text
stringlengths 8
185k
| embeddings
sequencelengths 128
128
|
|---|---|
Conley Byrd, Justice.
Appellants Virgil and Marcell Brooks, husband and wife, appeal from a decree finding that appellees C. S. and Annie Johnson, husband and wife, are the owners of and entitled to the possession of a 16 foot disputed strip of ground. For reversal appellants contend that the trial court erred in finding the Johnsons are the owners of the property in controversy for the following reasons:
“1. The deed which was the basis of plaintiff’s ownership of the property was never introduced into the record.
“2. Assuming that the deed purporting to convey the property to the plaintiffs was sufficiently identified and made a part of the record, said deed is void for indefiniteness and conveys nothing.
“3. Assuming further that the deed was made a part of the record and should be considered, the plaintiffs had the burden of deraigning title from the sovereign and the mere introduction of a deed conveying the property to appellees even though the description was sufficient, did not constitute a deraignment of title.
“4. The Court erred in refusing to confirm and quiet the defendant’s title, it being undisputed that the defendant had had the actual, open, continuous and adverse possession of the property for a period of 20 years or more.”
The Johnsons instituted this action in the trial court alleging that they “are now, and for a long time hitherto have been the owners of that certain piece or parcel of land situated, lying, and being in the county of Pulaski, State of Arkansas, and described as follows:
“Fifty-eight and four-fifths (58 4/5) acres, more or less, lying in the Northeast quarter (NE 1/4) of Section 33, Township Three (3), Range Ten (10) West, said 58 4/5 acres, more or less, running North and South the entire length of said Northeast quarter of Section 33 and lying immediately East of the Thirty-three and one-third (33 1/3) acres deeded to Matilda Johnson.”
Pursuant to a motion to make the complaint more definite and certain, the Johnsons filed a response setting out a corrected property description according to a survey made by L. M. Harp on June 4, 1969.
Appellants’ answer and counter-claim, as abstracted by them, is as follows:
“ANSWER
“They deny, both generally and specifically, each and every allegation contained in plaintiffs’ complaint and amendments thereto except as hereinafter pleaded and admitted; that plaintiffs do not have title to an accurately described piece of property and their rights in and to the property occupied by defendant and intervenor [Mrs. Brooks] are inferior to the rights of defendant and intervenor in and to the property so occupied and possessed by defendant and intervenor.
“COUNTERCLAIM
“The defendant and intervenor allege that they are the record owners of and reside on the following described property situated in Pulaski County, Arkansas:
‘A part of the East One Half (E 1/2) of the Northeast One Fourth (1/4) of Section Thirty Three (33), Township Three (3) North, Range Ten (10) West of the Fifth Principal Meridian, and more particularly described as follows: Beginning at the Northeast corner of said subdivision, thence West Sixteen (16) chains and seventy eight (78) links, thence South Forty (40) chains and Thirty Two (32) links to Quarter Section line, thence East Three (3) chains and Twenty Eight (28) links, thence North Ten (10) chains, thence East Thirteen (13) chains and Fifty (50) links to the East line of said subdivision, thence North to point of beginning, less and except Four (4) acres, more or less, on the North side thereof, used as a cemetery, containing Fifty Four and 15/100 (54.15) acres.’
“That in addition to owning the foregoing property defendant and intervenor are the owners of an additional strip of land 16 feet wide running along the entire Western edge of the aforementioned property; that their ownership thereof arises out of their continuous possession of said property since June 22nd, 1948, in an actual, notorious, hostile, and exclusive manner with the intent to hold adversely to the claims of all other persons; that the plaintiffs have had notice of the aforementioned adverse possession since June 22nd, 1948; that said lands have been fenced and closed to a point of intersection with a creek traversing the property owned by defendant and intervenor; that said boundary fence to the point of intersection with said creek has constituted the boundary between the property owned by defendant and intervenor and plaintiffs since June 22nd, 1948, and even prior thereto, and plaintiffs have acquiesced thereto. Defendant and intervenor pray the plaintiffs’ complaint and amendment thereto be dismissed; that title to the 16 foot strip of land along the western boundary of land owned by defendant and intervenor be quieted against the claims of the plaintiffs. Filed May 28th, 1970.”
Appellee Callie S. Johnson testified that both his and the Brooks property were at one time owned by his grandfather. He inherited the land in 1929. According to him, during the free stock range era, approximately 1914 or 15, his father and a predecessor of Mr. Brooks each fenced one side of a lane for their cattle’s use to go to a free range in a big bottom north behind their property. The lane was on their common boundry, and each owner fenced 16 1/2 feet inside his property. Over the years the fence set back on appellant’s property had fallen down and been destroyed. However, Brooks’ predecessors in title recognized the true boundary as the boundary between the two properties. When Brooks bought the property in ’47 or ’48, Johnson informed him that Mr. Thompson, Brooks’ immediate predecessor, had inadvertently built a henhouse over on Johnson’s property. He said that Brooks at that time offered to move it and that he suggested Brooks could leave it if he would not build any more encroachments. A short time later the henhouse was torn down. Johnson said the present controversy occurred about four years ago when he talked to Brooks about building a common boundary fence on the true line. At that time Brooks wanted to join in building a common boundary fence but wanted to put it along the old fence.
Appellee Annie Johnson testified that the day Brooks bought the property from Thompson, she pointed out to Brooks the location of the true boundary line and advised him that the fence was not the line. She also recalled the incident referred to by her husband about the removal of the building and testified that the building was removed about a week later but she did not know who removed it.
Claude Stanfill testified that he bought the property now owned by Brooks in 1932, and owned it for 12 years. He traded it to Mr. Thompson. During the time of his ownership he was aware of the true boundary between his property and the Johnsons. During that time he used the strip of land belonging to Johnson under an agreement with Johnson and when he sold the land to Thompson he informed Thompson that the 16 feet was being used with Johnson’s permission.
Appellant Brooks, on the other hand, testified that he purchased the property in 1948, and that when he began work on the barn he recalled Mrs. Johnson telling him that the fence was 16 feet over on her side of the boundary. He said that he then informed her that he bought the property with the fence as the line and would not discuss it further. From the time of his purchase up until the trial he had pastured the area up to the fence and had regularly repaired the fence. His first discussion with Mr. Johnson occurred approximately 4 or 5 years-ago- when Mr. Johnson wished to move the fence over 16 feet. Brooks says that he did tear down the hen-house but only because it was unsightly. He denied Johnson’s conversation about the house. Brooks said Johnson acquiesced in his use of the fence as a boundary until about 4 years ago. At that time Johnson wanted to sell him the strip of property and he told Johnson that he did not feel he should buy his own property. Johnson then wanted to build a partnership fence and his answer was that he would meet him half way—i. e., he would back over one foot and build a fence but he would not build a partnership fence on the alleged line that Johnson had chosen. Admittedly thereafter Johnson attempted to have a survey made and Brooks caused Johnson to be arrested for trespassing. The boundary as surveyed both by his and Johnson’s surveyors would come within 10 feet of Brooks’ house. Brooks maintains that he has always mowed up to the fence line under a claim of right. On cross-examination Brooks testified that his deed introduced into evidence outlined the boundaries of his property.
George West testified that he surveyed the lands for Brooks and that his survey showed the line between the Johnson property and the Brooks property and also the fence line in dispute.
L. M. Hays surveyed the property for the Johnsons. In arriving at the description of the Johnson property he used Johnson’s abstract of title, Brooks’ deed and a copy of a recorded survey made by Francis H. Conway under date of Aug. 7, 1901. In making his survey, Hays found wire embedded in the trees along the true boundary line between the two properties.
We find no merit in appellant’s first three points. Each point is premised on the proposition that the Johnson failed to deraign that title necessary to support an action in ejectment. While it is true that the action as originally filed was in effect an action in ejectment, any lack of equity jurisdiction was cured by appellant’s counterclaim.
Johnson, without objection, was permitted to testify from his own knowledge that his grandfather at one time owned both the lands now owned by him and by Brooks. He also testified with reference to the different persons who had held both tracts under the common owner. While such testimony may have been subject to the best evidence rule, in the absence of such objection, it certainly deraigns the title of both parties from a common source.
Furthermore Johnson testified that the persons under whom Brooks holds his title had recognized his title to the true line. This testimony was substantiated by Claude Stanfill who stated that he was a predecessor in title of Brooks and that he got the permission of Johnson before he tied his pasture fence to the fence in question.
The general rule is that a party in an ejectment suit or an action to quiet title must recover upon the strength of his own title. However, we pointed out in Collins v. Heitman, 225 Ark. 666, 284 S. W. 2d 628 (1955), where the parties trace their title to a common source, the one must prevail who has the superior equity. In this case it appears that the superior equity or prima facie title stands in Johnson. See Weaver v. Rush, 62 Ark. 51, 34 S. W. 256 (1896); McCoy v. Anderson, 137 Ark. 45, 207 S. W. 213 (1910); and 5 ALR 3d 375, § 7.
The evidence with respect to the appellants’ adverse possession is conflicting. The Johnsons testified that Brooks recognized their title and agreed to remove the henhouse at the time Brooks purchased the property in 1948. Brooks, on the other hand, denies that he recognized the Johnsons’ title and claims that at that time he asserted his ownership to the fence.
In Shirey v. Whitlow, 80 Ark. 444, 97 S. W. 444 (1906), we stated the applicable rule in this language:
“. . . If one before the statutory period has run, and before he has acquired title by adverse possession, acknowledges or recognizes the title of the owner, such recognition will show that his possession is not adverse, and the statute of limitations will not commence to run against the owner until the adverse claimant repudiates the title of the owner. . . .”
In Britt v. Berry, 133 Ark. 589, 202 S. W. 830 (1918), we pointed out that where the entry is permissive the adverse possession statute will not begin to run against the owner until an adverse holding is declared and such notice is brought to the knowledge of the owner.
Whether Brooks recognized the Johnsons’ title as the latter testified or whether he asserted his ownership to the fence at the time of his purchase as he testified were issues of credibility. From this record, we cannot say that the Chancellor’s finding in favor of appellees is contrary to a preponderance of the evidence.
Affirmed. | [
117,
111,
-59,
60,
-72,
-32,
40,
-120,
-31,
-117,
102,
83,
-81,
80,
88,
57,
-29,
9,
113,
107,
-57,
-77,
23,
-30,
-62,
-77,
74,
93,
-75,
76,
116,
-41,
76,
16,
-54,
117,
66,
66,
-115,
28,
-114,
3,
9,
76,
-55,
-64,
60,
107,
84,
79,
17,
-113,
-14,
-82,
61,
67,
-24,
46,
-21,
37,
88,
122,
-113,
23,
95,
7,
-127,
53,
-104,
3,
122,
72,
-112,
57,
0,
-8,
-13,
-74,
-106,
124,
9,
25,
8,
100,
103,
0,
-51,
-25,
48,
-120,
14,
-66,
-103,
-90,
-80,
64,
75,
-128,
-90,
-108,
125,
80,
103,
124,
98,
-115,
28,
108,
-123,
-53,
-108,
-79,
15,
40,
-110,
3,
-53,
7,
-80,
113,
-53,
-53,
125,
71,
49,
-101,
-114,
-15
] |
Conley Byrd, Justice.
Appellants Ruth W. O’Neal, next friend of Anne Davis Warmack, David George Warmack, John Porter Warmack and Robert Edward Warmack, minor children of appellees, and Eugene Weisenfels, guardian ad litem of James T. Warmack and Daniel D. Warmack, also minor children of appellees Ed and Jane Warmack, allege that the trial court erred in ruling that a trust instrument violated the rule against perpetuities and in the alternative that the trial court erred in ruling that the property revested in the settlors instead of the beneficiaries.
We do not reach the first point because the trust instrument, upon which the trial court ruled, has not been abstracted as required by our Rule 9(d).
The next alleged error is not supported by the record which shows that all the assets of the trust originated with appellees Ed and Jane Warmack who made an attempted gift for the benefit of their children. The general rule is that a resulting trust arises in favor of the donor or settlor when the trust is held void for violating the rule against perpetuities. See Hopkins v. Grimshaw, 165 U. S. 342, 41 L. ed. 739, 17 S. Ct. 401 (1897); 54 Am. Jur. Trusts § 200.
Affirmed.
George Rose Smith, J., concurs, and Fogleman, J., dissents. | [
-12,
108,
-36,
61,
10,
96,
42,
-102,
67,
-88,
35,
-45,
-85,
-37,
20,
47,
-12,
-23,
-31,
107,
-43,
-77,
15,
64,
-46,
-13,
-7,
-107,
52,
77,
-9,
95,
76,
48,
-54,
-43,
70,
-118,
-35,
-46,
-114,
9,
8,
101,
27,
-32,
52,
119,
20,
13,
101,
-98,
-77,
-96,
57,
71,
108,
46,
111,
-67,
-48,
-72,
-86,
7,
-33,
23,
-127,
23,
-96,
71,
-56,
42,
-52,
25,
3,
-24,
123,
-74,
18,
-12,
73,
59,
-119,
96,
114,
-128,
97,
-27,
-72,
-116,
14,
-97,
-115,
-25,
-45,
73,
98,
77,
-89,
-34,
124,
84,
-89,
124,
-26,
92,
31,
-28,
1,
-113,
-42,
-77,
45,
-8,
-104,
-125,
-61,
3,
48,
81,
-34,
-32,
92,
65,
122,
-109,
-114,
-70
] |
Frank Holt, Justice.
This is an appeal from a declaratory judgment holding an exclusionary clause void in a policy issued by appellant and requiring appellant to defend appellee and to pay, up to its policy limits, any judgment that may be returned against appellee in an action currently pending before the circuit court. For reversal, appellant contends that the trial court erred in holding the exclusionary clause void. We think appellant is correct.
Appellee was driving an automobile owned by Howard and Faye Owens. The car was involved in a collision in which Mrs. Owens, riding as a passenger, allegedly sustained serious injuries. It is undisputed that at the time of the accident Mrs. Owens was a named in sured in one of appellant’s policies of liability insurance and that appellee, since he was driving with the permission of Mrs. Owens, was also an insured by the terms of the policy. Mrs. Owens instituted suit against appellete to recover money damages for her injuries. Appellant declined to defend and denied any obligation to pay because of an express exclusion in its policy which states:
This insurance does not apply * * * (i) . . .to bodily injury to the insured or any member of the family of the insured residing in the same household as the insured.
Appellee thereupon brought an action for declaratory judgment to define the rights and obligations of the respective parties. In his pleadings, appellee asserted that the above policy exclusion is violative of Ark. Stat. Ann. § 75-1466 (Supp. 1969) and § 66-3211 (Repl. 1966) and that it is contrary to public policy and void.
We need not belabor a discussion of the relevance of § 75-1466 to the present circumstances. That statute is part of our Motor Vehicle Safety Responsibility’ Act which, as we have already had occasion to note, “has no application whatever to an insurance policy which has not been used as proof of financial responsibility in the future.” Aetna Casualty & Surety Co. v. Simpson, 228 Ark. 157, 306 S. W. 2d 117 (1957). In the case at bar, as in the cited case, nothing appears in the pleadings to indicate that the policy had been used for that purpose.
Likewise, we find no merit in appellee’s argument that the exclusionary clause is violative of § 66-3211 which provides in part:
Insurance contracts shall contain such standard or uniform provisions as are required by the applicable provisions of this code ...
Appellee’s position, as we understand it, is that a particular policy provision is to be considered “standard” within the meaning of the statute if, as a matter of proof, such a provision was recognized as standard at the time of the enactment of the statute. Appellee adduced testimony from a qualified insurance agent that the contested exclusionary provision was not included in the standard automobile insurance policy at the time of enactment of Act 148 of 1959 which contains § 66-3211. However, the provision, according to the agent’s testimony, could be found in “substandard” policies at that time; and appellee therefore concludes that the policy offends the statute.
Section 66-3211 is self-explanatory. The standard provision which must be included in insurance contracts are those “required by the applicable provisions of [the] code.” An examination of the code discloses no requirement that the named insured not be excluded from coverage for his own bodily injury. Furthermore, the policy form containing the exclusionary clause in question has been expressly approved by the Arkansas Insurance Commissioner, and appellee readily admits that most automobile insurance policies issued in this State and approved by the Commissioner also contain similar clauses.
These exclusionary clauses were designed and are approved to protect the insurance companies from collusive claims. Although they are quite far reaching and at times appear to have unfortunate effects, such clauses, absent statutory strictures to the contrary, are generally enforced according to their terms. See 7 Appleman on Insurance § 4409 and 7 Am. Jur. 2d Automobile Insurance §§ 127—129. Certainly we cannot say that such a widely accepted clause is against public policy.
The judgment is reversed and the cause remanded for proceedings not inconsistent with this opinion. | [
-16,
-20,
-44,
-84,
9,
96,
34,
-118,
95,
-128,
37,
-45,
-81,
-30,
84,
55,
-1,
11,
117,
104,
-43,
-77,
22,
98,
-10,
-109,
-45,
-43,
-111,
75,
100,
-66,
76,
32,
-54,
-43,
70,
75,
-43,
16,
-50,
14,
-101,
109,
-39,
-48,
48,
127,
68,
71,
1,
-97,
-29,
42,
24,
-62,
105,
44,
11,
-79,
-16,
48,
-114,
-121,
127,
20,
49,
4,
-104,
37,
88,
90,
20,
49,
17,
-8,
115,
-90,
-110,
52,
107,
-101,
-128,
102,
119,
1,
49,
75,
-68,
-104,
6,
-6,
63,
-90,
-112,
57,
41,
9,
-73,
-99,
122,
17,
76,
-2,
-4,
93,
94,
44,
17,
-49,
-108,
-79,
-17,
112,
124,
2,
-17,
-45,
50,
117,
-50,
-16,
93,
-59,
127,
-77,
6,
-120
] |
George Rose Smith, Justice.
The issue here is the retaxing of costs. Upon the first appeal we modified the decree and remanded the cause for the entry of a decree consistent with the court’s opinion. Hogue v. Hogue, 247 Ark. 914, 448 S. W. 2d 627. Our judgment and mandate directed that the cost of the appeal be divided equally between the two parties. The cost statement attached to the mandate recited total costs of $291.50. That total included a transcript or record fee of $71.50, as certified by the clerk of the trial court. There was, however, no charge for the reporter’s transcription of the testimony, because that item was not shown in the original record.
Upon receipt of the mandate the trial court entered a new decree conforming to this court’s opinion and taxing equally the total costs of $291.50. The present appellees promptly filed a motion to set aside that decree and to permit the appellees to show their actual costs. At the ensuing hearing the appellees proved that they had paid $883 for the reporter’s transcript of the testimony. The chancellor accordingly vacated his second decree and entered a third decree dividing equally between the parties the actual total costs of $1,174.50. This appeal is from that redetermination of the costs.
For the information of the bar we should state at the outset that it is not unusual for an appellate record to omit one or more items of costs, such as the reporter’s fee. Such an omission is frequently carried forward in the statement of costs which the clerk of this court attaches to the mandate. Its correction is usually a ministerial matter involving merely a certification, by the clerk of the trial court, of the true amount of the costs. Upon that certification our clerk issues a new statement of costs, to replace the one that first accompanied the mandate.
Our procedure, though routine, has apparently not previously been described in an opinion, which doubtless explains why a different corrective process was followed in this instance. The chancellor, however, reached the right result; so we affirm his decision.
We do not agree with the appellant’s insistence that the trial court was without jurisdiction to determine the correct amount of the costs. Upon the first appeal we exercised our judicial discretion, in an equity case, by deciding that the liability for the costs should be borne equally by the parties. Supreme Court Rule 24 (d). The determination of the exact amount, however, might properly be left to the trial court. See, e. g., Lewis v. D. F. Jones Constr. Co., 194 Ark. 602, 108 S. W. 2d 1093 (1937). In fact, that procedure is often desirable and appropriate, for the trial court is in a better position than we are to hear evidence upon a disputed issue of fact. Here we find no reason to disturb the chancellor’s conclusion, which was right.
Affirmed.
Jones, J., not participating. | [
-16,
-18,
-36,
124,
-84,
-32,
19,
-102,
65,
-127,
54,
83,
-3,
-62,
21,
103,
-29,
79,
85,
107,
70,
-73,
54,
113,
-10,
-13,
-13,
-44,
-71,
-17,
-20,
-12,
76,
56,
-118,
-107,
98,
-54,
-51,
-44,
-114,
14,
-88,
69,
105,
102,
48,
113,
22,
79,
49,
-57,
-5,
44,
17,
-53,
104,
44,
-5,
41,
65,
-15,
-110,
13,
91,
5,
-79,
119,
-102,
68,
88,
44,
-104,
-67,
3,
-24,
115,
-74,
-122,
84,
39,
-71,
-87,
42,
-30,
-111,
105,
-17,
-100,
-124,
47,
-70,
-99,
-89,
-109,
88,
65,
9,
-90,
-71,
108,
16,
39,
126,
-26,
20,
-97,
110,
75,
-114,
-106,
-93,
-113,
69,
-116,
82,
-17,
-125,
16,
112,
-59,
-62,
94,
-57,
59,
-101,
-122,
-121
] |
George Rose Smith, Justice.
This suit for a declaratory judgment is essentially a test case to determine whether a majority of the owners of what is actually a private water main can sell it to the city of Center Hill, over the protest of a substantial minority of the owners. This appeal is from a declaratory judgment denying the majority’s asserted power to sell the water main. We have no hesitancy in sustaining the circuit court’s judgment.
In 1958 the owners of about 40 tracts of land lying along Highway 25, immediately west of the city of Paragould, signed a “Water Line Agreement” for the purpose of obtaining city water for themselves. They elected to call their project “Water Improvement District No. 25 West,” but it is conceded that the organization is not an improvement district under the laws of Arkansas. To the contrary, the association is essentially a group of neighboring landowners who banded together to install a private water line for their own use.
The terms of the 1958 Water Line Agreement are of controlling importance. The landowners named five of their number to serve as the board of directors of what we will call the district. Each of the original signatory landowners contributed $500 for his principal dwelling house and $250 for each appurtenant tenant house or rental unit. The board of directors were given the authority to permit other landowners to tie onto the water line by paying the same fees. The landowners agreed that any sale of their property would carry the water rights and that the purchaser would be bound by the water line agreement.
Under the agreement the directors were required to use the district’s funds to install a private water line for a distance of 18,000 feet along the highway. The district would also install individual laterals to the north or south edge of the highway right-of-way, from which point all expense would be borne by the landowner. It was never intended that the district would actually supply any water. The water is furnished by Paragould Water Improvement District No. 3, apparently a true improvement district. Each landowner has his own water meter and is billed directly by the Paragould improvement district for his consumption of water.
The Water Line Agreement contains no provision for its amendment by the patrons of the water line. Nor does it contain any provision authorizing the board of directors or the members themselves to sell the assets of the district. In fact, the only clauses looking specifically to the future are the one permitting other landowners to join the venture and a sentence providing that vacancies on the board of directors will be filled by majority vote of the landowners.
The venture proved to be decidedly successful. By 1969 a total of 311 patrons were being served by the district’s water line. Assets of the district included the water mains, a large storage tank, pumps, real estate, and more than $12,000 in cash.
After the district was formed in 1958, the city of Center Hill, astride the water line, was incorporated and had grown to a population of 1201 by 1970. The district’s water line is used, pursuant to the original Water Line Agreement, by some residents of the city; it is also used by landowners living outside the city. In 1969 the city sought to create its own water distribution system. Application was made to a federal agency for a loan of $620,000, payable over a period of 40 years, to finance the project. The federal lending agency required as a condition to the loan that the city own its water mains, which meant that it would have to acquire the district’s line. To that end the city offered to purchase all the assets of the district upon substantially the following terms:
The district would transfer practically all its assets, including at least $12,000 in cash, to the city, in return for $75,000 in second mortgage bonds to be issued by the city. Those bonds would bear no interest, would be subordinate to the federal agency’s first mortgage for $620,000, and would be payable only from the city’s water revenues. The city’s proposal was submitted to the district’s 311 landowners, of whom 185 voted for the sale to the city and 48 voted against it. The other 78 did not vote, but it had been explained that a failure to vote would be counted as a vote against the sale. Thus slightly less than 60% of the patrons of the district voted for the sale.
