rockport’s primary contention on appeal is that because necessary services were already available to the landowners in question, it was unnecessary for the properties to be detached and annexed under Act 779. Thus, the detachments were invalid, and the annexations should be reversed. Rockport further contends that many of the services requested by the landowners were not included in the statutory definition of “services” in Act 779 and, thus, did not materially affect the landowners’ ability to develop their subject properties. Further, it maintains that Act 779 does not require that a municipality actually provide the services requested, but rather, that the services be made available. Rockport claims that it complied with the statutory requirements, as the services requested were already available. It additionally claims that the circuit court erred in concluding that the stipulation of facts submitted to the court was agreed to by the parties when Rock-port’s former attorney, Cliffjackson, lacked the authority to enter into an agreement to stipulate on behalf of the city.
We first address whether the circuit court correctly concluded that the stipulation of facts entered into by the parties was binding. The appellees assert that our standard of review is whether the circuit court abused its discretion in denying a motion to set aside the stipulation, as set forth in Haney v. Holt, 179 Ark. 403, 16 S.W.2d 463 (1929). Nevertheless, it occurs to this court that before concluding that the stipulation of facts was binding, the circuit court must first find that the stipulation was a valid agreement. Such a finding of fact made during a bench trial is subject to a clearly erroneous standard. See Ark. R. Civ. P. 52(a); Lee v. Daniel, 350 Ark. 466, 91 S.W.3d 464 (2002). We said in our Lee decision with respect to findings of fact by the circuit court and our deference to those findings:
. . . This court gives due deference to the superior position of the trial judge to determine the credibility of the witnesses and the weight to be accorded their testimony. Pyle v. Sayers, 344 Ark. 354, 39 S.W.3d 774 (2001). Further, it is within the province of the trier offact to resolve conflicting testimony. Myrick v. Myrick, 339 Ark. 1, 2 S.W.3d 60 (1999).
350 Ark. at 470, 91 S.W.3d at 466-67.
With this standard in mind, we cannot say that the circuit court clearly erred in determining that the stipulation of facts was entered into and, therefore, binding. Rockport relies on the case of McCombs v. McCombs, 227 Ark. 1, 295 S.W.2d 774 (1956), for the proposition that its former attorney, Cliffjackson, lacked the authority to enter into stipulations on its behalf. In McCombs, this court examined the appellants’ claim that appellee’s attorney had entered into an agreement with them. We noted that the appellee testified that she had not authorized her counsel to enter into an agreement to bind her, and we concluded that the evidence showed that there had been no such agreement.
In the case at hand, however, not only Cliff Jackson, Rockport’s former counsel, but also his clients, agreed to the stipulation of facts on July 3, 2002. Jackson testifiéd that on that date, there was a “negotiation session” held in the Malvern National Bank’s board room at which all of the parties met. He stated that most of his clients were there, with the exception of Nathan McCollum, a former city council member, and that the group included Rockport’s City Council and Rockport’s mayor, Darrell Hughes. Jackson further testified that following the negotiations, he met separately with his clients, and then reconvened with the rest of the parties and their counsel. In his clients’ presence, Jackson informed the opposing parties that his clients were agreeable to the proposed stipulation of facts. He then consulted with each of his clients, in the presence of the opposing parties, and individually questioned them on whether he or she was in agreement, or had anything else to add. According to Jackson, each of his former clients agreed.
Appellees’ counsel then telephoned the circuit court, in everyone’s presence, according to Jackson, and informed the court that the matter would be presented on agreed stipulations and that a hearing that had been scheduled would not be necessary. Jackson testified that none of his clients ever hinted at any disagreement with the stipulation of facts at that meeting, and that he did not take any actions that day which were outside of the express authority to act on behalf of his former clients. Jackson added that the stipulations of fact presented to the circuit court the day of the bench trial were essentially the same as the stipulations agreed to on July 3, 2002, which were e-mailed to him by opposing counsel a few days after the negotiations took place.
The circuit court made its ruling regarding Jackson’s authority to enter into the stipulations of fact on his clients’ behalf:
... [H]ere are the conclusions I have drawn. First and foremost, an attorney acting within the scope of that agency does, in fact, have the power to bind his client by a Stipulation of Facts, and I think that is the law and has always been the law. And the only question that could arise from that is whether the Stipulation of Facts is a reasonable one in analyzing the attorney-client relationship. In this case Mr. Jackson had the Mayor of his client, City of Rockport, and several other members of the Council there apparendy. All of those people expressed their assent to the agreement regarding the Stipulation of Fact, the proposed Stipulation of Fact that had been entered into. You know, that testimony is before the Court and is uncontradicted, so I am accepting that as conclusive.... In this case the Mayor was there and the Mayor’s assent was obtained by the attorney before entering into what I consider the binding Stipulations of Facts. ... The point is the attorney has the power to do it.
As stated above, this court defers to the superiority of the trial judge in determining the credibility of witnesses. See Lee v. Daniel, supra. Clearly, the circuit court gave credence to Jackson’s testimony that his former clients agreed to the stipulations of fact and failed to voice any disagreement during the meeting to consider the stipulations. As the testimony reflects that the Mayor and City Council of Rockport, absent one member, were present at the meeting and did not voice any concern or disagreement with regard to Jackson’s actions, we agree with the circuit court that Jackson was clearly operating within the ambit of his authority when he entered into the stipulation of facts.
We turn then to the issue of whether the circuit court erred in concluding that the landowners’ annexations into Malvern complied with Act 779. Rockport’s main contention is that necessary services were already available to its residents. We disagree.
Act 779 defines “services” as “electricity, water, sewer, fire protection, police protection, drainage and storm water management, or any other offering by the municipality that materially affects a landowner’s ability to develop, use, or expand the uses of the landowner’s property.” Ark. Code Ann. § 14-40-2002(e) (Supp. 2003) (emphasis added). Among the services requested by the landowners was sewer service, which without question is a necessary service. According to the stipulations of fact, Rockport did respond to the requests for services and made a commitment to take substantial steps to provide the services which were requested. Rockport also sent additional letters to the requesting landowners reaffirming its continuing commitment to provide the services and outlining its progress in doing so, such as obtaining the services of an engineering firm and applying for loans to fund the construction of the sewer system. However, at no time did Rockport have a sanitary sewer system with which to provide sewer service to its residents, and both the stipulation of facts and the circuit court’s finding make this point abundantly clear. Malvern, on the other hand, had agreed to make sewer service as well as other requested services available to the landowners and to accept their property into its corporate limits.
Rockport relies on City of Maumelle v. Jeffrey Sand Co., 353 Ark. 686, 120 S.W.3d 55 (2003), to support its claim that it had made the necessary services available to its residents. In City of Maumelle, this court held that the detachment statutory scheme provides landowners with the means of obtaining services to their property, and that if services were already available to the property, the general intent of the legislature has been met irrespective of whether the municipality owns the utility providing the service. The facts of that case, however, were totally different from those of the case at bar. We held in City of Maumelle, that water and sewer services were available to Jeffrey Sand Co. from the City of Maumelle by means of an improvement district and by Central Arkansas Water, Inc. Because its property was already being serviced with both, its annexation into North Little Rock was erroneous. That is not the situation in the case at hand.
Rockport cannot legitimately contend that the evidence before the circuit court was that sewer service was available to the landowners at the time of the landowners’ requests. The stipulation of facts clearly belies that argument. It is true that two commercial properties, Sonic Drive-in and Bulk Sac, had sewer services already provided by Malvern by means of individual arrangements made with that city, but Rockport agreed in the stipulations that at no time relevant to the proceedings did Rock-port have a sanitary sewer system that could provide sanitary sewer service to property owners within its city limits. On this record, it is clear that irrespective of whether Rockport could actually provide sewer service to the landowners at some point, it had not made that service available to them. It is also true that in City of Maumelle v. Jeffrey Sand Co., supra, this court held that Act 779 does not require a city to own a water or sewer system but instead is required to “make it possible for its citizens to obtain the necessary services])]” 353 Ark. at 695, 120 S.W.3d at 60. However, in the case before us, the evidence reflects that Rockport could not even do that with respect to sewer service. Rockport’s argument has no merit.
Rockport also seems to assert that the services requested, including sewer, were not necessary to develop the landowners’ properties. Again, Rockport’s contention is meritless. While Rockport admits that a request for sewer service is a service contemplated by the detachment statutory scheme, it is completely reasonable to conclude that sewer service is necessary to “maximize the use and value of [one’s] property.” Ark. Code Ann. § 14-40-2002(b)(1)(A) (Supp. 2003). Indeed, this is contemplated by the statute defining “services.” See Ark. Code Ann. § 14-40-2002(e) (Supp. 2003). Irrespective of whether the other services requested by the appellee landowners were necessary or came within the statute’s provisions, sewer services were specifically cited by the General Assembly as one of the “additional municipal services” which a landowner may seek from a municipality bordering his or her. property, and it is one that is manifestly necessary to maximize use of the property. See Ark. Code Ann. § 14-40-2002 (Supp. 2003).
As a final point, Rockport urges that it complied with Act 779 and for that reason, the circuit court’s order should be reversed. Again, the evidence is to the contrary. Section 14-40-2002(b)(2)(B) provides that where the municipality in which the land is located executes a commitment for services but fails to take the action required under subsection (b)(1)(D), the land shall be annexed into the other municipality which has committed to making the services available and approves of the annexation. Subsection (b)(1)(D) requires the municipality in which the land is located, here Rockport, to make a commitment to take substantial steps toward making the services available and to continue taking steps to demonstrate a consistent commitment to provide the service “within a reasonable time, as determined by the kind of services requested.” Ark. Code Ann. § 14-40-2002(b)(1)(D)(i) (Supp. 2003) (emphasis added).
Rockport did make a commitment to take substantial steps toward making sewer service available and seems to have continued taking steps to demonstrate its commitment to providing that service. However, the record fails to reflect any commitment by Rockport to provide the service within a reasonable time, as the statute requires. Indeed, the circuit court made this finding in its order: “More than three years have passed and Rockport has not provided nor taken substantial steps to provide ... a sanitary sewer system . ...” In short, because Rockport was unable to demonstrate a commitment to providing the service within a reasonable time, we cannot say that the circuit court clearly erred in concluding that Rockport had not met its burden of proof of showing compliance with Act 779. Accordingly, we affirm.
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Tom Glaze, Justice.
Lisa Warden brought this lawsuit against Kathy R. Eoff after sustaining injuries from falling in the parking lot on property of an apartment complex owned by Kathy. Prior to her fall, Lisa had been at her friend’s, Cecilia Mitchell’s, apartment in the complex to help Cecilia with her clothes dryer, but when the two of them could not fix it, Lisa’s husband was called and he performed the repairs. Afterwards, Cecilia was confronted with the dilemma of needing to pick up her son from football practice and staying at her apartment to receive a telephone call. In order to help Cecilia, Lisa volunteered that she and her husband would pick up Cecilia’s son so Cecilia could stay and not miss her call. The Wardens opted to drive Cecilia’s car so Cecilia’s son would easily recognize it. It was night when the Wardens walked to Cecilia’s car, and the car was parked in one of two spaces which she had been designated as a tenant. Twelve foot long concrete barriers had been placed to separate parking spaces, and Lisa tripped over one of the barriers on the driver’s side of Cecilia’s car. She sustained a broken arm, and later required surgery.
In Lisa’s complaint against Kathy Eoff, Lisa alleged she was a business invitee at the time she fell on Kathy’s parking lot. She further asserted Kathy’s failures to maintain the premises, to adequately light the parking lot and to place concrete barriers properly were the proximate causes of Lisa’s injuries. At trial, the jury agreed, 10 to 2, rendering a verdict in Lisa’s favor in the sum of $30,000.00.
On appeal, Kathy Eoff argues one point for reversal. She relies on Stalter v. Akers, 303 Ark. 603, 798 S.W.2d 428 (1990), in support of her contention that the trial court erred in failing to direct a verdict in Kathy’s favor because Lisa had failed to establish that Kathy had any legal duty to make repairs or remove defects on leased property. We must agree, and therefore reverse and dismiss.
In Akers, Patsi Stalter leased or rented a house to Jason and Laura Howard. Sandy Akers was the Howards’ neighbor and frequent visitor. On the day in question, the Howards invited Akers to their house, and at the end of their visit, Akers went down the steps from the Howards’ porch and fell when she reached the bottom step. The bottom step had been broken and a concrete block had been placed in its stead as a temporary substitute. Akers sued the Howards and Stalter for injuries resulting from her fall. She obtained a default judgment against the Howards, the tenants, and a jury verdict of $16,000.00 against Stalter, the landlord. The Akers court reversed the jury verdict, and in so holding stated as follows:
We believe the injured third party (Akers) must establish a landlord’s contractual duty to repair a defect in the premises before he (or she) may recover for an injury suffered upon leased property over which the landlord has relinquished possession and control to a tenant.
Stalter, 303 Ark. at 607.
In the present case, the trial judge was persuaded that Akers was distinguishable, because there, the landlord (Stalter) had relinquished control over the leased house, but here, the landlord, Kathy Eoff, had retained possession and control of the parking lot of her apartment complex. In reaching this decision, the trial judge mentioned no evidence that showed such a distinction existed, nor did the judge cite any legal authority in support of his decision.
In fact, the case law bearing on the landlord-liability issue before the trial judge runs counter to his ruling. For example, this court has long adhered to the general rule that a landlord is under no legal obligation to a tenant for injuries sustained in common areas, absent a statute or an agreement. See Kilbury v. McConnell, 246 Ark. 528, 438 S.W.2d 692 (1969); see also Glasgow v. Century Property Fund XIX, 299 Ark. 221, 772 S.W.2d 312 (1989); Joseph v. Riffel, 186 Ark. 418, 53 S.W.2d 987 (1932); Haizlip v. Rosenberg, 63 Ark. 430, 39 S.W. 60 (1897). Moreover, in Propst v. McNeill, 326 Ark. 623, 932 S.W.2d 766 (1996), the court stated that no Arkansas law had been shown where a landlord’s retention-of-control exception had ever been recognized, thus, the Propst court held that only an express agreement or assumption of duty by conduct can remove a landlord from the general rule of nonliability. Here, because Lisa Warden failed to show that Kathy Eoff had in any way agreed or undertook a duty to maintain or repair her premises, the trial judge erred in denying Eoffs motion for directed verdict.
In conclusion, we address Lisa’s argument that Kathy failed to properly renew her motion for directed verdict at the end of all the evidence, but instead waited until after the instructions had been argued. Lisa’s argument is in error. Suffice it to say, Kathy’s counsel moved for directed verdict after Lisa’s case-in-chief, and in doing so, counsel specifically cited the applicable case law bearing on landlord liability and pointed out that Lisa had failed to show Kathy had agreed or undertook any duty to maintain or repair the parking lot. At the end of all the evidence, defense counsel renewed his earlier motions, thus generally renewing the directed-verdict motion Kathy made at the end of Lisa’s case-in-chief. This court has held that a defendant is not required to restate his or her grounds for directed verdict where he had already made a specific motion at the close of the plaintiff s case. See Aronson v. Harriman, 321 Ark. 359, 901 S.W.2d 832 (1995).
For the reasons above, we reverse and dismiss.
Newbern and Corbin, JJ., dissent.
Defense also unnecessarily renewed his directed-verdict motion during a discussion in chambers regarding which jury instructions should be proffered. | [
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W.H. “Dub” Arnold, Chief Justice.
This is the second interlocutory appeal brought by the State in the same case. In State v. Johnson, 326 Ark. 660, 934 S.W.2d 499 (1996), we held that the trial court erred in suppressing appellee John Edward Johnson’s confession on the basis that he was denied the right to counsel of his own choosing to be present during an in-custody interrogation and reversed and remanded his case. In the present appeal, the State contends that the trial court erred in dismissing its charges against Johnson on the grounds that double-jeopardy principles barred state prosecution of an offense where the criminal conduct underlying the offense was utilized to enhance punishment for a separate, but related federal conviction. We agree with the State and reverse and remand Johnson’s case for trial.
On August 30, 1995, Johnson was charged in Pulaski County Circuit Court with one count of rape, two counts of aggravated robbery, and two counts of theft of property. The charges stemmed from the June 25, 1995, armed robbery of the Purple Cow restaurant on Cantrell Road in Little Rock, during which an employee of the restaurant was raped. Johnson, a former employee of the restaurant, was developed as a suspect and was questioned by police. On February 22, 1996, the trial court suppressed Johnson’s taped confession. The State appealed, and this court reversed and remanded the case on November 25, 1996.
On March 13, 1996, Johnson was indicted in the United States District Court for the Eastern District of Arkansas for interference with commerce by threats of violence, use of a firearm in relation to a crime of violence, and possession of a firearm not registered to him. The three charges all stemmed from the robbery of the Purple Cow restaurant. On September 17, 1996, Johnson pleaded guilty in federal district court to interference with commerce by threats of violence and use of a firearm in relation to a crime of violence. On December 18, 1996, the federal district judge, in imposing Johnson’s sentence, found by a preponderance of the evidence that Johnson committed a rape in the course of the robbery, thus warranting enhancement of his sentence by 72 months. Thereafter, the State moved to dismiss the aggravated robbery and theft of property charges in Pulaski County Circuit Court, leaving the rape charge. Johnson filed a motion to dismiss the rape charge on the basis that he had already been punished for this offense in federal district court. According to Johnson, the Double Jeopardy Clause of the Fifth Amendment prohibited the State from pursuing the rape charge. The trial court agreed, and on April 2, 1997, one day before a previously scheduled hearing in the case, dismissed the State’s charge. On April 3, 1997, the trial court permitted the State to malee a record of its objections, which form the basis for the present interlocutory appeal.
The State appeals the trial court’s decision to dismiss the rape charge against Johnson under Ark. R. App. P. — Crim. 3, contending that error was committed to the State’s prejudice and that the correct and uniform administration of the criminal law requires our review. In this appeal, we are asked to decide, for the first time, whether double jeopardy prohibits state prosecution of an offense where the offense was considered, for enhancement purposes, in the calculation of punishment for a separate, but related federal conviction. Resolution of this appeal is also important because it involves the doctrine of dual sovereignty discussed in Heath v. Alabama, 474 U.S. 83 (1985), and has far-reaching implications in the administration of the criminal law as applied by federal and state authorities simultaneously involved in pursuing similar charges against one suspect. Thus, because we agree with the State that the correct and uniform administration of the criminal law is at issue here, we accept jurisdiction of this appeal.
The Double Jeopardy Clause of the Fifth Amendment to the United States Constitution protects a defendant from: (1) a second prosecution for the same offense after acquittal; (2) a second prosecution for the same offense after conviction; and (3) multiple punishments for the same offense. Edwards v. State, 328 Ark. 394, 943, S.W.2d 600 (1997), citing Schero v. Farley, 510 U.S. 222 (1994). The issue in this case relates to the third protection. Relying largely on United States v. Koonce, 945 F.2d 1145 (10th Cir. 1991), cert. denied 112 S.Ct. 1695 (1992), the trial court con cluded that, because the federal district court had considered the rape in setting Johnson’s punishment for his convictions for interference with commerce by threats of violence and use of a firearm in relation to a crime of violence, Johnson would be subjected to multiple punishments for the same offense if the State were allowed to proceed on the rape charge. In Koonce, the Tenth Circuit Court of Appeals held that a subsequent conviction for possession of methamphetamine subjected Koonce to double jeopardy where the same possession was used to enhance an earlier sentence for distributing methamphetamine.
The State claims that the holding in Koonce was abrogated by the United States Supreme Court’s decision in Witte v. United States, 515 U.S. 389 (1995). We agree. In that case, Witte pleaded guilty in the United States District Court for the Southern District of Texas to attempted possession of marijuana. In calculating his sentence, the federal district court considered Witte’s previous involvement in connected, but uncharged, activities involving the importation of cocaine and marijuana. When Witte was subsequendy indicted for the importation of the drugs, the federal district court dismissed the charges on the basis that punishment for the. importation offenses would violate the Double Jeopardy Clause’s prohibition against multiple punishments. The Fifth Circuit Court of Appeals reversed the dismissal of the indictments, holding that Witte had not been punished for the importation offenses in the first prosecution, and thus double jeopardy did not bar the later action. The United States Supreme Court, noting that the Fifth Circuit had “expressly disagreed” with the Tenth Circuit’s holding in Koonce, supra, granted certiorari “to resolve the conflict among the circuits.” Witte, 515 U.S. at 395. The Court affirmed the Fifth Circuit, holding that:
use of evidence of related criminal conduct to enhance a defendant’s sentence for a separate crime within the authorized statutory limits does not constitute punishment for that conduct within the meaning of the Double Jeopardy Clause.
Id. at 399.
Johnson defends the trial court’s dismissal on the basis that the facts in. Witte are distinguishable from those in his case. Specifically, he points to the fact that the related conduct used to enhance-Witte’s federal sentence was the'basis for a subsequent federal charge, not a state charge. The problem with his argument is that it ignores the doctrine of dual sovereignty:
When a- defendant in a single act violates the “peace and dignity” of two sovereigns by breaking the laws of each, he has committed two distinct “offences.” Consequently, when the same act transgresses the laws-of two sovereigns, it cannot be truly averred that the offender has been twice punished for the same offence, but only that by one act he has committed two offences, for each of which he is justly punished.
Heath v. Alabama, 474 U.S. at 88 (other citations omitted). Thus, even if the enhancement of Johnson’s federal sentence constituted punishment, because the State is clearly a separate sovereign with respect to the federal district court, see id. at 89, the State’s prosecution of the rape charge would not have been barred.
In his brief, Johnson contends that the trial court’s dismissal of the rape charge was proper because Arkansas law provides greater protection from double jeopardy than does the United States Constitution. In support of his argument, he cites, for the first time, Ark. Code Ann.§§ 5-1-114 (Repl. 1993) and 16-85-712(b) (1987), and maintains that they prohibit the State from prosecuting him for rape. Even if we were to agree with Johnson that these statutes, which relate to the protection from a second prosecution after a conviction for the same offense, applied to his case, he did not present his argument to the trial court, so we decline to consider it for the first time on appeal. Based on the Supreme Court’s holding in Witte and the doctrine of dual sovereignty, we conclude that the trial court’s dismissal of the rape charge was error and reverse and remand Johnson’s case for trial.
Reversed and remanded.
Newbern, J., not participating. | [
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Per Curiam.
The appellant, M. H., has filed a motion for rule on the clerk. His attorney, Lewis W. Littlepage, admits fault for tendering the record late in his client’s juvenile delinquency case.
We find that such an error, admittedly made by the attorney here, is good cause to grant the motion. See Hansberry v. State, 318 Ark. 757, 887 S.W.2d 308 (1994). A copy of this opinion will be forwarded to the Committee on Professional Conduct. | [
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David Newbern, Justice.
Stacy Johninson pleaded guilty before Judge David Bogard to a number of felonies. The issues in this case are whether a motion to withdraw the guilty pleas was untimely and, if not, whether the motion was properly denied. We hold the motion was not untimely but that it was lacking in merit. We affirm as no error occurred in the denial of the motion to withdraw the pleas.
On September 16, 1996, Judge Bogard sentenced Mr. Johninson to imprisonment for forty years for aggravated robbery, ten years for theft by receiving, five years for being a felon in possession of a firearm, and five years due to revocation of probation of a previous sentence. Those sentences were pronounced in open court to be served consecutively for a total of sixty years’ imprisonment. An additional five-year sentence for being a felon in possession of a firearm was pronounced to be served concurrently with the other sentences.
After pronouncing the sentence, Judge Bogard recused and transferred the case to a separate division of the Pulaski Circuit Court presided over by Judge Chris Piazza. On November 22, 1996, Mr. Johninson moved to withdraw his guilty pleas on the ground that his counsel had told him he would receive only a combined ten-year sentence for all of the offenses. The only request made of Judge Piazza was that Mr. Johninson be allowed to withdraw the pleas due to the ineffectiveness of his counsel. Mr. Johninson contended that, although he was guilty of the offenses, other than aggravated robbery, to which he had pleaded guilty, he would not have entered the pleas but for his counsel’s promise of a ten-year sentence.
On December 5, 1996, Judge Piazza held a hearing bn the motion. Testimony was taken from Mr. Johninson, his mother, and his sister, all of whom said the promise of ten years had been made by Mr. Johninson’s lawyer. After reviewing the record of the proceedings before Judge Bogard and the thorough inquiry made of Mr. Johninson by Judge Bogard with respect to whether he had been promised anything in return for his plea and whether he was pleading guilty because he was indeed guilty and knew the maximum sentences he might receive, Judge Piazza announced that he would follow the sentences imposed by Judge Bogard. The judgment and commitment order document, signed by Judge Piazza, was filed of record February 4, 1997.
1. Timeliness
The State argues that we must dismiss the appeal because the Trial Court lacked jurisdiction to permit withdrawal of the guilty pleas at the time the attempt to withdraw them occurred and, therefore, this Court lacks jurisdiction of the appeal. Two subsections of Ark. R. Crim. P. 26.1 are significant in this instance.
(a) Prior to pronouncement of sentence, the court shall allow a defendant to withdraw his plea of guilty or nolo contendere upon a timely motion and proof to the satisfaction of the court that withdrawal is necessary to correct a manifest injustice.
(b) A motion to withdraw a plea of guilty or nolo contendere to correct a manifest injustice is timely if, upon consideration of the nature of the allegations of the motion, the court determines that it is made with due diligence. Such motion is not barred because it is made after the entry of judgment upon the plea. If the defendant is allowed to withdraw his plea after judgment has been entered, the court shall set aside the judgment and the plea.
If a sentence has been entered and placed in execution prior to the filing of a motion to withdraw the guilty plea upon which it was based, the motion must be treated as having been made pursuant to Ark. R. Crim. P. 37, and the provisions of that rule govern timeliness of the motion. Shipman v. State, 261 Ark. 559, 550 S.W.2d 454 (1977). See also Travis v. State, 286 Ark. 26, 688 S.W.2d 935 (1985); Rawls v. State, 264 Ark. 954, 581 S.W.2d 311 (1979).
Rule 26.1(b) provides for withdrawal of a guilty plea after entry of judgment upon the plea, but it is not limited to that situation. The previous sentence says the motion is timely if there has been “due diligence,” and allowance is made for consideration of “the nature of the allegations of the motion.” The question thus becomes whether a motion to withdraw a guilty plea that was not made prior to pronouncement of sentence or after entry of the judgment may be timely. If withdrawal motions, other than those made prior to pronouncement of sentence, are to be considered under Rule 37 and its provisions on timeliness, the answer is found in Rule 37.2(c) which provides:
(c) If a conviction was obtained on a plea of guilty, or the petitioner was found guilty at trial and did not appeal the judgment of conviction, a petition claiming relief under this rule must be filed in the appropriate circuit court within ninety (90) days of the date of entry of judgment. If the judgment was not entered of record within ten (10) days of the date sentence was pronounced, a petition under this rule must be filed within ninety (90) days of the date sentence was pronounced.
* * *
(Emphasis supplied.)
In this case, the judgment and conviction order document was not entered until February 4, 1997, and the motion to withdraw the guilty plea was made within ninety days of the pronouncement of sentence.
We are, of course, aware that subsections (a) and (b) of Rule 26.1 may be read as inconsistent with each other. The opinion in the Shipman case seemed to be an attempt to reconcile them. We are also aware of the history of the rule subsequent to the Shipman decision.
In Malone v. State, 294 Ark. 376, 724 S.W.2d 945 (1988), we noted that there was nothing in the record to show that the parties seeking to withdraw guilty pleas had moved to do so prior to “sentencing” as required by Rule 26.1. We acknowledged, however, that Rule 37 could have applied but did not because that remedy is confined to use by a prisoner who is in custody under sentence of a circuit court, and the parties at issue were out on bond. Rule 37.2(c) and the provision with respect to the period from ten days after pronouncement of sentence and the entry of the judgment and commitment order document were not at issue and not discussed. While relief pursuant to Rule 37.1 is limited to prisoners incarcerated under sentence, that obviously is not contemplated by Rule 37.2 which, by its terms, applies prior to entry of the judgment.
In Brown v. State, 290 Ark. 289, 718 S.W.2d 937 (1986), we again acknowledged that a motion to withdraw a guilty plea could be treated pursuant to Rule 37 if there is a ruling on the merits of the motion. In the case now before us, there was such a ruling.
In Scalco v. City of Russellville, 318 Ark. 65, 883 S.W.2d 813 (1994), we discussed the history of Rule 26. We recited subsection (a) and emphasized the words “prior to pronouncement of sentence.” We wrote, “once the guilty plea has been accepted, and the sentencing [apparently referring to pronouncement] has taken place, the trial court is without jurisdiction to set aside a plea of guilty, unless there was some kind of stay of the sentence.” 318 Ark. at 70, 883 S.W.2d at 815. In the Scalco case, the sentence had been, in effect, “stayed” during an appeal of a suppression-of-evidence issue pursuant to Ark. R. Crim. P. 24.3 but had ultimately been affirmed by the Court of Appeals. We held that, as the sentence was not under any sort of a stay at the time the motion to withdraw the guilty plea was made, the Trial Court lacked jurisdiction to permit its withdrawal.
In McCuen v. State, 328 Ark. 46, 941 S.W.2d 397 (1997), a motion to withdraw a guilty plea was treated as a Rule 37 petition in the Trial Court. The contention was that Mr. McCuen’s counsel had been ineffective in seeking withdrawal of his guilty plea. We ruled on the merits of the argument and held there was no right to counsel in a postconviction proceeding. In that case, the motion had been made after entry of the judgment and commitment order document.
In Standridge v. State, 290 Ark. 150, 717 S.W.2d 795 (1986), the issue was whether a defendant, the imposition of whose sentence had been delayed for five years and who had been placed on probation for one year, could have probation revoked for an act which occurred prior to entry of the judgment. We held that the sentence was effective from the time of its pronouncement in open court. In Redding v. State, 293 Ark. 411, 738 S.W.2d 410 (1987), however, we held that “A sentence is placed into execution when the court issues a commitment order unless the trial court grants appellate bond or specifically delays execution upon other valid grounds.” 293 Ark. at 413, 738 S.W.2d at 411. The State would have us overrule that language in favor of the rationale of the Standridge case.
We agree with the State that the Standridge opinion cited persuasive authority for its result and the Redding case opinion was lacking in cited authority. We decline, however, to follow the Standridge opinion here. The Standridge holding that a judgment of conviction and a sentence are “entered” and “placed in execution” upon pronouncement in open court is inconsistent with our Admistrative Order No. 3, which describes entry of judgment, and our rule for civil cases which clearly provides for the effectiveness of judgments upon their entry or filing. Ark. R. Civ. P. 58; Standridge v. Standridge, 298 Ark. 494, 796 S.W.2d 12 (1989). In addition, it conflicts with Rule 37.2(c) quoted above. The latter rule obviously contemplates a period of time which, for a variety of reasons, may occur between the pronouncement of sentence and entry of a judgment and commitment order. To the extent it conflicts with this opinion, Standridge v. State, supra, is overruled.
In the case now before us, the “sentencing” took place on September 16, 1996, but the judgment and commitment order document was not entered until February 4, 1997. The motion to withdraw the guilty pleas was made between those dates. As Rule 26.1(a) is obviously not applicable because the motion was not made prior to pronouncement of the sentence, we are relegated to subsection (b) and Rule 37. Again, Rule 37.2(c) settles the timeliness issue, and it permitted the Trial Court to consider the issue of ineffective assistance of counsel on its merits because the judgment was not entered within ten days of the pronouncement of the sentence.
2. Ineffective assistance of counsel
“We will 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, citing Thompson v. State, 307 Ark. 492, 821-S.W.2d 37 (1991). Mr. Johninson claims he is entitled to withdraw his guilty plea on account of ineffective assistance of counsel.
In Hill v. Lockhart, 474 U.S. 52 (1985), [it was held that] the two-part standard adopted in Strickland v. Washington, 466 U.S. 668 (1984), for evaluating claims of ineffective assistance of counsel — requiring that the defendant show that counsel’s representation fell below an objective standard of reasonableness, and that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different — applies to guilty plea challenges based on ineffective assistance of counsel. In order to satisfy the second requirement, the defendant must show that there is a reasonable probability that, but for counsel's error, he would not have pleaded guilty and would have insisted on going to trial. It is the defendant’s burden to prove ineffective assistance of counsel, and it is a heavy burden because counsel is presumed effective. Hicks v. State, 289 Ark. 83, 709 S.W.2d 87 (1986).
Duncan v. State, 304 Ark. 311, 316, 802 S.W.2d 917, 919-20 (1991)(emphasis added). See Cranford v. State, 303 Ark. 393, 797 S.W.2d 442 (1990). See also Thompson v. State, 307 Ark. 492, 494, 821 S.W.2d 37, 38 (1991). (“We have recognized that a defendant whose conviction is based on a plea of guilty will have difficulty in proving prejudice under the Strickland standard since his plea rests on his admission in court that he did the act with which he is charged.”), citing Huff v. State, 289 Ark. 404, 711 S.W.2d 801 (1986); Crockett v. State, 282 Ark. 582, 669 S.W.2d 896 (1984).