We do not stop to explore nice questions of whether the district constitutes an unincorporated association, a joint venture, a partnership, a private trust, or some other recognized legal entity. It is enough to point out that the district is not a public utility. It is simply a band of landowners who together own a private water line. Each landowner has made an investment in the district and is a proportionate owner of its assets. The Water Line Agreement contains no provision conferring upon a majority of the members the power to sell the district’s assets. We liken the proposed sale to a situation in which a majority of a group of tenants in common might claim the right to sell the entire property at a price of their own choosing and in disregard of the protests of the minority members of the group.
Here the minority landowners in the district own a share in a venture that is fully paid for and that is successfully serving its intended purpose of providing the landowners with city water. If the city’s offer should be enforced, those landowners would be compelled to exchange their valuable property rights for non-interest-bearing second mortgage bonds, seemingly due at least 40 years in the future and subject to being wiped out by a foreclosure of the first mortgage. Moreover, the protesting landowners would themselves have to participate in paying the water revenues which are the sole security for the bonds, so that they would in ef feet be required to take part in buying their own property from themselves. We think it plain that the city’s proposal violates the constitutional prohibition against the taking of private property for public use without just compensation. Ark. Const., Art. 2, § 22 (1874). In the familiar words of Justice Holmes, speaking for the court: “We are in danger of forgetting that a strong public desire to improve the public condition is not enough to warrant achieving the desire by a shorter cut than the constitutional way of paying for the change.” Pennsylvania Coal Co. v. Mahon, 260 U. S. 393 (1922).
Affirmed. | [
80,
124,
-12,
110,
-72,
-32,
24,
-117,
105,
-86,
-25,
83,
-27,
76,
4,
97,
-89,
127,
117,
121,
-57,
-78,
83,
64,
-48,
-45,
-69,
-43,
-69,
93,
-28,
-35,
76,
33,
-54,
-107,
102,
-62,
-49,
-40,
-122,
67,
25,
105,
-23,
-64,
48,
91,
18,
79,
69,
-116,
-13,
-83,
24,
-21,
9,
46,
-55,
35,
65,
122,
60,
-41,
-1,
22,
32,
68,
-104,
1,
-22,
10,
-104,
113,
8,
-20,
115,
54,
-122,
117,
9,
-101,
44,
98,
98,
10,
33,
-57,
-88,
-120,
15,
-1,
-119,
-90,
82,
24,
98,
33,
-66,
-100,
124,
20,
37,
-10,
102,
-123,
95,
108,
6,
-113,
-106,
-95,
-115,
-21,
-120,
3,
-17,
7,
32,
116,
-53,
-30,
92,
71,
50,
-101,
14,
-48
] |
George Rose Smith, Justice.
The appellant was sentenced to four years imprisonment upon a jury ver diet finding him guilty of illegal possession of narcotic drugs; namely, marijuana and LSD. The drugs were discovered by police officers while they were searching a trailer occupied by Shinsky. The principal argument for reversal is that the magistrate who issued the search warrant did not have sufficient proof before him to justify the issuance of the warrant.
The rules of law that were controlling when this search warrant was issued are well settled. A search warrant might then be issued on the basis of oral testimony. Tygart v. State, 248 Ark. 125, 451 S. W. 2d 225 (1970). (Act 123 of 1971 now provides that the warrant be issued only upon affidavit.) The proof may consist of hearsay information, but in that event the magistrate must be furnished with underlying facts sufficient to enable him to exercise his independent judgment about the validity of the informant’s conclusions and about the reliability of the informant’s source of information. Spinelli v. United States, 393 U. S. 410 (1969); Aguilar v. Texas, 378 U. S. 108 (1963).
Two witnesses testified at the hearing below on the defendant’s motion to suppress the evidence. James D. Lester, a Criminal Investigator for the State Police, obtained the search warrant from Judge Engeler, the municipal judge at Mountain Home. Officer Lester identified the affidavit that he submitted to Judge Engeler, which simply stated that certain drugs would be found on Shinsky’s person and in his trailer, which was sufficiently identified. The affidavit alone would not have been a sufficient basis for the issuance of the search warrant.
Judge Engeler, before issuing the warrant, placed Officer Lester under oath and heard his testimony. Lester’s testimony before the judge was to this effect: On the night of May 20, 1970, Lester was informed by John Tumage that three persons—Tim Winkler, Larry Corbin, and an unidentified woman—had apparently been under the influence of narcotics at Turnage’s residence. Officer Lester interviewed Winkler and the woman, who admitted the truth of Turnage’s statements. The two also said that they had gone to a place known as Popeye’s, in Memphis, Tennessee, to obtain drugs for themselves and for several others, one of whom was the defendant Shinsky. Winkler said that he had personally delivered drugs to Shinsky and to others. Winkler also said that the drugs would be consumed at Shinsky’s trailer on the evening of May 21. Under the authority of the warrant the officers searched the Shinsky trailer on that evening and found the drugs.
The other witness at the hearing was Judge Engeler, who corroborated Officer Lester’s testimony. Upon the basis of that proof, which was not contradicted, the circuit judge held that Judge Engeler had had before him sufficient proof to sustain the issuance of the warrant.
We agree with the trial court. As Officer Lester pointed out, Turnage’s statements were later verified in every detail by other evidence. Both Tim Winkler and the woman appeared to have direct first-hand knowledge of the facts which they related to the officers. Popeye’s place was already known to the police as an outlet where illegal drugs could be purchased. Taking the testimony as a whole, we are convinced that Judge Engeler had before him sufficient evidence to enable him to reach his own independent conclusion that the underlying facts supported Officer Lester’s belief that Shinsky had illegal drugs in his possession and that Lester’s informants were credible and reliable sources of information. Therefore Judge Engeler was justified in finding the existence of probable cause for the issuance of the warrant.
Secondarily, the appellant contends that the trial court should have granted a continuance to permit the accused to obtain the testimony of Tim Winkler. On the date of the trial Winkler was apparently in the military service, at an overseas station. Shinsky’s motion for a continuance did not disclose either what Winkler’s testimony would be or when he would be available as a witness. There is nothing in the record to suggest that Winkler’s testimony would be favorable to the accused; in fact, the implications are to the contrary. In the cir cumstances no abuse of the trial court’s discretion in the matter has been shown. Fisher v. State, 241 Ark. 545, 408 S. W. 2d 894 (1966), cert. den. 389 U. S. 821 Ark. 545, 408 S. W. 2d 894 (1966), cert. den. 389 U. S. 821 (1967); Maxwell v. State, 216 Ark. 393, 225 S. W. 2d 687 (1950).
Affirmed. | [
48,
-18,
-19,
62,
43,
-32,
58,
48,
66,
-1,
116,
51,
-83,
64,
4,
41,
-85,
127,
21,
105,
-47,
-73,
70,
2,
-94,
-9,
105,
-11,
-75,
-49,
44,
-44,
14,
52,
-78,
-67,
102,
-56,
-1,
90,
-50,
17,
-96,
115,
82,
80,
32,
47,
-93,
14,
49,
30,
-29,
44,
16,
-53,
41,
56,
91,
-67,
104,
113,
-69,
31,
-19,
54,
-93,
-44,
-66,
7,
-8,
14,
-36,
17,
0,
122,
99,
-76,
-126,
-12,
12,
-103,
12,
98,
106,
-120,
29,
-19,
-80,
-52,
-102,
47,
-115,
-89,
-99,
105,
65,
-20,
-106,
-65,
36,
24,
47,
-4,
-21,
85,
113,
108,
75,
-34,
-106,
-109,
29,
112,
-116,
51,
-21,
-93,
48,
115,
-39,
42,
92,
116,
113,
-97,
-113,
-109
] |
Lyle Brown, Justice.
Appellant Mary Nowlin challenged the validity of the will purportedly executed bv her son and which named his sister, appellee Pauline Spakes, as his sole beneficiary. At the conclusion of appellant’s case the court sustained appellee’s demurrer to the evidence. Appellant contends that the demurrer should have been overruled because she made a prima facie case supporting her allegations of incompetency, undue influence, and execution of the will contrary to statutory requirements.
The testator, Allen Nowlin, died in August 1969. For a number of years he suffered from Parkinson’s disease. For some six or seven years prior to his death, Allen was so crippled that he had to have assistance in feeding and bathing himself. He had a mother and nine brothers and sisters and he lived with several of those relatives during that period. Those facts are undisputed.
Nine witnesses testified for appellant. The appellant-mother described the testator’s hands as being so drawn and distorted that he did not use them for the last ten years of his life. She said the testator could not sign his own name and that others had to endorse social security checks. "He got progressively worse and his mind was affected. He would see things and think the army was coming in on him with guns, and he accused people of spraying arsenic in his room.”
A brother, Grady Nowlin, testified that Allen’s speech was so impaired that he was hardly understandable. He also said Allen was unable to sign his checks between 1964 and 1969. Allen lived with Mr. and Mrs. Paul Nowlin from 1965 until 1968. She described Allen’s hands as being so drawn together that he could not hold anything. Mrs. Nowlin said she could not handle Allen by herself and that she brought in paid male help to assist her. "His mind was just about completely gone. He didn’t remember anything . . He talked of planes crashing in his room . . . sometimes he wouldn’t eat because he said we had his food poisoned.”
Two of the attendants hired by Mrs. Paul Nowlin testified. George Goss said he bathed Allen, fed him, and gave him medicine. He asserted that it was impossible for Allen to sign his name, even if someone were to place a pencil between his fingers and guide the pencil. He said Allen could barely make a cross on his checks. As to Allen’s mentality, Mr. Goss said “He talked crazy like someone was after him and spraying him.” Attendant Calvin Kearney testified as to Allen’s physical helplessness. He also said he never saw Allen sign his name.
Another brother, Norman Nowlin, testified that he visited Allen when he was staying with appellee and that Allen was out of his mind. He described Allen’s fingers as being so stiff and distorted that it was impossible to get a pencil between them.
On March 1, 1968, Allen left the home of Mr. and Mrs. Paul Nowlin and went to visit his sister (appellee), Mrs. Pauline Spakes. That sister was called as an adverse witness. She testified that about two weeks after arrival, Allen told her he wanted to make a will and leave everything to her if she would take care of him until his death. She said she called the lawyer and gave him the information; that the will was drawn and brought to her house; that she put a pencil between Allen’s fingers and helped him write his name; and that it would have been impossible for Allen to write his own name without assistance. She conceded that during Allen’s stay of eighteen months prior to death, that was the only instance in which he signed his own name. She was asked to identify checks drawn on Allen’s account which reflected that she signed the checks “Mrs. Pauline Spakes, for Allen W. Nowlin.” Appellee said she told her mother about the will but did not tell her what disposition Allen made of his estate.
In considering the demurrer to the evidence it was the duty of the trial court to give the evidence “its strongest probative force in favor of the plaintiff and to rule against the plaintiff only if [her] evidence when so considered fails to make a prima facie case.” Werbe v. Holt, 217 Ark. 198, 229 S. W. 2d 225 (1950). “On demurrer to the evidence we view the proof in the light most favorable to the plaintiffs.” Keck v. Gentry, 238 Ark. 672, 384 S. W. 2d 242 (1964). Gauged by the recited principles we think it clear that appellant made such a case as would support a finding in her favor unless evidence sufficient to controvert it is forthcoming. All appellant had to do was to establish a prima facie case with respect to only one of her three allegations, namely, incompetency, undue influence, or execution of the will contrary to statutory requirements. As we review the evidence we have summarized we think appellant met her burden on at least one of her allegations.
Reversed. | [
112,
46,
-51,
15,
11,
113,
104,
-120,
96,
-121,
55,
83,
-17,
-45,
69,
105,
113,
61,
81,
105,
117,
-77,
18,
73,
-46,
-13,
-87,
-106,
48,
-39,
-74,
-9,
72,
98,
10,
93,
-30,
-126,
-27,
-112,
-116,
10,
-120,
97,
-39,
-110,
48,
111,
-52,
-113,
21,
-98,
-13,
46,
24,
-26,
104,
44,
123,
59,
72,
-95,
-113,
7,
-19,
19,
-77,
4,
-98,
5,
120,
44,
28,
49,
2,
-24,
51,
-106,
-106,
116,
99,
-39,
12,
102,
-30,
-96,
-115,
-19,
-56,
-117,
15,
55,
-99,
-90,
-110,
72,
-125,
108,
-75,
-35,
124,
116,
62,
-16,
-4,
84,
124,
100,
76,
-113,
-42,
-71,
-51,
-68,
86,
-109,
-21,
41,
4,
113,
-33,
-126,
92,
103,
121,
27,
-122,
-78
] |
Lyle Brown, Justice.
Appellant issued a group life insurance policy in favor of the employees of Associated Grocers of Arkansas. Appellee’s husband was an insured under the policy and appellee was the beneficiary. The policy provided for an $8,000 ordinary life benefit and an additional $8,000 accidental death benefit. The insured, who was an accountant for Associated Wholesale Grocers of Arkansas, fell from the steps of his place of employment while on his way home after work. The injuries sustained proved fatal. Appellant paid the standard $8,000 ordinary life benefit but refused to pay the accidental death benefit by reason of the following policy exclusion:
Limitations Applicable to Accidental Death and Dismemberment Insurance. Benefits shall not be payable for any loss to which a contributing cause is: . . . (f) injury arising out of or in the course of any employment for wage or profit.
Appellee filed suit for the accidental death benefit. Appellant answered and appellee filed a motion for summary judgment. Both parties submitted affidavits and attached letters for the trial court’s consideration. (An affidavit and attached letter from the workmen’s compensation carrier of Associated Wholesale Grocers of Arkansas indicated that the carrier had voluntarily paid compensation to appellee for the death of her husband.) The trial court granted the motion for summary judgment and awarded appellee the $8,000 accidental death benefit together with 12% statutory penalty and attorney’s fees.
It should be noted at the outset that appellant does not contend that this is not a proper case for summary judgment. “We have many times held that points not argued in the brief are waived.” Gordon v. Street Imp. Dist. No. 1 of Gillett, 242 Ark. 599, 414 S. W. 2d 628 (1967).
Appellant argues first that the insured’s death arose out of or in the course of his employment for wages and that the accidental death benefit is therefore excluded under the terms of the policy, second that appellee is estopped by her own and her attorney’s actions (with respect to workmen’s compensation) from denying that the insured died from an injury arising out of or in the course of his employment for wages, and third that the policy exclusion in question is not ambiguous. Each of appellant’s points for reversal is bottomed on the premise that the life insurance policy was provided to supplement workmen’s compensation and therefore we should apply our workmen’s compensation decisions in interpreting the exclusionary clause. We do not take that view of the life policy. The exclusion does not specifically state that an accidental death which is covered by workmen’s compensation is excluded, which could easily have been done. Neither does the exclusion use the language of the workmen’s compensation statute. That statute makes compensable an accidental death which arises out of and in the course of employment while the exclusion in question excludes coverage on an accidental death which either arises out of or in the course of employment. Obviously, a situation might occur in which the employee might meet only one of the requirements needed to come under workmen’s compensation and yet because he met that one requirement he would be excluded from coverage under the accidental death policy exclusion in question. Because the exclusion neither specifically states that it is dependent on workmen’s compensation coverage nor uses the language of the workmen’s compensation statute, we must view the exclusion in question as we view other exclusions to coverage provided in insurance contracts. Brinkmann v. Liberty Mutual Fire Ins. Co., 403 P. 2d 136 (Calif. 1965).
The standards of interpretation require us to strictly interpret the exclusion to the coverage and resolve reasonable doubts in favor of the insured who had no part in the preparation of the contract. Benham v. American Central Life Ins. Co., 140 Ark. 612, 217 S. W. 462 -(1919). “Liability for accidental death will not be destroyed by the language of an exception unless clear and free from reasonable doubt, and an ambiguity contained in an exception must be resolved against the insurer.” 13 Appleman, Insurance Law and Practice, § 7427 (1943). “A condition tending to defeat a policy must be expressed or so clearly implied that it cannot be misconstrued.” 1 Couch on Insurance, § 15:92 (2d ed. 1959).
Applying the recited standards of interpretation to the exclusion in question, we find that the trial court was correct in finding that the insured was covered by the policy and not excluded by the attempted limitation to the principal accidental death coverage. When we strictly construe exclusion (f), we believe that it is a reasonable interpretation to put upon the language that the insured’s injury and subsequent death did not arise out of or in the course of any employment for wage or profit. When the injury occurred the insured had finished his work for the day. He was on the steps of his place of employment and on his way to the parking lot to drive his automobile home. Under those undisputed facts, the trial court was correct in finding that the injury did not arise out of the employment and was not in the course of his employment for wages or profit.
The question as to whether appellee was estopped by accepting the workmen’s compensation benefits is not involved in light of our view of the exclusion in question.
Affirmed. | [
18,
109,
-40,
-116,
-103,
-94,
58,
-46,
85,
-60,
37,
81,
-1,
-25,
85,
99,
-13,
41,
-15,
42,
-75,
-93,
53,
72,
-42,
59,
-79,
-59,
-79,
123,
102,
-12,
77,
32,
74,
69,
102,
10,
-19,
-38,
-58,
2,
-87,
-19,
121,
64,
48,
123,
-64,
95,
97,
-98,
-85,
42,
17,
-60,
45,
44,
73,
-95,
-48,
-78,
-118,
13,
-17,
17,
-78,
70,
-102,
35,
88,
28,
-104,
49,
40,
-24,
50,
-90,
-58,
52,
123,
-103,
76,
98,
99,
0,
17,
-25,
-68,
-104,
7,
-18,
15,
-121,
-102,
120,
59,
15,
-98,
-107,
127,
20,
-122,
124,
-4,
93,
15,
44,
1,
-114,
-12,
-80,
-49,
-20,
-99,
-117,
-17,
7,
50,
117,
-50,
-22,
92,
79,
118,
31,
-98,
-42
] |
Conley Byrd, Justice.
The jury found that both appellants South Arkansas Oil Company and Wheeling Pipe Line, Inc., were guilty of negligence and that such negligence on the part of each was a proximate causé of the fire that damaged appellee David Livingston’s building and contents. The jury apportioned the damages 75% to South Arkansas and 25% to Wheeling. For reversal of the verdict in the amount of $66,494.08, appellant South Arkansas contends there was no evidence to show that it was guilty of negligence, or that any action on its part was a proximate cause of any damages sustained and that the trial court erred in refusing its requested instruction (AMI 503) on intervening proximate cause. Wheeling does not allege error in the judgment but as a precaution to protect itself in event of reversal has filed a notice of appeal.
The record shows that South Arkansas is a gasoline marketing company and as such owns a service station in Lake Village adjacent to Livingston’s Sport Center. The station is operated by Odell Rice on a commission basis. Mr. Wadsworth, South Arkansas’s president did not know the exact gallonage of the station’s storage tanks. His method of ordering gas was to check the reports sent in by Mr. Rice and to order gas approximately every two weeks according to the amount the reports showed had been sold. On those occasions when the pumps would run out of gas Mr. Wadsworth would cause gas to be shipped by the most convenient transport, either his own or that of Wheeling. On October 8, 1969, he says Mr. Rice reported that he was out of premium gas and on the same day he called Wheeling and ordered 5,500 gallons of premium and 3,000 gallons of regular.
In accordance with Mr. Wadsworth’s order, Wheeling’s driver T. B. Ray on October 9, 1969, delivered the 5,500 gallons of premium gas and the 3,000 gallons of regular. He testified that he pumped the 5,500 gallons of premium gas into the premium tank, disconnected therefrom and started pumping into the regular tank. Before he left to get a cup of coffee, Mr. Rice told him he had run the premium tank over. He estimates that ten or twelves minutes after he started pumping the regular he shut down to go get a cup of coffee JuSt as he ordered the cup of coffee, some one said they saw smoke and he ran to move the truck without drinking the coffee. According to him not more than fifteen- or twenty minutes expired from the time he quit pumping the premium gas until the fire occurred.
David Livingston testified that there had been other occasions when spillage had occurred at the storage tanks and that he had discussed the matter with Mr. Wadsworth—[Wadsworth denies any such conversations.]
Odell Rice testified that the tanks had been over flowed before and that on the day in question he saw the gas overflowing from the premium tanks. When he first saw the fire it was in the area where the gasoline had been spilled.
George Carlton, the volunteer fire chief testified that the difficulty in extinguishing the fire was the amount of fuel in the gravel around the base of the tanks in back of the building. He says that in cleaning up the little spots of fire on the gravel, the gas would be reignited by the sparks caused by knocking one rock against another.
It seems to be conceded that the premium storage tank when completely empty would hold only 5,425 gallons of gasoline and that 93 gallons would still be left in the tank when the station pumps stopped pumping.
When the proof is considered in the light most favorable to the jury verdict, as we are required by law to do, we hold that there is substantial evidence both of negligence and proximate cause to support the verdict. As pointed out in Gibson Oil Company v. Sherry, 172 Ark. 947, 291 S. W. 66 (1927), gasoline is a highly dangerous substance. In Tri County Gas & Appliance v. Charton, 229 Ark. 989, 320 S. W. 2d 103 (1959), we stated the causal connection rule in this language:
“In actions for damages on account of negligence plaintiff is bound to prove not only the negligence, but that it was the cause of the damage. This causal connection must be proved by evidence, as a fact, and not be left to mere speculation and conjecture. The rule does not require, however, that there must be direct proof .of the fact itself. This would often be impossible. It will be sufficient if the facts proved are of such a nature, and are so connected and related to each other that the conclusion therefrom may be fairly inferred.”
South Arkansas’s assertion that the trial court erred in not giving its requested instruction on intervening cause is not supported by the record. The record before us is completely silent as to the proffer of such an instruction. In the absence of such showing, we are not in a position to hold that the trial court erred.
Affirmed. | [
116,
104,
-16,
30,
12,
-32,
56,
-102,
87,
-77,
-10,
83,
-29,
-31,
29,
121,
-26,
59,
-43,
105,
-41,
-93,
3,
114,
-62,
-9,
49,
-59,
48,
79,
116,
-41,
76,
0,
74,
29,
6,
-64,
-57,
-36,
-114,
8,
9,
100,
73,
-126,
36,
122,
52,
11,
49,
-115,
-30,
46,
28,
-49,
109,
44,
-7,
-87,
75,
50,
66,
7,
87,
0,
33,
36,
-102,
7,
-8,
26,
-112,
49,
32,
-88,
115,
-90,
-62,
-12,
41,
-103,
13,
-28,
98,
33,
5,
-17,
-24,
-120,
7,
-65,
-115,
-89,
-72,
121,
-85,
38,
-97,
20,
122,
30,
22,
-2,
-22,
69,
91,
60,
2,
-114,
-100,
-31,
-116,
101,
-108,
31,
-21,
-89,
20,
116,
-51,
-30,
93,
79,
50,
-97,
71,
-76
] |
John A. Fogleman, Justice.
This is a wrongful death action wherein the personal representative of a guest in an automobile sought recovery from the estate of the driver. Both guest and driver died from injuries received in a collision with another vehicle. Judgment was rendered against appellant, as personal representative of the guest, pursuant to jury verdict. The sole question on appeal is whether the circuit court committed reversible error in refusing appellant’s requested instruction covering certain common law and statutory rules of the road. We find no error.
The instruction was patterned after AMI 901, in setting out rules governing duties as to lookout, control and speed, omitting the opening clause “In determining whether the driver was negligent” and the closing sentence, “A failure to meet the standard of conduct required by any of these three rules is negligence.” The tendered instruction then incorporated the format of AMI 903, quoting Ark. Stat. Ann. § 75-601 (c) 3 (Supp. 1969), Ark. Stat. Ann. § 75-607 (Repl. 1962) and Ark. Stat. Ann. § 75-611 (a) (Repl. 1962) and (b) 1 (Supp. 1969) and pertinent portions of § 75-611 (b) 3 (Supp. 1969). The proposed instruction was concluded, however, by the following sentence: “The statutes and rules of the road may be considered by the jury in determining whether or not the deceased operator was guilty of wilful and wanton misconduct in the operation of her vehicle.” This conclusion was apparently substituted for the usual concluding sentence in both AMI 901 and 903. The trial judge gave both AMI 205 and AMI 402 in proper form for a guest-host case.
Appellant relies principally upon Spence v. Vaught, 236 Ark. 509, 367 S. W. 2d 238. We do not think that our holding in that case required the giving of the instruction requested by appellant. In that case, we said that the giving of an instruction delineating duties of a driver of an automobile with reference to control and speed and declaring failure to observe them to be evidence of negligence, was not an incorrect statement of the law or misleading to the jury, when considered with all the other instructions given. The instruction on rules of the road there given was followed immediately by this instruction:
Now should you find from a preponderance of the evidence that the defendant, Lucy Spence, was guilty of negligence in one or more of the respects alleged by the plaintiff, as just related to you, this negligence, without more, would not entitle the plaintiffs to maintain this action, or to recover their damages, if any. As you have previously been instructed, to recover in this action, if at all, plaintiffs must prove by a preponderance of the evidence that the defendant was guilty of wilful and wanton conduct. They must prove not only that the defendant was negligent, but also that she knew, or had reason to believe that her act of negligence was about to inflict injury, and that she continued in this course of conduct with a conscious indifference to the consequences thereof, exhibiting a wanton disregard of the rights and safety of others.
As offered, with the concluding sentence worded as it was, appellant’s requested instruction would undoubtedly have led the jury to the patently erroneous belief that violation of the rules of the road set out would be evidence of wilful and wanton misconduct. Since the instruction offered was erroneous and our attention is not directed to any instruction limiting its effect as given in Spence v. Vaught, we must affirm the judgment. | [
-16,
-8,
-40,
-67,
41,
96,
56,
-102,
-47,
-40,
-32,
-45,
-17,
-62,
-107,
59,
-13,
63,
81,
43,
-44,
-93,
87,
50,
-74,
-45,
-95,
-60,
-76,
75,
126,
-66,
77,
-32,
-54,
-43,
71,
75,
-59,
-38,
-58,
14,
10,
-15,
-103,
23,
-80,
124,
-124,
15,
97,
-98,
-93,
43,
27,
-57,
-87,
104,
105,
36,
-40,
-80,
-85,
-113,
107,
0,
-77,
36,
-98,
13,
88,
25,
-100,
49,
40,
-8,
113,
-74,
-110,
-12,
111,
-119,
-120,
98,
115,
-95,
81,
103,
-71,
-72,
46,
-6,
13,
-89,
26,
9,
73,
9,
-105,
-65,
91,
52,
12,
-6,
-4,
93,
95,
-32,
1,
-49,
-108,
-95,
-19,
116,
-76,
-120,
-21,
-121,
48,
117,
-54,
-2,
95,
68,
83,
-101,
-57,
-112
] |
Carleton Harris, Chief Justice.
There is an old adage “Hard cases make bad law”. The circumstances of this case are such that the old adage can be understood for actually our holding in this case may not be in accord with the actual intention of the testator— existing in his mind—but certainly it is in accord with long established law that the court’s finding shall be based on the intention of the testator—as expressed by the language of the will. Appellants are the heirs of Oliver W. Mills, consisting of six persons, but actually it appears that there are approximately ninety-three persons eligible to share in the estate of Oliver W. Mills provided appellants prevail. Mills died testate, a resident of Hempstead County on the 5th day of November, 1969. His wife had predeceased him, and the two had no children. Charles William Wylie, a nephew of decedent’s wife, was named executor of the will, and it was admitted to probate. Subsequently, Wylie, also the main beneficiary, petitioned the court for a construction of the will and determination of heirship; the petition was granted, and a hearing was held by the court which included the testimony of Wylie and two persons on his behalf, and the testimony of four respondents. At the conclusion of the hearing and after submission of briefs, the court filed its opinion construing the will in favor of Mr. Wylie and Hattie Tyree, a sister of Mrs. Mills, and sister-in-law of the deceased, who was also a beneficiary. From the order so entered, appellants have brought this appeal. For reversal, four points are asserted, but all relate to the fact that the judge permitted the taking of extrinsic evidence for the purpose of determining whether there was an ambiguity, when appellants say there was no ambiguity.
The will, executed by Mills on August 10, 1966, after providing for the payment of debts, reads as follows:
“2. I give, devise and bequeath all my property of every kind, whether real, personal or mixed, to my beloved wife, Mary B. Mills. In the event Mary B. Mills survives me, and remarries, then I direct that my estate be divided between Mary B. Mills and Charles William Wylie, share and share alike.
S. Should Mary B. Mills and I meet death in a common disaster, then I direct that my estate go to the following:
The Snell Cemetery at Emmett $250.00;
Rose Hill Cemetery at Hope $250.00;
First Methodist Church at Hope $500.00; and
Emmett Methodist Church at Emmett $250.00.
Hattie Tyree...............................................one fourth (in the event Hattie Tyree predeceases me then I direct that the part that she would have received go back to my estate)
Charles William Wylie...................the remainder of my estate
5. In the event Charles William Wylie dies without issue, I direct that my entire estate go to my sister-in-law, Hattie Tyree.
6. If Hattie Tyree should survive me, and wants to live in one of our homes I direct that all furnishings be left in said home for her to use, and also a car, for her use during her lifetime.
7. I hereby nominate, constitute and appoint Charles William Wylie as executor of my estate under this my Last Will and Testament and, if it is possible for him to serve in this capacity, I desire that he do so without bond. In the event Charles William Wylie is unable to serve as executor of my estate for any rea son, I desire that the Court appoint some-one to serve, but that it not be either one of my brothers-in-law.”
The instrument was then signed by Mills and witnessed by two persons, but there is no dispute but that Mills did execute the will, and that he was fully competent to do so, and acted without undue influence.
In his brief, counsel for appellant suggests that we first read the will without reading the testimony, and thus determine if there is any ambiguity in the written instrument. He was confident that we would find none— and his confidence was justified—for no ambiguity is discovered. It, of course, is apparent to any attorney who has read thus far that the language at issue, and which determines the outcome of this litigation, is found in item three as follows: “Should Mary B. Mills and I meet death in a common disaster, then I direct that my estate go to the following: [Emphasis supplied]”
Appellant’s contention is very simple, viz, the disposition in items three and five is made subject to the contingency that Mills and his wife should be killed in a common disaster.
It very clearly appears from the language in the instrument that Mills had two thoughts in mind in making this will, first, he declared what would happen if his wife survived him, and secondly he provided what would happen if he and his wife were killed in a common disaster. In the first instance, the language provides that testator’s wife is to receive all of his property, but that in the event she remarries, then one-half of his estate is devised and bequeathed to Wylie. This item never became effective because Mrs. Mills predeceased her husband. Likewise, item three never became effective because the testator and Mrs. Mills did not die in a common disaster. Item five can mean nothing, for Wylie was only to receive his interest in the estate under either item two or item three; otherwise, he received nothing. Since neither of the contingencies mentioned in those two items occurred, both provisions are completely ineffective.
Items six and seven are not under attack by appellants, and are thus not involved in this appeal.
It has often been loosely said that in construing a will, a court endeavors to determine the intention of the testator—but this statement is not quite true. As stated in Park v. Holloman, 210 Ark. 288, 195 S. W. 2d 546:
‘The appellants are correct in the statement that the purpose of construction is to arrive at the intention of the testator; but that intention is not that which existed in the mind of the testator, but that which is expressed in the language of the will. [Emphasis supplied]”
In Smith v. Smith, 229 Ark. 579, 317 S. W. 2d 275, this court stated:
“It is well settled law in this state, so well settled as to require no citation of authority, that where there is no ambiguity, or no conflict or repugnance between the provisions of the will, judicial interpretation or construction is not required.”
In Quattlebaum v. Simmons National Bank of Pine Bluff, 208 Ark. 66, 184 S. W. 2d 911, we held that where the meaning of the language in a will is unambiguous, testimony as to the testator’s intention is inadmissible. In Wilson v. Storthz, 117 Ark. 418, 175 S. W. 45, we said:
“The testator’s intention must be gathered from the will, and, while evidence may be received to explain any ambiguity in the designation of a beneficiary, yet neither the scrivener, nor anyone else, can be permitted to testify that the testator meant or intended any disposition of his property not expressed in the will.”
In Rufty v. Brantly, 204 Ark. 32, 161 S. W. 2d 11, it was said:
“The rule is, however, inflexible that surrounding circumstances cannot be resorted to for the purpose of importing into the will any intention which is not there expressed, and when a will is not ambiguous in terms it is unnecessary to resort to testimony as to the surrounding circumstances in order to ascertain its meaning.”
Almost an inestimable number of cases could be cited to the same effect. We have thus said that where the meaning of the language is not ambiguous, testimony as to the testator’s intention is “inadmissible”, “unnecessary”, “construction is not required”, and no one “can be permitted to testify that the testator meant or intended any disposition of his property not expressed in his will”. Perhaps these holdings can be summed up by a holding of this court in Lavenue v. Lewis, 185 Ark. 159, 46 S. W. 2d 649, wherein we quoted from one of the great United States Supreme Court Justices as follows:
‘The first great rule in exposition of wills (to which all other rules must bend) said Chief Justice Marshall, in Smith v. Bell, (6 Pet.) 31 US 68, 8 L. Ed. 322, is that the intention of the testator expressed in his will [emphasis supplied] shall prevail, provided it be consistent with the rules of law.”
Since we find that there was no ambiguity, there is no necessity to discuss the testimony. Under our decision in Vaught v. Vaught, 247 Ark. 51, 444 S. W. 2d 104, a case referred to by the chancellor, testimony on the question of why Mills placed the common disaster clause in the instrument, might have been pertinent as showing whether the contingency was the reason for making the will at the time of execution, or whether it was intended to specify the condition upon which the will was to become operative. For instance, testimony that Mills and his wife were getting ready to make a long trip within a few days by automobile or airplane might well have been pertinent to the question of whether the will was conditional. There was, of course, no such evidence. In Vaught v. Vaught supra, we were called upon to determine whether the court should have admitted a holographic will to probate. The opening sentence of the will read, “This is my will if I should die at once”. The testator then set out, “I want Marie Vaught, to have my land and personal property”. The instrument was dated January 11, 1951, and Vaught died on June 5, 1966. This court stated:
‘The particular question depends upon whether the contingency is referred to as the occasion of, or reason for, making the will at the time of execution, or is referred to as the reason for making the particular disposition of property which would be disposed of thereby and is intended to specify the condition upon which the will is to become operative. In the latter case, the will is contingent or conditional. In the former it is not. 1 Page on Wills (New Rev. Treatise), 418, 423, §§ 9.1, 9.5; Annot. 1 A. L. R. 3d 1048, 1050; 57 Am. Jur. 453, 456, §§ 671, 674; 94 C. J. S. 939, Wills § 152; In re Taylor’s Estate, 119 Cal. App. 2d 574, 259 P. 2d 1014 (1953).”
The words “if I should die at once” state a contingency, and oral evidence was admissible to shed light on the reason for the use of this language. The proof reflected that the will was apparently made in contemplation of hospitalization and surgery. Accordingly, in effect, we held that the impending surgery was the occasion or reason for the testator making the will at the time of execution and the will was thus not a contingent or conditional will, reversing the trial court in a four to three decision. But that situation is not present in the instant case.
The chancellor, in his opinion, referred to our holding in Vaught v. Vaught supra, stating:
“If this test applies in determining if a will is unconditional it should apply in determining if it is ambiguous, more especially when as here the extrinsic evidence in the record clearly establishes what the deceased intended.”
It is apparent from what we have said about the holding in Vaught, that we cannot agree with this statement of the chancellor, and actually if there is any ambiguity in this case, it was created by the testimony —not by the language.
Were we to affirm this case, no will would be immune from a possible successful attack, for while the testator might plainly state the disposition desired, there could well be numerous heirs who would go into court to prove by oral evidence that “Grandpa”, or “Uncle Jim”, or whoever the testator might be, really meant something else, and had numerous times, over the years, stated contrary intentions to those expressed in the will.
As we construe the English Language, the words used in the will of Oliver W. Mills are plain and clear, and entirely free from ambiguity, and it follows that all oral evidence was inadmissible.
Without any intention of being critical of the scrivener of this will, we have another clear example of a person who is untrained in the law, and totally unfamiliar with rules of construction, preparing a legal instrument. Many wills, and many deeds, have passed, and conveyed, property in a manner inconsistent with the desire that the testator, or grantor, might have had in mind, because the instrument was not prepared by one familiar with the legal effect of words used.
The order of the Hempstead County Probate Court is reversed and the cause remanded to that court for the entry of a decree consistent with this opinion.
Brown, J., not participating.
The will was prepared by Nellie Jean Webb, who was also one of the witnesses, a former legal secretary for a Hope legal firm. Following her employment by that firm, she had been employed at Red River Vocational School, but was not working at all at the time of the trial. Mrs. Webb copied the language in paragraph three, pertinent to this appeal, from a will which had been executed some years earlier, though changes were made in the beneficiaries, and the portions which were devised and bequeathed. Mrs. Webb stated that she typed it as a favor to friends and that Mrs. Mills gave her $5.00 for doing so.
There was no item four, Mrs. Webb stating that she simply made a mistake in numbering.
In Vaught v. Vaught supra, referring to Wilson v. Higgason, 207 Ark. 32, 178 S. W. 2d 855, we said: "The writer of that letter [testator] certainly did not desire that the addressee collect his insurance and money and make the division directed unless he died ‘anytime soon.’ Nor did he intend for his other desires to be carried into effect except in case of his death soon. In other words, the conditions there stated could have only been construed as stating the conditions under which the testamentary document became operative and not as the reason for making a will. On the other hand, the language “This is my will if I die at once” can be construed as stating the reason for the making of the will, i. e., that possibility of impending death which provokes much testamentary action. Since it can be so construed, it should be.” | [
-16,
124,
-40,
124,
26,
-32,
10,
-104,
80,
105,
39,
83,
127,
-37,
84,
117,
-15,
13,
81,
111,
-27,
-77,
6,
-48,
-45,
-13,
-69,
-108,
49,
-51,
-25,
95,
76,
96,
2,
85,
-26,
-126,
-19,
-108,
-50,
90,
8,
101,
81,
80,
48,
123,
94,
79,
97,
-98,
-77,
41,
31,
106,
-52,
44,
75,
-68,
64,
-80,
-117,
-116,
-23,
19,
-79,
-89,
-102,
-31,
72,
46,
-100,
49,
-128,
-24,
51,
-74,
-122,
-44,
43,
11,
12,
114,
-26,
17,
-51,
-19,
-72,
-104,
6,
-66,
-67,
-90,
-106,
25,
-7,
64,
-73,
-33,
121,
16,
-85,
126,
-2,
21,
28,
104,
5,
-113,
-42,
-95,
-87,
-66,
-100,
-109,
-53,
107,
50,
113,
-33,
-86,
93,
7,
56,
27,
-122,
-110
] |
Conley Byrd, Justice.
The sole issue on this appeal is whether an unprovoked assault upon appellant Janazean Daggs arose out of and in the course of her employment with appellee Garrison Furniture Company. The law with reference thereto is set out in Townsend Paneling v. Butler, 247 Ark. (Dec. 15, 1969), as follows:
“ ‘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. 2, § 11.21, et seq.; Johnson v. Dierks Lbr. and Coal Company, 207 Ark. 527, 181 S. W. 2d 485 (1944).”
The proof is that appellant worked on the same floor as her assailant, Joy Stevens. Appellant had no social contact with Mrs. Stevens, had not talked to her and had not talked about her. On the day of the occurrence appellant had clocked into appellee’s premises and was waiting for the bell to go to work. The work bell rang at 7:25 A.M. About 7:15 A.M. Mrs. Stevens came up to her, said, “I heard you were talking about me” and began striking appellant.
Joy Stevens admitted the striking. On direct examination she stated that her reason for striking appellant was not connected with her work for appellee. She just struck her for personal reasons not connected with her work. On cross-examination she admitted she had never talked to appellant and that she struck appellant because of something she heard from the other employees where she worked. When asked if it would have been the day before that she heard this something she replied, “It was just about every day.” On redirect she testified that she heard the rumors from her fellow employees and the rumors concerned Billy Lowe, a man who worked in her department. On recross she said her fellow employees would come by and whisper the rumors in her ear. On redirect she stated that the matter had gotten worse the day before because of something she heard after work.
Even if the assault be considered the result of horse play, there is evidence from which the Commission could have found that it was not work connected. Of course the Commission could also have inferred that the assault was related to a purely personal matter involving Billy Lowe.
Affirmed. | [
-111,
-8,
-35,
-115,
41,
-27,
34,
-78,
99,
-121,
117,
115,
-31,
-12,
29,
121,
-14,
77,
85,
43,
-58,
-77,
83,
-29,
-78,
83,
48,
85,
-95,
74,
-12,
124,
68,
48,
10,
69,
103,
2,
-63,
92,
-128,
10,
42,
-24,
112,
-128,
40,
59,
124,
79,
48,
-115,
-13,
40,
92,
75,
40,
110,
78,
-85,
-46,
113,
-126,
13,
125,
18,
-77,
38,
-100,
39,
-40,
30,
-103,
48,
32,
72,
114,
-74,
-126,
116,
73,
-71,
4,
99,
98,
34,
-115,
-91,
108,
-8,
38,
126,
-99,
-89,
-103,
120,
11,
9,
-65,
-107,
122,
68,
7,
124,
-25,
93,
22,
108,
-118,
-121,
-106,
-77,
15,
96,
-106,
-89,
-61,
23,
1,
33,
-34,
-86,
93,
69,
114,
31,
-42,
-112
] |
Lyle Brown, Justice.
Petitioner Michael Morrow was found in contempt of the Faulkner Circuit Court on two separate counts. He was sentenced to fifteen days in jail and fined thirty dollars for failure to respond to a subpoena. When Morrow was brought before the court on that charge he was instructed to permit his hair to be cut. He declined and was sentenced to thirty days on the county penal farm. The sentences were to run consecutively and it was provided that he could purge himself of the second sentence if during the first fifteen day period he permitted his hair to be cut. The following day this court ordered Morrow released under bond based on his petition for a writ of habeas corpus. On appeal Morrow contends that he was not guilty of contempt on either charge and, alternatively, that the punishment was excessive.
We have before us a complete transcript of the record and proceedings incident to petitioner’s conviction. “Consequently, we must review the record to determine the propriety of the trial court’s action.” Widmer v. State, 243 Ark. 952, 422 S. W. 2d 881 (1968). In making that review we begin with the proposition that this is a procedure for criminal contempt and the proof of guilt must be shown beyond a reasonable doubt. Blackard v. State, 217 Ark. 661, 232 S. W. 2d 977 (1950). We examine the record for substantial evidence.
1. Response to the Subpoena. Morrow, a resident of Little Rock, was served with a subpoena on December 2, 1970, to appear in the Faulkner Circuit Court, Conway, on December 7 to testify on behalf of the plaintiff in the case of State v. Pruitt. Morrow did not report on the date ordered. He was brought before the court on December 10 and punishment was imposed. Morrow challenges the punishment for failure to report on two grounds. First, he says he called the office of the deputy prosecuting attorney on the morning of December 7 and advised his secretary that he, Morrow, had no transportation; that he was told by the prosecutor’s secretary to stand by for further instructions; and that he waited at home for some four hours and heard nothing. The first weakness in petitioner’s' position is that he waited some four days and until the day of court when he was to report at 9:00 a.m. before explaining his transportation problem. Additionally, the court may have correctly concluded that other modes of travel were available for the short distance of some twenty-five miles from Little Rock to Conway. Secondly, petitioner contends that because of a stipulation between the parties his testimony was not needed. We do not so interpret the record.
Mr. Pruitt was being tried for alleged embezzlement while employed in the business office of State College of Arkansas. Scores of students had been subpoenaed (Morrow was a former student) by the State to testify that they paid stated amounts as entrance fees, whether they paid in person or by mail, whether they received a receipt, and whether they could identify the college official with whom they dealt. Counsel for both parties interviewed all the students and former students who were present and stipulated what their answers would be to the enumerated questions. Thereupon those students were released. They could not stipulate as to petitioner’s testimony because he was not present. His absence was reported to the court and an officer was sent to Little Rock with an attachment. Shortly after noon counsel for the State and for Pruitt went to the jail where petitioner had in the meantime been incarcerated and obtained from him all information which answered the recited questions. It was at that time that a stipulation was made as to petitioner’s testimony which eliminated the necessity for his taking the witness stand. It must be noted that petitioner’s presence was needed on December 7, the opening day of the trial, and again on the morning of December 10. Furthermore, the prosecutor testified that petitioner’s presence was necessary to obtain the answers to enumerated questions before his presence on the witness stand could be waived. We are unable to say the court was in error in imposing punishment for failure to respond to the subpoena.
This brings us to a consideration of the amount of punishment imposed. It constitutes criminal contempt for one to willfully disobey any process or order of the court. Ark. Stat. Ann. § 34-901 (Repl. 1962). Section 34-902 fixes a maximum fine of fifty dollars and imprisonment not to exceed ten days. However, that section has been held not to be a limitation on the power of the court to inflict punishment for disobedience of process. Spight v. State, 155 Ark. 26, 243 S. W. 860 (1922). Be that as it may, petitioner was nineteen years of age at the time, and according to his unrefuted testimony, he did make some effort to notify the authorities of his transportation problem. Further, his failure to respond caused no delay in the trial. Under the circumstances we think a fine of thirty dollars and twenty-four hours in jail (which he has already served) constitute sufficient punishment.
2. Refusal to Have Hair Cut. When the court imposed penalty on the first count appellant was ordered committed and the sheriff was directed to get appellant a haircut. Later in the day petitioner was brought before the court for a hearing. With regard to failure to get a haircut this colloquy occurred:
COURT: And when you were brought before the court earlier in the day it was an order of this court that you have a haircut. It is my understanding that you refused, is that correct?
MORROW: Yes, sir. May I state the grounds, or would there be objections?
COURT: I care not. Go ahead.
MORROW: Your honor, I am employed as a musician, and I find it more or less a requirement to have my hair like I wear it.
Thereupon petitioner was found guilty of contempt and received a second sentence. The law of contempt is discussed at length in Freeman v. State, 188 Ark. 1058, 69 S. W. 2d 267 (1934). There, in a unanimous opinion, our court set out these principles as encompassing the rules of contempt:
(1) That the power of punishment for contempt is independent of statutory authority, being inherent in and an immemorial incident of judicial power, its conclusions to be reached and judgments found without the intervention of a jury; (2) that, because of this extraordinary and inherent power, the administration of which is entrusted to the conscience of the court alone, the power should never be exercised except in those cases where the necessity is plain and unavoidable if the authority of the courts is to continue; (3) that courts entertain proceedings for contempt for two purposes, one to preserve the power and dignity of the court and to punish for disobedience of orders, and the other to preserve and enforce the rights of private parties to suits and to compel obedience to orders and decrees made to enforce the rights and administer the remedies to which the court has found the parties to be entitled.
The record before us is devoid of any showing that the appearance of the petitioner created a “plain and unavoidable necessity” that he be punished in order to protect the authority of the court. Nor is there any evidence of an affront to the dignity of the court. If his appearance created any disturbance whatsoever it is not revealed in the record.