In Stobaugh v. State, 298 Ark. 577, 769 S.W.2d 26 (1989), the defendant sought to withdraw his plea on the basis of his claim that his attorney provided ineffective assistance. The attorney’s assistance was alleged to be ineffective on several grounds, one of which was that the attorney had misled the defendant by giving him the impression that he would receive a suspended or probated sentence if he pleaded guilty. The defend ant received a sentence of four years and a fine of $10,000. We rejected the argument as follows:
A defendant who receives a greater sentence than expected is not entided to have his plea withdrawn solely on that basis. In the absence of a plea agreement or other extenuating circumstances, the fact that a defendant hoped for, or even expected, a lighter sentence is not grounds for withdrawing the plea after an unfavorable sentence is pronounced.
Id. at 580, 769 S.W.2d at 28.
Despite the clear record showing that Mr. Johninson was advised of the sentences he might receive for the offenses to which he pleaded guilty and his statements that he understood that advice, he maintains that his attorney’s advice was “invalid” because he ultimately received a sentence in excess of ten years. “The judge is not required to believe any witness’s testimony.” McDaniel v. State, 291 Ark. 596, 599, 726 S.W.2d 679, 681 (1987).
The Trial Court could also have reasonably disbelieved the testimony of Mr. Johninson’s mother and sister. The prosecutor succeeded in showing some problems with their credibility. Even counsel for Mr. Johninson stated that the mother’s testimony concerning the attorney’s alleged promise of a ten-year sentence had changed since the meeting counsel had with her prior to the hearing before Judge Piazza.
Given our deference to the Trial Court’s position with respect to evaluation of the testimony of witnesses, we cannot conclude that its decision that Mr. Johninson’s counsel was not ineffective was clearly erroneous or clearly against the preponderance of the evidence.
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Donald L. Corbin, Justice.
Appellant Leslie Lee Walker appeals the order of the Sevier County Chancery Court, Juvenile Division, adjudicating him delinquent and placing him in the custody of the Division of Youth Services, with the recommendation that he be placed in the training school. Our jurisdiction of this appeal is pursuant to Ark. Sup. Ct. R. l-2(a)(17)(iv) & (v). Appellant raises four points for reversal. We affirm.
On April 11, 1996, a petition was filed in juvenile court alleging that Appellant had committed second-degree assault against a teacher’s aide at the Lockesburg school. Prior to the hearing, the juvenile court granted Appellant’s motion for a mental evaluation to determine his mental competency to stand trial and to appreciate the wrongfulness of his conduct. A psychological report dated October 3, 1996, reflected that Appellant understood the proceedings against him, was able to assist in his own defense, was aware of the criminality of his conduct, and could have conformed his conduct to the requirements of the law at the time of the alleged incident. Appellant was diagnosed as having attention deficit hyperactivity disorder of mixed type, arithmetic learning disability, learning disorder of written expression, and conduct disorder of oppositional type.
A hearing was held on October 29, 1996, and Appellant was adjudicated delinquent for having committed the offense of second-degree assault. Appellant was placed on probation for a period of one year and was ordered to enroll in and complete the Arkansas National Guard’s Civilian Student Training Program (CSTP). Additionally, Appellant was ordered to stay away from the Lockesburg school campus and to pay thirty-five dollars court costs. The juvenile judge noted in the order that if Appellant should commit any offenses in the future, he should be charged as an adult in circuit court.
Subsequent to the hearing, the trial court became aware that Appellant’s mother had refused to sign the necessary Power of Attorney for Appellant’s placement in CSTP. Upon motion of the prosecutor, the trial court set a show cause hearing for Appellant’s mother for November 21, 1996. A hearing was held and the resulting order reflected that the trial court resentenced Appellant at the request of his mother and his attorney, placing him in the custody of the Division of Youth Services. The order reflected further that upon his release from the Division of Youth Services, Appellant was to be placed in the custody of the Department of Human Services, with the recommendation that he be placed in the training school. It is from this order that Appellant appeals.
We first consider Appellant’s argument regarding the sufficiency of the evidence, as the double jeopardy clause precludes a second trial when a judgment of conviction is reversed for insufficiency of the evidence. Welch v. State, 330 Ark. 158, 955 S.W.2d 181 (1997). Although Appellant did not move for a directed verdict below, his challenge to the sufficiency of the evidence is preserved for appeal, as it is not necessary to make such a motion during a nonjury trial. See Mackey v. State, 329 Ark. 229, 947 S.W.2d 359 (1997); Strickland v. State, 322 Ark. 312, 909 S.W.2d 318 (1995). In reviewing a challenge to the sufficiency of the evidence, we view the evidence in a light most favorable to the State and consider only that evidence which supports the verdict. Rains v. State, 329 Ark. 607, 953 S.W.2d 48 (1997). Evidence, whether direct or circumstantial, is sufficient to support a conviction if it is forceful enough to compel reasonable minds to reach a conclusion one way or the other. Id. This court does not, however, weigh the evidence presented at trial, as this is a matter for the factfinder. Id. Nor will this court weigh the credibility of the witnesses. Id. Appellant argues that there was insufficient evidence to support the trial court’s determination that he had committed second-degree assault. We disagree.
During the hearing below, the State presented the testimony of two witnesses: Sandra McWhorter and Wanda Bishop. McWhorter, a teacher’s aide at Lockesburg school, testified that on March 5, 1996, she was trying to leave school when Appellant blocked the double doorway. She stated that she was trying to go out the left side of the door when Appellant blocked her path. She stated that she then proceeded to go out the right side of the door when Appellant pushed her from the back. She stated that she stumbled for a couple of steps on the concrete sidewalk, but that she did not actually lose her balance and fall to the ground. She stated that she was both surprised and scared by the incident.
Bishop, a teacher at Lockesburg school, testified that she had witnessed the pushing incident. She stated that Appellant was inside the double doorway and that he had the door blocked with his arms spread. She stated that McWhorter tried to exit the building on the first side, but that Appellant would not let her pass. She stated that McWhorter then went to the right side of the door and barged through, and that Appellant then turned around and pushed McWhorter with his right hand. She stated that McWhorter stumbled, but caught her balance. She stated that she saw no indication as to why Appellant had pushed McWhorter.
Arkansas Code Annotated § 5-13-206(a) (Repl. 1993) provides that a person commits second-degree assault if he “recklessly engages in conduct which creates a substantial risk of physical injury to another person.” Ark. Code Ann. § 5-2-202(3) (Repl. 1993) provides that a person acts recklessly when he “consciously disregards a substantial and unjustifiable risk. . . . The risk must be of a nature and degree that disregard thereof constitutes a gross deviation from the standard of care that a reasonable person would observe in the actor’s situationf.]”
In viewing the evidence presented below in a light most favorable to the State, we are satisfied that there was sufficient evidence to support the trial court’s conclusion that Appellant had committed the act of second-degree assault. Appellant’s actions in pushing McWhorter from behind were, at the very least, reckless, and they created a substantial risk that McWhorter would be physically injured. It is of no consequence to Appellant’s argument that McWhorter was able to regain her balance before fading on the concrete sidewalk. The fact that Appellant’s actions created a substantial risk that she could have fallen on the concrete and injured herself is sufficient to sustain the trial court’s findings.
For the second point for reversal, Appellant argues that his trial counsel was ineffective in failing to present evidence concerning his disabilities and in failing to seek a prior federal administrative determination under the Individuals with Disabilities in Education Act. Appellant argues that A.R.Cr.P. Rule 37 does not apply to delinquency proceedings in juvenile court and that, consequently, juvenile delinquents have no recourse in which to raise the issue of the ineffective assistance of counsel. We disagree.
We first observe that the Arkansas Rules of Criminal Procedure apply to juvenile delinquency proceedings. Ark. Code Ann. § 9-27-325(f) (Supp. 1995); Mason v. State, 323 Ark. 361, 914 S.W.2d 751 (1996). Additionally, we point out that Rule 37 is applicable to juvenile proceedings pursuant to section 9-27-325(f), but that the remedy under that rule is available to such juvenile defendants only when they are in custody. Id. Notwithstanding that condition precedent for proceeding under Rule 37, this court has generally recognized that claims of ineffective assistance of counsel are cognizable on direct appeal, providing that the appellant first presented the claim to the trial court during the trial or in a motion for a new trial. Smith v. State, 328 Ark. 249, 943 S.W.2d 234 (1997); Johnson v. State, 325 Ark. 44, 924 S.W.2d 233 (1996); Missildine v. State, 314 Ark. 500, 863 S.W.2d 813 (1993). We will not, however, consider such a claim unless the surrounding facts and circumstances were fully developed either during the trial or during other hearings conducted by the trial court. Chavis v. State, 328 Ark. 251, 942 S.W.2d 853 (1997). Thus, as these cases reveal, Appellant’s argument that juveniles who are not in custody have no avenue in which to pursue claims of ineffective assistance of counsel is without merit.
In the present case, however, we do not review Appellant’s claim of counsel’s ineffectiveness because he failed to raise the issue in the trial court, either at the time of the adjudication or in a subsequent motion for new trial. Because of this failure, the facts and circumstances surrounding the claim were not fully developed by the trial court. Without the benefit of such facts and circumstances, this court cannot assess whether trial counsel’s performance fell below that standard required by the Sixth Amendment to the United States Constitution. “As the trial court is in the best position to evaluate trial counsel’s performance and competency, an order reciting its findings is necessary to enable us to conduct a meaningful review of the claim.” Dodson v. State, 326 Ark. 637, 644, 934 S.W.2d 198, 202 (1996).
For the third point for reversal, Appellant argues that the trial court exceeded its authority by: (1) turning the show cause hearing for his mother into a revocation hearing without prior notice to Appellant; (2) making prejudicial comments on the record; and (3) ordering the prosecutor to file all future charges against Appellant as an adult. We do not reach the merits of any of these arguments, as Appellant failed to raise them in the trial court. This court has repeatedly stated that we will not address any claims, even constitutional claims, raised for the first time on appeal. McGhee v. State, 330 Ark. 38, 954 S.W.2d 206 (1997); Travis v. State, 328 Ark. 442, 944 S.W.2d 96 (1997); Dulaney v. State, 327 Ark. 30, 937 S.W.2d 162 (1997). Even a constitutional claim of lack of notice will not be considered by this court for the first time on appeal. In re Adoption of K.F.H. and K.F.H., 311 Ark. 416, 844 S.W.2d 343 (1993).
Additionally, as to Appellant’s first assertion, that he was not given proper notice that revocation would be considered before he was resentenced, the record demonstrates that Appellant’s counsel not only failed to object, he agreed with the court’s decision to resentence Appellant at that time. Moreover, the trial court’s order reflects that Appellant was resentenced at the request of his mother and his attorney. A defendant may not agree with a ruling by the trial court and then attack that ruling on appeal. McGhee, 330 Ark. 38, 954 S.W.2d 206; Goston v. State, 326 Ark. 106, 930 S.W.2d 332 (1996); Meadows v. State, 324 Ark. 505, 922 S.W.2d 341 (1996).
Appellant’s final point for reversal is that the trial court abused its authority in sentencing Appellant to the training school. Appellant argues that this disposition was excessive because he was a first-time offender and because the punishment does not fit the crime. The State contends that because Appellant does not challenge the trial court’s authority to impose such a sentence, his argument should not be reached on appeal because he failed to raise it in the trial court. We agree with the State’s contention.
This court treats allegations of void or illegal sentences similar to problems of subject-matter jurisdiction in that we review such allegations whether or not an objection was made in the trial court. Bangs v. State, 310 Ark. 235, 835 S.W.2d 294 (1992). A sentence is void when the trial court lacks the authority to impose it. Id. Here, Appellant does not assert that the trial court was without authority to order that Appellant be sent to the training school; rather, he argues only that the trial court’s sentence was excessive for a first offender. Thus, because Appellant does not challenge the legality of his sentence, it was necessary that he first raise the issue with the trial court in order to preserve the argument for appeal.
Affirmed. | [
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Per Curiam.
Appellant James Jess Colvin has filed a motion for rule on the clerk. The motion reflects that the notice of appeal was filed before the judgment and commitment order was entered. The motion was, therefore, untimely and ineffective. See Ark. R. App. P. — Civ. 4.
Appellant’s attorney, Kent T. Tharel, has assumed responsibility for not verifying that the judgment and commitment order had been filed prior to the filing of the notice of appeal. Because he has admitted responsibility for the error, we treat the motion for rule on the clerk as a motion for belated appeal, and we grant it. We direct that a copy of this order be filed with the Committee on Professional Conduct. See In Re: Belated Appeals in Criminal Cases, 265 Ark. 964 (1979) (per curiam). | [
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W.H. “Dub” Arnold, Chief Justice.
The appellants, Lawrence Brown and Charles Murdock, appeal an order of the Pulaski County Circuit Court upholding the decision of the Office of Hearing and Appeals of the Arkansas Department of Human Services that there was some credible evidence to support allegations that they had abused a juvenile at a youth facility in North Little Rock. Finding no merit to the appellants’ three arguments for reversal, we affirm the trial court’s judgment.
The appellants first argue that the trial court erred in rejecting their argument that their due process rights were violated because OHA did not complete its hearing process within ninety days from the date that it received their request for a hearing. Under the Arkansas Administrative Procedures Act, particularly Ark. Code Arm. § 12-12-512 (Repl. 1995), the administrative hearing process must be completed within ninety days from the date of receipt of the request for a hearing. Appellants filed their request for a hearing on January 31, 1996, but OHA did not conclude the hearing until May 21, 1996.
We need not decide whether this delay prejudiced the appellants’ due process rights because they did not present this argument to OHA. It is well-settled that we do not set aside an administrative determination on a ground not presented to the agency. Alcoholic Beverage Control Div. v. Barnett, 285 Ark. 189, 685 S.W.2d 511 (1985). The trial court correctly rejected the appellants’ argument for this reason.
Next, the appellants assert that the trial court erred in rejecting their argument that the continuance of the hearing from May 2, 1996, to May 21, 1996, on DHS’s motion so that it could secure the presence of its key witness in the case, violated their due process rights. We cannot reach this argument because the record reveals that no objection was made below to the granting of a continuance. Because the appellants failed to present this argument at the administrative hearing, we do not consider it on appeal. Riverways Home Care v. Ark. Health Serv. Comm’n, 309 Ark. 452, 831 S.W.2d 611 (1992).
Finally, the appellants contend that because the trial court found that there was some credible evidence of abuse, it erroneously felt compelled to reject their due process arguments, as it reasoned that it “must affirm the DHS decision.” Arkansas Code Annotated § 25-12-212(h) (Repl. 1996) provides in part that the trial court “may” reverse or modify an agency’s decision if it determines that the substantial rights of the petitioner have been prejudiced due to an agency’s decision that is in violation of constitutional or statutory provisions. Thus, under our statute, even if we were to agree that the appellants’ due process rights were violated, it would have been within the trial court’s discretion to reverse and remand their case. When reviewing the trial court’s order, it appears to us that he made separate findings with respect to the substantive evidence of abuse and the appellants’ due process claims. In any event, we cannot say that the trial court erred.
For the foregoing reasons, we affirm the trial court’s decision. | [
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Per Curiam.
Petitioners Robert Harrold Kinkead and Joyce Kinkead petition this court for a writ of mandamus to Chancellor Ellen B. Brantley, Fifth Division Chancery Court of Pulaski County, directing that she enter a final order in this matter. We grant the writ.
On March 17, 1997, this court handed down an opinion in this matter in which we dismissed the appeal of the Kinkeads without prejudice for failure to appeal from a final order. See Kinkead v. Spillers, 327 Ark. 552, 940 S.W.2d 437 (1997). In our opinion, we made specific mention of a judgment Hen in favor of intervenor Boatmen’s National Bank of Arkansas, which, according to the record before us, had not been resolved with regard to the proceeds derived from, the sale of the land at issue. We specifically stated that the Boatmen’s claim was not merely collateral to the Kinkeads’ claim.
According to the record before this court filed in conjunction with the Kinkeads’ petition for a writ of mandamus, after the chancellor’s order entered on September 10, 1996, which approved the commissioner’s deed in this matter, the Hen of Boatmen’s was satisfied. On October 9, 1996, the chancellor of the Second Division Chancery Court of Pulaski County entered an order releasing funds received from the sale of the land and held by the Chancery Clerk to Boatmen’s, and the bank subsequently released its judgment lien against the land.
Following this court’s opinion on March 17, 1997, the Kinkeads moved Chancellor Brantley for entry of a final judgment from which they could appeal. By letter opinion dated June 3, 1997, and by order entered August 19, 1997, Chancellor Brantley made it clear that she disagreed with the opinion of this court. The chancellor stated in her order:
The Supreme Court found that the Defendants’ appeal was premature as not having been made from a final order, as asserted by Intervenor. However, the parties’ briefs apparently did not sufficiently impress upon the Supreme Court that a final order (the order of September 10, 1996), had been entered but after the order appealed from and that the matter of Intervenor’s lien had been fully addressed therein. Therefore, this Court having already entered a final order which was not appealed from, there is nothing more required of this Court. (Emphasis in the original order.)
In her specific order, she stated: “The Court finds no need to make any further orders in this case.”
Without a final order, the Kinkeads are unable to perfect their appeal. The Fifth Division Chancery Court is directed to enter a final order forthwith incorporating her order of September 10, 1996, and describing the resolution of intervenor Boatmen Bank’s judgment-lien claim.
Writ granted. | [
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Ray Thornton, Justice.
On November 29, 1986, Larry Don Lovell, Jr., died as a result of a gunshot wound sustained while deer hunting. His parents, appellants, brought this action against Herbert Bartlett and a number of other individuals engaged in deer hunting in the area, contending that although Mr. Bartlett fired the shot that killed their son, vicarious liability should be imputed to other hunters who were staying at the Bartlett house. Appellants took a voluntary nonsuit against all the other hunters except for appellees, Gerald Brock, Tim Thomas, and Alfred Lee Brock.
The trial court found that Mr. Bartlett was solely responsible for the accident that caused Larry Jr.’s death, and entered a substantial judgment in favor of appellants against Mr. Bartlett. No appeal was taken from this judgment. In the trial court’s order holding Mr. Bartlett solely responsible, the court found that there was no basis to impose vicarious liability on appellees and granted their motions for summary judgment. In their argument for reversal, appellants contend that appellees were members of an “association” or “club,” imposing vicarious liability on appellees, or alternatively that they were involved in a joint venture or enterprise and should be held liable for Larry Jr.’s death. We have determined that the trial court’s finding was not erroneous and affirm.
Several groups of hunters were seeking to kill deer on land owned by the Georgia Pacific company in Drew County on Thanksgiving weekend in 1986. The land was open to the public, and no hunting group had leased the land, or organized a club or association with officers and bylaws. Several persons from Marked Tree, including Larry Don Lovell, Sr., and his son were camped on Tommy Brashears’ property near Ladelle. Nearby, ten or twelve other people from Marked Tree were camped.
In the same area, Mr. Bartlett owned a cabin and allowed several persons to use the cabin during deer season. These hunters paid Mr. Bartlett $100.00 per season to stay at the cabin. They did not meet and adopt any rules, did not own any property together, and did not lease any hunting rights. Among those who sometimes stayed at the cabin were appellees, Gerald Brock, Alfred Brock, and Tim Thomas, although Gerald Brock was not in Drew County on the day of the tragic accident.
On the day of the accident, a local hunter, Monroe Cottington, and his brother-in-law, Royce Wesson, were also nearby in the woods hunting deer. Although the season for using dogs was over, Mr. Cottington was running his dogs, and he gave an unsworn statement that Alfred Brock had asked bim to do so. Under oath, Mr. Brock denied making that request. Tim Thomas had killed a deer by himself that morning, and he kept it for his own use. Hunters from at least three camps were in the area where Larry Jr. was fatally wounded.
The young victim, properly outfitted in an orange coat and cap, had been left at a pine top beside the road, while his father and another hunter looked for other stands. Mr. Brock was more than three-quarters of a mile away. Mr. Bartlett was driving along the road near the boy and had picked up Mr. Thomas, who was walking through the woods. Hearing dogs, Mr. Bartlett stopped the truck, and both he and Mr. Thomas loaded their guns as they were getting out of the truck. Almost immediately, a deer appeared on the left side of the road seventy or eighty yards ahead. Larry Jr.’s pine top was on the right side of the road about halfway between Mr. Bartlett and the deer. Larry Jr. fired at the deer, and almost simultaneously, Mr. Bartlett fired his rifle. The projectile from Mr. Bartlett’s rifle struck Larry Jr. in the back and emerged from his abdomen. He died that evening during surgery in Pine Bluff. Mr. Thomas did not fire his shotgun and did not see Larry Jr. in time to warn Mr. Bartlett. However, the young man was in plain view.
The trial court found “that the proximate cause of this terrible accident was the negligence of the Defendant, Herbert Bartlett, only, and that the negligence of Herbert Bartlett is not imputed to the Defendants, Gerald Brock, Alfred Lee Brock, or Tim Thomas, or either of them.” The trial court also found “[t]hat there is no genuine issue as to any material fact that gives rise to joint or vicarious liability as to the Defendants, Gerald Brock, Alfred Lee Brock, or Tim Thomas, and the Defendants are entitled to a Judgment as a matter of law.” Based on these findings, the trial court granted summary judgment to appellees.
This appeal raises a single point for reversal. Appellants argue that the court erred in granting summary judgment because appellees were vicariously liable either due to their involvement in a joint enterprise or because they were members of an “association” or “club.”
Summary judgment should only be granted where there exists no genuine issue of material fact, and the moving party is entitled to judgment as a matter of law. Porter v. Harshfietd, 329 Ark. 130, 948 S.W.2d 83 (1997) (citing Ark. R. Civ. P. 56). The evidence is viewed in the light most favorable to the party opposing the judgment, and we resolve all inferences and doubts against the moving party. Id. If the party moving for summary judgment makes a prima facie showing that no issues of fact exist, and the nonmoving party fails to present proof that such issues do exist, then we must affirm the trial court’s grant of a summary judgment. Id. Our review of an order granting summary judgment is limited to the pleading, affidavits, and other supporting documents that the parties file in support of their arguments. Id. These well established principles guide our analysis of the issues in this case.
Joint Enterprise or Venture:
First, we address appellants’ argument that the trial court erred in granting summary judgment to appellees because a joint enterprise existed, imposing vicarious liability upon appellees. To find that a joint enterprise existed, Arkansas law requires only a showing of: (1) a common object and purpose of the undertaking; and (2) an equal right to direct and govern the movements and conduct of each other in respect to the common object and purpose of the undertaking. RLI Insurance Co. v. Coe, 306 Ark. 337, 813 S.W.2d 783 (1991). We have stated that the doctrine of joint enterprise is a very complex doctrine and have noted that it has generally “fallen into disrepute.” Neal v. J.B. Hunt Transp., Inc., 305 Ark. 97, 101, 805 S.W.2d 643, 645 (1991) (citing W. Page Keeton, et al., Prosser and Keeton on the Law of Torts, § 72, at 521 (5th ed. 1984)). In Neal, we said that “[w]hile we are not enamored of the joint enterprise doctrine, it is a part of the common law of this State.” Id. at 101, 805 S.W.2d at 645. We determined that, the proper query for joint enterprise is whether there is enough evidence to show “an equal right to direct and govern the movements and conduct of each other in respect to the common object and purpose of the undertaking.” Id. at 101, 805 S.W.2d at 645.
Appellants argue that appellees formed a joint enterprise by engaging in the one hunt that resulted in Larry Jr.’s death. The evidence shows that the group lodging in Mr. Bartlett’s house may have had a common object and purpose in renting space in the house while hunting deer. However, there is no evidence to prove that any of the hunters had an equal right to direct and govern the movements and conduct of the group, or each other, with respect to the common object and purpose of the undertaking.
Because the essential elements for a joint enterprise have not been proven, we conclude that the trial court did not err in finding that Mr. Bartlett and the other hunters were not involved in a joint enterprise.
Associations and Clubs:
Appellants also argue that the trial court erred in finding no legal basis for the vicarious liability of the hunters because they were members of a hunting club or association. The necessary-predicate for reaching the question whether there is a legal basis for the application of vicarious liability to members of an association is a determination that an association or club was formed at all under the circumstances of this case.
We have defined an “association” as “a body of persons acting together, without a charter, but upon the methods and forms used by corporations, for the prosecution of some common enterprise.” Weaver v. First Nat’l Bank of Memphis, Trustee, 216 Ark. 199, 207, 224 S.W.2d 813, 817 (1949). At issue in Weaver was whether the Menasha Outing Club, an unincorporated association formed as a hunting and fishing recreational club, was authorized to seE property belonging to its members without the appeEant’s consent. It was uncontested that some sort of organization had been formed, and the Club operated under its own bylaws. Id. The court determined that it was appropriate to look to the Club’s bylaws and supporting documents because such evidence “was competent to prove anything that the parties said or did in the formation of the association in order to determine what the nature of the association was . . . .” Id. at 207, 224 S.W.2d at 817 (quoting Harris v. Ashdown Potato Curing Ass’n, 171 Ark. 399, 284 S.W. 755 (1926)). We noted that the Club was organized for the pleasure of its members rather than for profit, with no attempt to incorporate. Id.
While the issue in Weaver is different, the language on associations is instructive. Here, there were no such bylaws or efforts to incorporate or create any formal organization. The group staying at Mr. Bartlett’s house had no membership requirements or elected officers. It was shown that Mr. Bartlett was the sole party with authority over the operation of the camp. The property was owned by Mr. Bartlett, and the hunters abided by his terms without any written or other formalized agreement. The other hunters possessed no ownership rights in the property. Each one was paying $100 a season for the privilege of sleeping and eating at the house, although no joint or communal arrangements had been made. There was no promise of future years’ hunts at a fixed amount, and no promise of a particular place in which to hunt. The hunters understood that Mr. Bartlett did not tolerate drinking alcoholic beverages on the property, although again this was not a formal rule. Unlike the language quoted above on the definition of an association, the hunters did not appear to act upon the methods or forms used by corporations, or upon any formalized methods or forms at all. Neither did they have any apparent right of control or voting rights. Therefore, unlike Weaver, there was no showing of an intent, express or implied, to create a club or association.
In our decision in Harris v. Ashdown Potato Curing Ass’n, supra, we stated that “the mere purchase of space in the curing-house by one who was not otherwise interested in the business would not constitute a membership in the association . . . .” Harris, 171 Ark. at 411, 284 S.W. at 760. Harris is analogous to the case before the court because the depositions and statements indicate that the hunters thought that they were basically purchasing the right to occupy and eat in Mr. Bartlett’s house. There is no indication that they thought they were purchasing a membership in an association that would entitle them to have future rights or interests in the property. There is evidence that the hunters shared meals and that they followed the practice of dividing the kill with the owner of the dogs, as well as sometimes sharing their kill with other hunters. There was no genuine issue of material fact contrary to the showing that these practices were based upon the decisions of each individual hunter.
Both appellants and appellees agree that this court has not imposed vicarious liability on members of an unincorporated association for the negligence of one member of the group solely on the basis of membership in the group. Appellants cite us to two cases that arose out of federal court in support of their argument that Arkansas law favors holding members of an association or club vicariously liable for the tortious conduct of its members. In United Mine Workers v. Coronado Co., 259 U.S. 344 (1922), the Supreme Court determined that the individual members of a local labor union could be held liable for damages resulting from the violent acts of a few of the members. The union operated under a constitution; and it had an express joint purpose, elected representatives, and an organization of principal officers. Id. The Court stated that associations cannot be sued in the organization’s name, but liability may be had against each individual member. Id. The Court then carved out a special category of such organizations in the labor field and concluded that such organizations may be sued in federal court for their tortious acts; however, this decision rests upon the existence of an association. Id.
Next, appellants cite us to Ketcher v. Sheet Metal Workers’ Int'l Ass’n, 115 F.Supp. 802 (E.D. Ark. 1953). This case also involved an unincorporated international labor union. The Ketcher court restated the principle that an unincorporated association may be liable for the tortious acts of its agents, although the association cannot be sued as an entity. Id. These are recognized principles of law and would be applicable to the case at bar only if we determine that 'an association existed with respect to these hunters.
Unlike United Mine Workers and Ketcher, this case does not involve an associated or incorporated group. Rather, in this case, the members had only the rights to occupy Mr. Bartlett’s house and take meals there. They had no written “constitution” or agreement, and the only commonality of purpose was to eat and sleep in a place near hunting woods. Unlike United Mine Workers and Ketcher, the evidence in this case gives us no indication that a club or association, incorporated or unincorporated, was formed.
Viewing the evidence in the light most favorable to the party opposing the motion, we conclude that there is no genuine question of material fact as to the nonexistence of an association or club. The evidence shows that such an entity was neither intended nor created. We affirm the trial court’s finding that appellees were not vicariously liable for the tortious act of Mr. Bartlett on this basis.
Even if an issue of material fact remained as to the formation of an association or the existence of a joint enterprise, it would still not be necessary to return this matter for a jury determination of that question. This court has most frequently applied the principles of vicarious liability in the context where it has found a master-servant or agency relationship, see St. Joseph’s Regional Health Ctr. v. Munos, 326 Ark. 605, 934 S.W.2d 192 (1996); or in automobile cases, see Reed v. McGibboney, 243 Ark. 789, 422 S.W.2d 115 (1967) (holding that there was sufficient evidence “of community of interest and of an equal right to share in the control and operation of the vehicle to warrant the submission to the jury of [the defendant’s] vicarious liability upon either the theory of joint enterprise, or the theory of agency, or both”).
Prosser states that the basis of a finding of imputed vicarious liability is still negligence, although the law has effectively broadened the action by imposing the negligence on an innocent defendant. Prosser and Keeton on the Law of Torts, supra § 69, at 499. To prove a cause of action based on negligence, the plaintiff must not only prove both that he sustained damages and that the defendant was negligent, but also that the defendant’s negligence was the proximate cause of the damages. Ouachita Wilderness Inst. v. Mergen, 329 Ark. 405, 947 S.W.2d 780 (1997).
In Craig v. Traylor, 323 Ark. 363, 915 S.W.2d 257 (1996), the-court stated that proximate cause must be determined before fault may be assessed and that proximate cause is typically a question for the jury. Id.; see also Ouachita Wilderness Inst., 329 Ark. at 414, 947 S.W.2d at 785. The only time that proximate cause may become a question of law is when “reasonable minds could not differ.” Id. at 370, 915 S.W.2d at 260. The court defined “proximate cause” as “that which in a natural and continuous sequence, unbroken by any efficient intervening cause, produces the injury, and without which the result would not have occurred.” Id. at 370, 915 S.W.2d at 260 (quoting Williams v. Mozark Fire Extinguisher Co., 318 Ark. 792, 888 S.W.2d 303 (1994)).
The Supreme Court of Alabama has considered this issue in Hall v. Booth, 423 So.2d 184 (Ala. 1982). In Hall, the only issue on appeal was whether the members of an unincorporated association were vicariously liable for the negligent shooting of a thirteen-year-old boy during a deer hunt. Id. at 185. The trial court had granted summary judgment with respect to all members of the club, except the member who accidentally shot and killed the boy. Id. The court determined that while the acts of the other hunters who were conducting the hunt may have been negligent, the appellant had the burden of proving that the appellees’ negligence was the proximate, or direct and immediate, cause of the injury. Id. The court concluded that it would not extend the liability of the member who fired the fatal shot to the other members because the appellant had failed to meet his burden of proving the element of proximate causation, and it affirmed the summary judgment. Id.
In this case, the trial court found that the proximate cause of the accident was the negligence of Mr. Bartlett only, and that his neghgence was not imputed to appellees. Viewing the facts in the light most favorable to appellants, even if appellees negligently participated in the illegal act of running dogs to harvest a deer, Mr. Bartlett’s negligent act was the immediate and direct cause of Larry Jr.’s death. The trial court correctly found that Mr. Bartlett’s act was the proximate cause because it broke any causal chain that would be necessary to broaden his liability to appellees.
We conclude that there is no genuine issue of material fact and that the trial court did not err in finding that the liability of Herbert Bartlett did not extend to appellees.
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W.H. “Dub” Arnold, Chief Justice.
The property that is the subject of this appeal is a physicians’ office building and parking lot located adjacent to the Crittenden Memorial Hospital and leased from the county by appellant Crittenden Hospital Association. The primary issue presented is whether this property is exempt from ad valorem taxation as public property used exclusively for public purposes. Ark. Const, article. 16, § 5(b). The Association was assessed taxes for this property for the tax year 1993 and applied for an exemption. The County Equalization Board denied the exemption. The Association appealed to the county court, which reversed the board’s ruling and ordered the property to be removed from the tax rolls. The tax assessor appealed to the circuit court, which ruled that the Association had not met its burden of proving that the property was used exclusively for public purposes. The Association appeals, raising several arguments for our review. We have permitted the Arkansas Hospital Association to file a brief as amicus curiae in support of the Association’s position. Finding no merit to the Association’s claims, we affirm the circuit court’s judgment.