A court rule prohibiting the appearance of parties and witnesses appearing in court in other than the ordinary short haircuts has never been litigated in any of the appellate courts. At least no such case has come to our attention. However, there have been a number of so-called “haircut cases” in the inferior federal courts involving school attendance. Those cases, although not controlling here, are indicative of a definite legal trend. A typical case, and one much publicized, is that of Richards v. Thurston, 424 F. 2d 1281 (First Circuit, Mass. 1970). That case held that the suspension of a high school student whose hair fell “loosely about the shoulders” violated the student’s personal liberty guaranteed him by the due process clause of the Fourteenth Amendment. There we find this statement:
We do not say that the governance of the length and style of one’s hair is necessarily so fundamental as those substantive rights already found implicit in the “liberty” assurance of the Due Process Clause, requiring a “compelling” showing by the state before it may be impaired. Yet “liberty” seems to us an incomplete protection if it encompasses only the right to do momentous acts, leaving the state free to interfere with those personal aspects of our lives which have no direct bearing on the ability of others to enjoy their liberty. As the court stated in Union Pacific Railway Co. v. Botsford, 141 U. S. 250 (1891):
“No right is held more sacred, or is more carefully guarded, by the common law, than the right of every individual to the possession and control of his own person, free from all restraint or interference of others, unless by clear and unquestionable authority of law. As well said by Judge Cooley, ‘The right to one’s person may be said to be a right of complete immunity: to be let alone.’ ”
Indeed, a narrower view of liberty in a free society might, among other things, allow a state to require a conventional coiffure of all its citizens, a governmental power not unknown in European history.
The cause is affirmed in part and reversed in part with directions to modify the punishment for failure to respond to the subpoena and to quash the contempt finding on the second count we have discussed.
A jury trial is now required in serious (as opposed to petty), criminal contempts. Bloom v. Illinois, 391 U. S. 194 (1968). | [
48,
-20,
-9,
31,
42,
-96,
50,
28,
82,
-85,
105,
82,
-31,
70,
4,
105,
59,
123,
117,
-23,
-60,
-74,
119,
113,
98,
-5,
40,
86,
57,
107,
-20,
-35,
78,
48,
-118,
81,
102,
-120,
-9,
-40,
-114,
3,
-119,
97,
-47,
64,
40,
105,
18,
15,
53,
-66,
-29,
46,
25,
-50,
-51,
108,
115,
57,
89,
113,
-104,
31,
79,
36,
-125,
-122,
-104,
2,
112,
63,
-112,
49,
1,
-24,
113,
-74,
-126,
101,
15,
-103,
-99,
102,
98,
113,
13,
-27,
-92,
-20,
15,
60,
-99,
-90,
-104,
105,
73,
77,
-106,
-67,
104,
20,
46,
-6,
99,
-116,
93,
108,
-114,
-50,
-48,
-79,
13,
109,
-114,
58,
-29,
97,
16,
117,
-51,
-42,
84,
-25,
112,
-37,
-54,
-73
] |
Frank Holt, Justice.
Appellant was charged by information with first degree murder for the fatal shooting of her husband. A jury found her guilty of murder in the second degree and imposed a sentence of twenty-one years in the State Penitentiary. This appeal is taken from a judgment on that verdict. Appellant first contends for reversal that an improper procedure was permitted in impeaching her testimony.
Testifying in her own behalf at trial, appellant claimed self-defense. She related to the jury, and adduced other evidence, that her husband, the deceased, was an intemperate drinker, that he had on several occasions threatened to take her life, and that, at least twice in the past, he had intimidated her with a knife. Shortly before the shooting, according to appellant, an altercation erupted between her and the deceased in their backyard where he was working on a car. There was evidence that he was intoxicated at this time. The argument became violent; and, as she fled the scene, she was struck in the arm by a flying object (a wrench) thrown at her from the yard by the deceased. Although the object hit her with little force and only slightly bruised her, appellant claimed that the incident, coupled with her husband’s immediate further threat as she entered their house: “I’m going to gather up a bunch of tools and I’m going to kill you,” caused her to panic and to momentarily pass out. When she came to, the appellant, according to her testimony, at once obtained a shotgun from inside the house, returned to the yard and shot her husband as he was advancing upon her.
On cross- and recross-examination the prosecuting attorney, over defense objections, sought to impeach appellant by reference to a statement which she had made to the police while in custody. On recross-examination, for example, the prosecuting attorney asked:
# # # When you told your story that night, you said that your husband was running away from you when you shot him at that time, didn’t you?
Counsel for appellant objected to this reference to a prior statement because it had not previously been ad mitted into evidence. The objection, however, was overruled and appellant thereafter denied making this statement. Later, in an attempt to further impeach appellant’s story and thereby discredit her plea of self-defense, the State adduced rebuttal testimony from an investigating officer that appellant had made an in-custody statement that she shot her husband while he was “walking or running away from her.” Objection was again registered against reference to that statement on the grounds that it was in the nature of an in-custody admission and had not been judicially determined, in the proper manner, to have been voluntarily made. However, the State argued, in effect, that inasmuch as the prior inconsistent statement was being offered simply for the limited purpose of impeaching appellant’s testimony and not as an admission, its consideration at trial was neither contingent upon a judicial predetermination of voluntariness nor subject to any exclusionary rules. Ultimately, the trial court overruled appellant’s objection and denied her subsequent motion to strike the officer’s testimony.
Appellant now asserts that the trial court erred in permitting the State to impeach her in-court testimony by the use of an in-custody statement without first having determined its voluntariness. Appellant contends in her brief that the language in Miranda v. Arizona, 384 U. S. 436 (1966) “controls the disposition of the case at bar. Many state and federal cases on this issue point to the clearness of the Supreme Court’s discussion about impeachment to reach a result favorable to appellant, [citing cases] Likewise, appellant submits that the language quoted from Miranda’ is so clear that it is not susceptible to argument. What could be clearer than what the Court has said about impeachment? It said that statements used to impeach must comply with its guidelines. Therefore, since the statement in the case at bar was not shown to be incompliance, the verdict must be set aside.” However, after appellant’s brief was filed, and following the submission of this case, the United States Supreme Court specifically held contrary to appellant’s contention. In doing so the Court acknowledged that Miranda “can indeed be read as indicating a bar to use of an uncounseled statement for any purpose.” The Court, in Harris v. State of New York, 401 U. S--, 91 S. Ct. 643, 28 L. Ed. 2d 1 (1971), held that, even though a defendant’s statement is inadmissible against him in the State’s case in chief because of the lack of procedural safeguards which Miranda requires, the statement, however, can be used for purposes of impeachment to attack and test the credibility of the testimony of a defendant-witness about prior inconsistent in-custody statements where the trustworthiness of the evidence satisfies legal standards. Therefore, in the case at bar, we hold that it was permissible for the State to test the credibility of appellant’s trial testimony by cross-examination and by the rebuttal testimony of the investigating officer with respect to her allegedly voluntary and contradictory statement. In Harris the court said: "Having voluntarily taken the stand, petitioner was under an obligation to speak truthfully and accurately, and the prosecution here did no more than utilize the truth-testing devices of the adversary process. * * * The shield provided by Miranda cannot be perverted into a license to use perjury by way of a defense, free from the risk of confrontation with prior inconsistent utterances.”
Appellant also cites to us Jackson v. Denno, 378 U. S. 368 (1964), and Ark. Stat. Ann. § 43-2105 (Supp. 1969) in support of her assertion that a Denno hearing was never held to determine the voluntariness of the contradictory statement. It must be remembered that this asserted contradictory statement was not offered in evidence by the State in presenting its case in chief. The appellant insists that from the evidence, the allegedly volunteered statement by appellant, before interrogation, was made when in custody and in a police dominated atmosphere. In denying that she made the statement, she testified that she was nervous and upset and could not remember making the statement. In Harris there was no contention that the contradictory statement was involuntary. However, the court also noted that the voluntariness of a confession is irrelevant when the defendant becomes a witness, and further stated: "We reject such an extravagant extension of the Constitution.”
In the circumstances, it is our view that the latest expression of the United States Supreme Court in Harris is controlling in the case at bar and renders Miranda, which appellant cites as dispositive of this case, inapplicable. In doing so, it appears to restore the validity of our previous decisions, such as Decker v. State, 234 Ark. 518, 353 S. W. 2d 168 (1962), 98 ALR 2d 1. There the contention was made that cross-examination of the defendant about inconsistent statements was impermissible since they were in the category of a confession and the proper foundation had not been established for the admission of a confession. We said: “Of course, a defendant in a criminal case who elects to testify is subject to impeachment like any other witness, and the purpose of the questioning was to establish that Decker had earlier made contradictory statements as to the circumstances of the killing.”
We turn now to .appellant’s second and final point for reversal. At the close of all the evidence, appellant moved that the prosecuting attorney be required to fully disclose in his opening argument the grounds upon which he would rely for a conviction. We agree with appellant that the trial court should have granted the motion by admonishing the State to comply with the request. Ark. Stat. Ann. § 43-2132 (Repl. 1964) provides that the party having the burden of proof shall also be entitled to give the opening and conclusion of final argument. However, this statute also expressly indicates that the party having the burden shall not enjoy the privilege of concluding the argument without first, upon demand of the adverse party, making a full statement of the grounds upon which he claims a verdict.
An examination of the record demonstrates, however, that the refusal of the appellant’s motion amounted to harmless error since the prosecuting attorney did in fact make an adequate preliminary disclosure of the grounds upon which he would rely for a conviction. Appellant complains that the prosecution, in the concluding portion of final argument, commented for the first time concerning her failure to produce any evidence of the deceased’s reputation for violence and also for the first time, asserted that appellant’s son, who did not testify, in all probability planted a wrench under the deceased’s body and put the shotgun in the house. However, we think the State’s concluding argument contained only proper rebuttal material in light of the matters discoursed upon in appellant’s preceding closing argument.
Affirmed.
Fogleman, J., not participating. | [
17,
-17,
-79,
-97,
41,
96,
106,
-104,
-32,
-62,
-27,
115,
55,
-61,
81,
107,
127,
45,
117,
105,
68,
-77,
23,
65,
-14,
-69,
16,
-41,
-77,
110,
-3,
-33,
9,
114,
74,
85,
102,
-118,
103,
80,
-128,
-100,
-119,
112,
-54,
-46,
32,
47,
84,
7,
49,
-50,
-13,
42,
23,
-30,
8,
40,
74,
-68,
64,
57,
-128,
-115,
-55,
18,
-77,
38,
-100,
38,
88,
14,
-103,
49,
0,
-8,
115,
-106,
-126,
84,
107,
-86,
4,
102,
98,
-80,
-51,
-19,
40,
-119,
-81,
126,
-66,
-121,
24,
113,
73,
40,
-97,
-99,
108,
-76,
38,
116,
-19,
85,
93,
108,
14,
-41,
-106,
-79,
-113,
48,
-108,
-14,
-29,
-121,
0,
117,
-51,
96,
92,
5,
121,
-101,
-114,
-46
] |
Carleton Harris, Chief Justice.
This appeal questions the correctness of the ruling by the Independence County Circuit Court that Auto-Kar Distributors, Inc. was doing business in Arkansas without having qualified, and that accordingly, its note and security instrument assigned to Union Planters National Bank of Memphis, appellant herein, could not be sued upon. N. S. Garrott, Jr. owned two corporations, the Garrott Corporation, and Auto-Kar Distributors, Inc. The former is an Arkansas Corporation and sold coin operated automatic car washers. The latter corporation was set up to market these coin operated car washers in Tennessee, Southern Kentucky and Northern Mississippi. Both companies sell a machine known as “Auto-Kar Washer”. A contract was entered into in January, 1967, between Auto-Kar Distributors, Inc. and Clem Moore and Paul Willmuth, partners, D/B/A General Oil 8c Investment Company, for the sale of one of these car washers. This contract was subsequently assigned to appellant, which instituted suit when appellees ceased making their payments. Appellees defended upon the basis that Auto-Kar Distributors, though doing business in Arkansas, had not qualified to do so; that appellant was not authorized to do business in Arkansas, and it was prayed that the complaint be dismissed. After the taking of testimony, the court found that Auto-Kar Distributors, Inc. contracted to sell a car washer to appellees, which was to be erected at Batesville; that it further contracted to supervise the erection of the car washer through its engineer; that Auto-Kar Distributors, Inc. was a foreign corporation incorporated under the laws of the state of Tennessee and had not qualified to do business in Arkansas; still further, that the contract between the parties was first signed by the president of Auto-Kar Distributors, Inc. and then taken by its representative to appellees in Batesville where it was signed by a repre sentative of appellees; that the contract for the sale and erection of the automatic car washer was made in the state- of Arkansas. Upon these findings, the complaint was dismissed, and from the judgment so entered, appellant brings this appeal. For reversal, it is asserted that the court erred in holding that Auto-Kar Distributors was doing business in Arkansas, appellant contending that the transaction was a single isolated sale which would not constitute doing business in this state, and it is further contended that the transaction was interstate in character and qualification to do business was not required of Auto-Kar Distributors.
Mr. Garrott, who lives in Memphis, testified that he. became acquainted with appellees during a period of time when one of the Garrott Corporation salesmen sold units in Arkansas. He said that this corporation entered into a contract with appellees to sell them a complete car wash system, but that the sale was made on condition that it could be financed through the home company in Dallas. However, the parties were unsuccessful in obtaining financing in Dallas, and Garrott testified that it was decided that financing could probably be obtained through the Union Planters National Bank in Memphis through Auto-Kar Distributors. This last is the Tennessee corporation. The witness stated his company did banking business with this bank and the proposed transaction was discussed with bank officials; as a consequence, the bank agreed to handle the financing. Accordingly the first contract was cancelled and a new bill of sale was executed on January 16, 1967. Appellant bank has a required set of forms for use and this form, called “Security Agreement” was executed by Mr. Garrott as president of Auto-Kar Distributers and by Clem Moore for General Oil & Investment Company, the agreement being dated January 23, 1967. It actually is a contract for the sale of the washer, and was assigned by Auto-Kar Distributors to Union Planters National Bank on the same date. Under the provisions of the agreement, the seller retains security title to the goods. At this point, we have the first dispute in the testimony. Garrott testified that Moore had already signed the agreement at the time he (Garrott) signed it in Memphis. Moore subsequently testified that Garrott had already signed it at the time he (Moore) signed it in Batesville. The president of Auto-Kar Distributors further testified, and this is not disputed, that the machine was shipped from Dallas, Texas, F. O. B. to Moore and Willmuth. Garrott testified that this was the only unit that Auto-Kar Distributors had sold in Arkansas. He also testified that there was nothing in the agreement that required his company to furnish any assistance in setting up the unit, but that when the machine was delivered at Batesville, the company sent a man over to supervise the installation of the machinery.
Mr. Willmuth and Mr. Moore testified that the agreement was signed by Moore in their office at Bates-ville, and that Garrott’s signature was already affixed to the instrument when Moore signed it. Both stated that the agreement was brought to the General Oil & Investment Company’s office by a Mr. Ross who was with Auto-Kar Distributors. Moore (Clem) stated that the items comprising the car wash were shipped or brought into Arkansas, part coming from Dallas, another part, a hot water heater, coming from another source which he believed to be Tennessee. He testified that appellees also purchased a vacuum cleaner to use ’in cleaning the inside of the cars which was to be delivered at a date subsequent to the original delivery; this vacuum cleaner was delivered in Batesville by an employee of Auto-Kar. Moore also said that he paid $175.00 for the use of the engineei sent over by Auto-Kar for the purpose of supervising the erection of the unit.
Mr. Garrott again testified on rebuttal that the agreement was not signed when it was sent out by him. “It would have been the poorest business practice in any form ever conducted had I signed that before it was sent over there.” He also denied that there was any vacuum cleaner involved in the transaction at all. Garrott said he had not agreed to furnish any engineer, and that he was denying he had said anything about sending an engineer. The bill of sale does provide for “supervision” for $175.00._
After a close study of the facts in this case, and the authorities cited, we agree with the trial court that the acts of Auto-Kar Distributors, Inc. constituted the doing of business in this state. Cases cited by appellant are distinguishable. McHaney v. Lafayette South Side Bank and Trust Co., 185 Ark. 1022, 50 S. W. 2d 991, involved a foreign corporation, not authorized to do business in Arkansas which had executed a contract renewing a prior guaranty contract entered into and to be performed in another state. Sillin v. Hessig-Ellis Drug Co., 181 Ark. 386, 26 S. W. 2d 122, held that a foreign corporation, without qualifying to do business in Arkansas, may take and foreclose a mortgage to collect its accounts resulting from interstate sales. In Simmons-Burks Clothing Co. v. Linton, 90 Ark. 73, 117 S. W. 775, the court held that prohibiting a foreign corporation from doing business in this state without qualifying to do so, does not prevent such a corporation from taking a note or mortgage to secure a past due debt for goods sold in another state. The case of Goode v. Universal Plastics, Inc., 247 Ark. 442, 445 S. W. 2d 893, relied on by appellant, also involved a contract made in another state.
The facts in the case of Hogan v. Intertype Corporation, 136 Ark. 52, 206 S. W. 58, bear some similarity to the instant litigation. There, a salesman for appellee company, which had its main office in New York, called on the appellant in Arkansas and obtained a written contract for a typesetting machine. The machine was shipped from New Orleans to the appellant, and thereafter an agent of the company arrived in Arkansas and demonstrated to appellant the operation of the machine, whereupon appellant executed notes and mortgage. The chancellor ruled the transaction interstate business rather than business done in this state by a foreign corporation contrary to law. On appeal, we said:
“In the instant case, the property was not only retained by the seller after it reached Arkansas, but an agent of the seller was sent to the State for the purpose of demonstrating that the machine would do the work represented, in order to consummate the sale; and, after making a satisfactory demonstration, the agent accepted in part payment therefor long time notes executed and payable at Huntington, Arkansas, and a mortgage on the machine to secure the notes, which was recorded in Greenwood, Arkansas. This constituted a business transaction in Arkansas by a foreign corporation contrary to the statute law.”
This court reversed the decree and dismissed the case.
In the case now before us, title tp the property was also retained by the seller after it reached Arkansas; there is substantial evidence that an agent, or employee, of the seller was sent to Batesville for the purpose of seeing that the car wash was properly constructed. There was substantial evidence that the contract was executed, and became effective, at Batesville. These facts are all in line with Hogan. In addition, there was also substantial evidence that a vacuum cleaner, necessary in the operation of the car wash, was brought to Batesville by an employee of Auto-Kar. We think these facts establish that Auto-Kar was doing business in Arkansas contrary to the statute.
Nor are we impressed by the argument that this was an interstate transaction. Hogan v. Intertype Corporation supra, points out that one test laid down by Arkansas cases differentiating an interstate transaction from an intrastate transaction is the ownership of the property after it arrives in this state. It has already been pointed out that title was retained by Auto-Kar. Actually, all of the facts heretofore mentioned support the view that this is an intrastate transaction. Let. it be remembered that this is not the case of a resident of this state ordering goods from a foreign corporation, and the foreign corporation honoring that order by shipping the goods to the purchaser. To the contrary, the essential acts necessary to putting the car wash into operation were carried out in this state, viz, the contract was entered into in this state, the car wash was constructed in this state, and supervision for construction was furnished at the site.
Little need be said about the fact that the provisions of Ark. Stat. Ann. §§ 64-1201-02 (Repl. 1966) are also applicable to the assignees of such an unenforceable contract. In Pacific National Bank v. Hernreich, 240 Ark. 114, 398 S. W. 2d 221, this court flatly held that there can be no holder in due course of a negotiable instrument arising out of a transaction which was illegal because an unlicensed foreign corporation was without power to enter into an enforceable contract in Arkansas. In so holding, we said:
“It is settled law that assignees can receive no better rights than their assignors had. The strong language in the Hogan case is excellent—but it is dicta. Thus it is apparent that this is really the first time this court has had occasion to rule directly on the question presented.
To reverse this case and permit enforcement of the notes here sued on would in effect repeal our penal statute prohibiting unlicensed foreign corporations from doing business in this state.”
We held that a transaction of this nature is not merely unenforceable but void ab initio.
Affirmed
Fogleman, J., not participating.
Garrott had testified that the details of the transaction had been handled by Sam Moore and Carl Ross. | [
116,
-18,
-24,
-116,
24,
-32,
56,
-70,
120,
-91,
117,
-45,
-87,
-53,
21,
121,
-25,
93,
112,
121,
-75,
-73,
3,
104,
-62,
123,
-39,
-59,
-80,
-37,
-28,
-34,
76,
112,
-54,
-43,
-26,
66,
-59,
94,
-50,
32,
59,
-23,
125,
-121,
52,
42,
114,
11,
69,
-123,
-14,
56,
29,
-49,
109,
42,
-23,
44,
81,
-16,
-118,
-123,
125,
23,
49,
-92,
-102,
37,
120,
62,
-112,
-79,
0,
-8,
114,
-90,
-122,
-12,
41,
-103,
8,
32,
98,
34,
49,
-57,
-20,
-88,
14,
-1,
-97,
-26,
-108,
105,
2,
41,
-73,
28,
90,
2,
64,
-4,
-6,
-35,
23,
124,
7,
-49,
-112,
-93,
45,
97,
14,
1,
-17,
-121,
48,
117,
-49,
-26,
93,
87,
50,
-101,
-114,
-48
] |
Oseo Cobb, Special Associate Justice.
1. This is a criminal case wherein appellant was charged, under Ark. Stat. Ann. 1947, Sec. 41-3401, with the commission of the offense of rape. Prior to 1915 conviction for this offense carried a mandatory death penalty. By Act No. 187 of 1915 (Ark. Stat. Ann. 1947, Sec. 43-2153) the mandatory death penalty was removed as to all capital offenses and the jury trying the accused was authorized to bring in a verdict of guilty and life imprisonment in the State penitentiary in lieu of the death penalty, if it so desired.
2. At the conclusion of this trial the court provided the jury with three forms of verdicts, as follows: (1) Not guilty; (2) Guilty with life imprisonment; (3) Guilty as charged. After several hours of deliberation the jury returned verdict No. 3, making the death sentence mandatory. Such a sentence was pronounced upon the appellant on April 5, 1962. Execution of appellant has been stayed pending review of the case here on appeal.
3. We have painstakingly examined the entire record. We have considered on its merits every motion made on behalf of appellant and denied by the trial court and we have considered on its merits every objection interposed by counsel for appellant to which adverse rulings were made by the court. In capital cases the formal saving of exceptions to adverse rulings in unnecessary. Ark. Stat. Ann. 1947, Sec. 43-2723.
I. SUFFICIENCY OF THE EVIDENCE
The offense involved was committed on November 3, 1961. Within a matter of hours appellant was taken into custody. State and Federal authorities collaborated in a thorough investigation of the crime and on November 7, 1961, appellant was formally charged by the filing of a criminal information. Appellant makes no complaint as to the circumstances of his arrest or as to the promptness of the State’s attorney in filing the information against him.
Miss Stella Spoon, age 35, lived with her aged and helpless father at 108 Nichols Street in the city of Hot Springs, in Garland County. Near 3:00 a. m. on November 3, 1961, she was aroused by an unusual noise. Clad only in her pajamas, she went into the living room. She saw the form of a man at the window engaged in cutting or breaking the screen. She warned the intruder to leave or she would call the police. The man kept trying to force the screen and she ran to her telephone in the same room to call the police. Almost in the same instant the man burst through the window. Miss Spoon had dialed the operator before she was violently seized and the receiver knocked from her hand. The telephone operator, hearing the screams, connected the line to police headquarters, where an officer heard the screams and the struggle, traced the call, and dispatched officers to the scene.
Once inside the home, the intruder subjected Miss Spoon to a literal nightmare of brutality and abuse. She fought and struggled, but to no avail. She struck the intruder with a purse. When he forced his hand over her mouth to silence her screams she bit his finger, causing it to bleed. Her helpless father tried to aid her, but was struck and left bleeding. She tried to escape through the front door, but was caught. Her attacker kept threatening to kill her and her father as well. She was dragged and forced outside the house without shoes, and while clad only in her pajamas was forced to a remote spot some two blocks from her home, where battered, bruised, bleeding and exhausted she was overpowered and compelled against her will to suffer a deliberate and calculated rape of her person. After the ravage of her person had been accomplished, and before fleeing, her attacker threatened to kill her and her father if she told.