I. Burden of proof
We examine first the Association’s argument that the circuit court erred in requiring it to establish an entitlement to the tax exemption beyond a reasonable doubt. In making its argument, the Association asks us to reconsider our well-established case law on ad valorem tax exemptions:
It is settled that a taxpayer must establish an entitlement to an exemption beyond a reasonable doubt. City of Little Rock v. McIntosh, 319 Ark. 423, 892 S.W.2d 462 (1995). A strong presumption operates in favor of the taxing power. Id. Tax exemptions must always be strictly construed against the exemption. City of Fayetteville v. Phillips, 306 Ark. 87, 811 S.W.2d 308 (1991). In Hilger v. Harding College, 231 Ark. 686, 331 S.W.2d 851 (1960), we wrote:
Taxation is an act of sovereignty to be performed, so far as conveniently can be, with justice and equality to all, and exemptions, no matter how meritorious, are acts of grace, and must be strictly construed, and every reasonable intendment must be made that it was not the design to surrender the power of taxation or to exempt any property from its due proportion of the burden of taxation.
Id. at 693, 331 S.W.2d at 855 (quoting Brodie v. Fitzgerald, 57 Ark. 445, 22 S.W. 29 (1893)).
City of Fayetteville v. Phillips, 320 Ark. 540, 899 S.W.2d 57 (1995). We have plainly stated that “fw]e cannot accept any lesser standard for a tax exemption case arising under the Constitution.” City of Fayetteville v. Phillips, 306 Ark. 87, 811 S.W.2d 308 (1991). We decline to depart from our long line of cases embracing this standard of proof.
II. Exclusivity requirement
Article 16, section 5(b), of the Arkansas Constitution provides that:
The following property shall be exempt from taxation: public property used exclusively for public purposes, . . . and buildings and grounds and materials used exclusively for public charity.
It is undisputed that the budding and parking lot are public property; thus, the question is whether the property is used exclusively for public purposes. The circuit court concluded that the Association failed to prove beyond a reasonable doubt that the building and lot are used exclusively for public purposes. The Association challenges this conclusion, claiming that the facts presented to the circuit court demonstrated that the properties indeed serve a public and charitable purpose.
The Association initially points to the fact that the properties were constructed for a public purpose. In 1976, Crittenden County issued bonds for the purpose of financing extensions and improvements to its hospital. The following year, the bonds were refunded to finance the costs of these improvements, which included the construction of the physicians’ office building and parking lot in question. The 1977 bonds were issued under the authority of Act 175 of 1961, codified at Ark. Code Ann. § § 14-265-101 et seq. (1987). In the county’s official statement required to issue the bonds, it concluded that the improvements to the hospital and surrounding facilities were necessary in order to recruit new physicians to the area and thus to provide medical care to the public. The county entered into a long-term lease agreement whereby it leased the hospital and surrounding facilities to the Association, a not-for-profit corporation. The Association leases office space in the physicians’ office building to doctors engaged in private practice who also staff the hospital. It receives rental income from this property and uses it to fund the operation of the hospital. According to the Association, it has not raised the rental price since the building was erected.
The Association contends that, since the purpose of constructing the building and parking lot was to attract physicians to the county and thus provide better medical care to its citizens, this public purpose justified the issuance of a tax exemption. According to the Association, the legislature, in passing Act 175, pronounced the public policy to assist hospitals and related facilities with financing. However, the issue here turns not on the purpose behind the issuance of the bonds under Act 175 to construct these properties, but on whether the building and lot are exclusively used for public purposes and are thus entitled to a tax exemption under Article 16, § 5(b). We illustrated this point in Holiday Island Suburban Improvement District No. 1 v. Williams, 295 Ark. 442, 446, 749 S.W.2d 314 (1988), a case involving recreational facilities that were open only to members of an improvement district:
The District contends there is a distinction between a public use and a public purpose, proposing that the Article 16 exemption rests not upon usage by the public but upon a public purpose as that term is used in connection with tax exempt revenue bonds. The District submits that “retirement” is an industry and Holiday Island promotes employment and other economic benefits to northern Arkansas. No doubt that is true, and if the issue here were tax exemption for the income from improvement district bonds, the public purpose might well be satisfied. But this is not the issue and it is clear the phrase “public purpose” is not an exact term, susceptible of a static definition [City of Glendale v. White, 194 P.2d 435 (Ariz. 1948)], but has various shades depending on whether the context is eminent domain, revenue bonds, lending the credit of a political subdivision, or tax exemption under § 5(b) of Article 16. Thus, our decision here deals only with a public purpose within the context of Article 16 § 5(b).
The Association further contends that the building should be considered as part of the hospital because one could not function without the other. The collection of rent, the Association asserts, is merely incidental to the charitable purpose of the hospital. In support of its argument that its purpose is not to make a profit, the Association alludes to the fact that it has not raised the rental fees for the building. However, the applicable test for Article 16, § 5(b), purposes is not whether the rents collected from the building are used for a public purpose, but whether the building is used exclusively for a public purpose:
There is a material difference between the use of property exclusively for public purposes and renting it out and applying the proceeds arising therefrom to the public use. The property under our Constitution must be actually occupied or made use of for a public purpose and our court has recognized the difference between the actual use of the property and the use of the income.
Hilger v. Harding College, 231 Ark. 686, 694, 331 S.W.2d 851 (1960) (emphasis in the original); see also City of Fayetteville v. Phillips, 320 Ark. 540, 899 S.W.2d 57 (1995); Off-Street Parking Development District No. 1 v. City of Fayetteville, 284 Ark. 453, 683 S.W.2d 229 (1985).
The Association asks that we apply the rationale of our decision in Burgess v. Four States Memorial Hospital, 250 Ark. 485, 491, 465 S.W.2d 693 (1971), where we recognized that a benevolent and charitable organization’s property used as a hospital may be constitutionally exempt from taxation if it is open to the general public, if its services are not refused for inability to pay, and if all profits go toward maintaining the hospital and extending and enlarging its charitable purposes. However, in that case, we held that the chancellor did not err in finding that a portion of hospital property for which rents were collected was not being used directly and exclusively for a charitable purpose and thus was subject to taxation. Id. at 493. The tax exemption of the hospital, we said, was not affected by the revenue-generating hospital building, just as the budding was not made exempt by the tax-exempt hospital. Id. In so holding, we emphasized that the determining factor for tax-exemption purposes is the actual use to which the property is put. Id.
In the present case, the circuit court considered evidence that the Association rents the building exclusively to for-profit private health-care providers. While the Association presented testimony that the parking lot is used by hospital physicians, patients, staff, and visitors, there was also evidence that it is used by the physicians who rented the building and their patients. The circuit court obviously considered this evidence in reaching its conclusion that the Association failed to meet its burden of proving that the budding and lot are used exclusively for public purposes, as “[t]o doubt is to deny the exemption.” City of Little Rock v. McIntosh, 319 Ark. 423, 426, 892 S.W.2d 462 (1995); quoting Pledger v. Baldor Int’l, 309 Ark. 30, 33, 827 S.W.2d 646, 648 (1992). Moreover, an additional reason for the trial court’s decision to deny the exemption is the fact that the budding is in competition with other tax-paying medical facdities in the county. See City of Little Rock v. McIntosh, supra (city and its airport commission not entided to ad valorem exemption where city leased airport property in question to private car rental agencies who were in competition with other tax-paying car rental companies); City of Fayetteville v. Phillips, supra (art center not entided to ad valorem exemption where facdity offered priority seating whereby the general public was excluded to an unknown extent from events and the center was in competition with simdar tax-paying art facdities).
The Association further contends that the budding is being used exclusively for the public purpose of insuring that the hospital wdl continue to survive. Requiring the payment of taxes on the budding, the Association suggests, would threaten the existence of the hospital. After reviewing the record, we cannot say that the Association proved beyond a reasonable doubt that the hospital would not survive without a tax-free physicians’ office budding.
We wid set aside the circuit court’s findings of fact only if they are clearly erroneous. City of Little Rock v. McIntosh, supra. When reviewing ad the facts in this case, we cannot say the circuit court’s finding that the Association faded to prove beyond a reasonable doubt that the budding and lot are used exclusively for public purposes was clearly erroneous.
III. Estoppel
The Association further contends that the tax assessor should be estopped from assessing ad valorem taxes against the Associa tion. In making its argument, the Association refers us to the lease agreement between it and the county that provides that the county will take no action to assess the leased premises. According to the Association, the assessor, whom it claims is a county official, should not be permitted to break this covenant.
The assessor is charged with the duties of making the county tax books and preparing and submitting a final abstract of those books to the State Equalization Board. See Ark. Code Ann. § 28-28-303 (Supp. 1995). The lease agreement referenced by the Association was not signed by the assessor, but the county judge. Thus, the assessor is not bound by the contents of the lease agreement. However, even if we were to agree with the Association that the assessor was bound by the agreement’s terms, the parties to this agreement are “conclusively presumed” to have contracted with reference to the existing law, which, in this case, is our Constitution, article 16, § 5(b). See Ellison v. Tubb, 295 Ark. 312, 749 S.W.2d 650 (1988); quoting Robards v. Brown, 40 Ark. 423 (1883).
For the foregoing reasons, we affirm the decision of the circuit court.
Glaze and Imber, JJ., concur.
Corbin and Thornton, JJ., dissent. | [
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Annabelle Clinton Imber, Justice.
A jury sentenced Ronald Dougan to forty years’ imprisonment for rape. Dougan raises four arguments for reversal. Finding no merit to these arguments, we affirm Dougan’s conviction.
Ronald Dougan was charged by information with raping his sixteen-year-old stepdaughter on February 20, 1994. At trial, the victim testified that Dougan sexually violated her on five occasions prior to February 20, 1994. According to the victim, Dougan touched her in a sexually explicit manner once when she was six years old, and twice when she was eleven. The victim claimed that in August of 1991, when she was twelve years old, Dougan had sexual intercourse with her. The victim reported the crime to the police, and carnal abuse charges were filed against Dougan. According to the victim, the charges were dropped because her mother forced her to sign a statement declaring that the rape never occurred. Dougan had sexual intercourse with the victim.again when she was fourteen years old.
The victim testified that on February 20, 1994, she and her two siblings were sleeping at Dougan’s home. The victim claimed that early that morning Dougan came into her room and forced her to have sexual intercourse. The next morning, the victim’s aunt, Mary Ann Hemrick, picked-up the children and brought them to her home. A few days later, Dougan called the victim and told her that her five-year-old sister was going to live with him. In response, the victim became hysterical and started crying. The victim then told her aunt that Dougan had raped her, and that she feared he would do the same to her sister. Mary Ann Hemrick took the victim to a therapist who reported the rape to the Department of Human Services (“DHS”). DHS investigated the matter, and the incident was eventually reported to the police.
Dougan testified in his own defense, and denied having any sexual contact with the victim. Dougan explained that the victim fabricated the August 1991 incident to get attention, and that she lied about the February 1994 incident so that her five-year-old sister could live with her and her aunt.
Jayme Dougan, Ronald Dougan’s fourteen-year-old son, testified at trial on behalf of the defense. Jayme testified that he could not sleep the night of February 20, 1994. Jayme claimed that he saw his father sleeping on the couch when he went to the kitchen several times that night. Finally, Jayme testified that he would have seen his father pass his bedroom in order to get to the victim’s bedroom.
Based on this evidence, the jury found Dougan guilty of raping the victim on February 20, 1994, and sentenced him to forty years’ imprisonment. On appeal, Dougan does not challenge the sufficiency of the evidence to support his conviction. Instead, Dougan asserts that he was denied effective assistance of counsel, that the court erred when it allowed the State to introduce evidence of his prior sexual contact with the victim, and that the court erred when it allowed a witness to read from a DHS report. Because we find no merit in Dougan’s arguments, we affirm his conviction.
I. Ineffective Assistance of Counsel
For his first argument on appeal, Dougan asserts that he was deprived of effective assistance of counsel during jury selection because his attorney did not adequately poll the potential jurors and failed to exercise a single peremptory strike. In order for a defendant to argue ineffective assistance of counsel on direct appeal, he must first have presented the claim to the lower court either during the trial or in a motion for new trial. Chavis v. State, 328 Ark. 251, 942 S.W.2d 853 (1997); Smith v. State, 328 Ark. 249, 943 S.W.2d 234 (1997); Hicks v. State, 327 Ark. 652, 941 S.W.2d 387 (1997). Dougan failed to pursue either of these options, and accordingly we are precluded from addressing this argument on direct appeal.
II. Previous Sexual Misconduct
Next, Dougan claims that the trial court committed reversible error when it allowed the State to introduce evidence of five other instances of alleged sexual misconduct because the State only charged him with raping the victim on February 20, 1994. Specifically, Dougan contends that the testimony was inadmissible pursuant to Ark. R. Evid. 404(b) as character evidence that had no relevance except to show his propensity to commit the crime charged, and that the prejudicial effect of the evidence outweighed its probative value under Ark. R. Evid. 403.
This argument has no merit because we have consistently recognized the “pedophile exception” which states that evidence of similar sexual acts with the same child or other children in the same household is admissible to show a “proclivity toward a specific act with a person or class of persons with whom the accused has an intimate relationship” or to “prove the depraved sexual instinct of the accused.” Douthitt v. State, 326 Ark. 794, 935 S.W.2d 241 (1996); Mosely v. State, 325 Ark. 469, 929 S.W.2d 693 (1996); Clark v. State, 323 Ark. 211, 913 S.W.2d 297 (1996); Thompson v. State, 322 Ark. 586, 910 S.W.2d 694 (1995). Thus, we conclude that the trial court did not abuse its discretion when it allowed evidence of the five prior instances of sexual misconduct.
III. Disclosure of the DHS Report
Next, Dougan states in passing that his conviction should be reversed because the State failed to disclose the existence of the DHS report, and it did not include a copy of the report in its investigative file. When an appellant does not cite authority or make a convincing argument, and when it is not apparent without further research that the point is well taken, we will affirm. Qualls v. Ferritor, 329 Ark. 235, 947 S.W.2d 10 (1997); Williams v. State, 329 Ark. 8, 946 S.W.2d 678 (1997). On appeal, Dougan has failed to cite a single authority or make a con vincing argument in support of his allegation. In fact, Dougan only mentioned the alleged nondisclosure in a subheading of his brief. Accordingly, we are unable to address the merits of his contention.
IV. The DHS Report as Hearsay
Finally, Dougan asserts that the trial court committed reversible error when it allowed a witness to read portions of a DHS report about the February 20, 1994, incident. As previously mentioned, Jayme Dougan testified that his father did not enter the victim’s bedroom on the night of the rape. On cross-examination, the State attempted to impeach Jayme by reading portions of a statement he gave to a DHS social worker a few days after the alleged rape, and the following colloquy occurred:
STATE: [Reading from the DHS report] “Stated he saw his dad go to [the victim’s] bedroom.”
JAYME: He just stuck his head in the door.
STATE: “And he heard [the victim] saying, ‘stop, stop.’”
JAYME: No, I didn’t.
STATE: She [the social worker] made that up?
JAYME: I guess she did, ‘cause I didn’t say that.
STATE: “Stated he, his dad, was in [the victim’s] room for about 30 minutes.”
JAYME: No, he wasn’t, either.
STATE: You didn’t say that; she made it up?
JAYME: I guess she made it up, because he didn’t go in there.
STATE: “Stated he knew it was about 30 minutes by watching his clock in his room.”
JAYME: He never did go in there, so I don’t know where they got that from.
STATE: So that’s another lie the Social Worker made up?
JAYME: I guess it is.
Dougan did not object to any of the above questions or testimony.
Thelma Bean, a Protective Services Supervisor for DHS, testified during the State’s case in rebuttal. Bean identified the report made by the DHS social worker who investigated the February 20, 1994 rape. Bean explained that she did not write the report, but as a supervisor it was a regular business practice for her to keep such reports in her office. The State then asked Bean if the report contained a statement regarding whether Jayme saw his father enter the victim’s bedroom. Dougan objected on the basis that the report was hearsay. The State argued that the report fell under the business-record exception to the hearsay rule, and the judge overruled Dougan’s objection. Thelma Bean then read the following statement from the DHS report:
He [Jayme Dougan] stated he saw his dad go into [the victim’s] bedroom, and heard [the victim] saying “Stop, stop.” Stated he, his dad, was in [the victim’s] bedroom for about 30 minutes. Stated he knew it was about 30 minutes from watching his clock in his room.
On appeal, Dougan argues that the trial court committed reversible error when it allowed Thelma Bean to read this portion of the DHS report because it was hearsay that did not fall under the business-record exception. We do not need to address the merits of this argument because we have said on numerous occasions that when hearsay is erroneously admitted, we will not reverse if it is cumulative of other evidence admitted without objection. Weber v. State, 326 Ark. 564, 933 S.W.2d 370 (1996); Luedemann v. Wade, 323 Ark. 161, 913 S.W.2d 773 (1996); Caldwell v. State, 319 Ark. 243, 891 S.W.2d 42 (1995). Of particular importance are Zufari v. Architecture Plus, 323 Ark. 411, 914 S.W.2d 756 (1996), and Hooper v. State, 311 Ark. 154, 842 S.W.2d 850 (1992), where we refused to consider whether a statement fell under the business-record exception to the hearsay rule, Ark. R. Evid. 803(6), because the same or similar evidence was admitted at trial without objection.
In this case, the relevant portions of the DHS report were already admitted without objection during the impeachment of Jayme Dougan. Hence, as in Zufari and Hooper, we need not address whether Thelma Bean’s testimony fell under the business-record exception because the same evidence was already admitted at trial without objection.
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Tom Glaze, Justice.
Chrisshannon Brown petitions this court for a writ of prohibition against the Pulaski County Circuit Court, First Division, asserting that the court mistakenly denied her motion to dismiss for speedy-trial reasons. The circuit court denied Brown’s motion, finding the trial delay was attributable to Brown’s unavailability, which is excludable under Rule 28.3(e) of the Arkansas Rules of Criminal Procedure.
The facts relevant to Brown’s argument begin with her arrest on November 30, 1995, at a home located at 2606 South Arch Street, Little Rock. Brown’s arrest resulted in her being charged with several drug crimes. When taken to the police department, Officer Subhash Wagh asked Brown where she lived, and Brown gave the South Arch Street address. In confirmation, Wagh read aloud the same address when he mirandized her. However, when signing the Miranda form, she listed a different address — 3006 Bermuda, Little Rock. Later, on November 30, Brown was released on $5,000.00 bond, and the bond papers reflected her address to be 2606 South Arch Street.
On May 29, 1996, the State filed its felony information against Brown, and set out Brown’s address as 2606 South Arch Street. On June 29, 1996, the court mailed a notice to Brown at the South Arch Street address, directing her to appear for plea and arraignment in circuit court on July 17, 1996. The letter was not returned to the court. When Brown failed to appear, as notified, on July 17, the court issued a warrant for her arrest. However, sometime after July 17, someone contacted the court’s case coordinator, and as a result, the case coordinator placed Brown’s plea and arraignment hearing back on the docket for July 31, 1996. No other notice was given to Brown, nevertheless she appeared on July 31. At that hearing, the court scheduled a jury trial for September 19, 1996.
When the September 19 trial date arrived, Brown’s counsel informed the court that a conflict of interest had arisen between Brown and her co-defendant. Upon agreeing to sever Brown’s and her co-defendant’s cases, the court set separate dates for each. At that time, the court noted without objection that, for speedy-trial purposes, Brown’s actions had tolled the thirteen-day period from July 17 to July 30. The court then set a new trial date for December 5, 1996.
Prior to the December 5 trial, Brown moved for dismissal on speedy-trial grounds, stating that the speedy-trial rule, Ark. R. Crim. P. 28, required that she be brought to trial within twelve months from the time of her arrest or be absolutely discharged. Because her December 5 trial date was six days past the twelvemonth speedy-trial period, she asked that her case be dismissed. The court, however, excluded the thirteen-day period in July as it had previously ruled, and it denied Brown’s motion. Brown then filed her petition for writ of prohibition in this court, and makes the same argument she made in circuit court, claiming the thirteen-day period should not have been excluded.
Prohibition is an extraordinary writ and is never raised to prohibit a trial court from erroneously exercising its jurisdiction, only where it is proposing to act in excess of its jurisdiction. Rhodes v. Capehart, 313 Ark. 16, 852 S.W.2d 118 (1993). The court has held Rule 28 is jurisdictional inasmuch as it requires a defendant to be brought to trial within twelve months or be absolutely discharged. Id. Even so, the court will not grant a writ of prohibition unless it is clearly warranted, and will only issue such a writ in a case where there are no disputed facts. Ellison v. Lang ston, 290 Ark. 238, 718 S.W.2d 446 (1986). Here, whether a writ should issue in this case rests upon a fact determination. Consequently, we dismiss Brown’s petition with prejudice. We explain our decision more fully below.
Because Brown showed that her trial was scheduled to begin six days after the speedy-trial period had expired, the State conceded that it had the burden of showing any delay must have been the result of Brown’s conduct. See State v. McCann, 313 Ark. 286, 853 S.W.2d 886 (1993). In addition, the State had the duty to show it had made a diligent, good-faith effort to bring the accused, Brown, to trial. Chandler v. State, 284 Ark. 560, 683 S.W.2d 928 (1985).
Undertaking its legal burdens, the State showed at the hearing on Brown’s motion before the circuit court that, on June 29, 1996, the trial court’s case coordinator had sent its notice addressed to Brown at 2606 South Arch Street, notifying her to appear at a plea and arraignment hearing on July 17, 1996. As the testimony developed at the hearing on Brown’s dismissal motion, the circuit judge became quickly convinced that the State had exercised due diligence in its effort to bring Brown to trial. In this respect, the judge concluded that the State and the court’s case coordinator had reasonably used the South Arch Street address to notify Brown of her July 17 hearing, since that address had been submitted by Brown, as it appeared on the felony information, her bond papers, and in the circuit clerk’s office.
While Brown claims she had never received a notice of the initial July 17 hearing, the trial court, after considering her testimony and counsel’s argument, simply did not believe her. For example, the trial court expressed its doubts concerning Brown’s story when the trial judge expounded that he thought it strange that, after the court had issued a bench warrant for Brown’s arrest for missing the July 17 hearing, someone later called on her behalf seeking another hearing. The trial court obviously concluded that Brown was not being completely forthright in contending she was unaware of the scheduled hearing. See Allen v. State, 327 Ark. 350, 939 S.W.2d 270 (1997) (holding that the appellate court does not attempt to weigh the evidence or pass on the credibility of witnesses; that duty is left to the trier of fact).
Also, bearing on the issue of Brown’s unavailability, she conceded to the trial court that she had moved on numerous occasions, and the proof showed that besides the Arch Street address, she had acquired others — 3006 Bermuda, 1005 Adams, 1020 Adams, and 804 Conner Avenue. The trial judge disagreed with Brown’s suggestion that the State or the court must take the initiative to keep up with every move Brown made. And while Brown argues her addresses were known by and available from her probation officer, Sharon Beverly, Beverly’s testimony was less than clear. In fact, nothing to which Beverly testified indicated where Brown lived when the court’s July 17 hearing notice was mailed to her.
In conclusion, whether Brown was available and whether the State exercised due diligence in this speedy-trial matter concerned fact questions to be decided by the trial court. Because disputed facts are integral to deciding this case, we decline to issue any writ of prohibition.
Provision (e) provides as follows: The period of delay resulting from the absence or unavailability of the defendant. A defendant shall be considered absent whenever his whereabouts are unknown. A defendant shall also be considered unavailable whenever his whereabouts are known but his presence for the trial cannot be obtained or he resists being returned to the state for trial.
Beverly did testify that Brown lived at 1020 Adams Street on June 14, 1996. | [
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Robert L. Brown, Justice.
AppeEant Zeronical Rice appeals the denial of his motion to transfer the criminal charges of aggravated robbery and theft to juvenfie court. We affirm the trial court’s finding on the aggravated robbery charge but dismiss the theft charge for lack of jurisdiction in the circuit court.
At the juvenile-transfer hearing, the prosecutor presented the testimony of Officer Jeffrey Norman of the Little Rock Police Department. Officer Norman testified that on September 5, 1995, Rice asked his brother, Tyrone Rice, to invite his friend, Steven Morris, to come over to his house. Morris used his 1994 Honda Elite moped as transportation. When Morris arrived, Rice pointed a sawed-off twelve-gauge shotgun at Morris and ordered him to give him the keys to his moped. Morris dropped the keys on the floor. Rice picked up the keys and set his shotgun down briefly to gather some clothes before he left. While his back was turned, Morris grabbed the shotgun and ran toward the front door, dropping the shotgun as' he escaped through the door. Morris contacted the Little Rock Police Department from a neighbor’s house and informed them about what had happened. He then watched Rice leave on his moped. When Rice was arrested on September 11, 1995, he confessed to Officer Norman that he had taken Morris’s moped at gun point. At the time, he was fifteen with a date of birth of September 11, 1979. Morris’s moped was never recovered.
Other testimony presented by the prosecutor at the juvenile-transfer hearing revealed that Rice had been implicated in two other offenses after his arrest for the aggravated robbery involving Morris. Officer Paul Childress of the Benton Police Department testified that he investigated an incident involving Rice, which occurred on December 8, 1995. According to the police officer, Rice and another person went to a residence in Benton and accused Greg James of being an informant for a drug task force. Rice beat James severely with a bottle, a television set, and his fists. James was treated at the hospital for his injuries.
Officer Childress further stated that there was another felony bench warrant for Rice stemming from an incident that occurred on December 23, 1995. According to Officer Childress, Rice and another person approached Jonathan Caple as he was leaving a bar in Benton and questioned him about an incident involving Rice and Caple’s brother. While they were talking, Rice took a semiautomatic handgun, put a round in the chamber, and pointed the gun at Caple’s head. Rice told Caple to drop all of his money. Caple escaped by retreating back into the bar.
The only testimony presented by Rice at the juvenile-transfer hearing was that of a teacher, Sylvia Carter, from whom Rice was receiving instruction in an effort to obtain his GED. Ms. Carter testified that Rice was cooperative and polite. She explained that Rice was doing well in his classes except for math which frustrated him.
Following the hearing, the motion to transfer was denied.
For his points on appeal, Pice contends that the trial court should have granted the motion to transfer to juvenile court because there was a high likelihood of rehabilitation and the State presented no countervailing proof regarding his potential for rehabilitation. Arkansas Code Ann. § 9-27-318 (Supp. 1995), provides the criteria for a motion to transfer to juvenile court:
(e) In making the decision to retain jurisdiction or to transfer the case, the court shall consider the following factors:
(1) The seriousness of the offense, and whether violence was employed by the juvenile in the commission of the offense;
(2) Whether the offense is part of a repetitive pattern of adjudicated offenses which would lead to the determination that the juvenile is beyond rehabilitation under existing rehabilitation programs, as evidenced by past efforts to treat and rehabilitate the juvenile and the response to such efforts; and
(3) The prior history, character traits, mental maturity, and any other factor which reflects upon the juvenile’s prospects for rehabilitation.
(f) Upon a finding by clear and convincing evidence that a juvenile should be tried as an adult, the court shall enter an order to that effect.
We dispense with Rice’s rehabilitation argument by focusing on his age. At this writing, he is eighteen, and his potential for rehabilitation within the juvenile system is nil. State law and our cases have made it clear that the initial commitment to the State Division of Youth Services cannot commence after the eighteenth birthday of the youth. Ark. Code Ann. § 9-28-208 (d) (Supp. 1995); Jensen v. State, 328 Ark. 349, 944 S.W.2d 820 (1997); Hansen v. State, 323 Ark. 407, 914 S.W.2d 737 (1996). Moreover, we said in Jensen v. State, supra, that although § 9-28-208(d) extends the commitment time beyond eighteen in certain circumstances, it presupposes that the youth has already been committed to the State Division of Youth Services prior to reaching eighteen. See also Hansen v. State, supra.
Rice is beyond the age when he can be rehabilitated in the juvenile justice system. Furthermore, he confessed to a crime, aggravated robbery, that is clearly serious and clearly involves the use of violence. The evidence that Rice should be tried as an adult on this charge was clear and convincing.
Though Rice did not raise the issue, we conclude that the circuit court does not have jurisdiction over the theft charge. State law provides that if a juvenile is fourteen or fifteen at the time the delinquent act occurs, the prosecuting attorney may charge him with certain enumerated crimes, including aggravated robbery. Ark. Code Ann. § 9-27-318(b)(2) (Supp. 1995). Theft is not a listed charge. As we stated in Banks v. State, 306 Ark. 273, 813 S.W.2d 257 (1991), theft and aggravated robbery may both be charged because they are separate crimes, having separate elements, even though they may have been committed at the same time. See also Butler v. State, 324 Ark. 476, 922 S.W.2d 685 (1996). However, we held in Banks that dismissal of the theft charge was appropriate due to lack of jurisdiction over the defendant who was fourteen at the time the acts were committed. The same holds true in the instant case. The circuit court has no jurisdiction to try Rice for a theft charge, even under § 9-27-318 as subsequently amended after Banks v. State, supra, was decided; when the alleged act was committed while Rice was fifteen. The prosecutor could have filed the theft charge in juvenile court and then moved to transfer it to circuit court as a charge arising out of the same course of conduct as the aggravated robbery. Ark. Code Ann. § 9-27-318(c) (Supp. 1995); Butler v. State, supra. This was not done. We dismiss the theft charge for lack of jurisdiction.
Affirmed as modified. | [
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W.H. “Dub” Arnold, Chief Justice.
This action was filed by Mike Wilson and a group of taxpayers of Pulaski County Special School District who have children in the Pulaski County School District against the Pulaski Association of Classroom Teachers, the collective bargaining representative of certified employees of the school district. Appellants filed a lawsuit challenging the legality of a teachers’ strike.
A teachers’ strike began on August 19, 1996. On August 23, 1996, appellants filed suit in the Pulaski County Chancery Court seeking a preliminary injunction to stop the strike. A hearing was held on August 23, 1996. The chancery court denied the preliminary injunction based upon the findings that appellants did not meet the burden of proving that a teachers’ strike was illegal and that the appellants did not meet the burden of proving irreparable harm.
On August 28, 1996, a federal district court, through its jurisdiction over Pulaski county and the teachers association in a suit regarding Pulaski County desegregation, enjoined the strike and ordered the parties to mediate. Following this order, the strike ended.
Despite the ending of the strike, appellants’ challenge the chancellor’s denial of the preliminary injunction claiming that the chancellor erred by failing to find that a teachers’ strike is illegal per se pursuant to Arkansas law and that due to this illegality, the preliminary injunction should have been ordered. As a procedural matter for granting preliminary injunctions, appellants contend that a showing of irreparable harm is not necessary in instances where an activity is illegal per se. Appellants do not challenge the finding by the chancellor that they did not prove that they had suffered irreparable harm. We do not agree with appellants’ characterization of the standard for granting preliminary injunctions and affirm the chancellor’s denial of the preliminary injunction.
Appellee challenged the jurisdiction of this court based upon the doctrine of mootness relying upon the traditional rule that this court will not render advisory opinions. It is true that appellants have requested an order from this court enjoining a teachers’ strike in the event that the teachers attempt to strike again in the future. This is speculative in nature, and no one knows if the teachers will ever do such. It is well settled that this court does not render advisory opinions nor answer academic questions. See, Saunders v. Neuse, 320 Ark. 547, 898 S.W.2d 43 (1995); Dougan v. Gray, 318 Ark. 6, 884 S.W.2d 239 (1994); Walker v. McCuen, 318 Ark. 508, 886 S.W.2d 577 (1994); Gladden v. Bucy, 299 Ark. 523, 772 S.W.2d 612 (1989); and Neely v. Barber, 288 Ark. 384, 706 S.W.2d 358 (1986).
Under Arkansas law, a case becomes moot when any judgment rendered would have no practical legal effect on an existing legal controversy. Dillon v. Twin City Bank, 325 Ark. 309, 924 S.W.2d 802 (1996); Arkansas Intercollegiate Conference v. Parnham, 309 Ark. 170, 828 S.W.2d 828 (1992). An exception to the mootness doctrine, however, allows review for appeals involving the public interest and the prevention of future litigation. Richie v. Board of Educ., 326 Ark. 587, 933 S.W.2d 375 (1996); Duhon v. Gravett, 302 Ark. 358, 790 S.W.2d 155 (1990). Although the teachers’ strike ended over one year ago, it is clear that the ability of public employees to withhold their services involves a question of significant public interest, the resolution of which would certainly preclude future litigation.
Appellants urge this court to recognize that it has already declared strikes by public employees to be illegal per se in Potts v. Hay, 229 Ark. 830, 318 S.W.2d (1958), and City of Ft. Smith v. No. 38, AFL-CIO, 245 Ark. 409, 433 S.W.2d 153 (1968). The right of public employees to strike was not the issue in those cases. We will note, however, that there is dicta in those cases which states that such strikes are illegal in Arkansas, but neither of these cases directly addresses the issue of whether a teachers’ strike or a strike by public employees is legal. Nevertheless, even assuming that the categorical statements in those cases about public strikes answers the illegal-strike question, appellants still cannot succeed.
An order granting or denying a preliminary injunction is within the chancery court’s discretion. McCuen v. Harris, 321 Ark. 458, 466, 902 S.W.2d 793 (1995). See also, Smith v. American Trucking Ass’n, 300 Ark. 594, 781 S.W.2d 3 (1989); American Trucking Ass’n v. Gray, 280 Ark. 258, 675 S.W.2d 207 (1983). We will not reverse a chancellor’s ruling on a preliminary injunction unless there has been an abuse of discretion. Smith v. American Trucking Ass’n, supra; Scrivner v. Portis Mercantile Co., 220 Ark. 814, 250 S.W.2d 119 (1952); Riggs v. Hill, 201 Ark. 206, 144 S.W.2d 26 (1940).
Arkansas Rules of Civil Procedure, Rule 65(a)(1) provides that, where a preliminary injunction is to be given without notice to the adversary of the one requesting it, it must be alleged by affidavit or verified complaint that, absent the injunction, irreparable harm will result to the appellant. Where notice is given, the rule contemplates that a hearing will be held at which such irreparable harm must be shown. The prospect of irreparable harm or lack of an otherwise adequate remedy is the foundation of the power to issue injunctive relief. See, Amalgamated Clothing v. Earle Indus., Inc., 318 Ark. 524, 886 S.W.2d 594 (1994); Paccar Financial Corp. v. Hummell, 270 Ark. 876, 878, 606 S.W.2d 384 (Ark. App. 1980). See also, Ahrent v. Sprague, 139 Ark. 416, 214 S.W. 68 (1919); Ex Parte Foster, 11 Ark. 304 (1850)
This court has previously explained the jurisdiction of equity with respect to public employees as follows:
There is no doubt but that equity will exercise jurisdiction to restrain acts or threatened acts of public corporations or of public officers, boards, or commissions which are ultra vires and beyond the scope of their authority, or which constitute a violation of their official duty, whenever the execution of such acts would cause irreparable injury to, or destroy rights and privileges of, the complainant, which are cognizable in equity, and for the protection of which we would have no adequate remedy at law.
Jensen v. Radio Broadcasting Co., Inc., 208 Ark. 517, 520, 186 S.W.2d 931, 932 (1945). Clearly, for equity to act, there must be proof of (1) irreparable harm and (2) no adequate remedy at law. See, East Poinsett Sch. Dist. No. 14 v. Massey, 317 Ark. 219, 876 S.W.2d 573 (1994).
Thus, in order for a chancellor to grant a preliminary injunction, the moving party must establish irreparable harm; this is true in all instances where injunctive relief is sought regardless of whether the party may additionally prove that an activity is illegal per se. In this case, appellants are precluded from establishing that the chancellor abused her discretion because they do not challenge her ruling that no irreparable harm had been suffered. Indeed, they contend that the strike was illegal per se and that this factor alone supports injunctive relief. For over a century, this court has required proof of facts establishing that the moving party is entitled to injunctive relief from a court of equity. See, e.g., Foster Ex Parte, 11 Ark. 304 (1850) (requiring proof of irreparable harm to enjoin a trespass). Appellants make no attempt to prove irreparable harm. In effect, they ask us to change this court’s longstanding posture on equity jurisdiction without the support of any convincing legal authority. Under such circumstances, this court has, and should, decline to do so. See, e.g., Qualls v. Ferritor, 329 Ark. 235, 947 S.W.2d 10 (1997); Porter v. Harshfield, 329 Ark. 130, 948 S.W.2d 83 (1997).
Because appellants failed to prove irreparable harm, we affirm the chancellor’s order.
Affirmed.
Glaze, J., dissents.
Corbin, J., concurs in part and dissents in part.
Imber, J., not participating.
Don Donner, Special Justice, concurs in part and dissents in part. | [
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Per Curiam.
The appellant, William Wesley Skiver, was convicted of aggravated robbery and was sentenced as a habitual offender to life in prison. Pursuant to Anders v. California, 386 U.S. 738 (1967), his attorney filed a motion to withdraw and a brief stating there is no merit to the appeal. Last term, we wrote an opinion ordering Skiver’s attorney to rebrief the case because the abstract and argument portions of the brief did not comply with the requirements of Anders, supra, and Ark. Sup. Ct. R. 4-3(h) and 4-30. Skiver v. State, 326 Ark. 914, 935 S.W.2d 248 (1996). Counsel filed a substituted brief, and Skiver was given thirty days to file a pro se brief raising any additional arguments. Skiver did not file a brief. The State agrees that there is no merit to the appeal and recommends that Skiver’s conviction be affirmed. We find that the substituted no-merit brief, like its predecessor, is not in compliance with Anders and Rule 4-30. Accordingly, we must again order rebriefing.
The facts surrounding Skiver’s conviction and sentence were set forth in our previous opinion. Skiver v. State, supra. In that opinion, we noted that although the record did not contain a written or oral motion to suppress Skiver’s custodial statement, a Denno hearing was held on the day of trial. At the conclusion of that hearing, the Trial Court made the following ruling regarding Skiver’s statement:
The Court will find that the defendant knowingly, voluntarily, and intelligently waived his rights to remain silent and gave a knowing, voluntary statement to the officer.
This ruling is not discussed in the argument section of the substituted brief. Once again, counsel has failed to comply with Rule 4-30, which provides:
A request to withdraw on the ground that the appeal is wholly without merit shall be accompanied by a brief including an abstract. The brief shall contain an argument section that consists of a list of all rulings adverse to the defendant made by the trial court on all objections, motions, and requests made by either party with an explanation as to why each adverse ruling is not a meritorious ground for reversal. The abstract section of the brief shall contain, in addition to the other material parts of the record, all rulings adverse to the defendant made by the trial court.
We simply cannot affirm Skiver’s conviction without any discussion as to why an issue concerning the Trial Court’s ruling concerning his statement would not be a meritorious ground for reversal. Accordingly, we direct Skiver’s counsel to submit another brief containing an abstract of the motion to suppress and a discussion of the merit of any issue that can be raised concerning that ruling. If the motion was written, we direct that the record be supplemented with a certified copy of that motion. If the motion was oral, we direct that there be entered a stipulation as to its existence and contents.
Furthermore, we noted in our previous opinion that “while the denial of Skiver’s motion for a directed verdict is mentioned, the sufficiency of the evidence is not fully discussed.” The substituted brief still fails to fully discuss the sufficiency of the evidence issue. Counsel fails to set forth the State’s evidence and explain its sufficiency for a conviction for the crimes charged. Accordingly, we direct counsel to reargue the sufficiency of the evidence.
Skiver’s counsel is directed to file a new brief on or before December 30, 1997. In accordance with Rule 4-30(2), Skiver will have thirty days from that date to raise any additional arguments.
Rebriefing ordered. | [
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Per Curiam.
In accordance with our mandate, the trial court conducted a hearing to determine whether appellant Anthony Sanders had requested his trial counsel, Mark Jesse, to file an appeal from his conviction. After hearing conflicting testimony on this issue, the trial court found Sanders informed Mr. Jesse to appeal, but that Sanders failed to make arrangements to pay for transcript costs, nor would Sanders execute a truthful affidavit in order to pursue the appeal as an indigent.
Rule 16 of the Appellate Procedure — Criminal provides that trial counsel, whether retained or court appointed, shall continue to represent a convicted defendant throughout any appeal, unless permitted by the trial court or supreme court to withdraw in the interest of justice or for other sufficient cause. After the notice of appeal has been filed, the supreme court shall have exclusive jurisdiction to relieve counsel and appoint new counsel. Id.
Here, defense counsel Mark Jesse has never been relieved as attorney of record. Moreover, if Mr. Jesse believed the appeal had no merit, he was obligated to either obtain permission from the trial court to withdraw before the notice of appeal was filed or file a motion to withdraw in this court after the" notice of appeal was filed. Gay v. State, 288 Ark. 589, 707 S.W.2d 320 (1986).
The failure to perfect an appeal in a criminal case where the defendant desires an appeal constitutes a denial of effective assistance of counsel and is good cause for granting a belated appeal. Id. Here, Mr. Jesse failed to withdraw or file an appeal, but new counsel, Jerry Larkowski, appears as retained counsel on Sanders’s behalf. Apparently Sanders filed a pro se notice of appeal before retaining Larkowski, who has filed a motion for belated appeal for Sanders. Sanders’s motion for belated appeal shall be granted contingent upon Jesse’s filing a motion to be relieved as counsel in this court with a request to substitute Mr. Larkowski in his stead. | [
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Tom Glaze, Justice.
This is a companion case to Damien Brown v. State, 97-722., which is also being handed down today. Both cases involve Brown’s appeal from an interlocutory order where the circuit court denied a motion to transfer his case to juvenile court. Here, Brown was charged in circuit court with aggravated robbery and theft of property. He was nine days short of being eighteen years old when he allegedly committed the crimes, and had turned eighteen when his transfer motion was denied.
At Brown’s transfer hearing, Detective Jeff Norman testified that Brown had been identified as one of three subjects who entered a grocery store to steal money. One of the subjects had a gun and threatened to shoot the store employee if he did not open the cash register. Brown was identified as standing at the front door and telling the other two men to hurry. When the men were unable to open the cash register, they grabbed candy and cigarettes and fled. Norman further identified three prior juvenile orders, introduced into evidence, showing Brown had committed two thefts, battery in the third degree, and an aggravated robbery.
Brown also testified, confirming his age to be eighteen and admitting he had committed the prior crimes of theft, battery, and aggravated robbery. He also admitted to having violated probation. Detective Norman’s and Brown’s own testimony showed Brown had participated in serious offenses where violence was employed, and his prior history of criminal acts was sufficient for the circuit court to conclude a repetitive pattern of adjudicated offenses showing he was beyond rehabilitation. In sum, this evidence bore on all three of the factors that a circuit court must consider under Ark. Code Ann. § 9-27-318(e) (Supp. 1995), and it is more than sufficient to sustain the court’s ruling to deny Brown’s motion to transfer his charges to juvenile court. A factor not to be forgotten, too, is that Brown is now close to nineteen years old, and we have repeatedly held that young people over the age of eighteen can no longer be committed to the Division of Youth Services (DYS) for rehabilitation unless they are already committed at the time they turn eighteen. Brown had not been committed to DYS. See Ark. Code Ann. § 9-28-208(d) (Supp. 1995); Maddox v. State, 326 Ark. 515, 931 S.W.2d 438 (1996).
In conclusion, Brown contends the State’s evidence was “incompetent” because Detective Norman’s testimony was hearsay. His contention is meritless for several reasons. One, Brown never raised the issue below, so this court will not consider it on appeal. Lammers v. State, 324 Ark. 222, 920 S.W.2d 7 (1996). Two, Brown offered no objection to any part of Norman’s testimony, and this court has held that hearsay admitted without objection can constitute sufficient evidence to support the denial of a transfer motion. Sanders v. State, 326 Ark. 415, 932 S.W.2d 315 (1996). And three, Brown’s testimony alone sustains the trial court’s ruling because it validated that he is over eighteen years old, had a prior history of criminal acts, and had previously violated probation in juvenile court.
For the reasons above, we affirm.
The full text of § 9-27-318(e) reads as follows:
(e) In making the decision to retain jurisdiction or to transfer the case, the court shall consider the following factors:
(1) The seriousness of the offense, and whether violence was employed by the juvenile in the commission of the offense;
(2) Whether the offense is part of a repetitive pattern of adjudicated offenses which would lead to the determination that a juvenile is beyond rehabilitation under existing rehabilitation programs, as evidenced by past efforts to treat and rehabilitate the juvenile and the response to such efforts; and
(3) The prior history, character traits, mental maturity, and any other factor which reflects upon the juvenile’s prospects for rehabilitation. | [
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David Newbern, Justice.
This is a trade-name infringement case. The appellant, Tri-County Funeral Service, Inc. (“Tri-County”), which does business as Howard Funeral Home in Melbourne, sought an injunction pursuant to Ark. Code Ann. § 4-71-113 (Repl. 1996) to prohibit the appellee, Eddie Howard Funeral Home, Inc., also located in Melbourne, from using the name “Howard” in connection with its funeral business. The Chancellor declined to issue the injunction. Our determination in this de novo review is that Tri-County was entitled to the relief sought; thus we reverse the Chancellor’s decision.
In 1949, Roman and Wilma Howard began working for the Roller Funeral Home in Melbourne. At some point in the 1950s they left that employment. The funeral home changed hands several times, and Mr. and Mrs. Howard returned as employees in 1961. A Mr. Robinson purchased the business while it was being operated as “McCollum Funeral Home,” and in 1968 Mr. Robinson asked the Howards for permission to operate as “Howard Funeral Home,” although the Howards owned no interest in the business. Permission was granted.
In 1974, Billy Howard, Mr. and Mrs. Howard’s son, joined them as an employee of Howard Funeral Home. In 1978, the business was sold to Justin Jones who, in 1984, sold it to Rhodes-Madden, Inc., the parent company of Tri-County. In the sales agreement, there was a provision selling the name, “Howard Funeral Home.” The ensuing bill of sale, however, did not mention the sale of the name. Tri-County continued to operate the business as Howard Funeral Home.
Roman Howard retired sometime during the 1980s. Billy Howard left his employment with the business in 1984. Wilma Howard remained until 1989 when her employment was terminated because of rumors that Billy Howard was attempting to open a competing funeral business.
In 1991, Billy Howard was rehired by Tri-County to manage the business, and he rehired Wilma Howard as an employee. In 1992, Billy Howard hired his younger brother, Eddie Howard, to work in the business. Billy Howard died, and Eddie Howard became the manager in 1994. In 1996, Eddie Howard’s employment was terminated due to his apparent efforts to begin a competing business. Wilma Howard then resigned from her employment with Tri-County.
Eddie Howard established “Eddie Howard Funeral Home, Inc.,” a corporation of which he and his wife are the only shareholders. Tri-County sued to prevent that corporation from using the Howard name, alleging that the name had acquired a secondary meaning and that it constituted an interest protectable in accordance with § 4-71-113.
Eddie Howard and Wilma Howard intervened in the proceeding with a complaint seeking to enjoin Tri-County from using the name “Howard,” alleging that they had not been compensated for the use of the name and seeking to revoke the permission given to Tri-County’s predecessor.
At the trial, Robert Eichelberger, secretary-treasurer of the parent company of Tri-County, testified that when his company purchased a funeral home it attempted to keep the same name and employees in the operation so that people may not even realize that a change in ownership has taken place. He testified further that there had been a slight decrease in the business of Howard Funeral Home since the Eddie Howard Funeral Home commenced operations and that some confusion had resulted from the fact that two funeral businesses are now using the Howard name.
The first of two orders issued by the Chancellor denied temporary relief to Tri-County. The Chancellor emphasized that the Howards had not been compensated for the use of their name and that Tri-County had failed to show that any property interest had been “damaged” by use of the name by Eddie Howard Funeral Home, Inc. The subsequent order denied permanent relief but ordered Eddie Howard to return a customer list to Tri-County. In his order denying relief to Tri-County, the Chancellor dismissed the Howards’ claim in intervention, and no appeal has been taken from that aspect of the order. Nor has the order to return the list been appealed by Eddie Howard.
The relevant language of § 4-71-113 is as follows: “Likelihood of injury to business reputation or of dilution of the distinctive quality of ... a trade name valid at common law, shall be grounds for injunctive relief notwithstanding the absence of competition between the parties or the absence of confusion as to the source of goods and services.” Eddie Howard Funeral Home, Inc., concedes that the Chancellor applied the wrong standard in holding that there had been no showing of “damage” to an interest held by Tri-County, as the statute imposes no such requirement. The question for us is thus whether Tri-County had a “trade name valid at common law,” and if so, whether there was “likelihood of injury” to Tri-County’s “business reputation” or “dilution” of its trade name. In addition, we consider whether Eddie Howard has an inherent right to use his own name in his business even if it runs afoul of an established secondary meaning and the protection offered by the statute.
Generally speaking, the granting or denying of an injunction is a matter within the discretion of a chancellor, and we do not reverse unless there has been a clearly erroneous factual determination, Warren v. Robinson, 288 Ark. 249, 704 S.W.2d 614 (1986); Bassett v. City of Fayetteville, 282 Ark. 395, 669 S.W.2d 1 (1984), or unless the decision is contrary to some rule of equity or the result of improvident exercise of judicial power. Mills v. Patton, 233 Ark. 755, 346 S.W.2d 689 (1961). We agree, however, with Tri-County’s assertion that when a statute provides terms that constitute grounds for issuing an injunction, a chancellor’s discretion is somewhat circumscribed. See State Industrial Accident Comm’n v. Miller, 162 P.2d 146, 150 (Or. 1945)(stating injunction should issue when statute imposes “positive duty” “upon the court to grant injunctive relief. . . when the conditions set forth therein are made to appear”); Vicksburg, S. & P. Ry. Co. v. Webster Sand, Gravel & Constr. Co., 62 So. 140, 143 (La. 1913); Sawyer v. Termohlen, 122 N.W. 924, 925 (Iowa 1909).
1. Trade name property
Eddie Howard Funeral Home, Inc., suggests that Tri-County was not entitled to an injunction because it has no valid interest or property right in using the “Howard” name in connection with its business. The suggestion seems to be that Tri-County had not acquired an interest in the Howard name because (1) neither it, nor any of its predecessors, paid consideration to the Howards for the use of their name; (2) the Howards had orally given permission to Mr. Robertson to use their name, and that permission was later revoked with respect to Tri-County; and (3) the right to use the Howard name was not mentioned in the bill of sale and thus was not acquired by Tri-County from Mr. Jones. No authority is cited by the Howards or the Chancellor for the proposition that successful acquisition of a trade name depends on those factors.
There is ample authority for the proposition that a person acquires a property right in a trade name merely by using the name in connection with a particular business for a period of time.
“Generally, the word ‘trade name’ applies to a business and its good will, while the word ‘trade-mark’ applies to the commodity to which it is affixed.” King Pharr Canning Operations, Inc. v. Pharr Canning Co., 85 F. Supp. 150, 157 (W.D. Ark. 1949). “Trade names are afforded protection under the law of unfair competition. They are protected by a registration statute and by the common law. See Ark. Stat. Ann. 70-539(E), 70-550 [now Ark. Code Ann. § 4-71-113], and 70-552 (Repl. 1979).” Pullan v. Fulbright, 287 Ark. 21, 23, 695 S.W.2d 830, 831 (1985). “[W]hen a name, mark or symbol has acquired a ‘secondary meaning,’ the original user has a ‘property right which equity will protect against unfair appropriation by a competitor.’” Champions Golf Club, Inc. v. Sunrise Land Corp., 846 F. Supp. 742, 757 (W.D. Ark. 1994), quoting Pullan v. Fulbright, supra.
The concept of “secondary meaning” has been explained as follows:
There are certain names, marks, and symbols which in their primary sense are merely generic or descriptive and do not ordinarily indicate the origin of goods or services. Such names, marks, or symbols, when used in their primary sense, cannot form the subject matter of a trade or service mark. However, a name, mark, or symbol by long and exclusive use and advertising by one person in the sale of his goods and services may become so associated in the public mind with such goods or services that it serves to identify them and distinguish them from the goods or services of others. When such an association exists, the name, mark, or symbol is said to have acquired “secondary meaning” in which the original user has a property right which equity will protect against unfair appropriation by a competitor.
Pullan v. Fulbright, 287 Ark. at 23-24, 695 S.W.2d at 831, quoting Liberty Mut. Ins. Co. v. Liberty Ins. Co. of Tex., 185 F.Supp. 895, 903 (E.D. Ark. 1960).
We do not have many cases that thoroughly treat the question of how one acquires a property right in a trade name. Of course, we have recognized that a person may acquire such a right by purchasing the name. See Williams v. Spelic, 311 Ark. 279, 284, 844 S.W.2d 305, 309 (1992)(“When a business purchases goodwill and a trade name, it acquires a valuable property right, and that is the right to inform the public that it possesses the experience and skill symbolized by the original concern.”; sale of trade name specifically mentioned in bill of sale).
One may, however, acquire a protectable interest in a trade name, without purchasing the rights to it, simply by using the name in connection with a business over the course of time and giving a “secondary meaning” to the name. Clyde Campbell University Shop v. Campbell-Bell, Inc., 243 Ark. 937, 422 S.W.2d 875 (1968); Liberty Cash Groceries, Inc., v. Adkins, 190 Ark. 911, 82 S.W.2d28 (1935). See also Champions Golf Club, Inc. v. Sunrise Land Corp., 846 F. Supp. at 757 (stating the right to a trademark or trade name “originates in common law by prior appropriation and use”), citing 4A Rudolf Callman, The Law of Unfair Competition, Trademarks and Monopolies § 25.03 (L. Altman ed., 4th ed. 1993); Restatement of the Law (Third) Unfair Competition § 18, at p. 184 (1995).
Tri-County has used the Howard name continuously in connection with its business since 1984, and prior owners of the business used the name continuously since 1968. No one else in the area used that name or a similar name in connection with any business. The Howards, themselves, had never used their own name in connection with a business they owned. Howard Funeral Home was one of only two funeral businesses in the area, and its share of the funeral business was near 70 percent before Eddie Howard opened his business in 1996. Tri-County advertised and promoted its name in various ways.
Thus, it is clear that Tri-County went through the necessary steps of acquiring “Howard Funeral Home” as a valid trade name with obvious “secondary meaning.” It occurred irrespective of any “permission” initially given by the Howards to Mr. Robertson in 1968 and irrespective of the fact that the Howards later purported to revoke the permission with respect to Tri-County, after it had used the name beginning in 1984.
The Howard name was not previously appropriated when Mr. Robertson began to use it in connection with his funeral business in 1968. It was just a surname, and there is no protection given to a surname until it acquires a secondary meaning. 2 McCarthy on Trademarks and Unfair Competition § 13.02[1], at p. 13-5 (3d ed. 1995). In 1968, the Howards had not used their name in connection with their business; it had not acquired a secondary meaning. Thus, it was not necessary for the Howards to “permit” Mr. Robertson or anyone else to call the business the “Howard Funeral Home” because the Howards had not established a protectable interest in their name.
It also was irrelevant that the bill of sale was silent on the matter of whether the right to the Howard Funeral Home trade name passed in the transaction between Mr. Jones and TriCounty. Regardless of what transpired in connection with the bill of sale, Tri-County has continued to use, advertise, and promote the Howard Funeral Home name since 1984. Even if Tri-County did not “acquire” the right to that name at the precise point of the 1984 transaction with Mr. Jones, Tri-County most certainly gave the name a “secondary meaning” in the years thereafter.
2. Infringement
The next question is whether Eddie Howard Funeral Home, Inc., by calling its business the “Eddie Howard Funeral Home,” has infringed on Tri-County’s trade name, “Howard Funeral Home.” According to the statute, Tri-County has presented grounds for an injunction against Eddie Howard Funeral Home, Inc., if the latter’s actions have created a “[l]ikelihood of injury to business reputation or of dilution of the distinctive quality of. . .a trade name valid at common law.” Ark. Code Ann. § 4-71-113 (Repl. 1996). That “likelihood,” if established, “shall be grounds for injunctive relief notwithstanding the absence of competition between the parties or the absence of confusion as to the source of goods or services.” Id. (emphasis added).
“The issue is . . . one ... of the likelihood of dilution of the value of the trade name as an asset by its use by someone other than the owner.” Williams v. Spelic, 311 Ark. at 282, 844 S.W.2d at 308. See also Wood v. Wood’s Homes, Inc., 519 P.2d 1212, 1215 (Colo.App. 1974)(“Nor is it necessary for the plaintiff to prove present damage, since the purpose of the action is to prevent the damage which would arise if defendant becomes established under the deceptive name.”)(emphasis added).
“An infringement on a trade name is such a colorable imitation of the name that the general public, in the exercise of reasonable care, might think that it is the name of the one first appropriating it. Where such a similarity occurs, it tends to divert trade from a business rival who has previously adopted its name and operates as a fraud which may be restrained by injunction, although the prior users may not have an exclusive right to the use of the name.”
Liberty Cash Groceries, Inc. v. Adkins, 190 Ark. at 912, 82 S.W.2d at 28 (emphasis added), quoting 26 R.C.L., at p. 876.
Tri-County demonstrated all that the statute required it to demonstrate to be entitled to injunctive relief. It established at least a likelihood of harm or dilution, given the fact that the names are sufficiently similar, Howard Funeral Home had long established a secondary meaning, and — although seemingly made unnecessary by the statute — there was testimony about name confusion and a decrease in Howard Funeral Home’s business following the opening of Eddie Howard’s business.
3. The right to use one’s own name
Older cases suggested that a junior user, or “second comer,” should never be enjoined from using his or her own name in connection with a business, even if a senior user of the same name could be harmed. See, e.g., Societe Vinicole de Champagne v. Mumm, 143 F.2d 240, 240 (2d Cir. 1944). As early as 1949, however, Judge John Miller in King Pharr Canning Operations, Inc. v. Pharr Canning Co., 85 F. Supp. 150, 153-54 (W.D. Ark. 1949), rejected the “sacred right” theory in a case involving the federal trade-mark law.
Recent cases reject the idea that a junior user has an absolute or “sacred” right to use his or her own name in business if a first comer has been using that name and has established a secondary meaning. See generally Annotation, Use of “Family Name” by Corporation as Unfair Competition, 72 A.L.R.3d 8 (1976). See also McCarthy, supra, at § 13.03[3], at p. 13-13. Because it may become a trade name subject to the rule of priority in order to prevent deception of the public, one has no absolute right to use one’s own name, even honestly, as the name of a business. John R. Thompson Co. v. Holloway, 366 F.2d 108, 113 (5th Cir. 1966). See McCarthy, supra, at § 13.03[6], at pp. 13-25 to 13-28 (discussing cases imposing “absolute prohibition against use of personal name as business mark”).
No doubt one may continue to use one’s own name personally even after another has added a secondary meaning to it. The question, however, is whether one may use one’s own name in a business if there is a likelihood of dilution of the trade name used by the party having established a secondary meaning or injury to the business reputation of the first user.
In Williams v. Spelic, supra, the office-supply portion of a business known as “Vowels Printing and Supply” was sold to Mr. and Mrs. Spelic by Mr. and Mrs. Williams. The Vowels name had been used by Mrs. Williams’s father in connection with the business for many years and Vowels apparently was Mrs. Williams’s name prior to her marriage. The part of the business sold was the office-supply portion. The Williamses retained the printing portion that operated across the street from the office-supply store. The Chancellor found that the sales agreement had impliedly sold the Vowels name to the Spelics. The Williamses began using the Vowels name with their printing business. One of the Williamses’ arguments on appeal of an injunction against their use of the Vowels name was that “a family name may be used in the absence of fraud or deceit unless the exclusive right to the family name is contracted away.” 311 Ark. at 282, 844 S.W.2d at 308. We held that the argument ignored the statutory grounds for injunction, noting that a showing of a likelihood of injury to the trade name was sufficient for the issuance of the injunction.
An inescapable conclusion to be drawn from our decision in the Williams case is that we reject the “sacred right” argument because, “[w]hen a surname is used as a trade name, it risks becoming a symbol of the business and losing its individual identity.” Id. at 284, 844 S.W.2d at 309.
4. Conclusion
The decision of the Chancellor is reversed. Eddie Howard Funeral Home, Inc., is enjoined from using the name “Howard” as part of the name of its business or to identify its business.
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Annabelle Clinton Imber, Justice.
At issue in this case is whether the general ten-year statute of limitations for actions on judgments applies to actions to collect support arrearages payable through the registry of the court, which become final judgments as they accrue pursuant to Ark. Code Ann. § 9-14-234(b) (Supp. 1995). The trial court concluded that the ten-year statute of limitations did not apply, and barred the appellant’s action to obtain income withholding from the obligor’s employer following the twenty-third birthdays of the two children involved. We affirm the trial court’s ruling.
An August 27, 1987 judgment entered in Nevada County Chancery Court case number 4897-2 recited that on March 5, 1985, Olen Dale Harris was ordered to pay $15 weekly child support in two separate cases, chancery case number 4897-2 and county case number CC-82-5. The trial court assumed jurisdiction over CC-82-5, “merging” it with 4897-2 because the parties in both cases were the same. Since the entry of the 1985 order, the trial court found that $3,520 in total arrearage had accrued — $1,760 with respect to the minor child Amanda (date of birth February 23, 1972), and $1,760 as to the minor child Matthew (date of birth December 1, 1969). The trial court reduced this amount to judgment and ordered Harris to pay $10 weekly in each case, for a total of $20 weekly, towards satisfying this judgment. The trial court additionally found that the circumstances of the parties had changed and that following August 28, 1987, Harris would be obligated to pay $30 weekly in support in each case, for a total of $60 weekly. All support payments were ordered paid through the registry of the court. Patricia Harris, the mother of the children, agreed that Elizabeth Durham, apparently Matthew’s grandmother, would be entitled to receive the support payments as to Matthew.
On April 28, 1988, Patricia Sanderson (formerly Harris) petitioned the trial court for Harris to appear and show cause, alleging that he had failed to pay child support accruing since August 28, 1987, and that he had failed to pay on the judgment rendered against him on August 28, 1987. On October 5, 1988, the trial court entered an order finding Harris in contempt and $5,560 in arrears. The record then shows various notices of income withholding filed against two of Harris’s purported employers. A December 31, 1992 notice served on Dwayne Lee Logging shows $30 weekly withholding on a $2060 amount past due in case number 4897-2. This is followed by two notices served on Smackover Motors, Inc., on May 31, 1996. One shows $30 weekly withholding on a $1940 amount past due in CH48972, while the other reflects $30 weekly withholding on a $5570 amount past due in CH-4897.
On June 24, 1996, Harris petitioned the trial court in case number 4897 to enter an order relieving him and his employer, Smackover Motors, Inc., from paying additional support, claiming that the children involved in the proceeding had already turned twenty-three and that the limitations period had run. OCSE filed an answer and counterclaim in case number 4897-2. In its answer, OCSE clarified that the August 27, 1987 order merged 4897-2, involving Patricia Sanderson, and CC-82-5, involving Elizabeth Durham, into case number 4897-2. Under this order, both children were provided for, with $30 weekly going to Elizabeth Dur ham for Matthew and $30 weekly going to Patricia Sanderson for Amanda. While conceding that both children had reached the age of majority, OCSE argued that Ark. Code Ann. §§ 9-14-235 (Supp. 1995) and 9-14-236 (Supp. 1995) entitled it to collect the child-support payments, “which are in arrears from the initial order.” OCSE also counterclaimed on the $60 weekly support provided for in the August 27, 1987 order, alleging that Harris was $2,580 in arrears as of July 31, 1996.
A “Stipulation of Transcript” reflects that the trial court held a hearing on September 26, 1996, where Harris argued that since the children were older than twenty-three, the limitations period found in Ark. Code Ann. § 9-14-236 barred any attempt at collection. OCSE responded that the accrued arrearages “should be considered as final judgments” pursuant to Ark. Code Ann. § 9-14-234(b)-(c) (Supp. 1995). Following the submission of briefs, the trial court entered an order on October 30, 1996, granting Harris’s petition to terminate given “that actions to enforce child support are barred by a statute of limitations which runs five years after the eighteenth birthday of the child.” Sanderson appeals from this order.
For her sole point on appeal, Sanderson argues that the general ten-year hmitations period for actions on judgments, Ark. Code Ann. § 16-56-114 (1987), applies to accrued support arrearages under Ark. Code Ann. § 9-14-234, which provides that accrued support installments payable through the registry of the court become final judgments. This issue was decidedly resolved in a recent case involving the same obligor, Cole v. Harris, 330 Ark. 420, 953 S.W.2d 586 (1997). In Cole we determined that the enactment of Act 1057 of 1987, codified at Ark. Code Ann. § 9-14-234 and providing for the finality of accrued installments, was done to ensure state qualification for future federal funding, and was not accompanied by any legislative expression to revive the general ten-year limitations period. Cole, supra. Indeed, by repealing the former ten-year limitations period for support arrearages formerly provided for by Act 525 of 1989, see 1991 Ark. Acts 870 §§ 1-2 (codified at Ark. Code Ann. §§ 9-14-105 and 9-14-236), the General Assembly had “made clear its intention that a ten-year statute of limitations should not apply to actions for child-support arrearages.” Cole, supra. Thus, the specific limitations provision found in Ark. Code Ann. § 9-14-236 governed the accrued arrearages, and the appellant’s action to collect arrearages more than five years after the child’s eighteenth birthday was barred. Cole, supra.