Testimony establishing the identity of appellant as the attacker is clear and emphatic. At the window he liad a part of a nylon stocking on Ms head, with a knot in it. When he appeared to try to quickly jerk it down over his face it came off. A piece of nylon hose was found near the home of the victim and the FBI Laboratory at Washington, D. C., found in said nylon hose specimens of hair similar in every detail to that of appellant. A thread of nylon combed from appellant’s head was found to be exact in all details with the threads of the hose found near victim’s house. Negroid hair found iu the home of the victim corresponded exactly with hair of appellant.
Officers working on the case were quick to note the fresh injury to appellant’s finger and the condition of the clothes he was then wearing. Officers were dispatched to his mother’s home, where appellant resided, and she was advised that her son was in trouble. They asked permission to examine his clothes and his mother consented thereto, taking the officers to the clothes closet and permitting them to take a change of clothes and also a blue coat and a trench coat belonging to appellant. The officers forwarded to the FBI Lab in Washington, D. C., the clothing removed from the person of the appellant, his blue suit coat, his trench coat; the victim’s pajamas and the strands of hair, nylon thread and hose previously mentioned. The repeated and violent contact between the pajamas worn by the victim and the clothing of appellant left their telltale marks on both garments.
Robert Duckett, Special Agent, FBI Laboratory, whose qualifications were admitted as an expert on hairs, fibers, textiles and related materials, testified: “It has been my experience that when clothing comes in contact with other clothing or objects fibers will be interchanged or deposited. Now working on this assumption, I removed the foreign debris adhering to the T shirt that was submitted to me, the suit that was submitted to me, and the trench cost that was submited to me ... I mounted the foreign fibers and I compared those foreign fibers that I had recovered from the debris from the garments with the fibers composing the red pajamas. In the debris of the T shirt, in the debris of the suit coat and in the debris of the trench coat, I found red cotton fibers that matched the fibers composing the pajamas ...” He also testified in detail as to the matching hair and nylon thread and hose specimens examined as set ont above.
Allison Simms, Special Agent, FBI Laboratory, whose qualifications as an expert in analysis of blood stains and body fluids were admitted, testified: “I was examining these articles for the purpose of blood stains and seminal stains. Seminal stains are stains which consist of semen and semen is the male reproductive fluid which contains the male reproductive cell. I examined the pajama bottoms and tested these stains chemically and determined that these reddish brown stains consisted of blood—human blood. In the crotch of the pajamas I identified seminal stains—also on the front portion of both legs of the trousers I identified seminal stains which contained spermatozoa. On the shirt I did not find any semen but there were blood stains present which were human blood ...”
Miss Spoon struggled with her unmasked attacker in the light of her living room and having never seen him before made a special effort to remember his face. She testified:
“Q. Is that the man? (indicating appellant, then standing to be observed by the witness)
“A. Yes, six*, it is.
“Q. Is there any possible doubt in your mind?
“A. No, sir.”
Dr. James H. French (professional qualifications admitted by appellant) examined the victim shortly after the crime ixx the emergency room of a Hot Springs hospital. He testified: ‘ ‘ This patient had numerous bruises, cuts about her person. She had the undersurface of her left toe torxx, the greater part of the skin was torn. She had a bruise oxx her right hip, both wrists had abrasions circlixxg the wrist, she had bruises of both forearms, she had a bruise axxd swelling of the lower lip, she appeared emotionally upset. I did an internal examination axid obtained a smear from the mouth of the womb axid fouxid living spermatozoa of the male germ cells in the secretion. ’ ’
The evidence in this case met in overwhelming fashion all of the requirements for conviction for the offense of rape (Ark. Stat. Ann. 1947, Sec. 41-3402). McDonald v. State, 225 Ark. 38, 279 S. W. 2d 44.
II. MOTION TO QUASH INFORMATION
This criminal information was filed under authority of Amendment No. 21 to the Constitution of Arkansas. Appellant requested and was granted additional time by the court in which to enter his plea to the charge. A bill of particulars was provided appellant and his counsel, no objection being interposed thereto. After arraignment and plea of not guilty appellant requested and was given additional time in which to prepare his defense. When appellant was finally placed upon trial he and his counsel knew with particularity the exact nature of the charge. Counsel for appellant and appellant were present in open court on February 5, 1962, when the motion for continuance was granted and an agreed trial date of the case, beginning on March 19,1962, was set. No additional time was requested for preparation for trial. Hearings on preliminary motions were ended on March 16, 1962, and the court at that time asked counsel for appellant if there was any reason why the trial could not commence on March 19, 1962, as set, and was advised ‘ ‘ The defense will be ready.” The rights of the accused were fully protected. This Court and the Supreme Court of the United States have many times held such prosecutions by information valid. Washington v. State, 213 Ark. 218, 210 S. W. 2d 307; Moore v. State, 229 Ark. 335, 315 S. W. 2d 907, cert. denied, 358 U. S. 946; Hurtado v. Cal., 110 U. S. 516; Gaines v. Washington, 277 U. S. 81; Adamson v. California, 332 U. S. 46. Denial of the motion of appellant to quash was proper.
III. MOTION TO DECLARE STATUTE UNCONSTITUTIONAL IN APPLICATION.
In this motion appellant concedes that our penalty statute for rape (Ark. Stat. Ann. 1947, Sec. 41-3403) is not unconstitutional on its face, but contends that in its application to appellant and all other members of the Negro race it is unconstitutional for the reason that in Arkansas it is the practice and custom of juries to impose the death penalty upon Negro men who rape white women, without inflicting the same punishment upon other offenders. The court heard evidence on the motion. Lee Henslee, Superintendent, Arkansas State Penitentiary, testified, on call by appellant, that between the dates of September 5, 1913, and October 28, 1960, the records of the penitentiary reflected that there had been 168 executions, broken down by charge and race as follows:
Negro for rape 19 Negro for murder 108
White for rape 1 White for murder 38
Indian for murder 2
This bare listing of the number of executions does not pretend to cover the total number of such offenses by race or otherwise, nor does it cover trials resulting in acquittals, imposition of life sentences, or cover the intervention of executive clemency. Certainly there was no evidence offered even remotely suggesting that the ratio of violent crimes by Negroes and Whites was different from the ratio of the executions. There was no testimony suggesting that the State’s attorneys in the various judicial districts had not been asking for the death penalty in their prosecutions for rape, whether the accused be black or white. In any event, the jury alone could determine the death penalty. The attack therefore appears to be directed against trial by jury.
We have carefully reviewed the decisions of the Supreme Court of the United States cited by appellant in support of his position. We comment briefly as to same. Pace v. Alabama, 106 U. S. 583. Here an Alabama statute was upheld as not in conflict with the Constitution of the United States, although, it prescribed penalties more severe for adultery between persons of different races than for members of the same race. And in Friedman v. People, 341 U. S. 90, the ease was dismissed upon motion for want of a substantial Federal question. Yiek Wo v. Hopkins, 118 U. S. 356. In this case it was admitted that discrimination was being practiced against certain persons (Chinese) in denying them permits to operate laundries, although possessed of all qualifications set forth in the city ordinance under review. Smith v. Texas, 311 U. S. 128, is one of several cases involving discrimination as to race in jury service. Lane v. Wilson, 307 U. S. 268, involved abuses in voter registration. Chambers v. Florida, 309 U. S. 227, is a criminal case where the conviction was reversed because of long days of confinement and mistreatment before the filing of charges and where confessions were obtained by coercion.
We fail to find any support in the above cases for appellant’s position. Striking down our 'criminal statutes as to a large segment of the population upon the tenuous grounds urged by appellant is illogical. It could only result in chaos in the difficult job of law enforcement for the protection of the people. This Court concurs emphatically with other appellate courts of the United States in holding that justice should be administered equally and fairly as to all citizens regardless of race or color. Our penal statute for rape applies equally to all citizens of all races. On the record before us we find no basis whatever to declare our penal statute for rape unconstitutional in any respect of verbage or application. Appellant’s motion was properly overruled.
IY. MOTION FOB CHANGE OF VENUE
The burden was on appellant (Ark. Stat. Ann. 1947, See. 43-1502) to make credible proof to support his motion. A hearing was had. All of the witnesses called by counsel for appellant testified squarely against his position. Incidentally, we note here that in appellant’s listing of executions for rape that not a single such case appears to have originated from Garland County, where this ease was tried. There was no abuse of discretion bv the trial court in overruling the motion for change of venue. Speer v. State, 130 Ark. 457, 198 S. W. 113; Adams v. State, 179 Ark. 1047, 20 S. W. 2d 130.
V. MOTION TO REMOVE TO FEDERAL COURT
Ordinarily such motions are filed directly in Federal Court. No cause was shown justifying such removal, and the trial court properly refused to surrender its jurisdiction. Rand v. State, 191 F. Supp. 20 (D. C., Ark., 1961).
VI. OBJECTIONS RELATING TO VOIR DIRE
The trial court had the advantage of observing and appraising the demeanor and answers of all prospective jurors. He allowed appellant’s counsel the greatest latitude in examining the jurors before they were approved by the court for duty in the case. Indeed, we think the court proceeded in an exemplary manner in securing a jury free from actual or implied bias or prejudice. The objections of appellant concerning the selection of the jury were properly overruled. Polk v. State, 45 Ark. 165; Maroney v. State, 177 Ark. 355, 6 S. W. 2d 299; 50 C. J. S., “Juries, Sec. 275 a(l).”
VII. OBJECTIONS AS TO LIMITATIONS OF EXAMINATION OF WITNESSES
We find from the record that the court conducted the trial of this case in such a manner as to provide counsel for appellant every reasonable and legitimate latitude in cross-examination of witnesses—no witnesses having been put on by appellant. All objections of this character are found to be without merit and properly overruled.
VIII. APPELLANT’S VARIOUS MOTIONS TO EXCLUDE ALL EVIDENCE ADDUCED BY PROSECUTION CONCERNING ITEMS OF CLOTHING AND OTHER MATERIALS EXAMINED AT FBI LABORATORY, WASHINGTON, D.C.
When the police authorities sent in for examination the clothing of appellant, the pajamas of the victim, and the other items, as previously mentioned, such action could have helped to exonerate appellant rather than help to convict him, depending upon the findings at the laboratory. In this case the findings pinpointed the guilt of appellant.
The clothing removed from the person of appellant as an incident of his arrest for the crime under investigation was properly obtained. Jones v. U. S., 357 U. S. 493; Drayton v. U. S., 205 F. 2d 35.
As to items taken from the home of appellant’s mother, with whom appellant resided, the evidence clearly shows that the mother not only consented to the search, but assisted the officers in same. She was present at the trial but did not testify. Neither was a motion filed to quash the evidence obtained at the home. The proof by the State met the burden upon the State in proceeding as it did without a search warrant. Rigby v. U. S., 247 F. 2d 584; Cantrell v. U. S., 15 F. 2d 953, cert. denied, 273 U. S. 768.
“The consent of householder to the search of the house dispenses with the necessity of a search warrant, where his mother, with whom defendant was living, consented to the search, though defendant objected to the search of his room.” Gray v. Commonwealth, 249 S. W. 769 (Ky.).
The right to object to evidence on ground of illegal seizure is waived unless there is a timely motion to suppress the evidence. Morton v. U. S., 147 F. 2d 28; Butler v. U. S., 153 F. 2d 993, cert. denied, 324 U. S. 875. No motion to suppress was filed as to any item sent to the FBI Laboratory.
Lieutenant Crain was examined and cross-examined concerning a blue coat obtained at the home, without any objection being made as to the admissibility of such evidence. The admissibility of said evidence was waived. Sandusky v. Warren, 177 Ark. 271, 6 S. W. 2d 15.
The objections stated by counsel for appellant to the items sent to the FBI Lab were always made in blanket or in all inclusive form, with no breakdown as to any given item. Such objections are of no avail where any one of several items covered in the blanket objection was lawfully and properly obtained. Eureka Oil Co. v. Mooney, 173 Ark. 335, 292 S. W. 681; Haney v. Caldwell, 35 Ark. 156; Martin v. Monger, 112 Ark. 394, 166 S. W. 566.
Appellant, in his various motions to strike all evidence introduced concerning the articles sent to the FBI Laboratory, has relied almost exclusively upon Mapp v. Ohio, 367 U. S. 643, leading case in which judicial developments as to search and seizure were reviewed comprehensively. In the Mapp case, Dollree Mapp was within .her own home. Officers appeared and demanded admittance. She refused because they did not produce a search warrant. After some three hours, and without a search warrant, the officers forcibly entered the home, searching for and obtaining evidence in the form of lewd photographs, subsequently used in evidence. There is no similarity of facts in the instant case with the Mapp case, supra, and action of the Supreme Court of the United States in reversing Mapp v. Ohio, supra, is inapplicable here.
The items in question, examined by the FBI Lab-, were in court during trial, in their original containers from the FBI. They were described in detail in oral testimony of witnesses who had been in custody of or had examined same at the laboratory. The items were not passed to the jury for personal inspection nor were they listed as formal exhibits to the oral testimony adduced concerning same. The direct examination of FBI Special Agent Duckett; his cross-examination and the direct examination of FBI Special Agent Simms had been completed before any objection was made seeking to strike all of their testimony. Counsel for appellant in making an objection told the court that the articles themselves had been introduced in evidence, although improperly. The crux of the evidence as to the items given laboratory examination was the findings as to the stains, body fluids, similarity of hairs, nylon thread, etc. This evidence was susceptible, absent a stipulation of counsel, to introduction solely in oral form. Even if it had been possible to conduct the laboratory tests in the presence of the jury, such testing would have been worthless as evidence without oral testimony explaining the results and findings.
Physical objects explained to the jury may be used in presenting evidence without formal introduction. Meyer v. State, 218 Ark. 440, 236 S. W. 2d 996; Gordy v. State, 264 S. W. 2d 103 (Texas); Underhill Criminal Evidence, 5th Ed., See. 110.
In Featherston v. Jackson, 183 Ark. 373, 36 S. W. 2d 405, this Court said: ‘ ‘ On the trial a rough sketch or map showing tracks or ruts in highway was used by appellee in examining his witnesses. Appellant objected to use of said map. It was not introduced in evidence, but the day after the trial was over he filed a motion to require appellee to file the map. This came too late and the Court correctly denied the motion.”
At no time in this case did appellant ask for the formal introduction into evidence of the items examined by the FBI Laboratory.
We therefore conclude that the trial court did not commit error in refusing to strike the testimony of the special agents of the FBI. All other motions of appellant to strike testimony were likewise properly denied.
IX. INSTRUCTIONS
Appellant complains that certain instructions requested by him were not given. An examination of the record discloses that the subject matter of such requested instructions was fully covered in other instructions given by the court. We have consistently held that it is not error to refuse an instruction where the matters are fully covered by instructions already given. Griffin v. State, 210 Ark. 388, 196 S. W. 2d 484.
X. ARGUMENT OF COUNSEL
Appellant objected to the following remarks of the prosecuting attorney during argument:
u. . . He could have choked her to death as easily as not . . . He could have had a knife in his pocket and pulled it out and she did tell you, I believe, that he had some instrument when he was breaking in the screen. He could have pulled a knife out of his pocket and cut her throat from ear to ear.
THE COURT: He is referring to why she was in fear of her life. Your motion is overruled.”
Once inside the home of the victim appellant had access to all the kitchen knives and other possible weapons therein. He repeatedly threatened to kill both the victim and her father. Under the proof in the case we see no impropriety in the ruling of the court.
In his opening statement counsel for appellant stated:
“It is the position of the Defense, and the Defense will prove, both by cross-examination of the witnesses that the State will call and by evidence that it will produce itself that this alleged crime as described by Mr. Whittington could not, and in fact did not take place as he stated . .. That if in fact an assault did take place that certainly it was not rape, that if any assault did take place it was free and voluntary on her part. I think you will find that the evidence as adduced here in the Court, both the evidence produced by the prosecution and by the evidence adduced by the defendant that if in fact an assault did take place it was a free and voluntary act ...”
An objection was made during closing argument of prosecution and is set out as follows:
“MR. WHITTINGTON: May it please the Court, ladies and gentlemen, when the counsel for the defense made his opening statement he told you that he would prove to you that this matter did not take place as I had told you in my opening statement, that it was a free and voluntary act, and he would prove that it was a free and voluntary act on the part of Stella Spoon, Now, ladies and gentlemen—
‘ ‘ THE COURT: One moment, Mr. Whittington, Mr. Mercer wants to interpose an objection.
“ (Out of hearing of the Jury)
“MB. MERCER: Court please, I object to the prosecuting attorney in his argument to the Jury talking about anything the defendant has to prove because the defendant doesn’t have to prove anything.
“THE COURT: Well, he is repeating what you said in your opening statement. I think he has a right to refer to it and comment on it.
‘ ‘ MR. MERCER: Court please, it is not incumbent upon the defendant to prove anything.
“THE COURT: I understand.
“(MR. WHITTINGTON CONTINUES ARGUMENT:)
“Now, ladies and gentlemen, while it is not incumbent upon the defendant to prove anything, the defendant’s attorney got up here and he told you they were going to prove some things. They don’t have to prove anything, I am the one that has to prove the case, let’s get that clear. The Court so instructed you. But he told you what all he was going to prove and I am still waiting to hear any of that proof. I haven’t heard a word of it. We have people who must have known where the defendant was that night, if he wasn’t where he was supposed to be, I haven’t heard any of them say he wasn’t there ...”
Remarks of the prosecuting attorney were well within proper limits, and we find no eror in same. Ark. P. & L. Co. v. Hoover, 182 Ark. 1065, 34 S. W. 2d 464; Cubreath v. State, 96 Ark. 177, 131 S. W. 676.
XI. SUMMARY
The verdict reached and the sentence imposed do not appear to offend the Constitutions of the State of Arkansas or of the United States; the statutes of Arkansas and decisions heretofore rendered by this Court. Appellant received a fair and impartial trial in every respect.
Judgment is affirmed.
Holt, J., disqualified and not participating.
Most of the opinions of this Court do not identify the race of the defendant, and it is impossible to obtain accurate information without reviewing the transcripts, which may or may not reflect the race of the accused. Appellant has listed only one execution of a white man for rape (which happened a few years ago), and this Court, only a few months ago, affirmed the conviction of another white man, with death penalty, on this charge. See Fields v. State, 235 Ark. 986, 363 S. W. 2d 905. | [
80,
-21,
-60,
-1,
42,
64,
26,
56,
82,
-125,
-12,
-45,
-83,
69,
4,
113,
11,
63,
-44,
105,
-43,
-73,
23,
105,
-125,
115,
-23,
-43,
-77,
73,
-12,
-12,
77,
96,
-54,
-47,
-126,
104,
-27,
94,
-114,
1,
-55,
-15,
80,
-110,
48,
63,
104,
15,
117,
-116,
-29,
47,
22,
-50,
105,
108,
-55,
-83,
88,
49,
90,
7,
-3,
20,
-79,
-90,
-110,
-127,
-40,
60,
-36,
49,
0,
-8,
115,
-74,
-126,
84,
109,
-117,
-84,
96,
98,
3,
29,
73,
-72,
-56,
47,
-2,
-99,
-89,
88,
73,
67,
104,
-97,
-107,
123,
-44,
-114,
-2,
-3,
101,
89,
108,
15,
-114,
-108,
-77,
-92,
57,
82,
-6,
-29,
53,
114,
117,
-51,
-30,
92,
68,
-7,
-101,
-49,
-46
] |
G-eorge Rose Smith, J.
This appeal is from a supplemental order in a divorce case. The original decree approved a settlement agreement which provided in substance that the family home would be sold and the net proceeds paid to the wife. The house was duly sold on March 1, 1961, but a dispute arose about whether two items (an accrued mortgage payment and certain outstanding taxes) should be deducted from the proceeds of sale or be charged independently against the husband. The matter was submitted to the chancellor, who decided both points in favor of the husband.
We attach no importance to the manner in which these two items were treated in the contract of sale, which was prepared upon a real estate broker’s printed form. It was evidently immaterial to the purchaser whether the two items were deducted from the purchase money or were paid from the sellers’ pockets, for presumably the gross price would have been adjusted to reflect either the inclusion or the exclusion of the two deductions. The really controlling question is that of determining the intention of the husband and wife, as expressed in their written contract of settlement.
This is the pertinent language in the settlement agreement: “The real property held jointly by the Husband and the Wife as an estate by the entirety, located at 12 Blue Ridge Circle, Little Rock . . . shall be sold in the immediate future . . . The Wife shall continue to reside in the property until she purchases a new home in accordance with the conditions and terms subsequently set forth herein. Pending sale of the property at 12 Blue Ridge Circle, the Husband shall pay all taxes and special assessments against the property, shall continue to pay the monthly mortgage payments thereon as well as all premiums on insurance policies providing coverage on the property. The Wife shall not be required to pay rent while she is in possession of 12 Blue Ridge Circle. Control of the sale . . . shall be exclusively in the hands of the Husband, and the Wife agrees to execute any and all deeds . . . After the property has been sold, the proceeds obtained thereby are to be used first to pay commissions incurred in the sale and to satisfy in full the mortgage on the property, with the remainder of the proceeds of the sale to be paid to the Wife for the purchase of a new residence; but in no event shall the sum paid by the Husband to the Wife as the net proceeds of the sale be less than Twenty-five Thousand ($25,000.00) Dollars. If the net proceeds of the sale shall exceed Twenty-five Thous- and ($25,000.00) Dollars the Wife shall be entitled to the full proceeds. ’ ’
We consider first the mortgage payment. The entire mortgage debt was not actually satisfied in the course of the sale, because the purchaser did not pay all the purchase price in cash. Instead, the contract required the sellers to pay an annual mortgage installment, consisting of $1,500.00 in principal and $832.50 in accrued interest, that fell due on March 1, 1961 (which happened also to be the closing date for the sale of the house). The purchaser assumed the mortgage balance of $17,000 that remained after the application of this annual payment.
We hold the mortgage payment to be chargeable to the husband. The settlement agreement required him to “continue to pay the monthly mortgage payments” until the property was sold. This language plainly cast upon the husband the duty of keeping the mortgage payments current, so that the wife might receive the entire equity-in the home.
The fact that the mortgage installment in controversy happened to fall due on the exact date of the sale does not really alter the case. To begin with, this payment, with interest, had accrued during the preceding year. It was therefore a mature obligation, fairly chargeable to the husband under the terms of the settlement agreement. Moreover, even though all the mortgage payments were actually annual installments, the parties elected to provide in their contract that the husband should pay the monthly mortgage payments. The written contract evidences careful draftsmanship; there is no good reason to suppose that the reference to monthly payments was other than deliberate. We think it reasonable to conclude that the parties meant for the husband’s obligation to be treated as accruing from month to month; for otherwise he might reduce his wife’s equity in the property by more than two thousand dollars simply by closing the sale a day or two before March the first.
We are also of the opinion that the husband should be charged with the 1960 general taxes, amounting to $630.16. These taxes were payable, though not delinquent, upon the day of sale and were a lien as between the sellers and the buyer. Ark. Stats. 1947, §§ 84-913, 84-107, and 84-807. The settlement agreement provided that, pending the sale, the husband should pay all taxes and special assessments upon the property. Later on there is a clause directing that the proceeds of sale be applied to pay real estate commissions and the mortgage debt, but there is no mention of using the money to pay current taxes. Reading the agreement as a whole, we can discover nothing to indicate that the burden of paying the taxes was ever to fall upon the wife. To the contrary, that responsibility was explicitly placed upon the husband. This reasoning also applies to that part of a 1961 special assessment, amounting to $13.81, that was charged against the sellers by the sales contract. This assessment was apparently due and payable, and a lien as between the grantors and the grantee. Ark. Stats., §§ 20-412 and 50-401. It was therefore an obligation of the husband.