We disagree with Sanderson’s contention that the General Assembly intended that the limitations period found in Ark. Code Ann. §9-14-236 apply only to arrearages not paid through the registry of the court. Such a distinction would leave the limitations period found in Ark. Code Ann. § 9-14-236 with practically no application. Notably, all orders requiring payments for child support are required to direct that payments be made through the registry of the court, subject to the trial court’s discretion in determining the best interests of the parties. Ark. Code Ann. § 9-12-312(d) (Supp. 1995). Given that almost all support obligations are ordered payable through the registry of the court, numerous practical problems would flow from the application of an individual limitations period to each accrued installment, and it would be difficult to ascertain the precise amount of the “judgment” at a given time. Significantly, the emergency clause to Act 870 provides that “it is in the best interest of the people of the State of Arkansas that child support be collected and enforced in the most expedient manner for all children of this state [.]” (emphasis added).
The present case is essentially indistinguishable from Cole. While support installments payable through the court registry become final judgments as they accrue, see Ark. Code Ann. § 9-14-234, the general ten-year statute of limitations found at Ark. Code Ann. § 16-56-114 does not apply to actions to collect such arrearages. Cole, supra. Instead, the limitations period found at Ark. Code Ann. § 9-14-236(c) governs. Cole, supra. Given that Ark. Code Ann. § 9-14-236(c) controls, we do not reach Sander-son’s contention that purported partial payments tolled the ten-year statute of limitations. See Cole, supra. Because the appellant did not institute withholding on the accrued arrearage until after both children had turned twenty-three, the trial court did not err in granting Harris’s petition to terminate the collection of child support.
Affirmed.
We are cognizant of the fact that, at least at the trial court level, this case involved two distinct claims. One to collect arrearages that had accrued since the August 27, 1987 judgment, and another to collect on the judgment that Sanderson had obtained on August 27, 1987. However, Sanderson’s argument on appeal is limited in scope to the accrued arrearages that became final judgments by operation of law under Ark. Code Ann. § 9-14-234, and contains no mention of the arrearage that had been reduced to judgment on August 27, 1987.
In Sullivan v. Edens, 304 Ark. 133, 801 S.W.2d 32 (1990), this court acknowledged the federal concern with state courts that could retroactively modify or nullify past-due obligations, given that some states had “accorded child support orders a lesser stature than other money judgments and have allowed child support awards to be modified retroactively.” Act 1057 of 1987 provides in part, “AN ACT to. . .Provide that Unpaid Child Support Becomes a Judgment; to Prohibit Retroactive Modification Thereof Until Notice is Served on the Other Party. . . .” | [
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George Rose Smith, Justice.
The only remaining contested issue in this divorce case is the custody of the couple’s son, Boytt Dale Qualls, who will be ten years old on April 18, 1971. The mother appeals from a final decree vesting custody of the child in the father.
Most of the testimony in the trial court was directed to the parties’ respective grounds for divorce rather than to the issue of child custody. Qualls, who admitted that he is of a jealous nature, accused his wife of associating with other men and of not properly looking after the child. Mrs. Qualls denied those accusations and attributed the failure of the marriage to her husband’s extreme jealousy and to his repeated threats of violence toward her and others. None of that testimony sheds much light upon the question of custody, except as it may have assisted the chancellor in deciding which parent was worthy of belief.
Mrs. Qualls testified that after the divorce she intended to live with her parents. Since Mrs. Qualls is employed during the day, the child would actually be in the care of his grandparents a good part of the time. The record tells us almost nothing about those grandparents or about their home.
Qualls testified, without contradiction, that during the marriage his wife often went to work before the child got up in the morning, so that Qualls himself provided the child with breakfast and took him to school. Qualls works about 40 hours a week, but his hours are irregular in that he may work for 15 hours in succession and then be at home for some time before he is called back to work. When Qualls is at work he arranges for the child to be cared for by Qualls’s sister-in-law, who has two young children of her own and who testified in the case.
For reversal the appellant relies principally upon the law’s inclination to favor the mother in custody cases involving very young children. That principle, however, loses some of its force as the child grows older and is not so strong in the case of a ten-year-o-d boy as it would have been much earlier in the child’s life. Moreover, the trial judge saw fit to award custody to the father in spite of the rule in question. We view this case much as we did the situation in Wilson v. Wilson, 228 Ark. 789, 310 S. W. 2d 500 (1958), where we said: “We know of no type of case wherein the personal observations of the court mean more than in a child custody case. The trial judge had an opportunity that we do not have, i. e., to observe these litigants and determine from their manner, as well as their testimony, their apparent interest and affection, or lack of affection for the child. Under our oft repeated rule that we will not disturb the findings of the chancellor unless they are clearly against the preponderance of the evidence, we affirm this temporary order.” We are of a similar opinion in the case at bar.
Affirmed. | [
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Lyle Brown, Justice.
Appellee filed a claim for workmen’s compensation benefits against appellant hospital, her employer, alleging that she had sustained an injury while attempting to move a patient from a stretcher to a bed. The commission found that appellee had sustained a compensable injury to her back. The circuit court affirmed and appellant hospital and its workmen’s compensation carrier appeal. The sole question here is whether there is substantial evidence to support the finding of the commission that claimant was injured in the course of her employment.
Appellants first contend that due to the fact that the referee was the only person who had an opportunity to personally hear the testimony of the claimant and the other witnesses, his decision to disallow recovery should somehow be given more consideration than the commission apparently gave it, particularly in the instant case since the commission’s order was the result of a two to one vote. Needless to say, there is no basis in any of our decisions for appellants’ suggestion, as they recognize by their citation to Potlatch Forests, Inc. v. Smith, 237 Ark. 468, 374 S. W. 2d 166 (1964). In that case the court quoted from Moss v. El Dorado Drilling Co., 237 Ark. 80, 371 S. W. 2d 528 (1963), wherein we said: “We take this occasion to point out that it is the duty of the commission to make a finding according to a preponderance of the evidence, and not whether there is any substantial evidence to support the finding of the referee.” After quoting the above rule from the Moss case, the court in Potlatch Forests said: “Thus, as stated at the outset, we can only concern ourselves with whether the finding of the full commission was supported by any substantial evidence.” To the same effect see Lane Poultry Farms v. Wagoner, 248 Ark. 661, 453 S. W. 2d 43.
The remaining arguments of appellants are that the commission’s reasoning in arriving at a conclusion as to disability was improper and that the commission ignored testimony which tended to contradict appellee’s testimony. The rule we follow is that if there is substantial evidence to support the commission’s decision, we will affirm. Substantial evidence to support the commission is the extent of our inquiry on appeal.
In determining whether there is substantial evidence to support the findings of the commission, we view the evidence in the light most favorable to the action of the commission. Herman Wilson Lumber Co. v. Hughes, 245 Ark. 168, 431 S. W. 2d 487 (1968). There we said: “The question is not whether the testimony would have supported a finding contrary to the one made, but whether it supports the finding which was made.” With that rule in mind we summarize claimant’s testimony. She said she sustained an injury to her back while attempting to move a heavy and intoxicated patient from a stretcher to a bed; that at the time she was acting in the course of her employment as head nurse of the intensive care unit of the appellant hospital; that she felt a sharp pain go down her leg; that she immediately took a medication for relaxing muscles; that she tried to work the next night but was unable to do so; and that she was admitted to the emergency room the following day in severe pain, subsequently hospitalized, and later operated upon to remove a herniated disc. According to our decision in Nationwide Warehouse Market v. Whisenant, 249 Ark. 604, 460 S. W. 2d 90, the foregoing testimony is sufficient to support the commission. In Whisenant this court said:
Appellee produced no eyewitnesses to corroborate the occurrence; he testified that he was working alone in a back room of the warehouse. There was testimony adduced by appellant to sustain its contentions (1) that appellee had said he injured himself while playing with his children; (2) that appellee attempted to influence some witnesses to testify in his behalf; and (3) that the incident was not reported to the appellant at the time of occurrence. On those conflicting issues it is apparent that the commission accepted appellee’s evidence and rejected the evidence which was in conflict therewith. What we said in Kivett v. Redmond Company, 234 Ark. 855, 355 S. W. 2d 172 (1962), is equally applicable here: “The question is ultimately a simple one of credibility, a matter lying within the exclusive province of the commission. . . . We are bound by the commission’s findings upon the disputed question of fact.”
Although we have already found substantial evidence to support the commission, appellee also introduced evidence to corroborate her own testimony. Witness Teresa Gardner testified that she saw appellee reach across the bed and pull the patient and heard appellee say she hurt her back. The testimony which appellants introduced to contradict the testimony of appellee and Teresa Gardner need not be reviewed since our inquiry is whether there is substantial evidence to support the commission, not whether there is substantial evidence to support some other finding. Hughes, supra. Further, the Hughes decision states: “In order to justify a reversal of the commission’s decision, one appealing must show that the proof is so nearly undisputed that fair-minded men could not reach the conclusion arrived at by the commission.” Certainly, appellants have not met that requirement.
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John A. Fogleman, Justice.
This case involves the proceeds of a policy of fire insurance for $2,000 issued by Fireman’s Insurance Company to appellants Clifton and Kathryn D. Whitley on October 31, 1964. It covered a two-story dwelling house. On March 5, 1966, the Whitleys conveyed the property on which the house was located to appellees Harold Stanley and Iona Jane Irwin. The Irwins agreed to pay the Whitleys $700 cash and to assume a note secured by mortgage payable to „W. W. Carolan, Trustee, on which the balance amounted to $1,734. The Irwins also executed a note in favor of the Whitleys for $1,266 payable at the rate of $60 per month, plus interest until it was fully paid. A few days after this conveyance, Mrs. Whitley attempted to cancel the policy, but the insurance agent who issued the policy advised that there could be no cancellation without surrender of the policy. Thereafter, on March 18, 1966, while the Whitleys were still in possession of the dwelling house it was destroyed by fire. When the insurance company denied liability, appellants filed suit on August 15, 1967, against the insurance company, which answered denying liability. W. W. Carolan, Trustee, intervened claiming the policy proceeds to the extent of the Whitleys’ liability on the note payable to him. During the pendency of the litigation the balance due on this note was paid by the Irwins. At the time of the trial they had also paid the note due the Whitleys.
The insurance company later paid the face amount of the policy into the registry of the court on April 15, 1968. On the date of this payment, the Irwins intervened claiming the policy proceeds. One-third of the policy proceeds was paid to the attorney for the Whitleys. The chancery court, to which the case was transferred on October 29, 1969, on motion of appellees, awarded the balance to the Irwins.
Appellants assert three points for reversal, which are:
I. There was no effective transfer of the insurance policy from the Whitleys to the Irwins due to the personal nature of the insurance contract.
II. The purported transfer of the insurance from the Whitleys to the Irwins was void for lack of consideration.
III. The equitable maxims requiring good faith and diligence in the assertion of one’s rights should bar the appellees from any recovery of the insurance proceeds.
Appellants’ argument that the contract of insurance was personal and did not pass with the title to the property is correct. Appellants paid the premiums to the insurance company. The contract was personal with them for their benefit and was in no sense the proceeds of the property destroyed. Barner v. Barner, 241 Ark. 370, 407 S. W. 2d 747. Under the circumstances, if appellants were not entitled to recover on it, no one was. Langford v. Searcy College, 73 Ark. 211, 83 S. W. 944. McDonald v. Rankin, 92 Ark. 173, 122 S. W. 88; National Union Fire Ins. Co. v. Henry, 181 Ark. 637, 27 S. W. 2d 786. This principle of law is not contested by appellees. They contend, however, that it is inapplicable because appellants are estopped by their own actions from denying appellees’ right to the insurance proceeds, that appellees asserted their own claim with due diligence, that they are entitled to be subrogated to the rights of Carolan, that actual transfer of the policy was prevented by unavoidable casualty and that appellants are unjustly enriched if they are permitted to retain the insurance proceeds.
Determination of the questions raised depends for the most part upon the answers to points asserted by appellees in support of the decree. The sale by appellants to appellees was closed in the office of the appellees’ attorney on Saturday morning. He inquired whether the insurance was to be transferred. The Irwins did not have the money to pay the unearned premium, but testified that it was to have been transferred and that Mr. King, who was her father, and Mrs. Rhea Eichor, both of whom were present, offered to advance the unearned premium to the Whitleys. Mrs. Eichor testified that her offer to lend the money was declined by the Irwins. Mrs. Irwin stated that at that time it was thought that the office of the insurance agency where the transfer would have had to have been accomplished was closed. Mr. King and Mrs. Eichor stated that the primary reason for deferring action was the Irwins’ haste to return to Louisiana. It was agreed that the matter would be deferred until the Irwins returned from their residence in Louisiana after Mr. Irwin had completed the following week’s work. Mr. Irwin testified that, as soon as the insurance was transferred and the unearned premium paid, the insurance and insurable interest were to be theirs.
The Irwins admittedly did nothing else to accomplish the transfer, or to collect the insurance proceeds, until the Whitleys had sued and recovered even though both of them knew that the Whitleys were trying to collect from the insurance company. Mrs. Irwin testified that she did not talk to either of the Whitleys about the collection of the insurance during the year following the occasion when Mrs. Whidey called to advise the Irwins that the house had burned. There is little room for doubting that Mrs. Irwin knew that the Whitleys were endeavoring to get a lawyer to sue the insurance company.
Testimony of Mr. Whitley that he reserved the bathroom fixtures and cabinets in the house was disputed. Evidence that the Irwins intended to convert the house into a barn was undisputed.
We find nothing on which to base an estoppel against appellants in this case, to indicate that it was an issue in the trial court or to imply that the trial court found an estoppel. On the other hand it might well be said that the Irwins effectively estopped themselves from claiming the insurance proceeds.
In the first place, the absence of evidence that any action or inaction on the part of the Irwins was induced by any representation made by the Whitleys bars any valid claim of estoppel. Morgan v. Wells, 242 Ark. 499, 415 S. W. 2d 523. In the second place, the primary requisite of equitable estoppel is lacking because the Whitleys did not, by acts, language or silence, misrepresent or conceal any material fact from the Irwins at any time. Exchange Bank & Trust Co. v. Gibbons, 228 Ark. 454, 307 S. W. 2d 877. In the case just cited, we pointed out that estoppel operates to put the party entitled to its benefit in the same position as if the thing represented were true. We also held the doctrine inapplicable where the result is attributable to carelessness or ignorance of the law on the part of the party claiming its benefit. Here, there was nothing said by either of the Whitleys which could have been the basis of any change of position by the appellees. The position of the Irwins clearly resulted from their own failure to take any steps to effect a transfer of the insurance policy or their ignorance of the legal effect of the insurance contract and of their failure to effect the transfer, or both. Furthermore, estoppel must be based on facts existing at the time the injured person is caused to act and not upon subsequent events. Pohnka v. The First National Bank of Wynne, 224 Ark. 599, 275 S. W. 2d 641.
The Irwins’ failure to assert their claim after the destructive fire and after being apprised of efforts by appellants to collect the insurance proceeds was actually a bar to their assertion of a claim to the proceeds after the efforts of the Whitleys caused their payment into court. Where one stands by and fails to assert a claim, he cannot be heard to assert it against the interest of those who relied on his silence. Johnson v. Spencer, 222 Ark. 710, 262 S. W. 2d 290. It seems only reasonable to assume that the employment of an attorney by the Whitleys and the institution of the suit against the insurance company following the failure of the Irwins to take any step toward effecting a transfer of the policy and their failure to assert any claim whatever to the proceeds with full knowledge that appellants were asserting a right thereto were in at least partial reliance upon this silence and inaction. Such silence and inaction may be the basis of equitable estoppel. Keylon v. Arnold, 213 Ark. 130, 209 S. W. 2d 459. Mere silence and inaction does constitute an estoppel under circumstances existing here, where appellees could have easily put both appellants and the insurance company on notice of their claim, if indeed they had any, and could have commenced the very action they did institute when they learned that the company had paid the policy proceeds into court. Their failure to do so could be taken to constitute a misleading reticence and apparent acquiescence in, and ratification of, what was being done. Stewart Oil Co. v. Bryant, 153 Ark. 432, 243 S. W. 811.
Appellees base their claim of subrogation upon a clause in the Carolan mortgage stating the agreement of appellants to keep the dwelling insured for full insurable value with loss clause in favor of the mortgagee. There was no such clause in the policy. We have held that such a stipulation is an appropriation of the insurance proceeds to the satisfaction of the mortgage indebtedness. See Bonham v. Johnson, 98 Ark. 459, 136 S. W. 191; Sharp v. Pease, 193 Ark. 352, 99 S. W. 2d 588. Even so, the doctrine of subrogation comes into play in Arkansas only when one not primarily liable pays the debt. See Baker v. Leigh, 258 Ark. 918, 385 S. W. 2d 790. The primary liability of the Irwins for the payment of the debt is beyond question. In Lindley v. Marriatt, 196 Ark. 1178, 114 S. W. 2d 453, we said:
When one purchases property on which there is an encumbrance and assumes and agrees to pay off the encumbrance, he becomes, so far as the debt is concerned, primarily liable, and he cannot, by paying it off, be subrogated to the rights of the mortgagee against the person from whom he purchased.
Appellees cite no authority whatever for their contention that unavoidable casualty prevented the accomplishment of the transfer of the insurance. It is based on the fact that Mr. Irwin suffered an injury during the week following the conveyance of the property and the statement that he was unable to travel prior to the destruction of the property some 13 days later. We are unable to fathom the basis of this contention. Any merit it might have is negated by the total absence of any effort on the part of either of the appellees to make any other arrangement for the transfer, to offer any explanation for their nonappearance or even to attempt any step to establish their rights before the collection of the insurance proceeds in spite of the fact that they were at all times making payments on both the note due Carolan and that due appellants. Either Mr. King, Mrs. Irwin’s father, who lived in the vicinity with the Eichors, or Mrs. Eichor might have been utilized as an agent to make the payment and accomplish the transfer, but was not. Appellees did not avail themselves of the services of their attorney who represented them in the closing. While Mr. Irwin’s injury may have been such as to prevent travel by either him or his wife, it did not foreclose timely use of the telephone or mails. The record does not reveal any attempt on the part of appellees to pay the unearned premium to the Whitleys before or after the fire. We find no merit in this argument.
We do not find the doctrine of unjust enrichment to require payment of the insurance proceeds to appellees. In the deed from the Whitleys to the Irwins a lien was retained to secure the payment of the note representing the balance of the purchase price. In effect, the Whitleys held a mortgage on the property, subject only to the Carolan mortgage. The general rule recognized and applied in this state is that a mortgagee of real property who effects insurance on the mortgaged property at his own expense and for his own benefit, which is not limited to his interest as mortgagee, has a right to recover the proceeds of the insurance for his own use and benefit and the money received by him is not a payment on the mortgage, even when his only insurable interest is that of a mortgagee. Ponder v. Gibson-Homans Co., 166 Ark. 591, 266 S. W. 682.
The maxim or doctrine appellees rely upon is that no one shall be allowed to unjustly enrich himself at the expense of another. The word “unjustly” as so used means “unlawfully.” Sheasgreen Holding Co. v. Dworsky, 181 Minn. 79, 231 N. W. 395 (1930); American University v. Forbes, 88 N. H. 17, 183 A. 860 (1936); Greenwich Contracting Co. v. Bonwit Const. Co., 156 Conn. 123, 239 A. 2d 519 (1968). One who is free from fault cannot be held to be unjustly enriched merely because he has chosen to exercise a legal or contract right. Worthen Bank & Trust Co. v. Franklin Life Ins. Co., 260 F. Supp. 1 (D. C. Ark. 1966), aff’d 370 F. 2d 97 (8th Cir. 1966); Pelser v. Gingold, 214 Minn. 281, 8 N. W. 2d 36 (1943). One is not unjustly enriched by receipt of that to which he is legally entitled. American University v. Forbes, supra.
As appropriately stated by District Judge Henley in the Worthen case, “Parties to business transactions are required to act justly and honestly, but they are not required to act unselfishly or altruistically.” A moral duty does not meet the demands of equity in this regard, in the absence of some specific legal principle or situation which equity has established or recognized bringing a case within the scope of the doctrine. American University v. Forbes, supra. Anderson v. Anderson, 155 Kan. 69, 123 P. 2d 315 (1942). No recovery of money received can be based upon unjust enrichment when the recipient can show a legal or equitable ground for keeping it. Beauregard v. Orleans Trust Co., 108 Vt. 42, 182 A. 182 (1936).
Since the Whitleys had a legal right to the proceeds of the insurance policy, the doctrine of unjust enrichment will not support the decree.
The decree is reversed and judgment entered for appellants for the proceeds of the policy held in the registry of the chancery court. | [
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Conley Byrd, Justice.
The trial court held void child custody provisions in a divorce decree obtained on March 14, 1967, by appellant Ralph May and awarded the custody of their three minor children to appellee Alta Inez May. For reversal appellant contends:
“1. That the divorce decree was a final adjudication and that the trial court erred in not requiring a showing of a change of circumstances and in not requiring appellee to go forward with the burden of proof.
2. That the court failed to take into consideration the best welfare of the children.”
The record shows that on or about September 10, 1966, appellee Alta Inez May left her then husband, appellant Ralph May. Accompanying her were the children, her mother Bessie Colvert and her husband’s cousin, John May, an ex-convict and parole violator, now her husband. Appellee moved to North Little Rock where she remained until February 25, 1967.
On September 14, 1966, appellant filed suit for divorce and caused a warning order to be issued upon his affidavit that he did not know the whereabouts of his wife. On November 18, 1966, he married his present wife, Nancy. On March 14, 1967, an uncontested divorce decree was entered. That decree, in awarding custody to appellant, recited a finding that the children were in his custody at that time.
At the hearing on October 21, 1969, appellant testified that when he filed the divorce suit on September 14, 1966, he knew his wife and children were in North Little Rock with Johnny May and that he had a copy of the divorce decree with him when he took the children from his wife in St. Joe, Louisiana, about March 10, 1967. At the hearing held on October 27, 1969, appellant testified that he got the children before he got the decree because he had enrolled his oldest child in school on March 6, 1967. At this time he also said it was about three weeks or a month1'before he picked up the children that he found out that his wife was in Little Rock.
We find no merit in appellant’s contention that the Chancellor erred in failing to require appellee to show a change of circumstances. Appellant first testified that he knew his wife’s whereabouts when he filed his divorce action, then later changed his story. The same is true with respect to custody of the children at the time the decree was rendered. Under these circumstances, the Chancellor could properly treat the decree as void in so far as it affected custody. See Bauer v. Brown, 129 Ark. 125, 194 S. W. 1025 (1917).
The testimony about the welfare of the children is conflicting. There is testimony that appellee engaged in a number of extra marital affairs, that she did not keep the children clean, and that she selfishly spent the family earnings on herself instead of food for the family. On the other hand the extra marital affairs were denied and proof was offered that appellee maintained a clean and comfortable home where the children would be kept. There was also testimony that appellant did not provide for his family while appellee was living with him.
Appellant’s present wife has three minor children who live in their home and she was pregnant at the time of the hearing. There is also some testimony indicating that appellant is a cattle thief. While he denied the charge, he admitted that he was arrested and that after he agreed to return some cattle in his brother’s pasture, the charges were dropped.
The chancellor saw the parties and their demeanor during the trial and upon the record before us, we are unwilling to hold that his findings are contrary to the weight of the evidence.
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John A. Fogleman, Justice.
The chancery court held that the separate assets and income of Ouita Martin should be taken into consideration before the trustee of a trust for her benefit, created by the will of her sister, Elizabeth Nichol, could invade the corpus of the trust for Miss Martin’s hospital, medical, drug and nursing expenses. Appellant contends that, under the circumstances existing here, she is not required to exhaust all her resources, or even her income, before these expenses are paid for by the trustee.
Determination of the principal questions involved on this appeal depends upon construction of a clause in the will of Elizabeth Nichol, who died in 1963. That clause reads:
In the event the said income is not sufficient to provide for the needs of my said sister by reason of her illness or by reason of accident or other calamity [ajffecting her, the trustee shall sell such part of any of the shares of stock held by it as trustee and as shall be reasonably necessary to provide for the needs of my said sister and use the proceeds for that purpose.
The corpus held by the trustee at the time of the institution of this action were 3,711 shares of the stock of Simmons First National Corporation, a one-bank holding company, and 110 shares of Arkansas Oak Flooring Company. At the time of Mrs. Nichol’s death the flooring company stock and 2,475 shares of Simmons First National Bank were designated by her as the trust corpus. The trustee converted the bank stock into holding company stock at the time of the organization of the company, whose principal corporate purpose was ownership of the stock of the bank. The increase in number of shares was attributable to stock dividends.
The bank has been paying the income from the trust to Miss Martin at the rate of $490 per month, with appropriate adjustment annually, so that she has received all income from the trust. The total annual disbursements ranged from $5,767.20 to $7,792.19 during the years from 1964 to 1969.
The present action was precipitated by reason of an injury and an illness suffered by Miss Martin, requiring unusual medical expenses, but she also contended that current inflation has caused an increase in her cost of living and constituted “a calamity affecting her” under the terms of the pertinent clause. She filed her petition in September 1969 asking judgment against the trustee for medical expenses incurred by her and directions to the trustee to pay all medical, hospital,, surgical, and nursing expenses accrued to the date of hearing, and to pay all future medical, hospital, surgical and nursing expenses. She prayed that the trustee be directed to sell shares of stock held by it for these purposes. Her petition was opposed by the trustee, as it had ascertained before the filing of appellant’s petition that there would be objection on the part of some of the residuary beneficiaries of the trust. The petition was also opposed by these residuary beneficiaries. Both the trustee and these beneficiaries are appellees here.
The chancellor made an. exhaustive review of authorities and concluded that it was the intention of the testator that the corpus of the trust be invaded only in case the “needs” of appellant required when her private means were taken into consideration, and that there should be no invasion of the corpus until appellant’s expenses because of illness, accident or calamity were in excess of all her means consisting of her own private resources as well as the net income of the trust. The decree incorporated the chancellor’s findings, and defined the resources and assets of appellant which must be exhausted before invasion of the corpus as the principal, dividends, interest and any other income from investments in land, stocks, bonds, savings and checking accounts in banks and savings and loan institutions, including any accounts standing in the joint names of appellant and others and other investments of a similar nature and type.
On trial de novo, we reach a different result in some respects. Our different conclusions do not result so much from a disagreement with the chancellor on the law involved as from its application to the facts in this case. Of course the paramount and overriding rule of construction is to ascertain the intent of the maker, preferably from the four corners of the instrument itself. Clay v. Benton, 248 Ark. 691, 455 S. W. 2d 405. The courts should give a will that construction which accomplishes the purposes and objectives of the testator. In order to determine the intentions of the testator consideration must be given to every part of her will. Carroll v. Robinson, 248 Ark. 904, 454 S. W. 2d 329.
Mrs. Nichol’s will, made April 16, 1962, makes the following provisions:
First: Usual provisions for payment of debts and funeral expenses.
Second: Devise of life estate in home of testatrix to appellant, with remainder to First Presbyterian Church of Pine Bluff.
Third: Outright bequest to appellant of all furniture, furnishings, silverware, chinaware, and other articles of household and domestic use in the home, together with all clothing, jewelry and other personal effects not otherwise disposed of by the will, any automobile owned by testatrix and $20,000 in cash.
Fourth: Establishment of trust here involved, requiring distribution of income from stocks to appellant. Direction for termination of trust upon death of appellant by sale of stock then in possession of trustee and payment of net proceeds to six named nieces and nephews.-
Fifth: Bequest to a nephew of husband.
Sixth and Seventh: Bequests to charitable institutions.
Eighth: Bequest of watch and bracelet to a niece who is one of the residuary beneficiaries of the trust.
Ninth: Bequest of diamond bar pin to a niece who was not a residuary beneficiary of the trust.
Tenth: Bequest of diamond engagement ring to another niece who was residuary beneficiary of the trust.
Eleventh: Bequest of diamond solitaire ring.
Twelfth: Bequest of diamond dinner ring to niece who was still another residuary beneficiary.
Thirteenth: Bequests of cash to relatives in varying amounts, including the six residuary beneficiaries, who were to receive amounts varying from $1,000 to $6,000.
Fourteenth: Bequests to cousins.
Fifteenth: Bequest to First Presbyterian Church, Pine Bluff.
Sixteenth: Division of residue with one-half to go to appellant and other one-half in equal shares to six nieces and nephews who were named as residuary beneficiaries of the trust.
Seventeenth: Direction that estate taxes be paid out of residuary estate.
Eighteenth: Nomination of executor.
Examination of the will can only lead to the conclusion that appellant was intended to be the primary object of Mrs. Nichol’s bounty. Others were given consideration secondarily or incidentally. Except for specific bequests, the residuary beneficiaries were to share in the estate only after all debts, taxes and expenses of administration had been paid, all other specific bequests had been distributed and the trust established. They are then to benefit from the trust only to the extent that it has not been exhausted in providing for appellant in the eventualities mentioned in the clause in question. This preference standing alone, however, is not of sufficient significance to control the construction of the clause according to appellant’s contention. Furthermore, we cannot say that the meaning of the words in the pertinent clause is so clear and unmistakable that we can determine the testator’s intention from the language of the will alone. We agree with the chancellor that similar clauses have led to much litigation and considerable disagreement by the courts as to their meaning. We also agree with the chancellor that the sole decision of this court shedding any light upon the subject is Cross v. Pharr, 215 Ark. 463, 221 S. W. 2d 24, where we said:
Unless something appears in the will indicating a different purpose, it is ordinarily presumed that the trustor intended the beneficiary to be supported and maintained from estate income, or as is sometimes the case, from sale of a part of the corpus. See 101 A. L. R., 1461 et seq.; Restatement of the Law of Trusts, § 128, Comment “e”;. Scott on Trusts, p. 672.
In that case, the clause in question required the payment of net income from a trust estate to the beneficiary “when and as the same may be needed” by her. The chancellor correctly pointed out that corpus was not involved there. Authorities cited for our statement in Cross, ultimately lead to the fundamental proposition in any such case—that the intent of the trustor must be determined from the language of the trust interpreted in the light of the circumstances.
Whenever there is uncertainty as to the intention of a testator which cannot be clearly ascertained when the words of his will are considered in their ordinary sense, the court must read the language employed by the testator in the light of the circumstances existing when the will was written and, in order to put itself in the place of the testator as nearly as possible, may consider all surrounding facts and circumstances known to him, including the condition, nature and extent of the testator’s property, his relations with his family and other beneficiaries named, the motives which may reasonably be supposed to influence him, the subject matter of the gift, the financial condition of the beneficiary and other such matters. Murphy v. Morris, Executor, 200 Ark. 982, 141 S. W. 2d 518; Rufty v. Brantly, 204 Ark. 32, 161 S. W. 2d 11; Thompson v. Arkansas Nat. Bank of Hot Springs, Trustee, 220 Ark. 802, 249 S. W. 2d 958; Eagle v. Oldham, 116 Ark. 565, 174 S. W. 1176, 1199.
A review of the pertinent circumstances reveals the following:
Miss Martin had lived in her sister’s home since 1921. When she came there she was employed at the local school cafeteria, but she had not been employed for 45 years. Appellant was 80 years of age on August 26, 1969.
The dwelling house is a very old two-story building consisting of seven rooms and a sleeping porch, located upon a large lot. Appellant testified that she had cared for Mrs. Nichol who was in poor health during the last few years of her life. She also said that she looked after the housekeeping during that time.
Appellant’s physician testified that he had seen Miss Martin as a patient since 1946, that she suffered grand mal epileptic seizures as early as 1961 and that she then gave a history of such seizures early in life. He had also treated Mr. and Mrs. Nichol and the mother of Mrs. Nichol. This physician had an intimate relationship with the family. He had discussed appellant’s condition with her sister and brother-in-law, and testified positively that the testatrix was aware of appellant’s condition on the date of execution of the will. The doctor related that he had treated both Mr. and Mrs. Nichol during illnesses in their home and that being cared for in the home was a way of life in the family.
Appellant had little in the way of financial resources when Mrs. Nichol died. They consisted largely of approximately 62 shares of Arkansas Power & Light Company stock, $4,000 on deposit in Southern Federal Savings & Loan Association and 90 shares of the stock of Container Corporation, which she inherited from her mother.
Our view of these circumstances and the terms of the will leads us to the conclusion that it was the intention of the testatrix that appellant be enabled to spend the rest of her life in the home where she had lived for 50 years and in the style of life to which she had become accustomed. There is little room for doubting that Mrs. Nichol was fully aware of her sister’s physical and financial condition. There is little likeli-. hood that the income from the trust would have been expected to maintain the dwelling house and grounds and support Miss Martin in her customary style and still provide full medical, hospital and nursing care to her in case of illness, without encroachment upon the corpus. The testatrix’s apparent desire that the particular stocks constituting the trust be held intact except for authorized invasion until Miss Martin’s death seems to indicate that she was more concerned with security than quantity of income.
As the life tenant, Miss Martin pays property taxes on the home and contents. The real estate taxes amount to $291.58 annually. She also maintains insurance thereon at a cost of $71 per year. Her expenses for maintaining the large yard are great, approximating $100 per month, which includes necessary annual tree surgery. She averages general house maintenance at $35 per month. She had paid $750 for replacing the roof and $650 for replacing the furnace. Shortly after Mrs. Nichol died, Miss Martin paid $3,000 to put sheetrock on the interior walls. Appellant said that the plumbing and water tank were constantly in need of repair. She pays $22 per week to a cook who has been in the employment of the family for 25 years. This cook works five days per week, preparing only the noon meal each day. Miss Martin is unable to drive a car, so she pays a driver employed some 25 years, on an occasional basis. Her grocery bill averages approximately $90 per month. Utility bills run to $50 per month, and the telephone bill costs her a little less than $20 per month. Miss Martin estimates that she spends only $30 per month for clothing and $15 for laundry and cleaning. She pays $8 per month for insurance on the automobile left her by Mrs. Nichol.
While she is eligible for Medicare benefits, she pays $7.20 per month for Blue Cross-Blue Shield Medi-Pak insurance providing excess coverage over Medicare payments. She averaged her real and personal property and income tax payments at $66 per month. Miss Martin’s annual income from sources other than the trust consists of the following:
Social Security $612.00
Dividends from AT&T stock 48.00
Dividends from First Federal Savings & Loan Association 285.00
Dividends from Guaranty Federal Savings & Loan Association. 294.39
At the time of the trial she had $5,770.74 on deposit with First Federal Savings & Loan Association and $6,-196.13 with Guaranty Federal Savings & Loan. She valued her corporate stock at $1,000. All these assets came from the specific cash bequests to appellant, with the possible exception of the AT&T stock which may have been purchased from the proceeds of AP&L stock she surrendered to the company. It appears that she received nothing as a residuary legatee and devisee.
Appellant gave the stock in Container Corporation inherited from her mother to relatives other than those who are appellees. She testified that she gave 52 shares of AP&L stock she owned to appellee Frances M. Bailey. She had also given the money she had in the bank to relatives and to charity. All these gifts were made before she suffered the shoulder injury.
Subsequent to Mrs. Nichol’s death, Miss Martin has suffered two illnesses which required hospital confinement. She spent seven weeks in a hospital when she suffered a broken shoulder in August 1968, and two weeks in 1969 as the result of a stroke. She now walks around the house only with the aid of a cane and by holding onto some other support. She can hardly walk outside the house. She testified that it was necessary that she have nursing care at night since July 11, 1969. The nurse she employed is paid $50 per week for spending the night with her, applying hot packs, dressing and bathing her, measuring her medicines, helping her downstairs and taking her places she must go. The nurse comes on duty about 9:00 p.m. Appellant states that her drug bill runs $25 per month.
A friend by the name of Lucille Mason has lived with appellant since 1963. She pays no rent but contributes to the payment of the telephone bill. Miss Mason is employed, but attends to getting breakfast and supper and Saturday meals for both herself and Miss Martin. Appellant testified that her friend brings her own food for meals that she does not eat at the school where she is employed and that its value exceeds the cost of any of appellant’s groceries consumed by the guest.
Appellant’s charitable contributions amount to approximately $60 per month. Her estimate of her cost of living, without considering the contributions, and without allowing any amount for medical and hospital bills is $773.85 per month.
Dr. Talbot has treated appellant for arteriosclerosis, recurrent migraine headaches, osteoarthritis, and osteoporosis of the spine in addition to her epilepsy, her stroke and her injury. He suspected that her shoulder injury resulted from a seizure. He was of the opinion that appellant’s condition requires the presence of a nurse or someone else because of the constant hazard of accident, which is intensified by the possibility of seizures which cause her to lose consciousness. He characterized these as “breakthrough” seizures because they occurred in spite of preventive medication. The doctor felt that, considering the presence of the cook and appellant’s friend, the nursing service she had was adequate and reasonable, and predicted that more care would probably be needed in the future. In his opinion, Miss Martin will respond better both physically and mentally to treatment in her familiar surroundings, and her removal from the home to a nursing home or hospital would be demoralizing in the utmost. He felt that the estimate of $25 per month was a reasonable amount for necessary drugs and medicines.
There was evidence showing that the bank stock was “low-income” stock and that an investment of its present value in other securities would produce a substantially larger income. Yet it seems clear that the testatrix intended that the corpus of the trust consist of the shares of stocks designated by her throughout its existence, because the trust clause limits the. trustee’s power to sell to the eventualities named in the particular clause we are considering, until the death of Miss Martin, when all the remaining stock is to be sold. Directions as to reinvestment are also lacking. The duties of the trustee with reference to the stock are directed toward its preservation. We can only assume that Mrs. Nichol had knowledge of the characteristics of the stock placed in trust. Her husband was formerly president of the Simmons bank. It is not unreasonable to infer that one reason for inserting the provision for invasion of corpus was because of these relatively low dividends.
It is certain that the gift of the trust income is absolute and unrestricted as to use. The fact that the testatrix used the words “in the event the said income is not sufficient to provide for the needs of my sister by reason of illness, or by reason of accident or other calamity affecting her” is significant to us. If she had intended that appellant first exhaust her own resources before there was any encroachment it would have been quite easy for her to have used the words “in the event my sister’s income is not sufficient” or “in the event my sister’s resources are not sufficient.” But she did not even say “in the event that the income from the trust and my other bequests to my sister are not sufficient.” We conclude that it was the intention of the testatrix that the expenses of her sister because of illness or accident be provided from the trust, without regard to any resources that Miss Martin might have, and that she did not have in mind the very narrow and restricted definition of “need” as indicative of destitution. The word “need” is also defined as “The lack of anything requisite, desired or useful; . . . anything needed or felt to be needed, as our daily needs.” Webster’s New International Dictionary, Second Edition; see also Third Edition.
We do not mean to suggest that unbridled discretion is vested in Miss Martin as to expenditures for her living costs or that she may incur any expense she chooses for medical and nursing care. We do not think that it has been shown that her present expenditures are excessive in view of the standard of living she has enjoyed for 50 years and in view of care rendered necessary because of illness. Nor do we feel that the corpus of the trust was intended to support Miss Martin’s charities, beyond those which might have been anticipated by the testatrix at the time of the execution of the will. We do feel that the testatrix intended that the corpus be invaded to pay any additional expense to Miss Martin arising by reason of illness, accident or other calamity, if the income from the trust proved inadequate for that purpose after her payment of usual and customary living expenses from the income from the trust. In this respect it is to be noted that the trustee is directed to sell such part of the shares of stock as shall be “reasonably necessary to provide for the needs” of appellant and to use the proceeds for that purpose. Consequently, the trustee is charged with the exercise of discretion as to what is “reasonably necessary.”
Miss Martin first requested payment by the trustee of expenses attributable to her illness on or about July 11, 1969. At that time it appears that the following items had accrued:
Jefferson Hospital $ 102.00 (This amount was charged to Miss Martin over and above Medicare and Blue Cross Medi-Pak)
Mrs. Clara Phillips—special nursing at hospital 28.00
Mrs. Clara Phillips—14 weeks nursing at home, $50 per week 700.00
Consumers Drug Co.—3/15/69 to 6/27/69 89.55
The Doctors Clinic—4/10/69 $15.00 and 5/8/69 $151.00 166.00
Total................................................................$1,085.55
Of these items, Miss Martin had paid and was seeking reimbursement for the hospital bill, the clinic item and the drug bill. While she had paid the nurse, it is not clear from the record whether the payment was made before or after her request that these items be paid by the trustee. Miss Martin testified that she continued to pay the nurse after her request was refused and that she incurred additional drug expenses of $258.79 after July 11, 1969.
The fact that the trustee is not required to look to other means of Miss Martin before encroaching upon the corpus for her needs arising out of illness or accident does not mean that the trustee is required to invade the corpus to reimburse appellant for moneys voluntarily spent by her prior to any demand for payment from the trust principal. If the trustee were required to reimburse appellant for such expenditures, which may or may not have been made from income from the trust, she would be enabled to exercise her discretion as to the number of shares of stock to be sold. This would deprive the trustee of discretion vested in it, and permit the life beneficiary to dissipate the trust to the detriment of the residuary beneficiaries. The fact that she paid these expenses without any demand on the trustee is at least some evidence that the income paid to her was then sufficient for those purposes.
We hold that appellant is not entitled to reimbursement for any expenses paid by her before her demand upon the trustee for the payment thereof in July 1969. See In re Hoepner’s Estate, 176 Misc. 47, 27 N. Y. S. 2d 398 (1941); Clark v. Mississippi Valley Trust Co., 360 Mo. 452 , 228 S. W. 2d 808 (1950); Green v. Cleveland Bank & Trust Co., 6 Tenn. App. 685 (1928). The trustee should, however, investigate all expenses of Miss Martin attributable to her illness or accident which are now unpaid and all incurred after demand made upon it by Miss Martin to determine the number of shares of stock reasonably necessary to be sold to properly provide for all such expenses reasonably incurred taking into consideration any income of the trust remaining after the payment of Miss Martin’s usual and customary cost of living, but without considering Miss Martin’s income from other sources or her other assets.
Appellant also contends that the chancery court erred in denying her prayer that the trustee be required to sell the stocks held in the trust and to invest the proceeds so as to provide an increase in the income to the trust. We do not agree. Her argument here is based almost entirely upon the fact that the trustee, without court authority, exchanged the bank stock for stock in the holding company. While we express no opinion upon the authority of the trustee to make such exchange, that question is not before us. No one has sought to require the trustee to account for its action in converting the bank stock to holding company stock. Appellant brought out the fact that the conversion of the stock pertained to a reorganization relating to the ownership of the bank.
We agree with the chancellor that the evidence does not justify a sale for reinvestment. It was the apparent intention of the testatrix that the corpus of the trust be preserved in the form of the stocks which constituted it when the trust came into existence. There is no express authority to sell except to provide for the needs of appellant for the purposes stated, and to permit distribution to the residuary beneficiaries upon the death of appellant. While there are circumstances under which a trustee may sell stock held in trust in the absence of specific authority in the trust instrument, they were not shown to exist here. The fact that the proceeds of sale of the stock could be invested to produce a greater income is not itself sufficient. It may well be that the testatrix expected the residuary beneficiaries to profit by the obvious growth potential of these stocks, even if she disregarded any sentimental reasons she might have for their being held during the lifetime of the sister who lived with her and her husband for many years. A trust officer of the bank estimated the present value of the holding company stock at $371,000. The trust officer did not know the value of the flooring company stock. The former was valued at $139,218 at the time of the creation of the trust and the latter at $42,350. A sale, he pointed out, would require payment of income taxes on the gain. He felt that putting all the Simmons stock on the market at once would depress the per share price. The interests of the residuary beneficiaries are not to be ignored. Furthermore, there has been no evidence to show that there has been any decline in the value of the new stock or that it produces less income than' the bank stock.
Appellant argued in the lower court that continuing inflation causing a rise in the cost of living is a calamity which also justifies encroachment upon the corpus. The chancellor found it unnecessary to decide this question. Appellant seems to have abandoned that argument here. At any rate, we do not find the evidence sufficient to support such a finding at this time.
The cause is remanded with directions to the chancery court to enter its decree instructing the trustee to proceed in accordance with this opinion. | [
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Carleton Harris, Chief Justice.
This appeal is brought by three farmers, Cletus Byrd, Leonard Brummett, and Andrew Hogeland from adverse decrees of the Clay County Chancery Court which found inter alia, that these appellants were indebted to appellee, Security Bank, in various amounts by virtue of promissory notes which they had executed to Parsons Gin Company and which Parsons had subsequently assigned to the appellee bank. Parsons’ Gin Company was not incorporated and was only a name used by Jimmy Parsons, the owner. These notes were sued on by Security Bank in December, 1968, and Kennett Bank of Kennett, Missouri, intervened in each case alleging that it held notes from each of the appellants and also had liens superior to those of appellee, on the assets of these farmers.
From the evidence it would appear that sometime prior to the execution of the notes sued on, these farm ers had executed notes to Parsons Gin Company with financing statements as security. These notes were assigned by Parsons Gin Company to Security Bank, but the financing statements were retained by Parsons and filed in its name.
On or about January 26, 1968, the appellants each signed other notes to Parsons Gin Company, simply signing blank notes. Without appellants’ knowledge or consent, Jimmy Parsons of Parsons Gin Company filled in the notes for varying amounts and on February 3, 1968, assigned them to Security Bank as consideration for the release of the prior notes and other notes which Parsons had previously assigned. Parsons once again kept the financing statements in the Gin Company’s name.
The farmers then wished to borrow money from Kennett Bank, but after a lien search, that bank found the financing statements to Parsons and would not make the loans until these statements had been released. At Kennett Bank’s request, Parsons released the financing statements in March of 1968. Kennett bank then filed financing statements from these farmers as security late in March of 1968 and made loans to the appellants as evidenced by notes signed by them on or about April 8, 1968.
On June 20, 1968, Security Bank discovered that Parsons had released the financing statements and to recover its former position, had Parsons assign these statements to it with the words “This statement replaces a prior one to secured party, released by error, when the secured party intended to merely subordinate the lien”.
When the notes assigned to Security Bank became due, and after demand, were not paid, these suits were brought, Kennett Bank intervening shortly thereafter. The trial court found the lien of Kennett Bank to be superior to that of Security Bank, but that finding is not involved in this appeal. For reversal of the decree in favor of Security Bank, appellants contend that the lower court erred in finding that appellee, Security Bank, was a holder in “due course” and an “innocent purchaser” of the notes and security transferred to the bank by “Parsons Gin Company”.
It is argued that at the time appellee took the assignment of the second group of notes, no money was advanced by the bank to Parsons, and that appellee knew Jimmy Parsons was in financial straits, and should have known that he did not have sufficient money to advance the amounts mentioned in the notes, to the three appellants. The amounts of the notes were Byrd, $9,500, Brummett, $18,000, and Hogeland, $1,000. It is true, as previously stated, that no money was advanced to Parsons at that time, these notes being given in lieu of the original notes, and also being applied on other indebtedness due by Parsons.
Ark. Stat. Ann. § 85-3-302 (Add. 1961) defines a holder in due course as one who takes the instrument for value, and in good faith, and without notice that it is overdue or has been dishonored, or of any defense against, or claim to it, on the part of any persons.
We do not agree that appellee was not a holder in due course. The instrument was taken for value, and we need look no further than Ark. Stat. Ann. § 85-3-303 (b), where it is provided that the instrument is accepted for value when it is accepted in payment of, or in security, for an antecedent claim against any person whether or not the claim is due.
There is no evidence that the instrument was not taken in good faith. Let it be remembered that there is no proof, nor is it even suggested, that appellee knew that these notes had been blank when signed by appellants, and that the amounts had been filled in by Parsons. Also, the record reflects that transactions of this nature between the parties had been customary for a number of years, and all had worked out satisfactorily. There is no showing that at the time (February 3, 1968) the notes were taken, the bank officials had any reason to believe that Parsons had committed any fraud, or that he was in bad financial condition. Testimony on the part of the bank was that this fact did not come to its attention until June 20, when appellee dis covered that Parsons had released its security in March. Were it otherwise, while there might well be a duty on the officers of a bank to check or investigate prospective debtors of the bank as a matter of protecting that institution, we find nothing in the commercial code that compels such a duty on the part of the bank as a matter of protecting the prospective debtor.
Finally, in determining whether the bank was a holder in due course, the notes were not overdue, nor had they been dishonored. Nor is there evidence, as already stated, that the bank was aware of any defense on the part of any person. Appellants say that if the Security Bank had checked in the office of the Circuit Court Clerk, it would have found that the Kennett Bank had filed financing statements from appellants as security, said statements covering substantially the same property which had been covered in the financial statements securing appellee’s indebtedness; that appellee would accordingly have been put on notice that “something was wrong”. We disagree. The evidence reflects that appellee did not learn until June that Parsons had released the financing statements, and that Ken-nett had a lien on the properties. The Kennett financing statements were not filed until March 30, and it will be recalled that the Security financing statements had been filed in January. Appellee could not possibly have known about the latter filing unless it checked the clerk’s records each day, week, or month to determine if the original financing statements were still in effect. Under the circumstances of this case, we cannot see where there was any duty on appellee to go over and check the records regularly to see if it still held effective security. There simply wasn’t any reason for this to be done. Of course, this litigation could not have arisen except for appellants signing blank notes. The one fact that contributed most to the situation in which appellants now find themselves, is that they imprudently signed these blank instruments, and in doing so, failed to act as prudent persons.
It is also argued that James Parsons was operating under the assumed name of “Parsons Gin Company”, and in doing so, was in violation of Ark. Stat. Ann. § 70-401-405 (Repl. 1957). A penalty of a fine of not less than $25.00 nor more than $100.00 is provided for violation. We fail to grasp the significance of this argument, and consider it entirely irrelevant to the issue of whether the bank was a holder in due course. Whether Parsons properly complied with the aforementioned sections, which are entirely unrelated to the provisions of the Uniform Commercial Code, can have no effect on this litigation. If Parsons ignored or disobeyed the law, he is subject to a fine. Though the question of the liability of appellants cannot be affected by the failure of Parsons to file the required certificate, we do wonder how the bank could have learned that he had violated the law if he had not filed such a certificate.
Affirmed.
These suits were brought separately but were consolidated for trial.
The statute, inter alia, provides that no person shall conduct or transact business under an assumed name unless such person shall file in the office of the county clerk a certificate setting forth the name under which the business is to be conducted, together with the true name of each person conducting or transacting said business. | [
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Carleton Harris, Chief Justice.
John Weber, appellant herein, was charged with larceny of a truck and of a boat, with escape from the county jail, and with being an habitual criminal. The court directed a verdict of not guilty on the charge of stealing the truck, but the jury convicted Weber of Grand Larceny (stealing the boat); also, it convicted him of Escape, and thereafter found him guilty under the habitual criminal statute. He was sentenced to 26 years for grand larceny and five years for escape. From the judgment so entered, appellant brings an appeal from the grand larceny conviction. For reversal, three points are asserted, which we proceed to discuss.
It is first contended that the court erred in admitting incompetent, irrelevant, and immaterial testimony by certain witnesses. Weber, who was being held in the Cleburne County jail on a charge of second degree murder, escaped on the morning of June 12, 1970. A manhunt was organized and Weber was located and arrested on the afternoon of that date by two deputy sheriffs on a road near Greers Ferry Lake. Denny Douglas, who lives close to the Lakefront Lodge, testified that he arose on the morning of June 12, between daylight and sunup, and noticed a man at the boat dock starting a dark colored boat “looked green from where I was”. He could not tell what type of clothing the man was wearing, nor could he describe the individual, other than that he was of average size. Actually, the witness knew no facts that connected Weber with the offense of stealing the boat, and his testimony deals more with the charge of stealing the truck, though the value of his evidence on that charge was negligible. It is true that the testimony was of no value to the state, but, that being true, we certainly cannot find any prejudice. No fact was testified to that could have possibly aided in the conviction, and if the testimony was inadmissible, it certainly has not been demonstrated that it was prejudicial. See Stout v. State, 244 Ark. 676, 426 S. W. 2d 800.
The same complaint is also made with reference to the testimony of State Trooper Noel Baldridge, but we certainly cannot agree with appellant that this testimony was irrelevant, incompetent, or immaterial. Baldridge testified that he learned that a boat and motor were stolen, was given a description of them and given a description of Weber’s height, weight and the color of his hair; also, that the escapee was wearing brown pants and a levi jumper. The officer stated that as he was crossing the Edgemont Bridge, he observed a man in a green fishing boat, going under the bridge. He said the occupant was a male with dark curly hair and was wearing a levi jacket; that he hollered and waved at the occupant of the boat, trying to get the latter to stop; that the man cut back behind him, turning his head in the other direction and went on under the bridge, and proceeded south.
“After I hollered at him from the bridge and he wouldn’t look toward me, I radioed to the command post at that time and told them that á boat of the description that we had and a man of the description that we had in the boat had gone under the bridge and they advised me to pursue this boat. I drove my unit to the, I believe it’s the Baker Boat Dock and got in a boat with a couple of fishermen and we gave pursuit to this green fishing boat.”
Baldridge stated that the closest they were able to get to the occupant of the green boat was from 100 to 150 yards, and that the other boat simply “outran us”. He said that four or five miles up the “Middle Fork” of Red River, the boat was found on the right bank with no one around it, and the gas tank empty. The officer took the number of the boat, and Phillip Davidson, operator and owner of the Lakefront Lodge and Restaurant, stated that the boat belonged to him, and had been taken from a boat dock. The only evidence that might have been considered objectionable was the statement by the officer that the boat found on the bank was the same boat that he had been chasing; however, though at the conclusion of the testimony by the witness, defense counsel moved that all of his testimony be stricken, there was no objection at all made to the answer referred to. We have already said that Baldridge’s testimony, in the main, was pertinent; accordingly the motion to strike was properly denied, and there being no objection to the specific ques tion to the officer, nor to the answer made, there can be no merit to any contention of prejudice. The evidence of Baldridge was, of course, circumstantial, but it tied in with other circumstances that connected Weber with the crime. For instance, Ben Hubby testified that he saw appellant on the lake by Cove Creek, Weber being out of gas, and he (Hubby) towed him in. They looked for gas, finally found some at a store, went back to the boat, and Weber started the motor and left. The witness identified Weber, whom he did not know before that occurrence, and described the green boat in which he was traveling. This occurred between 9:00 and 10:00 o’clock in the morning.
Gerald Melton, who was fishing with his son and another person, saw Weber in the boat, and subsequently saw him again when appellant came to the fishing camp endeavoring to find gasoline. Melton described the boat and motor, and identified Weber as the operator. Deputy Sheriff Walt Barden testified that he, together with Deputy Sheriff Delbert Hooten, arrested Weber about “two miles up from Middle Fork” on an old logging road. Dogs were used and were apparently taken to the abandoned boat where they struck a trail. Weber was found standing in the road about an hour before dark. The testimony was sufficient to sustain the conviction.
It is next asserted that the court erred in failing to instruct the jury on the lesser offense of joy-riding or trespass as requested by the defendant. This point is tied in with point three which asserts that the state failed to sustain its burden of proof of the crime of grand larceny. As far as criminal trespass is concerned, the record does not reveal that any request was made for an instruction on this offense, nor was there any objection made to the court’s not giving such an instruction. But that is actually immaterial for our statutes on both criminal trespass and joy-riding do not include a boat. The criminal trespass statute, Ark. Stat. Ann. § 41-3919 (Repl. 1964) provides a fine for one, who without the consent of the owner, takes possession “of any horse, mule, automobile, bicycle, wagon, buggy, motorcycle and/or airplane for the purpose of riding or driving the same * * * It will be noticed that the word “boat” is not included. It is so firmly established as to need no citation of authority that criminal statutes are strictly construed, and nothing can be added or taken away from the precise or express language of the Act.
We have two “joy-riding” statutes. Both are found in Title 75, Motor Vehicles, Chapter 1, §§ 75-101 through 75-194 (Repl. 1957). The first is § 75-170:
“75-170. Unlawful taking of a vehicle.—Any person who drives a vehicle, not his own, without the consent of the owner thereof and with intent temporarily to deprive said owner of his possession of such vehicle, without intent to steal the same, is guilty of a misdemeanor. The consent of the owner of a vehicle to its taking or driving shall not in any case be presumed or implied because of such owner’s consent on a previous occasion to the taking or driving of such vehicle by the same or a different person. Any person who assists in, or is a party or accessory to or an accomplice in any such unauthorized taking or driving, is guilty of a misdemeanor.”
This section is a part of Act 142 of 1949. In this Act the word “Vehicle” is defined, § 75-102 (a), as:
“Every device in, upon, or by which any person or property is or may be transported or drawn upon a highway, excepting devices moved by human power or used exclusively upon stationary rails or tracks.”
Certainly a boat does not come within this definition of vehicle. Immediately following the definition of “Vehicle” is a definition of “Motor Vehicle”, also a part of Act 142, § 75-102 (b), which reads as follows:
“Every vehicle which is self-propelled and every vehicle which is propelled by electric power obtained from overhead trolley wires, but not operated upon rails.”
Of course, the definition of a motor vehicle is simply a definition of a class of “vehicle”, i. e., it refers to those vehicles defined in (a) which are motorized.
It is apparent that these sections have no reference to boats. The other joy-riding statute is § 75-194 and is a part of Act 134 passed in 1911. It provides as follows:
“No chauffeur or other person shall drive or operate any motor vehicle upon any street or highway in this State in the absence of the owner of such motor vehicle without said owner’s consent, * * # Any person violating any of the provisions of this section shall be deemed guilty of a misdemeanor, and upon conviction shall be fined a sum not exceeding two hundred dollars [$200.00] or imprisonment in the county jail for a period not exceeding six [6] months, or both, at the discretion of the court.”
Obviously, this statute has no reference to a boat.
Since these statutes do not in anywise deal with boats, there can be no merit in appellant’s contention.
The judgment is affirmed.
This point would have been reached before the location where the boat was found abandoned.
A11 of these items except horse and mule were added to the statute by an amendment in 1943.
The deleted portions of the statute refer to provisions that are not pertinent to this appeal. | [
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J. Fred Jones, Justice.
This is an appeal by Bob Mosley from an order decreed by the Union County Chancery Court restraining him from constructing a proposed building on property he leased from G. M. McDavid and wife; and requiring Mosley to restore a metal canopy which he had removed in preparation for the erection of the proposed building.
On the 16th day of October, 1969, Mr. and Mrs. McDavid entered into a written lease agreement with Mosley under which they let to Mosley a plot of ground approximately 80 x 200 feet for a term of five years beginning on November 1, 1969, with option of renewal for two additional five year terms. This lease contained the following paragraphs:
“4. Lessee has the right, at his sole cost and expense, to erect a building on the above described property for his use as an office. At the expiration of this lease, or any renewal thereof, Lessee shall have the right to remove said building from the premises described in this lease.
5. Lessee agrees that at the expiration of the primary term of this lease, or any extension or renewal thereof, he will return to Lessor the land and the building now located thereon, which is the subject of this lease, in as good condition as it now is, the usual wear and tear excepted.
Lessee agrees that he will not commit waste, nor permit waste to be done to or upon the aforesaid property or premises; that he will not conduct nor permit to be conducted any beer or liquor business thereon; that he will not permit the sale or repair of televisions or household appliances thereon, nor will Lessee operate or permit to be operated or to be located thereon any structure or activity which will constitute a public nuisance; that he will keep said property and the premises about the same in a clean, orderly and sanitary condition; that he will not permit trash or debris of any nature to collect or accumulate in and about said premises, and will, at all times, keep the same in an orderly manner. The parties hereto further mutually agree that Lessee shall not have the right to sublet the premises or any portion thereof at any time to any third party without the consent of Lessor. Lessor agrees that his consent to subletting will not be unreasonably withheld; provided, however, that such assignment or subletting shall not in any way relieve Lessee of any responsibility or liability pursuant to the terms of this agreement.”
Prior to the lease, McDavid had used the premises in connection with a Buick automobile agency, and a metal building, now under lease to other parties, had been constructed on one corner of the lot adjacent to that portion leased to Mosley. The area leased to Mosley was surfaced with asphalt and had a metal canopy, or carport, constructed on galvanized steel posts set in concrete beneath the asphalt surface. The canopy had been built and previously used in connection with the Buick agency. It was approximately 20 feet wide and extended approximately 80 feet along the front, then approximately 40 feet into the depth of the leased property. The canopy was the only structure erected on the area leased to Mosley and constituted “the building now located thereon” as referred to in paragraph five of the lease.
Mosley was in the used automobile business when the lease was entered into. He subsequently acquired a franchise, or dealership, for new Toyota automobiles and under his franchise agreement, he was required to provide a 20 x 45 foot showroom with a glass front for the display of new Toyota automobiles. Mosley advised McDavid of the franchise and the building requirements, and he sought McDavid’s permission to erect the required building on the leased premises. McDavid advised Mosley that he did not want a permanent structure of this nature built on the leased premises. Relying on paragraph four of his lease, Mosley proceeded oward the construction of a steel building to be supported on eight concrete piers two feet square and sunk 16 inches into the ground. The floor of the building was to be a concrete slab four inches thick, 20 feet wide .and 45 feet long, and was to be poured on top of the asphalt surface of the lot.
In order to erect the building on the leased area in the position he wanted it, Mosley found it necessary to remove approximately 40 feet of the metal canopy. He accomplished this by cutting the steel posts at their base with an acetylene torch, and he had removed this portion of the canopy to the rear of the leased premises when Mr. McDavid stopped the work by a temporary restraining order and filed his petition to make it permanent. In his answer to the petition for a restraining order, Mr. Mosley alleged that the building he proposed to construct was for use as an office building as permitted in his lease agreement, and that he had been damaged because of delay in construction by reason of the temporary restraining order. He prayed judgment against McDavid for $1,500. McDavid countered by an allegation of waste committed in connection with removal of the canopy and prayed judgment for $2,500.
After reciting his findings as above set out, the chancellor found that the cutting of the posts and removal of the decking and beams supporting the canopy constituted waste, and that Mosley should be permanently enjoined from building the office, showroom and salesroom, on that portion of the lot where the canopy had been removed, that he should be ordered to replace the canopy and to restore the premises to the condition they were in prior to the removal of the canopy. The chancellor further found that a small portable building which Mosley had placed on the lot, and had been using as an office, did not amount to erection of an office building as contemplated in the lease, and that Mosley, under the lease, had a right to erect a building for an office. The chancellor then decreed, in part, as follows:
“Defendant is hereby permanently enjoined from constructing the building as depicted by Exhibits 2, 3 and 4 on the leased premises, defendant shall restore the property to the same condition it was prior to the removal of the canopy, that defendant has the right under the lease to erect a building on the property for use as an office, defendant shall pay all costs.”
On appeal to this court Mosley seeks reversal on the following point:
"The order and findings of the chancellor are contrary to the preponderance of the evidence and to the law.”
Simple contract law is the only law involved in this case. The chancellor’s duty was to determine the rights of the parties under the terms of their agreement and while we try cases de novo on appeals from chancery, it is our duty and practice to affirm the chancellor’s decree if it is not against the preponderance of the evidence.
Mr. McDavid contends that Mosley leased the premises for a used car lot and was only entitled to erect a small office on the premises, such as is usually found on used car lots. It is his contention that the parties contemplated such office building that could be erected and removed without damage to the leasehold.
It is Mosley’s contention that the parties contemplated such office building as he might desire and find necessary in connection with any unrestricted business he might desire to conduct on the lot, so long as he surrendered the property at the end of the lease term in as good condition as when the lease agreement was entered into. Mosley contends that a showroom is included within the dictionary definition of "office” and as generally used in connection with an automobile agency.
Mr. McDavid supported his contention with evidence to the effect that Mosley was in the used car business when the lease was entered into and it was within the contemplation of the parties that the office referred to in the lease was to be a small office to be used in connection with the used car business; that the canopy permanently constructed on the premises was intended to remain as it was and available to Mosley in connection with his used car business. McDavid also submitted evidence to the effect that he had gone to considerable expense in paving the entire leased lot with asphalt; that he had considerable difficulty with underground water seepage and had gone to considerable expense in sealing the asphalt against water seepage from the ground underneath the asphalt; that the erection of the proposed building would disturb the seal placed on the asphalt and would result in additional damage from seepage. He also produced evidence tending to show that the metal canopy could not be removed and replaced in its original place and condition.
The evidence submitted by Mosley tended to show that the canopy could be replaced at the termination of the lease in as good condition as it was prior to removal; that the concrete slab for the building could be broken up and removed without damage to the asphalt surface; that the piers on which the building was to rest could be removed from the asphalt surface and ground; that the holes could be filled and the surface repaired in as good condition as at the time of the lease. He contended that the building he proposed to construct only constituted an “office building” within the meaning of the automobile industry and within the meaning and terms of the lease agreement. He offered some evidence tending to prove that in the automobile industry a showroom and office are synonymous terms.
Mr. McDavid testified, in part, as follows:
“. . . some time prior to October 16, the date of the lease, Mr. Mosley came to me and talked to me about renting that part of the lot, 80 by 220, and I told him I was looking for a renter and he said he wanted to, he was in the used car business with his brother or on the same lot and he wanted to get a lot to handle his used cars and so after some conversation we agreed on the lease.”