Reversed, | [
-109,
126,
-99,
76,
-120,
-64,
42,
-72,
98,
21,
39,
83,
125,
-62,
16,
109,
-93,
107,
97,
97,
-41,
-77,
23,
50,
-10,
-77,
-111,
-35,
-67,
-51,
-83,
22,
76,
33,
-54,
-43,
98,
-54,
-56,
16,
30,
-128,
10,
101,
-7,
66,
52,
107,
-104,
9,
33,
-113,
-13,
45,
61,
64,
109,
46,
73,
50,
-48,
-88,
-86,
4,
111,
15,
-111,
-27,
-112,
3,
104,
74,
-112,
57,
64,
-24,
115,
-90,
-10,
116,
76,
11,
8,
32,
118,
0,
-59,
-1,
-48,
-104,
14,
126,
-115,
-89,
-110,
89,
19,
104,
-66,
-100,
109,
0,
101,
126,
-30,
-35,
93,
104,
30,
-33,
-42,
-77,
-123,
122,
-102,
11,
-10,
3,
32,
96,
-49,
-94,
92,
86,
123,
-101,
-121,
-15
] |
Sam Robinson, Associate Justice.
Appellee, Mrs. Jewel W. James, filed this suit to enjoin the Highway Commission from using as a part of the right of way of Highway 79, a small piece of land appellee claims that she owns. The Highway Commission has appealed from a decree holding that appellee owns the land involved.
In July, 1906, there was filed for record in Calhoun County, Arkansas, a plat of a part of the town of Thornton. Lots, blocks, and streets were set out in detail. The streets were named and dedicated to the public. North Second Street runs in a northeasterly direction, and Farrell Street runs in a northwesterly direction. These streets intersect at the north corner of block 14. The streets are 60 feet wide. Block 7 lies immediately to the northwest and across North Second Street from block 14.
In 1934 the Highway Commission acquired a portion of block 7 for the construction of Highway 79. In 1939 the Commission gave a Quitclaim Deed to Mrs. R. Hollingsworth purportedly conveying portions of North Second Street and Farrell Street not embraced within the right of way of Highway 79. In 1950 Mrs. Hollingsworth, by Quitclaim Deed, conveyed to appellee herein, Mrs. Jewel W. James, the purported interest she had acquired in the streets from the highway Commission.
The right of way of Highway 79 is 60 feet wide, but not all of it was used when the highway was first built. When the Highway Commission indicated it might use the entire right of way, Mrs. James filed this suit contending that by virtue of the deed from Mrs. Hollingsworth she owns a part of the land within the right of way of Highway 79.
The description in the deed from Mrs. Hollingsworth to Mrs. James is identical to the description in the deed from the Highway Commission to Mrs. Hollingsworth. Although the description in the deed is confusing, it is clear that the parties did not intend that a portion of the right of way of Highway 79 be conveyed to Mrs. Hollingsworth. The description is as follows:
‘ ‘ A part of the Southeast Quarter of Southwest Quarter of Section 12, Township 11 South, Range 14 West, described as follows:
“Beginning at the Northeast Corner of Block 14 in town of Thornton (original survey); thence run North 45 feet more or less to a point on the South right-of-way line of Highway No. 79; thence along South right-of-way line (Southwesterwardly) 225 feet more or less to a point; thence South 35 feet more or less to the Northwest Corner of Block 14; thence along the North line of Block 14 in an Easterly direction 225 feet more or less to the point of beginning.”
It will be seen from the deed that it takes in no part of the right of way of Highway 79. In fact, 45 feet North of the “Northeast” Corner of Block 14 would end somewhere near the middle of Farrell Street; it would not go as far as the South right of way line of Highway 79. Then, according to the deed, the line of the property conveyed runs along the South right of way line Southwesterly 225 feet; thence South 35 feet, etc. Thus it will be seen that the description in the deed does not take in any part of the right of way of Highway 79. Moreover, there is attached to the deed, a plat showing the property that the parties intended to be conveyed by the deed from the Highway Commission to Mrs. Hollingsworth, and from Mrs. Hoi lingsworth. to Mrs. James. It does not show that any part of Highway 79 was conveyed by those deeds.
Reversed with directions to dismiss the complaint. | [
-15,
111,
-16,
124,
106,
64,
26,
-120,
74,
-85,
-12,
83,
-81,
-60,
28,
55,
-93,
-3,
-60,
105,
-25,
-78,
67,
-94,
48,
-13,
91,
79,
-6,
89,
-12,
-58,
76,
49,
-54,
29,
70,
64,
-51,
92,
-50,
38,
-117,
69,
89,
-61,
52,
107,
18,
79,
85,
-114,
-41,
44,
16,
67,
-4,
110,
93,
-92,
89,
-78,
-114,
-108,
125,
6,
17,
116,
-101,
3,
-24,
88,
-104,
53,
8,
-72,
119,
-90,
-110,
100,
75,
-101,
8,
-84,
99,
3,
85,
-1,
40,
-68,
14,
-6,
-115,
-91,
-58,
9,
75,
67,
-97,
-107,
121,
80,
-61,
126,
-10,
68,
88,
104,
47,
-54,
-76,
-95,
77,
-72,
-123,
3,
-61,
15,
50,
117,
-49,
-14,
93,
71,
55,
-101,
15,
-46
] |
George Rose Smith, J.
The two appellants, Deltha Ann Graves and Dan Parham, were separately charged with the crime of robbery. The cases were consolidated for trial and resulted in verdicts of guilty, with a sentence of seven years imprisonment in each case. On appeal the principal issue is the sufficiency of the evidence.
We view the testimony in the light most favorable to the verdicts. The State’s principal witness was Leonard D. Bronk, the victim of the robbery. Bronk testified that he had been having dates with Deltha, who was separated from her husband. On the night of the crime Deltha telephoned Bronk, who arranged to pick her up at a service station in Memphis. The couple first drove to Deltha’s apartment, which she said she had forgotten to lock. The jury might have believed, however, that this statement was merely a pretext and that the woman really went to the apartment to report to her husband and to the other defendant, Dan Parham, who were eating supper there.
Bronk testified that Mrs. Graves wanted to drive over to Marion, Arkansas. Between West Memphis and Marion the couple were overtaken by Graves and Par-ham, who tried to stop Bronk’s car. He at first eluded them, but a little farther down the highway Deltha took the keys from the car, forcing Bronk to stop. Graves and Parham again caught up, alighted from their car, and came up to Bronk and Mrs. Graves.
According to Bronk, Graves demanded $25 from Bronk for his being out with Graves ’ wife, and Parham offered to fight Bronk on account of Bronk’s having had Parham arrested a few days earlier. Bronk had locked the doors of his car, but his assailants broke the windows and attacked Bronk, knocking him unconscious. "When he recovered consciousness he found that $128 was missing from his wallet. The money had been in the form of a one-hundred-dollar bill, two tens, a five, and three ones. When Parham and Mr. and Mrs. Graves were arrested they had in their possession, along with other currency, bills that corresponded in denomination to those described by the prosecuting witness. When Mrs. Graves was taken into custody she attempted to hide a one-hundred-dollar bill in her shoe.
The three who were implicated in the robbery denied the State’s testimony. They insisted that Parham and Graves had followed the Bronk car only because Bronk was forcing Deltha Graves to accompany him. According to the defendants, no assault or robbery occurred; Parham and Graves merely rescued Mrs. Graves from her abductor.
Upon the conflicting testimony the issues of fact were properly submitted to the jury. The appellants are in error in arguing that the State’s failure to prove its case beyond a reasonable doubt entitles them to a reversal. The jury must be convinced of the accused’s guilt beyond a reasonable doubt, but there is no requirement that the members of this court be similarly persuaded by the proof. Here the test is that of substantial evidence. If the verdict is supported by such proof we are not at liberty to disturb the conviction, even though we might think it to be against the weight of the evidence. Fields v. State, 154 Ark. 188, 241 S. W. 901.
Error is predicated upon the trial court’s refusal to give this requested instruction: “In weighing the testimony of police officers, greater care should be used in weighing their testimony than that of an ordinary witness because they are in effect hired witnesses and have a natural and unavoidable tendency to procure and remember with partiality such evidence as would be against a defendant or defendants.” This assignment of error is wholly without merit. The assertion that every police officer is invariably a prejudiced witness is so plainly unfounded as not to require serious notice. Had the requested instruction been given the court would have fallen into error, not only because the charge involves a misstatement of fact but also because it would have amounted to a comment by the court upon the weight of the evidence.
It is also contended that the bills taken from the appellants and from Graves were improperly received in evidence and, further, that the prosecuting attorney was permitted to make an improper argument. These contentions do not appear to have merit, but we forego an extended discussion, for there was no objection to the introduction of the bills and no exception to the court’s ruling upon the prosecutor’s argument.
Affirmed,. | [
112,
-7,
-23,
-65,
56,
-32,
8,
-86,
98,
66,
-12,
-9,
-71,
76,
1,
121,
34,
95,
85,
105,
-42,
-73,
31,
34,
-6,
115,
57,
-59,
-69,
-39,
-84,
-44,
12,
32,
-18,
25,
103,
-54,
-59,
120,
-116,
-103,
-31,
97,
-46,
-46,
32,
111,
-28,
11,
49,
-114,
-1,
-81,
28,
90,
73,
40,
91,
43,
64,
-5,
-120,
85,
-19,
4,
-125,
102,
-70,
5,
-40,
44,
-40,
49,
1,
120,
114,
-90,
-126,
85,
109,
-103,
12,
98,
98,
0,
-44,
-51,
-88,
-124,
55,
118,
-105,
-121,
-110,
96,
65,
109,
-66,
-111,
110,
21,
2,
-12,
-10,
95,
89,
40,
-123,
-33,
-74,
-112,
-115,
40,
-102,
59,
-13,
21,
36,
113,
-51,
-94,
93,
85,
121,
-101,
15,
-75
] |
Jim Johnson, Associate Justice.
These are the so-called “sit-in” cases. They were submitted to this court on January 16, 1961. At that time there were cases claimed to be similar pending in other states. By common consent our decision was delayed awaiting the outcome of cases then pending in which petitions for certiorari to the United States Supreme Court had been filed. Since then additional petitions have been filed and there are now pending before the United States Supreme Court at least three cases of this nature in ivhich certiorari has been granted. See Avent v. North Carolina, cert. 370 U. S. 934; Peterson v. City of Greenville, cert. 370 U. S. 935; Lombard v. Louisiana, cert. gr. 370 U. S. 935. We were particularly interested in the outcome of the “Garner cases”, Garner v. Louisiana, 368 U. S. 157, 82 Sup. Ct. 248, 7 L. Ed. 2d 207, which appeared to be in point with the cases at bar. From the opinion of the United States Supreme Court in these cases, which were decided December 11,1961, it developed that the cases did not involve a situation similar to ours and therefore afforded no persuasive authority.
While we originally intended to delay our decision until the United States Supreme Court had decided a case in point with ours, it is against our policy to delay for too long our decision in any pending case. We ascribe to the theory that justice delayed is justice denied. For many years when this court goes into summer adjourn ment all eases ready for submission have been decided except some rare cases, like these, which are carried over for a definite reason. These cases have now been pending for over two years. "We do not feel that we can properly delay them longer to await a decision of the United States Supreme Court. In order to avoid carrying these cases over another summer we now proceed to a decision.
Our cases here were consolidated. They consisted of three criminal prosecutions against 13 defendants. The prosecutions arise out of the activities of the defendants in seeking to be served at eating facilities maintained for whites, the defendants being Negroes. The three cases involve separate incidents at separate retail establishments. There are factual and legal differences necessitating a different disposition of the cases of one group of appellants as compared to the other two groups.
Case No. 4992, styled Briggs et al v. State, is a prosecution under Act 226 of the Acts of 1959. It involves a “sit-in” at F. W. Woolworth Company in Little Rock on March 10, 1960.
Case No. 4994, styled Smith et al v. State, is also a prosecution under Act 226 of the Acts of 1959. It involves a “sit-in” at Pfeifers Department Store in Little Rock on April 13, 1960.
Case No. 4997, styled Lupper et al v. State, is a prosecution under Act 226 and also under Act 14. It involves a “sit-in” at the Uus Blass Store in Little Rock on April 13, 1960.
In the Briggs case, the evidence shows that the Negro defendants seated themselves at a lunch counter in Woolworth’s and refused to leave when ordered to do so by police officers. The evidence is undisputed that these defendants were not requested to leave by the management or by anyone with authority to act for the management.
In the Smith case, the record shows that all defendants but one left the premises promptly upon the request of the manager.
Tlie Lupper case was tried to a jury and there is adequate evidence on behalf of the State to support a finding that these two defendants, James Frank Lupper and Thomas B. Robinson, refused to leave the Gus Blass Store at the request of the manager.
ACT 226 CASES
We see no distinction in fact or law between the three prosecutions under Act 226 of 1959. Therefore, we will discuss the three cases together insofar as Act 226 is concerned. Of course, it will be necessary to discuss the prosecution under Act 14 separately.
For reversal of the Act 226 cases, it is insisted that:
(1) The Act is unconstitutional because it denied defendants due process and equal protection of the law.
(2) The Act has been applied in an unconstitutional manner.
(3) The evidence was insufficient to support a conviction; and,
(4) The judgment was excessive and harsh.
Since we are of the opinion that Point 3 is well taken, we will not pass upon the constitutionality of Act 226 of 1959. This is in accordance with the established rule of this court that constitutional questions will not be decided where the case may be disposed of on other grounds. Bailey v. State, 229 Ark. 74, 313 S. W. 2d 388; Bowling v. State, 229 Ark. 876, 318 S. W. 2d 808.
Section 1 of Act 226 of 1959 [§ 41-1432 Ark. Stats.] reads as follows:
“Any person who shall enter any public place of business of any kind whatsoever, or upon the premises of such public place of business, or any other public place whatsoever, in the State of Arkansas, and while therein or thereon shall create a disturbance, or a breach of the peace, in any way whatsoever, including, but not restricted to, loud and offensive talk, the making of threats or attempting to intimidate or any other conduct which causes a disturbance or breach of the peace or threatened breach of the peace, shall be guilty of a misdemeanor, and upon conviction thereof shall be fined not more than five hundred dollars ($500.00) or imprisoned in jail not more than six (6) months, or both such fine and imprisonment.”
Under this Act the prohibited offenses are creating disturbances or breaches of the peace. The Act sets forth loud and offensive talk, the making of threats and attempts to intimidate as examples of prohibited conduct. While there was some evidence on the part of the State to the effect that feeling and tension were high, the State ^offered no substantial evidence that these defendants .entered the store to carry out a conspiracy to cause a breach of the peace, nor was there evidence that these defendants or any of them uttered any loud offensive talk, made any threats or attempted to intimidate anyone. The defendants had a right to peacefully seek service at the lunch counters. By the same rule, management had a right to refuse to serve them. Since the peaceful efforts of the defendants to get service at the lunch counters were lawful, and in the absence of a substantial showing that such efforts were organized and calculated to disturb or breach the peace, it cannot be said here that the mere making of these efforts amounted to “creating a disturbance or breach of the peace.” It is obvious that the Act contemplates a doing of that which the actor has no legal right to do. The defendants in the Briggs case refused to leave at the command of the police officers but in the absence of a request by management of the officers to order appellants to leave the premises, the officers had no right or authority to give such orders. There is no contention in this case that the officers had received such a request from management. Hence, the refusal of the defendants to leave was not unlawful and could not have been unlawful until they refused to leave at the request of the management or the officers in compliance with a request from management. In the Smith case all defendants but one left promptly at the request of the management. Certainly those leaving were guilty of no offense. The ease of the one individual (in the Smith case) who did not leave promptly gives us more concern. However, we are constrained to believe that any unrest, tension or disturbance existent in the Pfeifer store at that time had already been created by the lawful efforts of all the defendants to obtain service. There is no showing that this act of the defendant created a disturbance or breach of the peace. A different question would be presented had this defendant been prosecuted under Act 14 of 1959 but no such charge was placed against him.
The point which we wish to make completely clear is that the mere fact that the exercise of a lawful right may result in a disturbance or breach of the peace does not make the exercise of that right a violation of the law so long as the right is exercised in a peaceful manner and without force or violence or threats of same. Therefore, we conclude that all defendants in all prosecutions under Act 226 of 1959 should have been acquitted.
In the Lupper case, which involves violations of Act 14 of 1959, as well as violations of Act 226, the appellants make the same contentions as to Act 14 as are made as to Act 226 and an additional point is raised as to alleged error in refusing to give certain instructions.
DUE PROCESS AND EQUAL PROTECTION OF LAWS
Section 1 of Act 14 of 1959 [§ 41-1433 Ark. Stats.] reads as follows:
“Any person who after having entered the business premises of any other person, firm or corporation, other than a common carrier, and who shall refuse to depart therefrom upon request of the owner or manager of such business establishment shall be deemed guilty of a misdemeanor and upon conviction shall be fined not less than fifty dollars ($50.00) nor more than five hundred dollars ($500.00) or by imprisonment not to exceed thirty (3,0) days, or both such fine and imprisonment.”
Appellants assert that Act 14 is unconstitutional in that it denies them equal protection of the laws and due process as guaranteed by the Fourteenth Amendment to the Constitution of the United States and Section 8 of Article II of the Constitution of Arkansas, and cite United States v. Miller, D. C., 17 F. Supp. 65; and Lanzetta v. New Jersey, 306 U. S. 451, 59 Sup. Ct. 618, 83 L. Ed. 888. It is contended that the Act is so vague as to make it impossible to determine what conduct might transgress the statute. It is said that the Act provides no ascertainable standard of criminality. With these contentions we cannot agree. The Act clearly, specifically and definitely makes the failure to leave the business premises of another upon request of the owner or manager a misdemeanor.
It is suggested that the Act could be construed so as to allow an owner or manager to invoke the same because a customer was demanding a refund of money paid for merchandise or because a customer was demanding a delivery of merchandise which he had purchased. Assuming this to be true, we see no reason why the Act amounts to a denial of due process or equal protection of the laws. To remain upon the premises of another after having been requested to leave amounts to a trespass. State v. Clyburn, 247 N. C. 455, 101 S. E. 2d 295. This does not mean that under the hypothesis suggested by appellants that the aggrieved customer would have no remedy because if management had failed to return his money or deliver merchandise purchased, an action would lie in the courts of this State and the customer could be fully compensated for the failure to return the money or deliver the merchandise. A bill collector has a right to attempt to collect what is due him but he has no right to commit a trespass in the process.
By its terms and on its face, the statute applies to all who refuse to leave and it is not restricted to negroes. There is nothing uncertain, indefinite or vague about Act 14. It prohibits trespass.
While the Legislature and not this court determines public policy by statutory enactments, we feel that it is a wise policy to prevent possible violence and bloodshed by providing criminal sanctions against trespass. We have held that a citizen of this State may use force and violence short of killing to protect his property against trespass even though the trespasser makes no effort to commit a felony. Carpenter v. State, 62 Ark. 286, 36 S. W. 900. The statute here in question simply provides a means whereby the owner of property may be protected in his use and possession of such property without having to resort to force and violence. We are impressed with the proposition that without this salutary statute, violence in repelling trespassers could become commonplace. Certainly, it is in the interest of the public and a valid exercise of the police power to protect the public peace by criminal sanction against trespass. Article 2, § 22 of the Constitution of Arkansas in part is as follows:
“The right of property is before and higher than any constitutional sanction ...”
The right to hold and enjoy property free from interference by others is one of the most precious rights enjoyed by the citizens of this State. They are entitled to be protected in this right against all trespassers without regard to whether they are colored or white.
The appellants complain that the Act does not require any mens rea or criminal intent on the part of the offender. We again disagree; the intent to remain after being requested to leave is a criminal intent.
UNCONSTITUTIONAL APPLICATION OF ACT 14
The appellants contend that Act 14 has been unlawfully and unconstitutionally administered because it is said that the Act would not be invoked or enforced against a white man under the same or similar circumstances, thereby denying appellants equal protection of the laws. There is absolutely no evidence in the record to justify such an assertion. On its face the Act is applicable to all persons -without regard to race. Appellants made no effort to adduce evidence to prove that white persons had violated the Act; that these violations were known to the officers and prosecuting authorities and that no arrests and prosecutions had followed such violations. Such proof would have been necessary in order to justify the present contention. See: Taylor v. City of Pine Bluff, 226 Ark. 309, 289 S. W. 2d 679, Certiorari denied, 352 U. S. 894, 77 Sup. Ct. 125, 1 L. Ed. 2d 85; also see: Yick Wo v. Hopkins, 118 U. S. 356, 6 Sup. Ct. 1064, 30 L. Ed. 220; Snowden v. Hughes, 321 U. S. 1, 64 Sup. Ct. 397, 88 L. Ed. 497; Hickinbotham v. State, 227 Ark. 1032, 303 S. W. 2d 565.
The appellants have not shown, nor have we been able to find from the record, a single discriminatory act on the part of the State in the enforcement of this statute. It is not unusual for persons charged with crime to assert “discrimination”, however, unsupported assertions cannot be held to take the place of evidence.
STATE ACTION
Appellants further assert that the Act has been unconstitutionally applied in that the enforcement of such Act amounts to “state action” in violation of the 14th Amendment to the Federal Constitution. They cite, inter alia, Shelley v. Kraemer, 334 U. S. 1, 68 Sup. Ct. 836, 92 L. Ed. 1161; Hurd v. Hodge, 334 U. S. 24, 68 Sup. Ct. 847, 92 L. Ed. 1187; Barrowes v. Jackson, 346 U. S. 249, 73 Sup. Ct. 1031, 97 L. Ed. 1586; and Valle v. Stengel, 176 F. 2d 697. This argument is completely untenable because it presupposes a right in the Negro defendants to be served by the lunch counter operators. In all of the cited cases from the Supreme Court of the United States it is either assumed or specifically stated that the Negroes involved had a right to own and occupy the property in question. In the Valle case, the State of New Jersey had enacted a statute giving all persons, irrespective of color, the right to admission of places of public accommodation such as the swimming pool there in question.
There is no right in these defendants under either State or Federal law to compel the owners of lunch counters to serve them. Many states have enacted so-called “public accommodation” statutes but Arkansas is not among them. The Fourteenth Amendment does not guarantee any such right to the appellants.
Appellants place great reliance on the language in Valle v. Stengel, supra, with reference to the right to contract. However, a reading of the Valle case shows that the court merely held that the Fourteenth Amendment and the Federal Civil Bights Statutes only guaranteed to Negroes “a civil status equivalent to that enjoyed by white persons.” As previously mentioned, New Jersey had a “public accommodation” statute guaranteeing to all persons, regardless of color, the right to admission to the swimming pool in question. This is considerably different from the situation in the case at bar. Arkansas has no “public accommodation” statute. Management can arbitrarily order white persons to leave lunch counters for any reason whatever. While appellants expound forcefully of the equal privileges and immunities provisions of the Fourteenth Amendment, we cannot escape the conclusion that they are urging this court to grant them an unequal privilege, that is the right to be served in a restaurant because they are colored, even though a corresponding right does not exist in white persons. Appellants’ argument must fail because they, regardless of color, had no right or privilege to be served. To hold otherwise would be to employ judicial fiat to coerce unwilling lunch counter operators to afford service to patrons they do not want and did not seek. It can add nothing to the argument to say that they did not want appellants because of their color because appellants had no basic right to be served and the State’s action in enforcing the criminal laws against trespass cannot be held to be “state action” abridging the privileges or immunities of citizens of the United States. There is no privilege or immunity to trespass on private property. It should be remembered that the operators of the lunch counter in question have a right not to be deprived of their property without due process of law. This right is guaranteed to them under the same provisions of the Constitution now sought to be invoked by appellants. To hold that anyone may trespass at will simply because his color is different from that of the property owner and that the law is powerless to protect the injured party would be inviting property owners to provide their own means of evicting trespassers. This would not be consonant with the principles of a nation which regards good order as one of the fundamental objectives of society. The Supreme Court of the United States has approved a municipal ordinance designed to prevent trespass by providing that it should be unlawful for magazine subscription solicitors to go upon private property for the purpose of soliciting orders without having been requested or invited to do so. Breard v. Alexandria, 341 U. S. 622, 71 Sup. Ct. 920, 95 L. Ed. 1233. In the Breará case the court rejected arguments of the appellant solicitor that the ordinance violated: (a) The due process clause of the Fourteenth Amendment; (b) The Federal Commerce Clause; (c) The guarantees of the First Amendment of freedom of speech and the press (made applicable to the states by the Fourteenth Amendment).