Mr. McDavid testified that there had originally been a spring branch through the property and that he had previously had considerable trouble with potholes forming in the blacktop paving because of water coming up from the ground; that to eliminate this situation he had spent upward of $9,000 for new asphalt paving and about $3,000 for additional sealer to keep water from breaking up through the pavement. He says that the carport or awning consisted of metal beams on galvanized metal posts and covered with sheets of metal extending 80 feet across the front of the property with a wing extending back approximately 40 feet into the lot. Then Mr. McDavid continued:
“Mr. Mosley . . . told me ... ‘I am talking about taking a franchise for a car and I need a showroom,’ and he said, ‘What I planned is to show the cars under this carport.’ I said, ‘Now, Mr. Mosley, I don’t want that carport bothered because it’s a permanent structure and when you dig it out of the ground you’re going to have some trouble with water seepage.’ He said, ‘I will assure you we won’t do that, we will put this glass in there and won’t take up any of the posts, just frame in that part of the carport with glass.’ I said, ‘Well, that sounds like a funny construction but you go ahead with it but you are not to tear any of the carport nor the surface of the lot.”
Questions by the chancellor were answered by Mr. McDavid as follows:
“Q. Mr. McDavid, if I understood your testimony that you prepared the lease and then the Defendant came back and wanted permission to build a building, was that then added to the lease?
A. We rewrote the lease. I took that lease and destroyed it and wrote a new lease and added in a building in there and to me a building means one building.
Q. Did you all have any discussion as to what type of building he wanted and what it was to be used for?
A. Yes, sir, an office building only.
Q. What type office building?
A. He said he wanted it large enough where he could have a table and some chairs and his telephone and some filing cabinets.
Q. Now, does the lease specify for what purpose he was leasing it?
A. No, sir.
Q. Did you know the purpose he was leasing it for, although it wasn’t put in the lease?
A. I think at the time it was leased he had no idea of anything except used cars. I think this Toyota building came up considerably later.
Q. At the time you leased it to him, the carport, is that what you call the structure on the lot now?
A. Yes, sir.
Q. That was on there at the time he leased it?
A. Yes, sir.
Q. And had been there for a good many years?
A. Yes, sir.
Q. And was its primary purpose or why it was put there, what was the primary purpose?
A. Just to protect the cars in rainy weather and keep them out of the hot sun.
Q. Does it have any other purpose?
A. No, sir...”
Mr. Dan Shelton, a salesman for Ace Supply Company, testified that he was dealing with Mr. Mosely for the sale of the building which Mr. Mosley proposed to erect on the lot; that the building contemplated was a “20 by 45 steel building with a concrete foundation, showroom and office.” He testified that the building was designed to be built on a four inch thick concrete slab to be laid on the asphalt surface of the lot, and that eight piers for the support of the building would be set on concrete pads two feet square and about 16 inches deep, going through the asphalt surface and into the ground.
Mr. Bob Mosley testified, in part, as follows:
“. . . in October of 1969, I needed a lot to use for automobiles sales and I contacted Mr. McDavid about leasing this lot and we entered into an agreement.
Q. Did you have any general discussion about the use that was to be made of the property?
A. Yes, he leased the property for five years with two five year options and I told him that I would need to build me an office there to go with my business and I talked to him about that and I had Paul Jones come over and figure with me on building a concrete slab and brick building there where I later moved in a portable building. I had Mr. McDavid’s approval to do that and I decided after talking to Paul Jones to buy a Jimmy Goad building and move it there temporarily until I decided I would go ahead with the other type building.
«-W. -II. TV TV
Q. Did he object to your building a building on the premises at that time?
A. No, the only thing he cautioned me about was this sealer that has been discussed, anywhere I had to break the asphalt, to be sure to get it sealed back good.
Q. That is what Mr. McDavid told you?
A. That is the way we discussed it.
Q. I gather Paul Jones did not build a building for you at that time?
A. No.
Q. Why?
A. I bought a portable building and moved it in there.
Q. That portable building, you can move it from place to place?
A. Yes.
Q. Is it connected at all to the real estate?
A. No, it’s on skids.
*.U. uz. •R» w
Q. And when yoú first thought about this thing you told him you wanted it for a used car place of business?
A. That is what we discussed. I also told him I might use it for something else.
# # #
A. ... when I was talking to Toyota, I called Mr. McDavid and told him what I planned to do and that I would have to have a little showroom and I planned to enclose part of that canopy the same size of the building, in order to qualify for the Toyota franchise. I felt it would be simpler to use the roof that was there, I had his full agreement on that. I had a builder come out and give me an estimate on doing this and the cost of doing this was too close to what a complete new building was. I decided to go ahead with a new building because the builder said the building wouldn’t look near as nice because this canopy had a lower roof than the normal type they were building, so then I decided, in the meantime I had already signed up with Toyota, thinking we were going through with this thing under the canopy, and after the builder came out and pointed this out to me I called Mr. McDavid back and told him what I needed to do then.”
Mr. Mosely testified that Mr. McDavid first prepared a lease which did not contain a provision for building an office, and that a second lease was prepared which did contain such provision and in this connection, under questions by the chancellor, Mr. Mosley testified as follows:
“Q. What business were you in then and why did you insist on a building?
A. I was in the automobile business and I had to have a building for an office.
Q. You were in the used car business and you don’t have showrooms in that business?
A. Normally, no.
Q. And what was your intention at that time and Mr. McDavid’s understanding of what kind of building you wanted to put on the property?
A. I originally planned to put a concrete slab and brick building on there.
Q. This was before the lease was signed or after?
A. Before.
Q. Did you all discuss as to where it would be located?
A. Yes, we discussed it would be located where my office building is now.”
We are of the opinion that the chancellor’s decree is not against the preponderance of the evidence and that it should be affirmed.
The decree is affirmed. | [
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Carleton Harris, Chief Justice.
The question in this litigation is whether the Chancery Court of Garland County erred in quashing service of process. The O. R. C. Co., Inc., a Texas corporation, hereafter called O. R. C., was not authorized to do business in Arkansas, but operated a shopping center in Hot Springs. In July of 1963, O. R. C., according to a complaint subsequently filed against Home Mortgage & Investment Co., appellee herein, which company owned stock in O. R. C. (the two companies subsequently merging), was in the process of constructing a building, and during said construction removed and excavated considerable dirt from and around a building belonging to Paul A. Teague and wife, appellants herein. The complaint asserts that O. R. C. changed the drainage system located beneath its construction and beneath appellants’ building, reducing the size of the opening in the southerly end of the system and thus causing the system to become inadequate to carry off water which might enter the drainage system during heavy rainfall. Such rainfall occurred during July and appellants contended that the basement of their building was flooded and damaged by the water, recovery of damages being sought in the amount of $20,000. Appellee appeared specially by a motion to quash service of process, asserting that it was a corporation organized and existing under the laws of the State of Texas, and that it was not then and never had been registered or authorized to do business in the state of Arkansas, and had never done any business or performed any character of work or service in this state. It was asserted that the service obtained on appellee under the provisions of Ark. Stat. Ann. § 27-340 (Repl. 1962), was insufficient to bring appellee within the jurisdiction of the Arkansas court, and it was prayed that service of process be quashed. On hearing, the chancellor on exchange held, “The sole act of ownership of Arkansas property does not require a nonresident corporation to qualify to do business in Arkansas, and, from the face of the pleadings, this is not involved”. The motion to quash was sustained. From the order so entered, appellants bring this appeal.
In chronological order, we list the facts which we deem pertinent to a decision in this litigation.
The cause of action as alleged by the plaintiff occurred and arose in approximately July of 1963, at a time when there was an abnormally heavy railfall in Garland County, Arkansas.
At that time, O. R. C. and Home Mortgage 8c Investment Co. were separate and distinct Texas corporations. In November of 1963, approximately four months after the alleged tort, O. R. C., by warranty deed and assignment lease, conveyed all of its interest in any property or lands located in Garland County, or in the state of Arkansas, to parties not presently involved in this litigation, Melvin W. Jackson and B. H. Castle.
On February 7, 1964, O. R. C. merged into Home Mortgage & Investment Co., appellee herein, pursuant to the laws of the state of Texas. Home Mortgate & Investment Co. acquired no assets whatsoever of O. R. C. as a result of the merger.
Home Mortgage & Investment Co. was the sole stockholder of O. R. C. at the time of the merger; the record does not reflect whether it was the sole stockholder in July of 1963, or only a stockholder.
On April 6, 1964, O. R. C. filed its statement of intent to dissolve the corporation upon the written consent of its stockholder, Home Mortgage 8c Investment Co., and on April 30, 1964, the Secretary of State of the State of Texas issued his Certificate of Dissolution.
Appellants instituted suit against Home Mortgage and Investment Co. on May 20, 1966, service being had on the Arkansas Secretary of State on May 23, 1966.
The contention of appellants is quite simple, it being their view that the legal entity known as “O. R. C. Co., Inc.”, and the legal entity known as “Home Mortgage & Investment Co.” are one and the same by virtue of the admitted merger.
Corporate existence is governed by the law of the state in which it (the corporation) is domiciled. In Leflar’s American Conflicts Law, Chapter 26, “Corporations”, we find “A corporation must under standard legal theory exist by the law of the place of its creation ordinarily referred to as its domicile, if it exists at all, and its legal capacity also is governed by that law”. Both appellee and O. R. C. were Texas Corporations and accordingly the merger of the two, and the dissolution of O. R. C., are governed by Texas law.
V. A. T. S. Bus. Corp. A., art. 5.06, provides in sub-section (1) that the several corporations parties to the plan of merger shall be a single corporation, which shall be that corporation designated in the merger plan as the surviving corporation. Sub-sections 3, 4, and 5 read as follows:
“(3) Such surviving or new corporation shall have all the rights, privileges, immunities, and powers and shall be subject to all the duties and liabilities of a corporation organized under this Act.
(4) Such surviving or new corporation shall thereupon and thereafter possess all the rights, privileges, immunities, and franchises, as well of a public as of a private nature, of each of the merging or consolidating corporations; and all property, real, personal, and mixed, and all debts due on whatever account, including subscriptions to shares, and all other choses in action, and all and every other interest, of or belonging to or due to each of the corporations so merged or consolidated, shall be taken and deemed to be transferred to and vested in such single corporation without further act or deed.
(5) Such surviving or new corporation shall thenceforth be responsible and liable for all liabilities and obligations of each of the corporations so merged or consolidated; and any claim existing or action or proceeding pending by or against any of such corporations may be prosecuted as if such merger or consolidation had not taken place, or such surviving or new corporation may be substituted in its place. Neither the rights of creditors nor any liens upon the property of any such corporations shall be impaired by such merger or consolidation.”
As we read this statute, Home Mortgage 8c Invest ment Co., upon merger with O. R. C., became entitled to all rights, privileges, choses in action, etc., of O. R. C., and on the other hand, following the merger, became responsible and liable for any claim existing or proceeding pending against O. R. C. Let us look at the matter in this light. Suppose appellants had had their place of business in Mineral Wells, Texas, adjacent to a building being constructed by O. R. C., and the alleged damage had taken place there instead of Hot Springs, Arkansas. It seems clear under the Texas law herein cited, that appellants could have properly instituted their action against appellee corporation. If Texas law provides that the surviving corporation shall be responsible and liable for the obligations or claims of each of the corporations merged, the fact that this alleged tort occurred in Arkansas, would be of no moment. It appears clear that the term “thenceforth” in Sub-section (5) means that the surviving corporation shall be responsible for the obligations, including obligations prior to the merger, from the date of the merger.
The Texas Act is almost identical with the provisions of Smith-Hurd III. Ann. St. ch. 32, § 157.69. In the case of Wanless v. Peabody Coal Co., 13 N. E. 2d 996, a coal company was engaged in digging and removing coal from under the premises of Wanless, this operation occurring from June 22, 1926, until May 1, 1928. At that time, six Illinois corporations, all coal companies, including the one already mentioned, merged, and continued operations in the same manner. Wanless instituted suit against the merged corporation, contend ing that his land had been damaged. Of course, there was a question whether the damage was caused by the original coal company doing the digging, or whether the damage was occasioned by the acts of the corporation which came into being by the merger of the several coal companies. In passing on this question, the court said:
“A statute in force in this state at the time of the merger or consolidation of these corporations provided: That all rights of creditors shall be preserved unimpaired, and all liabilities and duties of the respective corporations shall attach to such single corporation and may be enforced against it to the same extent as if such liabilities and duties had been incurred and contracted by it, and that any action pending against one of the corporations, merged or consolidated, may be prosecuted to judgment as if consolidation had not taken place, or the merged or consolidated corporation may be substituted in its place. Smith-Hurd Ill. Stats, c. 32, § 157.69; Callaghan’s Ill. St. Ann. chap. 32, par. 71. Under the provisions of this statute, plaintiff could recover against Peabody Coal Company any damages sustained by reason of the negligent act of either of the respective merging corporations within the five years previous thereto.”
As previously stated, the Texas statute and Illinois statute are substantially the same, and the quoted case is cited in an annotation to V. A. T. S., Section 5.06. It thus appears that Home Mortgage & Investment Co. is subject to suit for claims against O. R. C.
The validity of Section 27-340 (Act 347 of 1947) relating to service on nonresidents not qualified to do business under the laws of this state, but who nonetheless do transact business in the state, was upheld by this court in Chapman Chemical Co. v. Taylor et al, 215 Ark. 630, 222 S. W. 2d 820.
From what has been said, it appears that appellee corporation is as much amenable to service from the Arkansas Secretary of State as O. R. C.
Whether the Texas courts would enforce a judgment obtained in Arkansas on the basis of this service is another question but it would certainly seem, under Texas law, that a judgment would be enforced as quickly against the appellee corporation as against O. R. C, and a refusal to do so would be based simply on the fact that no personal service was obtained, and this would be equally true of a judgment against either corporation.
From what has been said, it is apparent that we are of the view that the order of the Garland Chancery Court should be, and hereby is, reversed, and the cause is remanded to that court with directions to further proceed in a manner not inconsistent with this opinion.
It is so ordered.
Ordway Rutherford Company.
Home Mortgage & Investment Co. owned all o£ the stock at the time of the merger, but it is not clear for how long this had been true.
Vemon’s Annotated Texas Statutes Business Corporation Act.
It will also be noted in Sub-section (5) that the statute permits the prosecution of a claim against O. R. C., in complete disregard of the merger. This is made even more clear in Art. 7.12 where it is provided inter alia that the dissolution of a corporation by the issuance of a certificate of dissolution by the Secretary of State “shall not take away or impair any remedy available to or against such corporation, its officers, directors, or shareholders, for any right or claim existing, or any liability incurred, prior to such dissolution if action or other proceeding thereon is commenced within three years after the date of such dissolution.” It would thus appear, that since appellants instituted their action within three years of the date of dissolution, the suit could have been brought against O. R. C. | [
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Lyle Brown, Justice.
Appellants own and operate a retail liquor store and a beer outlet at Newport, Jackson County. Appellee, Alcoholic Beverage Control Board, issues retail licenses and polices the business establishments possessing those licenses. Appellee David Hodges is the prosecuting attorney and was granted leave to intervene in his official capacity. The director of ABC found appellants guilty of selling liquor and beer to minors and invoked a thirty day suspension of appellants’ licenses. That order was affirmed on appeal to the ABC. An appeal was lodged with the circuit court of Jackson County and the trial court ordered that a transcript of the evidence before the ABC be lodged with that court. Before the scheduled hearing date was reached appellants filed a motion asking for leave to “introduce new evidence before this court in said appeal.” That motion was denied and appellants immediately appealed to this court. The single issue advanced is that the court erred in not permitting the introduction of new evidence.
The order denying permission to introduce new evidence was interlocutory and therefore not appealable. We have no jurisdiction irrespective of whether this issue is raised by the parties. Johnson v. Johnson, 245 Ark. 656, 421 S. W. 2d 605 (1967); Allred v. National Old Line Ins. Co., 245 Ark. 893, 435 S. W. 2d 104 (1968); Gaines v. Patton, 8 Ark. 67 (1847).
Appeal dismissed. | [
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Frank Holt, Justice.
This action, resulting from an automobile accident, was instituted by appellee Janice Bray to recover for personal injuries and property damages and by her husband, appellee James Bray, for loss of consortium. A jury awarded a total of $7,240.95 in damages. From a judgment on that verdict comes this appeal. We first consider appellant’s contention that the trial court erred in refusing her requested instruction “concerning duty to avoid danger because said instruction accurately reflects the law which is applicable to the evidence in this case and no other instruction given by the court properly covers this area of the law.”
Evidence adduced at trial established that sometime between 6 and 7 p.m. on a mid-November evening, appellant stopped her westbound jeep in the eastbound lane of Lawson Road in order to pick up her mail from a rural route mailbox. Appellee Janice Bray, traveling eastward at about 35 to 40 miles per hour, came upon the parked jeep, swerved to the left, but nonetheless collided with it damaging the right front fender region of each vehicle. Appellee also sustained injuries to the back of her neck. Both parties had their headlights on. Appellant testified that when she observed the approaching car, she began honking her horn to alert its driver. Appellant also stated that she was parked partially off the road; however, although the cars were removed from the road before the investigating officer arrived, the remaining debris indicated that her jeep may have been entirely on the pavement. Other testimony reflected that appellant’s jeep was visible to an oncoming car for 800-900 feet, and that even if the jeep were entirely on the road, there remained approximately twelve feet of black top on which appellee Janice Bray could have bypassed it. Both parties lived in this vicinity and were familiar with this road.
Appellant’s refused instruction, based upon St. Louis & S. F. R. Co. v. Carr, 94 Ark. 246, 126 S. W. 850 (1910), reads:
Where a danger is probable or obvious, it is the duty of a person to exercise ordinary care to avoid injury even though the other party was negligent, and this duty to avoid the consequences of another’s negligence arises whenever the circumstances are such that an ordinarily prudent person would apprehend their existence. The law requires the exercise of ordinary care to observe danger and avoid it.
For a reason not argued in the briefs, we hold that the trial court did not err in rejecting this particular instruction, even if it is a correct one. This is true because AMI 901 [B], which is applicable to the facts of this case, also accurately states the law and, therefore, preempts appellant’s proffered instruction. This is in accordance with our Per Curiam Order of April 19, 1965 which requires the trial judge to give an applicable AMI or, in the event he finds that the AMI does not accurately express the law, to state his reasons for refusing it. The order also implicitly requires the parties to request an applicable AMI (modified if necessary) or, upon tendering a substitute instruction, to state into the record the reasons for which they believe that the AMI is inadequate or inaccurately states the law. In the case at bar, AMI 901 [B] was not requested by appellees, nor was any reason given for tendering the above quoted instruction in its place. The trial court, therefore, properly refused it. Vangilder v. Faulk, 244 Ark. 688, 426 S. W. 2d 821 (1968).
Among the other contentions for reversal we find merit only in appellant’s assertion that the trial court erred in submitting to the jury improper verdict forms; in amending the judgment; and in entering a judgment awarding property damages to appellee James Bray.
In their complaint, appellees alleged individual claims for recovery. James Bray sought only personal damages in the sum of $10,000 for loss of consortium and medical expenses; Janice Bray, however, sought personal damages in the amount of $25,000 for bodily injuries and $500 for property damage to the car which she allegedly owned. Neither appellant nor appellees favored the trial court with verdict forms specifying the elements of recovery, although the appellees informed the court that a specific finding by the jury was desired as to the amount of property damages. The court then prepared arid submitted the following to the jury:
We, the jury, find for plaintiffs and assess their damages as follows:
James Bray (Personal) $_
(Property) $_
Janice Bray $-
The jury returned a verdict awarding $600 in personal damages and $1,640.95 in property damages to James Bray and $5,000 to Janice Bray. While reading the verdict, however, the trial court inadvertantly interchanged the personal and property damages awarded to James Bray. The jury was hurriedly discharged because of the late hour and the threat of a snowstorm. Upon a motion for a new trial, the court agreed that it had mistakenly submitted an improper verdict form since Janice Bray and not James Bray was seeking property damages. The error was further compounded since the jury awarded him $1,640.95 in property damages, whereas the proof supported a verdict in this regard for no more than $600.84. The trial court, stating it was ‘‘self-evident and crystal clear” that the jury intended the sum of $1,640.95 to be James Bray’s personal damages for loss of consortium and $600 for property damages to the automobile, amended the judgment by a transposition of these awards to conform to that interpretation of the verdict.
Appellees argue here on appeal that this amended judgment is correct because it is immaterial which of them, Janice Bray or James Bray, recovered the property damages since, according to the undisputed proof, they were both owners of the automobile. They then cite authority to the effect that (1) the trial court properly should amend a verdict where it incorrectly expressed the otherwise clear intent of the jury, and (2) the appellant is not in an attitude to complain where she has failed to register an objection to the form of the verdict before the jury was discharged.
While it may be immaterial as to which appellee ultimately receives the awarded property damages, it is not without significance that the jury received a verdict form which did not fully correspond to the pleadings and proof. This may have been the very factor triggering the glaring confusion which the final form of the verdict took. Despite the trial court’s contrary observation, we do not find the intent of the jury to be clear. The amended judgment appears to have been based in some degree upon speculation as to what the jury would have done had it been afforded a proper verdict form. Even the trial court was aware of this by stating:
It could very well be that the Court is not being legally realistic and objective in facing this alleged error. Too, it could very well be that this Court is too conscious of what, in its opinion, the jury intended to do and what it would have done had the verdict form been presented properly.
Furthermore, it cannot be said that appellant failed to timely object to the form of the verdict since the damages awarded to James Bray were admittedly misread by the trial court in a manner which, as indicated previously, made them seem more consistent with the proof.
The $600 awarded to Mr. Bray for loss of consortium is more than a mere nominal sum and, therefore, cannot be increased to an amount which either the trial court or appellees or both consider to be more in harmony with the proof. This item, therefore, must remain as the jury determined it to be. Hales & Hunter Co. v. Wyatt, 239 Ark. 19, 386 S. W. 2d 704 (1965); Fulbright v. Phipps, 176 Ark. 356, 3 S. W. 2d 49 (1928). As to the $1,640.95 awarded to Mr. Bray for property damages, both parties seem to agree that the evidence does not support more than $600.84 damages to the automobile. There was undisputed evidence of co-ownership by the Brays. By Ark. Stat. Ann. § 27-1155 (Repl. 1962) the pleadings can be construed to conform to this proof of ownership and damages without any prejudice to appellant. Since the jury’s award of property damages to Mr. Bray is supported only to the extent of $600.84, his judgment is modified and affirmed for that lesser amount. Obviously, the jury’s award to Mrs. Bray did not include the element of property damages inasmuch as that item was specifically allocated by the jury to Mr. Bray. Therefore, her judgment for $5,000 is affirmed.
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Frank Holt, Justice.
This is an appeal from a decree holding that the will of Claude L. McNutt gave Inez H. McNutt, his second wife, a life estate only in a parcel of real property and that upon her death, appellee William T. McNutt (the testator’s son and her stepson) became vested with the title to be held in trust for his children, the other appellees. The will in pertinent part provides:
“[I] BEQUEATH to my wife and companion, Inex[z] H. McNutt, for her, love, affection and happy companionship, all of my personal property, including all the cash on hand and in the bank, also all notes, bonds, corporation stocks, Building and Loan savings, also any and all personal property not listed herein.
I hereby further DEVISE, UNTO MY WIFE Inex[z] H. McNutt, all the real estate, including all real estate notes and mortgages, held in my name at the time of my demise, at which time this document shall become effective.
CODICIL;
Upon the demise of the Testator, Claude L. McNutt and the demise of the Legatee, Inez H. McNutt, all property, both personal and real, remaining in the estate of the Testator, Claude L. McNutt, I do hereby Devise and Bequeath to my son William T. Mc-Nutt, to be used by him, at his own discretion, for the education of his Children. The said William T. McNutt, shall serve as Executor of the. Estate and shall serve without bond.
Read considered and signed in the presence of two witnesses, on the 17 day of Feb. 1961.”
About five years later an “Appendix” to this will provided that his wife would receive a fee simple title to his equity and interest in certain lands situated in another county.
Following the death of the testator in 1968, the will was duly probated and the estate distributed to Inez Mc-Nutt. The estate was closed on September 29, 1969. On September 25, 1969, Inez McNutt conveyed the house and lots by quitclaim deed to appellants (Claudia H. Ahrens, Elloise H. Jones and Ralph C. Haller), who are her nieces and nephew. Inez died on December 2, 1969 and thereupon appellees filed a petition asking the court to construe the will and asserting that by the terms of the will Mrs. McNutt was devised only a life estate, and that appellees now own the property as trustee and remaindermen. No testimony was taken and the case was submitted to the chancellor upon oral argument and memorandum briefs, together with the stipulations that the only property involved was a house and two lots, and that the deed executed by Inez McNutt and placed of record is true and correct.
For reversal of the decree which upheld appellees’ contention, appellants assert that the will of Claude L. McNutt, on its face, showed no intention to limit the fee simple estate granted to Inez McNutt therein; that the wording of the so-called codicil provision of the will was not sufficient to limit the fee simple devise to Inez H. McNutt. In support of their contention, appellants argue that the wording of the codicil was not an attempt to limit the estate granted to Inez McNutt, but merely provided for the disposition of the testator’s estate in the event his wife predeceased him or died simultaneously with him. Appellants cite the first sentence of the codicil:
“Upon the demise of the testator, Claude L. McNutt and the demise of the Legatee, Inez H. McNutt, all property, both personal and real, remaining in the estate of the Testator, Claude L. McNutt, I do hereby Devise and Bequeath to my son William T. Mc-Nutt, * * *
The appellants assert that had the testator not intended this provision to provide only for disposition of his estate in the event his wife predeceased him or died with him, there would have been no reason for him to include his name along with his wife’s in the codicil portion of the will. Appellants also assert that the language in the codicil and the appendix, subsequent to the devise of a fee simple estate, did not clearly indicate an intention to diminish this devise to a life estate.
Appellees agree that if the grant to Inez McNutt is set forth in “clear language sufficient to convey an absolute fee” [Gist v. Pettus, 115 Ark. 400, 171 S. W. 480 (1914)] or there was an “unmistakable direction that it should be absolutely hers,” [Collie v. Tucker, 229 Ark. 606, 317 S. W. 2d 137 (1958)] then there would be no controversy. In support of their contention that the will devised only a life estate to Inez with a remainder to appellees, the appellees forcefully argue that the use of the word “Codicil" as a caption to the paragraph pertaining to the asserted limitation, and the “Appendix” to the will, written five years afterwards, which granted to Inez the fee title to his equity and interest in property located in another county without mentioning any other property, are sufficient indicia of the testator’s intent to give Inez only a life estate in the house and two lots.
We hold that the testator conveyed a fee simple estate to his wife and that the subsequent paragraph, or “Codicil,” and the later “Appendix” did not diminish or reduce the fee simple estate to a life estate. This is in accord with the general rule of law which we recognized as controlling in Bernstein v. Bramble, 81 Ark. 480, 99 S. W. 682 (1907):
"* * * It is the rule that where property is given in clear language sufficient to convey an absolute fee, the interest thus given shall not be taken away, cut down or diminished by any subsequent vague and general expressions. * * * If it is clearly the intention of the testator that the devisee shall own the fee simple, his subsequent language, directing that what remains of the property at the death of that devisee shall devolve upon a particular person or class of persons, will not cut down the fee to a life estate. The fee, being vested by express and appropriate words, will not be diminished by subsequent words of a vague and general character which are absolutely repugnant to the estate granted.”
Further, in Ollar v. Roy, 212 Ark. 682, 207 S. W. 2d 313 (1948) we also recognized that: "* * * whenever an estate in lands is created by a will, it will be deemed to be an estate in fee simple, if a less estate is not clearly indicated.”
Appellees rely upon that part of Baum v. Fox, 192 Ark. 406, 91 S. W. 2d 601 (1936), wherein this court cited with approval 28 R. C. L. 215, 216:
"The intention of a testator is to be collected from the whole will, and from a consideration of all the provisions of the instrument, taken together, rather than from any particular form of words. The intention is not to be gathered from detached portions alone, and the court should not consider merely the particular clause of the will which is in dispute.”
Also cited is McLaren v. Cross, 236 Ark. 648, 370 S. W. 2d 59 (1963). However, in Baum v. Fox, supra, relied upon by appellees, the will read in part as follows:
“I wish to bequeath to my beloved wife, Sarah H. Wright, my house and three lots, * * * Also my liberty bonds * * * and my other moneys that may be received after all debts are paid. If she needs any assistance in managing the property, I appoint my son, W. J. Wright, to assist to the best of his ability. After death of said Sarah H. Wright after the debts are paid all property and moneys are to be equally divided among my four children.”
We held there that Sarah received the fee.
In Collie v. Tucker, 229 Ark. 606, 317 S. W. 2d 137 (1958), after devising his estate in fee simple to his wife, the testator then provided that:
“Fourth. It is my will in case my wife should not use and dispose of all my property during her lifetime, that whatever she may leave undisposed of, shall be equally divided between her heirs and my heirs.”
There we held that the limitation over was void and the fee simple estate was undiminished. In doing so we aptly said: “We are not willing to set aside the rule of property that was announced in the Bernstein case and that has been adhered to ever since.”
In our view there was an intent clearly shown by the testator to give a fee simple estate to his wife in the first part of his will. There was not a clear intention in the succeeding paragraph, entitled “Codicil,” or the subsequent “Appendix” to the will to reduce that estate to a life estate. Since we hold that an undiminished fee simple estate existed, it becomes unnecessary to consider appellants’ other contention.
Reversed and remanded with directions for entry of a decree consistent with this opinion. | [
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John A. Fogleman, Justice.
This appeal comes from a judgment after a new trial of appellees’ action to recover from appellant, Betty Rosewarren’s host automobile driver, for personal injuries, following our reversal of the first judgment in Turner v. Rosewarren, 247 Ark. 1301, 440 S. W. 2d 769. We then reversed because the evidence was not sufficient to show wilful and wanton misconduct on the part of appellant. After the first judgment, Betty and appellant were married, the cause was remanded, new witnesses were discovered, Betty’s impaired memory was improved and the cause again submitted to a jury which returned a verdict for a substantially larger amount than did the first jury. Appellant again urges that the evidence was insufficient to support a verdict finding him guilty of wilful and wanton misconduct. On this appeal he also asserts that the trial court erred in admitting the testimony of Helen Stewart, who testified at the first trial, and of Mrs. David Scott, who did not. We are unable to agree with appellant on either point.
No useful purpose would be served by reiterating evidence common to both trials. We will endeavor to give emphasis to testimony at the second trial not given in the first one. We find the additional evidence sufficient to leave the question of wilfulness and wantonness of appellant’s conduct to the jury and its answer dependent almost entirely upon the credibility of witnesses.
Betty Rosewarren’s recovery from traumatic amnesia commenced one or two years after the collision. It was not complete, either as to events recalled or clarity of recollection of those things she did remember. Facts she did recall were significant, however. She remembered that appellant David Turner was angry with her before the collision, and had intentions of breaking off their relationship and recovering his class ring. Still, she could not remember his coming to her home, but could remember his driving down the road and her being frightened by the bright lights of a car coming up very close behind the Valiant automobile driven-by Turner and in which she was riding. She remembered that David told her Kenny Elkins was driving that car. She then remembered seeing a speedometer reading "85 miles an hour” and turning to look at David, but couldn’t recall whether she actually saw him. While she incorrectly described the shape of the speedometer she envisioned, she explained, after a recess, that she was confused and had incorrectly described the shape of the speedometer on her father’s automobile instead of that which she recalled seeing in David’s car. She admitted that she really could not say when she saw the 85-per-hour reading except that it was after a car approached from the rear of Turner’s vehicle. After she looked toward David, all went black, she said, until suddenly a light in the window and across the windshield on her side struck her in the face. It seemed to her that Turner’s car was sliding toward the lights. She remembered hearing screams which were her own and feeling as if there was nothing of her below the waist. She recalled asking for David, hearing Kenny Elkins’ name, and later asking David while in the ambulance en route to the hospital why he was angry and why he wouldn’t talk.
Betty also told the jury that David had driven past the place where the collision occurred many times over a period of more than one year immediately preceding this occasion. She said that, at the place of the occurrence, a driver comes upon a hill at the bottom of which there is a curve where the highway is rough and will "throw” a car which enters it. According to Mrs. Turner her fear of speed causes her to “freeze” or “clam up” until it is over. David had previously told her, she testified, that his Valiant was light and hard to handle at high speeds. She also revealed that her husband had a temper.
Other pertinent new testimony was that of Arkansas State Police Trooper Eldon Brown and Mr. and Mrs. David Scott. Brown investigated the collision on the night it occurred. He arrived at the scene while Betty and David were still there. Brown could tell then that appellant had lost control of his 1962 Valiant while coming around the curve, crossed the center line and struck the 1961 station wagon driven by Mrs. Rosa Smith. Brown described the highway at the point as “wavy” pavement 20 feet wide, with a dip and a raised place in the curve. North of the curve there is a hill and a sign 1,000 feet north of the dip warning of the impending curve. Brown said that the “dip” and the “hump” will cause the right side of a vehicle rounding it to be thrown upward and the vehicle itself leftward. He located the point of impact south of the curve. He found the Turner and Smith vehicles at a distance of 283 feet from the dip. He had recorded this distance as 183 feet on his official report, but had discovered his 100-foot error while remeasuring the distance three weeks before the trial at the request of appellees’ attorney. Brown could tell that the wheels of the Valiant had dropped off the pavement just south of the dip, after which the vehicle traveled about one-half the distance to the point of impact, came back on the highway, skidding sideways out of control across the center line, laying down 141 feet of skid marks, and then collided with the station wagon. Brown said that the damage to the Valiant was heavy and to the station wagon considerable.
David Scott lived in a house about 200 yards southwest of the point of the collision. He described the curve as a blind one on an 18-foot wide, low-type asphalt and rock highway without any shoulders whatever. He knew of a low spot in the approach to the curve from the north, which would cause a car passing over it to lurch. He heard the impact on the night of the wreck, went to the scene and then summoned the ambulance and state policeman. He observed skid marks of the Turner vehicle in the ditch west of the highway and then across the highway into the ditch on the east side where he found the vehicle at rest. The marks of only two wheels appeared in the ditch.
Mrs. David Scott beard a thump, then heard and saw the impact. She went immediately to the Turner car where she found Betty Rosewarren lying in the car on the right side. It was dark at the time, and she did not know David Turner. She saw a boy go around, get hold of the steering wheel and take something out of the car. There were only two people beside her at the scene when she got there—Betty Rosewarren and a boy. She testified that when she first saw the boy he was coming out of the car from the driver’s side. She did not know him and was unable to identify him. She testified that this boy helped her open the door on Betty’s side of the car and then squatted down beside Betty. While he was in that position, according to Mrs. Scott, he said “I was racing.” Mrs. Scott saw another boy come up just a few seconds later, and other people came later. She said that a number of people were present when this boy made the remark about racing.
Helen Stewart again testified. She said that her sister-in-law, Rosa Smith, was following her to the Hallowe’en party at the Woodland Church. She estimated the distance to the church from the place where the wreck occurred as one-quarter of a mile. One proceeding north past the scene of the wreck, as she was, would make a left turn at the top of the hill north of the curve. Unlike her earlier testimony, she testified that as she was ascending the hill in her automobile, when she was close to her turn and had given her turn signal, she met “these fast cars” going back and forth across the center line, causing her to pull onto the shoulder of the road until they had passed. She then said that the car she met was moving so fast it was not holding the road, and was moving back and forth across the center line where the road was “curvy.” The failure of this vehicle to remain on its proper side of the highway caused her to leave the highway to get out of its way. She recalled that two or three cars were following her at the time.
Mr. William Rosewarren, Betty’s father and one of the appellees, testified this time that appellant’s remark to him at the hospital was, “Mr. Rosewarren, I guess I’m not a very good driver. I was driving too fast. It’s all my fault.” He also described the highway at and near the place of the collision. He called it a wobbly, weaving, blacktopped, narrow road. He described the hump on the approach to the curve as one which caused a vehicle to “drop down and up.” He also said that anyone who drove that road knew that 50 miles per hour was the maximum speed at which a vehicle could make the curve. He questioned the accuracy of the record as to his previous testimony about David’s remark to him. He also claimed that, having never been in a courtroom before, he was in fear at the first trial.
Kenny Elkins was called as a witness by appellant. He said that he had known appellant in high school and Betty Rosewarren for six or seven years. He was stopped at an entrance to the highway when he saw them pass just before the collision. He pulled onto the highway directly behind them at a point about three miles from the place the wreck occurred. He said he was following them at a distance of six or seven car lengths and at a speed of 55 to 60 miles per hour with no vehicle intervening. He said that he did not see the wreck because the vehicles were out of his line of vision around a curve. Elkins said that they were meeting cars and that the third one, the vehicle immediately preceding that of Rosa Smith, never dimmed its bright lights. When he went around the curve the first thing he saw was the back end of David’s car up in the air coming down. He stopped before he reached the actual point of impact. He saw no - car on the shoulder, as he approached, and did not see a left turn blinker signal given by any car he met near the intersection with the road to Woodland Church. He denied ever trying to pass the Turner vehicle. He claimed to have been the first person to go to the scene, but having stopped in such a position that his vehicle blocked the highway, he went back to clear the highway. He said that he got David out of the car and at about the same time told Scott to call the police and the ambulance. He remembered seeing Mr. Scott’s mother but did not see Mrs. David (Margaret) Scott at the scene. He said it was he who squatted down beside Betty and talked to her.
Appellant contends that the testimony of Helen Stewart should have been excluded because she did not identify him as the driver of the vehicle whose actions she described. He also argues that Rosa Smith’s testimony did not connect him with that vehicle. We agree that Mrs. Stewart did not identify the vehicle or the driver. Rosa Smith did not testify, but her testimony at the earlier trial was read. She said that, just as Mrs. Stewart turned on her blinker light before turning off the highway, she met a vehicle coming over the hill that almost struck the back end of the Baker vehicle just behind Mrs. Stewart and seemed to head directly toward her vehicle quite a ways back. She testified that the vehicle then seemed to swerve back on the right side of the road and straighten up, but then went off the shoulder of the road, then came back up on the road and skidded right in front of her. She said that the car that hit her was the only one going south at the time. This testimony of Rosa Smith tended to connect the Turner vehicle with the Stewart testimony sufficiently to prevent the failure to exclude it from constituting error.
Appellant’s argument as to Mrs. Scott’s testimony is based upon her inability to identify the driver of the Valiant or the one making the statement about racing, its contradiction by Elkins, and the failure of appellees to make Elkins a party defendant or to call him as a witness. We think that it would not be unreasonable to draw the inference that the person Mrs. Scott described was the driver of that vehicle, if her testimony was believed. Admittedly, this driver was David Turner. Appellant’s arguments really attack the credibility of the witness and the weight to be given to her testimony, rather than its admissibility. Failure to exclude her testimony was not error.
The more difficult question is the sufficiency of the evidence to support the verdict. We have concluded, however, that fair-minded men might reasonably conclude from the evidence that David Turner, in a display of temper, while driving at an extremely high speed, in order to frighten the passenger at whom his fit of anger was directed, entered into a curve well known by him to be unusually dangerous for high speed vehicles because of the “dip” “hump” and lack of shoulders, fully appreciating the fact that his conduct would probably result in injury, in utter disregard of the consequences. The jury might even have found that he was racing with, or trying to keep ahead of, Kenny Elkins. While we must necessarily resolve the question of sufficiency of the evidence to present the issue of wilful and wanton misconduct upon the facts and circumstances of the particular case, this case is closely analagous to the situation presented in McCall v. Liberty, (April 27, 1970), 453 S. W. 2d 24, where we found substantial evidentiary support. It is true that we have no evidence of drinking alcoholic beverages here. Either appellant’s anger or his racing would be an equivalent circumstance to show an attitude of arrogant or heedless recklessness.
The serious questions raised here really relate to the credibility of the witnesses rather than to the substantiality of the evidence if the testimony is believed. We are unable to say that the testimony was so incredible that it must be held to be insubstantial. In this respect, we must leave evaluation of the credibility to the jury and not upset its findings unless we can say that there is no reasonable probability in favor of appellees’ version, and then only after giving legitimate effect to the presumption favoring the jury findings. McWilliams v. R. & T. Transport, Inc., 245 Ark. 882, 435 S. W. 2d 98. Fidelity-Phenix Ins. Co. v. Lynch, (June 8, 1970), 455 S. W. 2d 79. Whatever doubt may be cast upon the testimony of the appellees and their supporting witnesses was to be resolved by the jury and cannot be considered by us. Arkansas Power & Light Co. v. Kennedy, 189 Ark. 95, 70 S. W. 2d 506. We must give testimony credited and believed by the jury its highest probative value. Kroger Grocery if Baking Co. v. Melton, 193 Ark. 494, 102 S. W. 2d 859; Arkansas Power & Light Co. v. Kennedy, supra. We cannot disregard testimony believed by the fact finder, but are bound by it unless it is so contrary to physical facts or laws, scientific knowledge, laws of mathematics, or daily experience of common life or is so visionary that we can say as a matter of law that it could not be credited by any reasonable person. Standard Oil Co. of Louisiana v. Hodges, 193 Ark. 899, 103 S. W. 2d 927; Alldread v. Mills, 211 Ark. 99, 199 S. W. 2d 571; Lanier v. Trammell, 207 Ark. 372, 180 S. W. 2d 818; American Republic Life Ins. Co. v. Presson, 216 Ark. 771, 227 S. W. 2d 969. See also Corn v. Ark. Warehouse, 243 Ark. 130, 419 S. W. 2d 316. Since we cannot say that the testimony in this case is so contradicted or so visionary, we must affirm the judgment.
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John A. Fogleman, Justice.
Arkansas Louisiana Gas Company appeals from a jury award of $28,314 as compensation for lands of McGaughey Brothers, Inc., taken by eminent domain for installation, maintenance and operation of a 24-inch underground gas pipeline. Mc-Gaughey Brothers owned and operated 3,586 acres of farmland located on the east bank of the White River. Crops produced were rice, cotton, soybeans and feed crops. 870 acres were in improved pasture over which there were unimproved roads. The owners of the farm ing corporation maintained a herd of 200 to 250 brood cows with calves and replacement heifers.
Appellant took 3.45 acres in fee simple upon which it erected a tower 168.5 feet high to support a pipeline suspended over White River, 20.4 acres as permanent right-of-way easement 80 feet wide for an underground pipeline, and temporary ingress, egress and “regress” for construction purposes over appellee’s private roads, the area of which totalled 26.4 acres. This pipeline was located north of and parallel to six 10-inch pipelines on the McGaughey property, which converged into one line on that farm. 15 acres of unharvested soybeans were damaged as a result of the pipeline construction.
Appellant argues that the circuit court erred in permitting appellee to introduce evidence of damages to the private roads during the period of construction and the cost of their restoration, over its objection. It asserts that error was committed in admitting testimony about the condition of the roads after appellant’s work had been completed. It contends these were special damages which had not been pleaded. We have held, in a case where a railroad constructed its tracks upon a right-of-way which it used for a short time and then removed its tracks and abandoned the right-of-way, the measure of damages to the landowner was the rental value of the land taken, in the condition it was when taken, for the time it was occupied, its depreciation in value by reason of timber cut and other acts done thereon by the railway company and the damages to the remainder of the owner’s land resulting from the building of the road across it and from flooding or overflow caused by the construction. Pine Bluff & W. Ry. Co. v. Kelly, 78 Ark. 83, 93 S. W. 562.
Whenever the contemplated construction for which a right-of-way is taken has not been completed, damages are assessed upon the presumption that it will be built with skill and proper precautions; however, if construction is complete at the date of the trial, the jury may consider the state of facts then existing in the light afforded by actual construction. The assessment of dam ages embraces all past, present and future damages, including those arising from faulty construction, which the location of the facility for which the right-of-way is taken may reasonably produce. Springfield & Memphis Railway Co. v. Rhea, 44 Ark. 258; Missouri & N. A. Ry. Co. v. Bratton, 92 Ark. 563, 124 S. W. 231. Such damages are not special damages which must be pleaded. In Arkansas Central Railroad Co. v. Smith, 71 Ark. 189, 71 S. W. 947, we said:
Counsel for the company say that, if the pond was left upon the premises by the improper construction of the road, this would be an element of special damages, which could not be proved in this action, for the reason that there was no allegation to that effect, and no notice to the defendant of such a claim. This contention must be overruled, for, in the first place, there is no evidence and no contention that the road was improperly constructed. The mere fact that the excavation of earth for the roadbed left a pond of water does not necessarily show that the road was improperly constructed. But even if it did, it would make no difference for the road had already been constructed at the time of the trial; and it was for the jury to consider the state of facts then existing, and, with the light afforded by the actual construction of the road, determine what the damages were.
In Arkansas Power & Light Co. v. Harper, 249 Ark. 606, 460 S. W. 2d 75, we held that any error in the admission of testimony as to timber removed from a right-of-way and windrowed along and partially beyond its outside edges as evidence of unpleaded special damages was cured by the court’s proper instruction as to the measure of the landowner’s recovery. The cdrrect instruction as to the measure of appellee’s compensation was here as in Harper, as will be presently illustrated.
Assuming, however, that the damage to the roads constituted special damages which should have been pleaded, we cannot say that there was any prejudice to appellant, because it did not plead surprise or request a continuance. When the trial court permits the introduction of evidence in face of an objection that the point at issue was not raised by the pleadings, the effect of the ruling is to treat the pleadings as amended to conform to the proof. Bonds v. Littrell, 247 Ark. 577, 446 S. W. 2d 672. So the trial court’s ruling here was equivalent to treating the issue as if it had been asserted by a pleading amended at that stage of the proceeding. The purpose of requiring special damages to be pleaded is to prevent surprise. Arkansas State Highway Commission v. Dixon, 247 Ark. 130, 444 S. W. 2d 571. If appellant had pleaded surprise, when its objection was overruled, it might have been entitled to a continuance, if an issue of special damages not pleaded had arisen, in order to prepare to meet it. Missouri Pacific Transportation Co. v. Williams, 194 Ark. 852, 109 S. W. 2d 924. But where no surprise is pleaded and no time requested to prepare to meet the issue, there is no error. Arkansas State Highway Commission v. Dixon, supra; Missouri Pac. Transp. Co. v. Williams, supra; Bennett v. Snyder, 147 Ark. 206, 227 S. W. 402; Ft. Smith Refrigeration & Equipment Co., Inc. v. Ferguson, 217 Ark. 457, 230 S. W. 2d 943; The Famous Store v. Lund-Mauldin Co., 149 Ark. 658, 233 S. W. 767; Thomas v. Spires, 180 Ark. 671, 22 S. W. 2d 553.
Appellant’s second point for reversal relates to the giving and refusal of instructions relating to the measure of just compensation to the landowners. The circuit court gave appellant’s requested Instruction No. 4, as follows:
Under the law, McGaughey Brothers, Incorporated, is entitled to recover the fair market value of the lands acquired by Arkansas Louisiana Gas Company, determined as of the 28th day of September, 1964, together with the difference, if any, in the fair market value of the remainder of the lands immediately before and immediately after the taking.
You will, therefore, ascertain the difference between the market value of the entire tract of land of Mc-Gaughey Brothers, Incorporated, before the taking and the fair market value of the lands remaining in the tract after such taking, and that difference is the amount that McGaughey Brothers, Incorporated, is entitled to recover, and your verdict should be for McGaughey Brothers, Incorporated, in such amount.
When I use the expression “fair market value,” I mean the price that the property of McGaughey Brothers, Incorporated, would bring on the open market in a sale between a seller who is willing to sell and a buyer who is willing and able to buy after a reasonable opportunity for negotiations.
Appellant’s requested Instruction No. 5, which was refused, read:
In determining the amount of compensaition to be paid to McGaughey Brothers, Inc., by Arkansas Louisiana Gas Company, you are to consider that the use of the lands acquired by Arkansas Louisiana Gas Company is limited to those uses for which they were acquired, and that McGaughey Brothers, Inc., has the absolute right to continue using the surface of the lands acquired for the right-of-way for other purposes not inconsistent with the use of the easement by Arkansas Louisiana Gas Company.
The court gave an instruction requested by appellee after modifying it to read as follows:
(Request)
You are instructed that Arkansas Louisiana Gas Company acquires by this Condemnation Proceeding the power to make such use of the 20.4 acre right-of-way across the property of the landowners as its present and future needs require for the purpose for which the right-of way is condemned, and Arkansas Louisiana Gas Company is liable to the landowners as though the lands were taken in fee simple or absolute title.
(Modification)
As to the 3.45 acreage, McGaughey Brothers have no further right or control. As to the 20.4 acres over which the Arkansas Louisiana Gas Company now holds an easement, the McGaughey Brothers, Incorporated, have the right to such use and control of the surface of these lands so long as the uses and purposes to which they are put are not inconsistent with the Arkansas Louisiana Gas Company’s right to maintain and operate their pipeline.
Appellant first argues that the instruction given was erroneous because it made the condemnor “liable to the landowners as though the lands were taken in fee simple or absolute title,” rather than “liable for the full market value of the land taken as if it were taken in fee simple absolute.” This semantic argument is not well founded. We do not see how the jury could have been misled when the instructions are read as a whole. “As if” and “as though” are commonly accepted as conveying the same meaning. Webster’s New International Dictionary, Unabridged, Second Edition.
Appellant’s principal argument relating to these instructions, however, is based upon Arkansas Power & Light Co. v. Mayo, 244 Ark. 435, 425 S. W. 2d 531. There the court (three members dissenting) said that we could not be certain that the instructions given in a similar case did not confuse the jury as to the proper measure of the landowner’s recovery. The court here, however, followed the teaching of Mayo. It is true that the appellee’s requested instruction before its modification was quite similar in wording to the instruction requested by the landowner in Mayo, which we said might have been misleading and confusing to the jury when read with the instruction on the measure of compensation, given by the court, so that a double award might have resulted. The first paragraph of the instruction given by the court at appellant’s request is virtually identical to the instruction which the condemnor had requested in Mayo, and which we said more clearly expressed the law than the court’s instruction there, even though the. latter standing alone was correct. In view of the modification of appellee’s requested instruction and the giving of the first paragraph of appellant’s requested instruction, the two instructions read together were not likely to have confused the jury or misled it into a double award.
Appellant also alleges that the verdict is excessive because there is no substantial evidence to support it. We are unable to agree. Appellee’s six witnesses stated differences in the market value of the property before and after the taking ranging from $45,100 to $67,671.35. No useful purpose would be served by outlining all the testimony. J. C. McGaughey, an officer, director and assistant manager of appellee, testified that the value of the lands taken totalled $10,732.50. He also testified that it was necessary to move $1,000 worth of dirt in to restore the roads used by appellant and to reblade and rework them. DeWitt McGaughey, also an officer and director of appellee, who was also its manager, said that it would cost $2,000 to get the roads in proper shape.
Appellant first attacks the substantiality of the testimony of these witnesses upon the ground that none of them mentioned any comparable sales. All of them qualified as competent to «state opinions as to the market value of the lands. Having done so, they were not required to refer to comparable sales on direct examination or give the basis of their opinions. Arkansas State Highway Commission v. Hartsfield, 248 Ark. 821, 454 S. W. 2d 82; Arkansas State Highway Commission v. Johns, 236 Ark. 585, 367 S. W. 2d 436. The burden was upon appellant to demonstrate that the testimony of these witnesses was without any reasonable basis. Urban Renewal Agency of Harrison v. Hefley, 237 Ark. 39, 371 S. W. 2d 141; Arkansas State Highway Commission v. Johns, supra. As far as we can tell from the abstract of the testimony, none of the six witnesses was asked about comparable sales or the extent to which he relied upon them. Failure to cross-examine on this subject might be taken to mean that appellant was satisfied on this subject. Arkansas State Highway Commission v. Hartsfield, supra. Appellant is in no position to contend that the testimony of any such witness was insubstantial because of his lack of knowledge of comparable sales. Arkansas State Highway Commission v. Clark, 247 Ark. 165, 444 S. W. 2d 702.
Appellant states that the reasons given by some of the witnesses for the reduction in value of appellee’s remaining lands after the taking were:
(1) during floods, appellee’s cattle would have to walk around the tower erected on the land taken in fee or swim out through low land that admittedly was there before the acquisition by appellant;
(2) speculation that appellant would continue to use appellee’s private roads in the future and leave gates open, even though it is admitted that appellant has no further rights to the use of those roads;
(3) supposed devaluation of improvements, even though the acquisition by appellant takes none;
(4) the continuing right of appellant to traverse the right-of-way for maintenance purposes; (5) seepage and loss of drainage due to the pipeline, although a pipeline owned by another company is located parallel to appellant’s pipeline and was laid long before appellant’s pipeline was laid; (6) the tower located on the tract condemned in fee hinders the aerial application of chemicals on appellee’s crop, although it was admitted that there were trees in the area; and (7) the nuisance factor is that the pipeline is ‘Hhere.”
Appellant then argues that the evidence in this case brings it within the ambit of Texas Illinois Natural Gas Pipeline Company v. Lawhon, 220 Ark. 932, 251 S. W. 2d 477, in the sense that nuisance or inconvenience to the landowner because of the presence of the pipeline constituted the principal basis for the opinions of the witnesses, so that there was no substantial basis to fully support the jury verdict. Granting, without deciding, that the value testimony of certain witnesses may have been subject to this infirmity, it is clear that the testimony of others was not shown to be. While not con trolling, it is significant that appellant not only did not challenge the qualifications of any witness to express his opinion as to values, but it moved to strike the testimony of only one of the six.
Appellee’S witnesses testified that the cattle operation of McGaughey Brothers, Inc., like that of most of the neighboring farms bordering the river, was carried on along the river. From December to May, however, J. C. McGaughey testified that the cattle were pastured on about 1,500 acres of land on which soybeans were later planted. During times the river was at high stage, some of the lands were flooded.
According to J. C. McGaughey, prior to the taking, the cattle would go to the high ridge along the river as it rose, and walk to safety. The tower site, he said, covers a ridge so that it cannot be crossed by the cattle, and they would have to swim out if they were below the tower when the water rose. He said that there were four fences crossing the right-of-way designed to keep cattle out of crops. He could not accurately estimate the amount by which the improvements were devaluated. He also took into consideration the compounding of drainage problems due to the additional pipeline and inability to use a dragline for ditching across the right-of-way, problems connected with aerial application of insecticide, seepage problems due to the excavation for the pipeline and the fill and the attendant difficulty in maintaining dikes for flooding rice fields. He could not break the devaluation due to the last item into dollars and cents.
John Keel, a neighboring farm owner corroborated the existence of a drainage problem due to the impoundment of surface water by the fill over the pipeline. D. L. Buffington, a Newport real estate man, whose qualifications were admitted, placed the difference in values at $53,796.53. He considered as elements of damages to appellee’s remaining lands: interference with the cattle operation (which he said was attributable to the fact that the tower effectively cut off 200 acres of the farm in high water); the probability that emergencies might cause the condemnor to go across appellee’s farmland, the only way by which the pipeline can be reached, without permission, which would involve time and trouble in a landowner’s recovering damages; and aggravation of the drainage problems due to the additional pipeline. Buffington stated that if the cattle were cut off during high water and would not go through the water, the owners would have to take them out by boat or‘take them around by Tupelo or other such place. He was not asked to allocate a specific figure to any element.
In Arkansas State Highway Commission v. Wallace, 247 Ark. 157, 444 S. W. 2d 685, we said that a witness’ testimony to a total compensation figure could not stand against a motion to strike if it included an impermissible element of damage, unless the amount improperly included can be distinguished. But we said that the witness should be afforded an opportunity to specify the amount improperly included. We denied a challenge to value testimony both by motion to strike and by the contention that the verdict did not have substantial evidentiary support, because each witness considered at least one element proper for the jury’s consideration, but was not afforded an opportunity to specify the amount attributable to an improper element of damage. Arkansas State Highway Commission v. Woody, 248 Ark. 657, 453 S. W. 2d 45.
Both J. C. McGaughey and Buffington considered permissible elements of damage. The impoundment of surface water and impairment of drainage was a compensable element of damage. Springfield & Memphis Railway Co. v. Henry, 44 Ark. 360; Arkansas State Highway Commission v. Dixon, 247 Ark. 130, 444 S. W. 2d 571; Miller Levee District No. 2 v. Wright, 195 Ark. 295, 111 S. W. 2d 469. So was the severance damage because of the inability of the cattle to travel from one part of the land to another, Arkansas State Highway Commission v. Freyaldenhoven, 246 Ark. 688, 439 S. W. 2d 791, and decreased value of improvements. Miller Levee District No. 2 v. Wright, supra; Donaghey v. Fones Brothers Hardware Co., 171 Ark. 1056, 287 S. W. 414; Donaghey v. Lincoln, 171 Ark. 1042, 287 S. W. 407. Since these elements, and perhaps others, were properly considered, we cannot say that the testimony of these witnesses was not substantial. Neither was afforded an opportunity to state the damage attributable to any impermissible element. We cannot say that their testimony was not substantial evidence.
The judgment is affirmed.
Increased difficulty in cultivation of a farm by reason of obstacles to use of farm machinery by electric transmission lines and towers seems to be a recognized element of damages. Illinois Iowa Power Co. v. Rhein, 369 Ill. 584, 17 N. E. 2d 582 (1938); Central Illinois Public Service Co. v. Lee, 409 Ill. 19, 98 N. E. 2d 746 (1951); Southwestern Public Service Co. v. Goodwine, 228 S. W. 2d 925 (Tex. Civ. App. 1949). Aerial application of insecticides is a common farming practice. Increased difficulty in this practice increasing cost and diminishing efficiency would seem to fall in the same category. | [
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Carleton Harris, Chief Justice.
Farmer L. Black, appellant herein, was charged by the Prosecuting Attorney of the Second Judicial District with the separate offenses of Kidnaping and Sodomy, it being alleged that these offenses were committed on March 5, 1970, in Crittenden County. On trial, Black was acquitted of the sodomy charge but was convicted of kidnaping under Ark. Stat. Ann. § 41-2302 (Repl. 1964), and his punishment fixed by the jury at imprisonment in the state penitentiary for a period of ten years. From the judgment so entered, appellant brings this appeal. For reversal, three points are asserted which we proceed to discuss, though not in the order listed by appellant.
It is first alleged that the court erred in permitting the prosecuting attorney to question Black relative to a charge of rape in Tennessee. The record reveals the following on cross-examination:
“Q. Were you guilty of homicide in 1958, in Memphis, Tennessee?
A. No, sir.
Q. Were you convicted of that charge?
A. No, sir.
Q. You were not? All right. Now then, you say that you did not forcefully have sexual relations with Stephanie? [given name of the alleged victim in the present case] Is that correct? You did not put that gun to her stomach and tell her to strip her clothes off, you were going to make love to her?
A. I did not.
Q. You did not do that? You are guilty of having raped a twenty year old married woman on March 1, 1970, are you not, Mr. Black, in Memphis, Tennessee?
A. No sir, I am not guilty of that charge.”
It is appellant’s contention that the last question was reversible error since that charge is only pending against Black, not yet having been tried. We do not agree, and have held contrary to this contention in several cases. It will be noted that the prosecutor did not ask Black if he had been indicted or charged with raping a woman in Memphis, but rather asked him if he were not guilty of that offense. We have held that one cannot be asked if he has been indicted, or charged, or accused, of other crimes, but for the purpose of testing credibility, one may be asked if he has been convicted of a particular offense, or if he was guilty of some particular offense. The state is bound by the answer that the witness gives. See Johnson v. State, 236 Ark. 917, 370 S. W. 2d 610, and cases cited therein. See also the recent case of Hughes et al v. State, 249 Ark. 805, 461 S. W. 2d 940.
It is also asserted that there was no corroboration of the testimony of the prosecuting witness relative to being kidnaped and the jury verdict was nothing more than speculation and conjecture. Again we disagree, actually for two reasons. In the first place, there was corroboration of the kidnaping. John Connors Donovan, who was traveling with the young woman allegedly assaulted, testified that the two, hitchhiking, were picked up by appellant on the highway; after driving for a few miles, appellant stopped the car, said that he had to check his tires, and then pulled out a rifle and pointed it at the witness. Donovan stated that Black then pointed the gun at the young woman, told her that he was in the mood for love, and that she was to take' off her clothes. When this happened, she opened the door and ran down the highway; Black chased her, and Donovan started running the other way. He heard a woman screaming, started back toward the car, but heard the car door slam and the car “took off”. Donovan then reported the matter and officers were notified. Subsequently, the officers located the car parked on a gravel road, the young woman jumping out of the automobile and running to the officers, and Black getting out after being ordered several times to do so, and after the officers had fired a warning shot. Black was completely nude except that he was wearing one sock. The woman had been severely beaten in the face. . There was certainly corroboration, but actually, the woman not being an accomplice, no corroboration was necessary. See Bradshaw v. State, 211 Ark. 189, 199 S. W. 2d 747. Of course, if the prosecuting witness accompanied Black voluntarily, there simply was no kidnaping, but the jury heard the evidence of both the state and appellant, Black stating that she went with him of her own accord, and this conflict was a matter for jury determination.
Finally, it is argued that under the statute defining kidnaping, the acquittal of appellant on the charge of sodomy rendered it impossible as a matter of law for appellant to be guilty of the crime of kidnaping. We find no merit in this argument. The statute does not require that the defendant consummate the felonious act before being guilty of kidnaping; it only requires that the forcible stealing or taking of the victim be done for the purpose of committing a felony. And even when all the proof offered on behalf of the prosecution shows that the act was consummated, and the proof on the part of a defendant shows that the offense did not take place, it has been held that one can still properly be convicted of an attempt to commit the offense. In Lindsey v. State, 213 Ark. 136, 209 S. W. 2d 462, the evidence on the part of the state reflected that the defendant was guilty of the crime of rape; on the other hand, the defendant denied that he acted improperly in any manner from a sexual standpoint. There was absolutely no evidence that he simply attempted a rape but failed to consummate the act; nonetheless, we affirmed his conviction for assault with intent to rape In the California case of People v. Fisher, 157 P. 7, Fisher was charged with kidnaping, it being asserted by information that he unlawfully, feloniously, and forcibly enticed and carried away a certain named person, with the intention to restrain such person, and thereby to commit extortion and robbery. It was contended by the appellant that such a purpose was not accomplished and that he could not be found guilty of the offense, but the court disagreed, stating:
“Of course, it is not necessary for the purpose charged in the information to be accomplished in order to make it effectual as an element of the crime. All that is required is that some overt act be done toward the execution of the purpose and the fulfillment of the intent. The forcible removal of Mr. Henderson and the other preparations indicated by what was found in the automobile satisfy the requirement of the law in that respect. It may be illustrated by the proof of intent in burglary. Therein if the defendant is charged with the entry of a building with intent to commit larceny there must be the overt act of entering the building before a conviction can be had, but from this entry under suspicious circumstances the jury may infer the intent to commit larceny, although no larceny was actually accomplished.”
See also Crum v. State, 101 S. W. 2d 270 (Texas), where it was held in a prosecution under the statute dealing with kidnaping for extortion, that it was immaterial whether the criminal enterprise was successful or unsuccessful, since the intent tó commit was sufficient to constitute the offense.
So, it was only necessary, in order to convict appellant of kidnaping, that the state show that the young woman was forcibly taken by appellant for the purpose of committing a felony, and though the jury found that the felony had not been committed, it does not follow that Black could not have been guilty of a felonious purpose. It might be added that it was not necessary that the jury even find that there was an intent to commit sodomy, for the kidnaping information only charges that Black’s purpose was to commit a felony. There is evidence that Black endeavored to commit the crime of rape, but was unsuccessful because of his physical inability to perform the act. In fact, Black himself testified that he was unable at the time to perform the act of intercourse, though he stated that the woman was willing.
In nowise was the charge of kidnaping dependent upon the charge of sodomy. The two are entirely separate offenses, and it was not necessary that the sodomy charge be filed in connection with the kidnaping. In the recent case of Umbaugh v. State, 250 Ark. 50, 463 S. W. 2d 634, the appellant was prosecuted under this same kidnaping statute and the proof on the part of the state reflected that Umbaugh kidnaped a young female for the purpose of raping her. As in the instant case, he was only charged with kidnaping “for the púrpose of committing a felony’’, and though the proof on the part of the state reflected a consummated rape, no charge of rape was ever filed. This court affirmed Umbaugh’s conviction for kidnaping.
Likewise, in the California case of People v. O’Ferrell, 325 P. 2d 1002, the California court (District Court of Appeal, Fourth District) stated that the commission of a kidnaping for the purpose of robbery is separate and distinct from the crime of robbery, though the latter crime is the object of the kidnaping.
From what has been said, it is apparent that we find no reversible error.
Affirmed.
Fogleman, J., not participating.
The prosecuting witness said that Black struck her several times with the rifle.
Ark. Stat. Ann. § 41-2302: “Every person, either as principal or accessory, who shall unlawfully or forcibly steal, take or arrest any man, woman or child in this State and carry or transport him or her, against his or her will, from one place to another place in this State, or from his or her usual and customary place or abode, or from his or her usual and customary place of work or occupation, in this State, to another place in this State or into another State or territory for the purpose of extortion, ransom, robbing, maiming, torturing or of committing any felony or for the purpose of preventing or thwarting arrest or detection after having committed a felony or after having aided, abetted, or assisted in committing a felony, in this State, either as principal or accessory, shall be deemed guilty of kidnaping.” | [
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