In the Breará case the court said:
‘ ‘ Since it is not private individuals but the local and federal governments that are prohibited by the First and Fourteenth Amendments from abridging free speech or press, Hall v. Virginia does not rule a conviction for trespass after notice by ordinance. However, if as we have shown above, p. 1247, a City Council may speak for the citizens on matters subject to the police power, we would have in the present prosecution the time-honored offense of trespass upon private grounds after notice. Thus, the Marsh and Tucker cases are not applicable here.”
We think the quoted language makes it abundantly clear that the act of discrimination in refusing service is that of the individual and thus not subject to the interdiction of the Fourteenth Amendment. The same language also makes it clear that in prosecuting for trespass the State is making a valid exercise of police power. In other words, it makes no difference as to why the individual lunch counter operator did not want the appellants on the premises, because if they remained after a request to leave they became trespassers and the State prosecuted for trespass and not to enforce discrimination.
SUFFICIENCY OF EVIDENCE IN LUPPER CASE
As previously mentioned, there was sufficient evidence to support the verdict of the jury in finding that the defendants Lupper and Robinson refused to leave the premises after having been requested to do so by the manager. It is not our province to pass upon the weight of the evidence. It requires no citation of cases as to the familiar rule that we may not go behind the verdict of a jury which is supported by substantial evidence.
REFUSAL OF REQUESTED INSTRUCTIONS
The appellants complain of the action of the trial court in refusing to give two instructions requested by them. However, a comparison of the instructions which were refused with those which were given by the court makes it crystal clear that the subject matter of the rejected instructions ivas adequately covered by the instructions given. Harrison v. State, 222 Ark. 773, 262 S. W. 2d 907.
EXCESSIVENESS AND HARSHNESS OF JUDGMENT
The appellants contend that the fines and punishment meted out to them were excessive and harsh even though they did not exceed the penalties provided by Act 14. This contention has been rejected many times by this court. See: Johnson v. State, 214 Ark. 902, 218 S. W. 2d 687.
CONCLUSION
For the error indicated, the convictions under Act 226 of 1959 are reversed and the cases having been fully developed are dismissed.
The convictions of Lupper and Robinson under Act 14 of 1959 are affirmed.
Robinson, J., dissents in part; Holt, J., disqualified.
Henderson v. Trailway Bus Co., (Va.) 194 F. Supp. 423; Randolph v. Commonwealth, (Va.) 119 S. E. 2d 817; State v. Williams (N. C.), 117 S. E. 2d 824; Samuels v. State (Ga.), 118 S. E. 2d 231; Briscoe v. State, (Tex.) 341 S. W. 2d 432; Walker v. State (Ga.), 118 S. E. 2d 284; State v. Fox (N. C.), 118 S. E. 2d 58; Rucker v. State (Tex.), 342 S. W. 2d 325; Burton v. Wilmington (Del.) Parking Authority, 365 U. S. 715; Williams v. Hot Shoppes, Inc., C. A. D. C., April 20, 1961, No. 15610; Gober v. City of Birmingham (Ala.) 133 So. 2d 697.
The cases were consolidated for briefing upon motion of appellants.
It is noted that these appellants were charged and convicted of a violation of Act 226 of 1959 exclusively and not for a violation of the prohibitions contained in Ark. Stats. § 41-1401 or § 41-1403, the general disturbance of the peace statutes. | [
-16,
-22,
-60,
124,
26,
-64,
50,
-66,
66,
-94,
119,
83,
-23,
-34,
68,
117,
-5,
79,
85,
107,
-55,
-106,
55,
106,
-14,
-14,
-53,
-44,
-79,
109,
-12,
116,
76,
112,
-62,
-47,
86,
-30,
-55,
22,
-50,
1,
-71,
105,
83,
48,
52,
121,
86,
15,
5,
45,
-29,
44,
24,
-57,
104,
45,
-37,
62,
-64,
96,
-98,
5,
-3,
22,
-79,
36,
-98,
-121,
-8,
31,
-104,
49,
48,
-24,
49,
-90,
2,
116,
109,
-71,
12,
-94,
99,
-122,
-127,
-18,
-8,
-127,
30,
-97,
-99,
-90,
-112,
80,
107,
32,
-74,
-99,
116,
20,
-90,
124,
-2,
69,
25,
-2,
79,
78,
-76,
-77,
-113,
52,
14,
89,
-61,
37,
16,
115,
-49,
-10,
76,
103,
51,
-5,
-58,
-80
] |
Sam Robinson, Associate Justice.
This case grows out of the collision of an automobile and a pickup truck at the intersection of Eighth and Maple Streets in North Little Rock. Appellant, Swift, was driving his pickup west on Eighth Street, and appellee, Barker, was driving his car north on Maple when the vehicles collided at the intersection. Swift sued Barker alleging personal injuries and property damage. The case was tried to a jury and from a verdict and judgment in favor of Barker, Swift, the plaintiff, has appealed.
First, appellant contends that there is no substantial evidence to support the verdict for the defendant. Contributory negligence was one of the defenses relied on by appellee. The jury could have found from the evidence that the appellee got into the intersection first. The collision occurred at the northeast quarter of the intersection, and it will be recalled that appellant was going west and appellee was going north. Furthermore, the jury could have found from the evidence that appellant was negligent in failing to keep a lookout for other users of the streets, and in failing to make any effort to stop, and thereby avoid the collision. Appellee did attempt to stop, as shown by the fact that there were about 12 feet of skid marks behind his car; but there were no skid marks behind appellant’s pickup. Moreover, the evidence is pretty clear that appellant ran into the side of appellee’s car. There is evidence that there was no damage at all to the front of appellee’s automobile.
This court said in Spink v. Mourton, 235 Ark. 919, 362 S. W. 2d 665, (Dec. 17, 1962) : “Owing to the fact that the plaintiff has the burden of proof—that is, the burden of persuading the jury that he is entitled to win the case—a directed verdict for the plaintiff is a rarity. As we said in Woodmen of the World Life Ins. Soc. v. Reese, 206 Ark. 530, 176 S. W. 2d 708: ‘A verdict upon an issue of fact should not be directed in favor of the party who has the burden of proof with respect thereto, unless such fact is admitted, or is established by the undisputed testimony of one or more disinterested witnesses and different minds cannot reasonably draw different conclusions from such testimony.’ ”
Appellant also contends that the court was in error in giving the last part of appellee’s instruction No. 1. The instruction reads as follows: “You are instructed that under the laws of the State of Arkansas it was the duty of plaintiff Bobert L. Swift and the defendant James Barker to exercise ordinary care in the operation of their vehicles to avoid injury to themselves and to others, and a failure to exercise such care would be negligence. You are further instructed that ordinary care requires every person who operates a motor vehicle upon a public highway to keep a lookout for other vehicles, and to have his own vehicle under such control as will enable him to check its speed or to stop it absolutely if necessary to avoid.injury where danger is apparent or reasonably to be anticipated. Banger may always be expected or anticipated at intersections and every driver must keep a lookout and approach same with his vehicle under control. A failure to keep a lookout or to keep one’s car under control is not negligence withm itself, but if you find that there was a failure in this regard by either party then you may consider such failure along with all the other facts and circumstances in the case in determining if that party was negligent.” Only a general objection was made.
While we do not approve that part of the instruction which tells the jury that “A failure to keep a lookout or to keep one’s car under control is not negligence within itself . . .” we think that in the circumstances of this case, appellant should have made a specific objection in order to call the trial court’s attention to the alleged error. The first part of the instruction is good, and there is no contention that it is bad. The court said in Chicago R. I. & Pac. Ry. Co. v. Glascock, 187 Ark. 343, 59 S. W. 2d 602: “It is next contended that the court erred in giving appellees’ requested instruction No. 1, objected to, which was written in three different paragraphs. No specific objection was made to any of them, but only a general objection was made to the instruction as a whole. At least two of the clauses are correct statements of the law, and conceding, not deciding, the other incorrect, since the instruction was not wholly wrong, the defect should have been reached by a specific objection and not a general one. No error was committed in giving it. Darden v. State, 73 Ark. 315, 84 S. W. 507; St. Louis I. M. & So. Ry. Co. v. Barnett, 65 Ark. 255, 45 S. W. 550.”
But the thing in particular that impresses us with the necessity for a specific objection in the case at bar is the fact that appellant asked for, and the court gave, an instruction containing almost the identical language objected to by appellant in appellee’s instruction No. 1. In appellant’s requested instruction No. 5, given by the court, certain statutes are quoted and then the instruction reads: “A violation of the above statutes, if estab listed by a preponderance of the evidence is not negligent within itself bnt is evidence of negligence . . .” Assuming, without deciding, that there is a valid reason why the language in question would be objectionable in the instruction requested by appellee, but not objectionable in the instruction requested by appellant, we think the distinction should have been called to the attention of the court by specific objection.
Appellant also argues that the court erred in giving appellee’s instruction No. 5, which reads: “You are instructed that if you find and believe from the evidence in this case that James Barker lawfully entered the intersection of Eighth and Maple Streets before the vehicle operated by Robert Swift entered the intersection, then you are instructed that Barker was entitled to proceed through the intersection unmolested and this would be true, even though you might find that Barker failed to stop before entering Eighth Street. Notwithstanding the fact that Eighth Street is a through street, if Barker was lawfully in the intersection, then it was Swift’s duty to yield the right-of-way to Barker.”
The instruction is not inherently erroneous, and no specific objection was made.
Affirmed. | [
112,
-20,
-32,
46,
9,
96,
82,
58,
97,
-121,
53,
-45,
-81,
-63,
69,
97,
-10,
61,
-47,
43,
-3,
-77,
7,
-109,
-94,
-73,
123,
7,
-92,
-56,
101,
126,
76,
113,
-54,
-43,
100,
74,
-57,
88,
-50,
-118,
41,
113,
-39,
-78,
40,
122,
82,
7,
49,
-98,
-45,
46,
24,
-62,
105,
44,
75,
-67,
-47,
48,
-56,
15,
127,
18,
-77,
-26,
-103,
1,
114,
24,
-108,
49,
8,
124,
114,
-90,
-126,
116,
105,
-103,
12,
-20,
98,
35,
25,
-61,
-84,
24,
15,
122,
15,
-121,
54,
41,
73,
9,
-73,
-99,
121,
85,
12,
-6,
-1,
69,
25,
108,
39,
-113,
-108,
-127,
-113,
32,
22,
88,
-17,
-113,
48,
113,
-52,
-14,
93,
69,
82,
-101,
-42,
-106
] |
Frank Holt, Associate Justice.
This is an action brought by the appellants against the appellees to determine their respective interests in a 160 acre farm. The appellants and appellees are the various heirs at law of Joseph Hugh Fisher who owned this property when he died intestate about thirty-five years ago. Surviving him as his sole heirs were his six children, Neal Fisher, Joe Fisher, Mint Fisher Richardson, Nancy Fisher Anderson, Sara Fisher and Ada Fisher, all of whom are now deceased except the defendant, Neal Fisher.
On March 19,1932, Nancy Fisher Anderson conveyed her undivided interest by warranty deed to her sisters, Sara and Ada Fisher, and on the same date they conveyed by warranty deeds their undivided, interest in the 160 acre farm to their nephew, Paul Fisher, the defendantappellee. By virtue of these conveyances he contends he is now the owner of an undivided one-half interest in this property. He did not record his warranty deeds until November 23, 1960, or seven months after the plaintiffs- appellants, Herbert Nelson Fisher and Lucille Fisher, his wife, recorded a deed on which they base their claim to a superior title.
Their claim to a superior title arose in this manner. In 1956, Neal Fisher, father of the appellee, Paul Fisher, mortgaged an undivided one-third interest [he actually owned an undivided one-sixth interest] in the farm lands to a Mr. Coleman. This mortgage was properly foreclosed and Neal Fisher’s interest in the land was conveyed by a commissioner’s deed to a Mr. Lowrey and a Mr. Sloan in 1958. On April 16, 1960, Sloan and Lowrey conveyed their interest in this property to the appellants, Herbert Nelson Fisher and Lucille Fisher, his wife. This instrument was recorded by Herbert and Lucille on this same date or approximately seven months before their cousin, Paul Fisher, recorded his 1932 deeds.
Herbert Fisher and his wife, Lucille Fisher, and the numerous other plaintiffs-appellants, as heirs at law of Joseph Hugh Fisher, allege in their pleadings that the 1932 deeds to Paul Fisher are invalid and inoperative because the signatures of Sara and Ada Fisher are not genuine; that the deeds were not executed on the dates named therein, and that if the deeds were signed by the purported grantors the “subject matter of the conveyances” was inserted in the deeds at a date subsequent to the execution thereof. The defendants-appellees, Paul Fisher and his wife, filed a general denial. It was stipulated that the interest of Neal Fisher, which interest he had mortgaged, was duly foreclosed and conveyed by the commissioner’s deed.
The Chancery Court found that the plaintiffs-appellants had failed to prove the invalidity of the 1932 deeds; that Neal Fisher and Edna Fisher, his wife, owned and only mortgaged an undivided one-sixth interest, instead of the undivided one-third interest, in said lands which interest was legally divested through the commissioner’s deed; that the lands were susceptible of partition or division in kind; that the appellee, Paul Fisher, is the owner of an undivided one-half interest as claimed by him. The Court apportioned the remaining one-half inter est among the various appellants and decreed that the property be divided “in equal parts, one of which shall be the property of the plaintiffs, and the other being the property of the defendant, Paul Fisher.” From this decree in favor of the appellee, Paul Fisher, comes this appeal.
For reversal appellants rely on the point that an unrecorded conveyance of title is invalid against a subsequent purchaser for value and without notice. This point was not asserted in the pleadings nor was it an issue before the trial court. We have consistently held that where an issue is not presented in the trial of the case it cannot he considered on appeal. Angelletti v. Angelletti, 209 Ark. 991, 193 S. W. 2d 330. This is on the well-reasoned basis that cases on appeal should he determined on the same issue or issues on which they were presented in the trial court.
However, if we consider the point relied on by the appellants they cannot prevail. Appellants cite Ark. Stat. (Anno.) § 16-115 which provides that an unrecorded instrument is invalid against a subsequent purchaser for a valuable consideration and without notice of a pre-existing conveyance. Thus, such a subsequent purchaser acquires a superior title when he places his title of record before a previous purchaser records his title. This statute, however, applies to purchasers who derive their interests from a common grantor. Halbrook v. Lewis, 204 Ark. 579, 163 S. W. 2d 171; Brewer, Exec., v. Fletcher, 210 Ark. 110, 194 S. W. 2d 668.
In the case at bar the contending parties did not receive the deeds in question from a common grantor since appellee acquired his deeds from Sara and Ada Fisher, and appellants secured their deed from Lowrey and Sloan. Therefore, the above statute is not applicable.
The decree of the Chancery Court is affirmed. | [
-15,
108,
-36,
94,
-120,
-32,
42,
-102,
-29,
-29,
-89,
83,
111,
-61,
0,
43,
101,
45,
-27,
107,
-121,
-77,
23,
-94,
83,
-13,
-37,
-33,
-80,
77,
-28,
-42,
72,
32,
-54,
85,
-26,
-96,
-59,
24,
14,
-63,
9,
109,
-39,
84,
48,
-17,
84,
77,
85,
-50,
-14,
46,
61,
107,
104,
44,
75,
45,
-48,
-72,
-70,
-116,
95,
19,
-80,
103,
-88,
101,
72,
10,
-112,
112,
-120,
-24,
123,
-90,
2,
116,
6,
-101,
8,
102,
102,
0,
101,
-17,
-8,
24,
14,
-9,
13,
-90,
-46,
88,
-61,
32,
-68,
-99,
120,
16,
95,
-10,
-27,
5,
28,
104,
0,
-17,
-42,
-77,
14,
-70,
-104,
10,
-13,
15,
48,
113,
-55,
-22,
93,
71,
117,
63,
-122,
-46
] |
Ed. E. McFaddin, Associate Justice.
This cause stems from a traffic mishap which occurred in Fordyce on October 19, 1961. Mrs. Milner, accompanied by Mrs. Moseley, was driving north on U. S. Highway No. 67 and gave a signal and proceeded to turn right. The other car, driven by R. T. Livingston and proceeding in the same direction, was behind the Milner car, and crashed into the Milner car, causing property damage and personal injuries to the ladies (appellees here), who filed this action for damages against both R. T. Livingston and C. C. Rook.
It was alleged, and is urged here, that Rook was the owner of the vehicle Livingston was driving; that Rook allowed Livingston to drive the car, either as bailee or agent; that Rook knew, or should have known by the exercise of ordinary care, that Livingston was a careless and reckless driver and drove while intoxicated; and that Livingston’s driving while intoxicated was the cause of the traffic mishap in this case. Livingston filed general denial; Rook denied ownership of the ear, alleging a sale to Livingston; and also claimed no knowledge or reason to suspect that Livingston was other than a fine and competent driver at all times. Jury verdict was in favor of the plaintiffs and against both defendants. Rook alone prosecutes this appeal, and urges four points. ¥e group these in suitable topic headings.
I. Ownership Of The Car Livingston Was Driving. Appellant Rook insists that all the evidence shows that he did not own the vehicle Livingston was driving; and that the Trial Court should have given an instructed verdict in favor of Book. The evidence shows that the Livingston vehicle was registered under the Motor Vehicle Title Certificate Law (§ 75-101 et seq. Ark. Stats.) in the name of “C. C. Book or Mrs. C. C. Book.” Book and Livingston both testified: that on October 16, 1961 (three days before the traffic mishap here involved) Book sold the automobile to Livingston for an agreed price of $200.00; and that Livingston paid $50.00 in cash at the time, and was to pay the balance at the rate of $50.00 per m mth. There was no contemporaneous writing to evidence this alleged sale to Livingston; but Book and Livingston both testified that some time about November 1, 1961 (after the mishap) they went before a Justice of the Peace and executed a title certificate assignment, and that by May 1, 1962, Livingston had paid Book the full $200.00 for the car.
On the other hand, the Chief of Police of Fordyce testified that immediately after the collision Livingston told him that he (Livingston) did not own the car and was only trying it. This testimony of the Chief of Police was admissible to contradict the testimony of Livingston, which was to the effect that he had bought the car. Livingston and Book are both parties in the case, so their testimony is not undisputed as a matter of law. Ball v. Hail, 196 Ark. 491, 118 S. W. 2d 668. The fact that the car was, at the time of the mishap, registered in the name of C. C. Book or Mrs. C. C. Book, is evidence of title in them. Robinson v. Martin, 231 Ark. 43, 328 S. W. 2d 260. There is nothing to show that Mrs. Book, prior to the traffic mishap, made any sale; and so the only testimony of the sale is that of Book and Livingston; and, as aforesaid, their testimony is disputed.
Section 75-157 Ark. Stats., which is a part of the Certificate of Title Law governing vehicles, provides:
“The owner of a motor vehicle who has made a bona fide sale or transfer of his title or interest and who has delivered possession of such vehicle and the certificate of title thereto properly indorsed to the purchaser or transferee shall not be liable for any damages thereafter resulting from negligent operation of such vehicle by another. ’ ’
It is not claimed that Rook ever properly endorsed the title certificate to the purchaser or transferee so as to be exempted from liability under this section. Of course, if he had made a bona fide sale to Livingston before the traffic mishap such could have avoided his liability. House v. Hodges, 227 Ark. 458, 299 S. W. 2d 201; but the question of a bona fide sale to Livingston was the question in dispute; and we think a case was made for the jury as to the ownership of the car at the time of the traffic mishap. By its verdict, the jury found Rook to have been the owner; and there was evidence to support such finding.
II. Book’s Liability For Livingston’s Mishap. The plaintiffs-appellees sought to hold Rook liable for the damages caused by Livingston on the theory that Rook had entrusted his automobile to Livingston, who he knew, or with the exercise of ordinary care should have known, was a person who drove an automobile while intoxicated; and that Livingston did drive the automobile while intoxicated, and caused damages to the plaintiffs. We have a number of cases which recognize that liability may be imposed on an owner under such circumstances. See Chaney v. Duncan, 194 Ark. 1076, 110 S. W. 2d 21; Ozan Lbr. Co. v. McNeely, 214 Ark. 657, 217 S. W. 2d 341; Ark. La. Lbr. Co. v. Causey, 228 Ark. 1130, 312 S. W. 2d 909; and Waller v. Yarbrough, 232 Ark. 258, 337 S. W. 2d 641. See also Am. Jur. Vol. 5A, page 590 et seq., “Automobiles and Highway Traffic,” § 580 et seq. In Vol. 5A of American Jurisprudence, at page 592, in discussing the owner’s knowledge of the driver’s unfitness, the holdings are summarized:
“In order to hold the owner of an automobile liable under the common law rule charging him with liability for the'negligence of an incompetent, reckless, or unfit driver to whom he entrusted his car, the plaintiff must establish by competent evidence that the owner had knowledge of the driver’s incompetent, inexperience, or reckless tendency as an operator, or that, in the exercise of ordinary care, he should have known this from facts and circumstances with which he was acquainted. That knowledge may be established by the fact that he knew of specific instances of carelessness or recklessness or by the proof that the driver’s incompetence was generally known in the community.” (Emphasis our own. )
It is practically undisputed that Livingston was thoroughly intoxicated at the time of the traffic mishap, which occurred on October 19, 1961; and Livingston has not even appealed from the judgment against him. It was also thoroughly established that Livingston had been guilty of driving while intoxicated on other occasions. But Book stoutly denied that he had any knowledge, or reason to suspect, that Livingston would drive a car while intoxicated. The plaintiffs-appellees were unable to show that anyone had ever informed Book that Livingston was a person who drove a car while intoxicated; so the plaintiffs-appellees undertook to show that Book, by the exercise of ordinary care, should have known that Livingston was a person who drove a car while intoxicated because such was Livingston’s general reputation in the community in which he and Book resided. We come then to the general reputation of Livingston as being a drunken driver.
Rook and Livingston both lived in or near Pine Bluff in Jefferson County, Arkansas; both worked for the Cotton Belt Railroad; and belonged to the same Union. Obviously, the evidence as to Livingston’s general reputation of being a drunken driver should have been directed to, and confined to, his general reputation in that regard in Pine Bluff and Jefferson County, because that is where he and Rook lived and resided; and Rook is the person sought to be charged with such general reputation. There were two witnesses who undertook to testify as to the general reputation of Livingston as being a drunken driver in Dallas County, Arkansas, and in South Arkansas, as distinguished from the general reputation of Livingston in Pine Bluff and Jefferson County, Arkansas. One of these witnesses was Kenneth Rogers, a member of the State Highway Patrol stationed in Fordyce, Arkansas. Over the objection of Rook’s attorney, Rogers was permitted to state that the reputation of Livingston in South Arkansas was that of a drunken driver. The other witness was Clary Atkinson, Sheriff of Dallas County, who was permitted, over the objection of Rook, to make like answer.
The Court was in error in allowing this testimony of general reputation to be presented to the jury. The question was what was Livingston’s general reputation as being a drunken driver in Pine Bluff and Jefferson County. That is where Rook resided, and that is the only location to which the question should have been addressed regarding Livingston’s general reputation as being a drunken driver. The Court committed reversible error in allowing the testimony of Kenneth Rogers and Clary Atkinson in the particulars herein detailed; and because of such error the judgment must be reversed and the cause remanded for a new trial.
III. Other Errors. We need not call attention to other errors, as they may not occur again; but there is one matter of instructions that should be called to the attention of the parties in the event of a new trial. Plaintiffs’ Instruction No. 6 read:
“You are instructed that if anyone permits another to drive his car, knowing that such person is in the habit of becoming intoxicated and driving a car in this condition, or, by the exercise of ordinary care should have known that such person is in the habit of becoming intoxicated and driving a car in this condition, the owner of the automobile is liable for any injury caused by the negligence of such driver.”
Of course, the instruction should also have concluded with these words: “that may have resulted from drunken driving.” The italicized language should be added to the instruction.
For the admission of the incompetent evidence relating to the general reputation, the judgments of Mrs. Moseley and Mrs. Milner against C. O. Rook are reversed, and their causes of action against C. C. Rook are remanded for a new trial on all issues; but the judgments of Mrs. Moseley and Mrs. Milner against R. T. Livingston have been settled by the original verdict and judgment, since Livingston is not a party to this appeal. See Calloway v. Cherry, 229 Ark. 297, 314 S. W. 2d 506.
Here is the question which was admitted over the objection of Rook: “Q. State what your investigation developed as to the ownership of the car as stated by the driver of the 1950 Plymouth.” “A. I asked him did the car belong to him and he said no. Said he was just trying the car out.”
In Chaney v. Duncan, 194 Ark. 1076, 110 S. W. 2d 21, we quoted from Berry on Automobiles, 7th edition:
“ ‘Aside from the relation of master and servant, the owner of an automobile may be rendered liable for injuries inflicted by its operation by one whom he has permitted to drive the same on the ground that such person, by reason of his want of age or experience, or his physical or mental condition, or his known habit of recklessness, is incompetent to safely operate the machine ... if the person permitted to operate the car is known to be incompetent and incapable of properly running it . . . the owner will be held accountable for the damage done because his negligence in entrusting the car to an incompetent person is deemed to be the proximate cause of the damage. In such a case of mere permissive use, the liability of the owner would rest, not alone upon the fact of ownership, but upon the combined negligence of the owner in entrusting the machine to an incompetent driver, and of the driver in its operation.’ ”
There are Annotations in American Law Reports on various phases of such situations. See 36 A.L.R. 1148; 68 A.L.R. 1013; 100 A.L.R. 923, 168 A.L.R. 1375; 120 A.L.R. 1311; 112 A.L.R. 1020; and 20 A.L.R. 2d 1210.
Of course, the correct terminology is the general reputation of Livingston “as being a person who drove a car while he was intoxicated,” but for brevity we use the expression “drunken driver” to mean the same as the language just quoted.
There was one witness, Bill Gober, Chief of Police of Fordyce (whose testimony seems to have been admitted without objection) as to Livingston’s general reputation in Pine Bluff and Jefferson County. If objection had been made to this testimony it might have been excluded as hearsay or subsequently acquired; but since there was such testimony, we think the cause should be remanded for a new trial. | [
-14,
-24,
88,
-82,
24,
64,
10,
26,
64,
-61,
-91,
-109,
-93,
79,
20,
33,
-25,
13,
117,
107,
-73,
-77,
23,
-93,
-46,
-45,
-5,
-51,
-77,
73,
-12,
-11,
76,
48,
-118,
85,
-26,
73,
-59,
30,
-58,
-126,
-77,
116,
121,
-112,
52,
58,
-60,
15,
65,
-97,
-61,
46,
63,
79,
105,
44,
75,
-71,
-48,
-16,
-119,
5,
127,
20,
-77,
36,
-66,
-115,
-40,
8,
-104,
49,
33,
-8,
58,
-90,
-126,
-44,
105,
-101,
12,
38,
98,
0,
1,
-19,
-72,
-120,
14,
114,
5,
-121,
26,
89,
-63,
105,
-98,
-99,
123,
80,
15,
126,
-5,
69,
89,
108,
3,
-50,
-108,
-111,
109,
122,
-98,
24,
-21,
-117,
50,
115,
-17,
-26,
92,
68,
115,
-101,
71,
-42
] |
Jim Johnson, Associate Justice.
This case involves a suit for specific performance of an oral contract to convey real property. According to the testimony, on January 23, 1960, appellant Evelyn Glenn Hyder showed appellee, Inez Newcomb, some property she owned in Saline County and agreed to accept $2,000.00 for 35 acres. Appellee gave appellant her check for $500.00, on which was written, “Part payment on 35 acres of land (Bal. $1,500.00).” Some time thereafter, timber was cut on the property, by mistake. Appellant and appellee each told the timber cutters that each individually owned the property, but appellant was the one who obtained the court order to stop the cutting, and the one whom the timbermen paid for the timber removed. Thereafter, on May 23, 1960, appellee filed this suit in Saline Chancery Court for specific performance of the oral contract, alleging purchase of the property on January 23, 1960, part payment of $500.00, evidenced by the check, that the balance of the purchase price was to be paid upon delivery of the deed and abstract, that appellee took possession of the property, that appellant had failed and refused to execute the deed, although appellee was ready and willing to pay the balance; further that appellant converted funds to her own use from sale of timber belonging to appellee; and prayed that the contract be specifically enforced and appellant be required to pay into the court the proceeds from sale of the timber. Appellee deposited $1,211.12 in the registry of the court.
Appellant answered, denying the allegations and pleaded the statute of frauds in bar of any oral contract.
Trial Avas held August 25, 1962, before the Chancellor, who ordered appellant to execute a quit-claim deed conveying any interest she may have in the 35 acres to appellee, gave appellee credit for the $68.00 paid to appellant for the timber, directed appellee to pay $220.88 more into the registry of the court, and assessed ap pellant for all costs. From the decree comes this appeal.
On trial ele novo, we must determine from the record before ns whether the check, the description and the part payment, individually or collectively, are sufficient to take this contract out of the statute of frauds.
The statute of frauds is contained in the Revised Statutes of 1838 and has been a part of the Arkansas law since that time. We are therefore blessed with a formidable, and unusually consistent, array of cases interpreting its provisions. The section of the statute of frauds involved here is as follows:
“Ark. Stats. 38-101. No action shall be brought; . . . fourth, to charge any person upon any contract for the sale of lands, tenements, or hereditaments, or any interest in or concerning them; . . . unless the agreement, promise or contract, upon which such action shall be brought, or some memorandum or note thereof, shall be made in writing, and signed by the party to be charged therewith, or signed by some other person by him thereunto properly authorized.”
There are several cases remarkably similar to the case at bar. One in point is Hotopp v. Adair, 144 Ark. 629, 223 S. W. 393. We quote from that opinion.
‘ ‘ The complaint sets forth an oral agreement except so far as the exhibited checks and memoranda on the back of the envelope containing them constitutes a written contract. The statute provides that a contract for the sale of lands ‘shall be in writing and signed by the party to be charged therewith, or signed by some other person for him thereunto properly authorized’ Kirby’s Digest § 3654. The only writings set forth as constituting the contract fall short of compliance with the statute, in that the property is not described and no means of identification are furnished. Defects in this respect can not be cured by oral testimony. The check signed by Claud Adair, one of the appellees, recites that it was given ‘for bonus on house and lot. ’ This is not sufficient identification, nor does it furnish any means of identification.
“It is alleged in the complaint that the property described therein was the only real estate owned by appellees, bnt, accepting that as true, it does not follow that the recitals of the check are sufficient to identify it. Even though appellees owned but one piece of property, it does not follow from the language as a matter of law or as a matter of fact that the contract necessarily was intended to describe that particular property. Moreover, the check is not sufficient as a contract for the reason that it does not set forth the terms in any other respect. Before a court of equity will compel the performance of a contract for the sale and purchase of real estate, it must be definite and certain.” [Emphasis ours.]
In Stanford v. Sager, 141 Ark. 458, 217 S. W. 458, involving not only a check but also letters relative to sale of the property, this court held :
“In negotiations between Ross, as the agent of Sager, and Stanford, the proposed purchaser, it nowhere appears that there was any memorandum containing a description of the lands to warrant specific performance. Treating all the letters in evidence as constituting the contract between the parties, yet in none of these letters is the land to be conveyed specifically described nor is there any description of the land in the check which Stanford sent Ross and which was cashed by Ross as earnest money.
“The appellants contend that this check and the correspondence between Ross and Stanford constitutes the written contract. Conceding this, yet, since the land to be conveyed is nowhere accurately described, the court was clearly correct in holding that the contract could not be specifically performed.
“. . . ‘ The contract must disclose a description which is in itself definite and certain or one which is capable of being made certain by other proof, the contract itself furnishing the key by which the property may be identified.’ ”
Since the check in the case at bar was insufficient as a memorandum, inter alia, for lack of the terms of the contract as well as an accurate description of the property, we must now determine whether there is sufficient part performance to take this case out of the statute of frauds.
Appellee’s partial payment is undisputed, but part payment alone is not sufficient part performance to take the contract out of the statute of frauds. Starrett v. Dickson, 136 Ark. 326, 206 S. W. 441; Fryer v. Mabin, 158 Ark. 579, 250 S. W. 877. However, partial or full payment together with takjng possession pursuant to the contract is generally considered sufficient part performance. Arkadelphia Lbr. Co. v. Thornton, 83 Ark. 403, 104 S. W. 169; Branstetter v. Branstetter, 115 Ark. 154, 170 S. W. 989. Appellee alleged that she took possession of the property as of January 23, 1960. However, the testimony relating to the cutting and sale of the timber, as well as appellee’s testimony that
“. . . Well, I called her the first week after we bought it and I asked when was she going to make us a deed. She said as soon as she had time to dig out the papers. I said don’t go to any unnecessary trouble but we would like to have it as quick as possible. We had a bunch of cows we had to get shut of or either have some place to put them and Pat had bought the wire to build a fence. So as time drifted on it was put off and put off. ’ ’
clearly shows that appellee had not taken possession of the property and that appellant had yielded no dominion or possession to appellee. There is no other evidence on the question of possession. This being true, it follows that there was no such part performance of the contract as would take the case out of the statute of frauds.
It is true, as appellee intimates in her argument, that the statute of frauds should not grant a person a license to welch on a deal, nevertheless, in the sale of land there have been certain requirements ordained by law which are mandatory. Accordingly, on the whole case, appellee having failed to meet the test “that before a court of equity may grant specific performance of a parol contract to convey land, the evidence of such agreement must be clear, satisfactory and convincing,” Rolfe v. Johnson, 217 Ark. 14, 228 S. W. 2d 482; Meigs v. Morris, 63 Ark. 100, 37 S. W. 302; Walk v. Barrett, 177 Ark. 265, 6 S. W. 2d 310; the decree must be reversed and the cause Avill be remanded with directions to dismiss the complaint for want of equity; all costs will be taxed against appellee.
This case having been fully developed and the matter of the payment of the $500.00 being undisputed, in order to minimize further proceedings, we find appellee is entitled to recover the payment made to appellant together Avith interest from the date of the receipt thereof. Gilton v. Chapman, 217 Ark. 390, 230 S. W. 2d 37.
Reversed and remanded with directions. | [
81,
107,
-8,
-116,
10,
-32,
106,
-118,
91,
-125,
39,
83,
-5,
2,
12,
9,
-90,
45,
117,
106,
87,
-77,
55,
-32,
-46,
-77,
89,
-59,
-67,
78,
-76,
87,
76,
16,
-54,
85,
-30,
-102,
-59,
24,
-50,
-127,
-119,
85,
-37,
-32,
56,
-113,
0,
10,
117,
-82,
-13,
44,
53,
67,
76,
46,
-1,
61,
-16,
-72,
-66,
20,
127,
22,
-79,
69,
-104,
-125,
-56,
106,
-112,
53,
16,
-40,
123,
-74,
86,
84,
15,
27,
8,
102,
102,
32,
37,
103,
-4,
-56,
30,
-70,
29,
-90,
16,
88,
66,
104,
-68,
-100,
116,
16,
5,
124,
-32,
-115,
29,
108,
-117,
-17,
-44,
-13,
-113,
56,
-106,
27,
-1,
2,
-78,
113,
-49,
98,
92,
103,
50,
-101,
-113,
-31
] |
Jim Johnson, Associate Justice.
This action arises out of a contract for the construction of a fallout shelter entered into on October 10, 1961, between appellees Richard N. Freeling and Marie H. Freeling, his wife, and appellants Economy Swimming Pool Co., Inc., and George P. Bilheimer, Jr. Appellants agreed, inter alia, that the shelter would be constructed with materials of good quality and that all work would be done in a good workmanlike manner and “that the contractor [appellants] will be responsible for any water seepage into the vestibule or shelter and will repair same.”
Appellees made a down payment in the amount of $500.00 on the contract, and work was begun on October 17, 1961. On October 26, 1961, appellees complained that the excavation was not of sufficient depth and that proper footings for the shelter had not been provided according to the plans and specifications. As the work progressed, appellees made frequent and additional complaints and employed a structural engineer to inspect the construction and advise appellees as to the quality of the work and whether it was in accordance with the plans and specifications.
Water seepage was one of the major problems. One wall of the fiberglass shelter bulged, which had to be corrected by appellants. The concrete was honeycombed. The overhead concrete slab was not resting on the columns designed to support it. Finally, one wall of the shelter caved in.
After working for over three months on this relatively small job, appellants on January 20, 1962, padlocked the shelter and put a fence around the top of it. A few days later appellants removed the air filter and air motor from the premises.
On February 13, 1962, appellees filed suit in the Pulaski Chancery Court alleging breach of contract by appellants and seeking rescission of the contract, recovery of the $500.00 down payment and damages to the premises of appellees. They also sought to have the liens against their property discharged by appellants.
This case was tried on- September 12, 1962, and after hearing evidence on behalf of all parties, the Chancellor found in favor of appellees on the issue of the return of the $500.00 down payment and the discharge of the materialmen’s liens, but did not award appellees any sum for damages to their property. The Chancellor also denied appellants’ cross-complaint for the total sum mentioned in the contract. From the decree appellants prosecute this appeal. Appellees have not cross-appealed.
For reversal appellants contend that they were prevented from performing the contract by the fault of appellees and that appellants are entitled to recover the profits which would have been made had appellees carried out their contract.
From the record, it is true that some delays were occasioned by appellees’ concern and determination to receive that which they had contracted for. From the whole case, however, it can hardly be said that the delays were not justified.
On the question of appellants’ entitlement to profits, there is no showing whatever that appellants would have made a profit on this job.
The structure here in question was sold to appellees to be used by them and their family in the event of nuclear attack. Soon after construction started, appellees employed the services of Mr. Sanford Wilbourne, a highly qualified structural engineer, to periodically check on the progress of the construction of the fallout shelter. This was an understandable precaution, since the record reveals that Mr. Freeling has been totally blind for some years, a fact not mentioned in his brief. Mr. Wilbourne testified that at the time he first saw the shelter in the fall of 1961 there were two problems, one structural and the other waterproofing. He testified that at that time he believed the structural defects could be corrected, but the waterproofing could never be solved because the concrete was porous—“honeycombed.” Later, when he saw the bulge in the wall, he warned appellees not to let anyone enter the shelter because, in his opinion, “it was dangerous to be inside it just under ordinary circumstances, ’ ’ He further considered that the later cave-in of the wall was caused by outside water pressure as well as the weight of the concrete and steel dome resting on the fiberglass shelter instead of on the concrete columns. From his last examination of the shelter in the spring of 1962, about the time work was halted, his expert opinion was that the shelter could not possibly be made structurally sound.
Appellants’ own construction superintendent testified that after he had been on the job for a month and three days the whole northeast corner of the shelter fell in and that it would continue to give trouble from hydrostatic (water) pressure. He admitted that he had never been able to correct the water problem; that during that time they had gotten the shelter dry one time and it had stayed dry only overnight.
Appellant Bilheimer himself admitted that he was contemplating suit against the manufacturer of the fiberglass shelter because he had found from experience that the shelter would not withstand the hydrostatic pressure and that, if used according to the plans provided, would not do the job in this area.
It seems to be basic contract law-—apparently so basic that there is little case law on the point—that where there is a material breach of contract, substantial nonperformance and entire or substantial failure of consideration, the injured party is entitled to rescission of the contract and restitution and recovery back of money paid. United States v. Haynes School Dist. No. 8, 102 F. Supp. 843 (E.D. Ark. 1951); 17A C. J. S., Contracts, §420, p. 515; Farrell v. Third National Bank, 20 Tenn. App. 540, 101 S. W. 2d 158; 12 Am. Jur., Contracts, §440, p. 1020; 5 Williston on Contracts, 4046, §1455; Restatement, Contracts, §384(1), (1932); id., §347; Fish v. Valley National Bank, 64 Ariz. 164, 167 P. 2d 107; Barber v. Rochester, 52 Wash. 2d 691, 328 P. 2d 711; Texas Co. v. Northup, 154 Va. 428, 153 S. E. 659.
From the testimony above reviewed and other testimony of the same character and nature contained in the record, on trial de novo, we are impelled to the conclusion that the learned Chancellor’s finding that the contract was breached and that appellees were entitled to rescission, restitution and discharge of the materialmen’s liens was not against the preponderance of the evidence. Scott v. Vuurens, 236 Ark. 731, 368 S. W. 2d 80.
Affirmed. | [
-15,
120,
-38,
124,
26,
-93,
122,
-101,
87,
-92,
119,
87,
-17,
-62,
76,
102,
-11,
127,
116,
115,
-63,
-77,
59,
-14,
-42,
-77,
-7,
81,
-80,
108,
-12,
-41,
76,
65,
-122,
-51,
-62,
-126,
-51,
22,
70,
1,
-102,
-31,
-47,
80,
52,
127,
80,
15,
21,
-113,
-13,
46,
16,
-61,
104,
46,
-33,
45,
65,
-72,
-97,
4,
127,
68,
-95,
7,
-98,
-57,
-4,
42,
-112,
52,
-96,
-88,
115,
-90,
-110,
33,
67,
-33,
9,
-96,
98,
2,
-127,
-25,
-8,
-40,
22,
-98,
-115,
-92,
-111,
48,
65,
-120,
-68,
-99,
120,
20,
-91,
126,
-18,
21,
95,
46,
-61,
-122,
-10,
-13,
-113,
120,
-113,
-121,
-17,
-125,
43,
113,
-54,
-94,
76,
71,
123,
31,
-113,
-23
] |
Ed. F. McFaddin, Associate Justice.
This litigation arose by complaint filed by the First National Bank in Blytheville against The American Insurers’ Life Insurance Company and also Mrs. Gladys Gill, executrix of the estate of H. Noble Gill, deceased. There were answers, cross-complaints, and interventions by various parties; and a great mass of evidence and exhibits were offered in the trial in the Chancery Court, so that the record now before us is voluminous and the issues are varied. At the outset, we identify the parties:
(a) The First National Bank in Blytheville is a national banking corporation and is hereinafter identified as “Bank.”
(b) Mrs. Gladys Gill is the executrix of the estate of H. Noble Gill, who departed this life testate on June 11, 1960, a citizen and resident of Mississippi County, Arkansas.
(c) The American Insurers’ Life Insurance Company is an insurance company organized under the laws of Arkansas on the 28th day of February, 1958; and will be hereinafter identified as “American Insurers.”
(d) Lester Gill is a brother of H. Noble Gill, deceased.
(e) Other parties, referred to as “Intervenors, ’ ’ were creditors of H. Noble Gill, and are Primrose Oil Company, Blytheville Propane Company, Buchanan Agency, and Marcus Evrard.
This appeal brings into the open some of the tangled affairs of the late H. Noble Gill. He owned interests and equities in a number of enterprises in Eastern Arkansas, including' stock in the Cape County Milling Company of Jackson, Missouri, and in the Dell Compress of Dell, Arkansas ; and also lands in Mississippi County, Arkansas, and in the State of Mississippi. Most all of his holdings were encumbered, but the general public thought he had considerable equity. On February 28, 1958, H. Noble Gill organized the “American Insurers”; and transferred to it substantially all of his various holdings and equities for 1,941,468 shares of no par value stock in American Insurers. Among other assets there was the equity of his shares of stock in the Cape Comity Milling Company held by the Bank. Gill envisaged that he could sell some of his stock in American Insurers to pay the Bank’s claim, and also that a large income tax liability would be avoided. For convenience, we list and discuss the controversies between the various litigants.
I. The Issiies Between The Bank And American Insurers. At all times from August 4, 1956 to his death, H. Noble Gill was indebted to the Bank in large sums of money; and the Bank, along with other security, all the time hold for the protection of its loan all of the duly endorsed stock certificates of H. Noble Gill in the Cape County Milling Company. These certificates totalled three-fourths of all the preferred and common stock of said company. On May 4,1959, H. Noble Gill, to evidence accumulated indebtedness, executed a note to the Bank for $60,000.00, secured by all of his stock certificates in the Cape County Milling Company held by the Bank. There was also other security not necessary to be described. This $60,000.00 note was reduced by payments, so that at the time of Gill’s death the balance due the Bank was $30,000.00 and interest; and on September 7,1960, the Bank filed this suit.
The American Insurers claimed title to the certificates free of the claim of the Bank because (a) H. Noble Gill executed a “Transfer of Stock” to American Insurers on February 28,1958; (b) the Bank (acting by its Vice President Reese) informed American Insurers on February 28, 1958 that on payment of $74,000.00 the certificates would be delivered to American Insurers; and (c) American Insurers (by Mr. Butler) paid the Bank the $74,000.00. The Chancery decree awarded relief to the Bank; and against that decree American Insurers prosecutes this appeal.
We conclude that the decree, in favor of the Bank, was correct in awarding it a prior claim on the Cape County Milling Company stock. We begin with the thoroughly established fact that H. Noble Gill’s stock certificates in Cape County Milling Company were endorsed by him and pledged to the Bank as security for his then or thereafter indebtedness to the Bank. Furthermore, the Bank has completely established the amount of the indebtedness of H. Noble Gill to the Bank. So the Bank has made a complete case for itself, unless and until the American Insurers as the adverse claimant can disprove or rebut the Bank’s claim.
The claim of American Insurers was really estoppel: that is, American Insurers claimed that the representative of the Bank told it that for $74,000.00 the Bank would release the H. Noble Gill stock certificates in Cape County Milling Company held by the Bank; and American Insurers paid the $74,000.00. The American Insurers had the burden of proving such estoppel (Watson v. Murray, 54 Ark. 499, 16 S. W. 293); and the Chancellor, who saw the witnesses, held that the evidence was not sufficient to sustain American Insurers on this point. We rest our affirmance on the delay and laches of American Insurers. The alleged representation by Mr. Reese was on February 28, 1958. In March 1958 American Insurers learned — as it admitted — that the Bank would not deliver the stock certificates. Instead of demanding a return of the $74,-000.00, American Insurers kept the notes and the assignment tendered by the Bank, as tantamount to a novation.
The American Insurers never returned the notes and assignment to the Bank; so from March 1958 to and including the trial below, American Insurers kept what the Bank tendered in lieu of the Cape County Milling Company stock certificates. From March 1958 until American Insurers filed its first pleading in this case on September 23, 1960, American Insurers never asked any court to require the Bank to surrender the Cape County Milling Company stock certificates free of the claim of the Bank. In the interval from March 1958 to September 1960, Mr. Reese, the Vice President of the Bank and the person alleged by American Insurers to have made the $74,000.00 representation, has died. H. Noble Gill, who is alleged to have heard the $74,000.00 representation, has died. There was thus a delay of two years and six months by American Insurers after it had full notice of the Bank’s refusal; and during that time many, many events have happened which have materially changed the situation of the litigants from that existing in March 1958. American Insurers was the delaying party. It took the chance that H. Noble Gill would make a success of his insurance venture. American Insurers cannot “have its cake and eat it also.” This is a clear case of loss of a claim by laches. See Walker v. Norton, 199 Ark. 593, 135 S. W. 2d 315; and Falls v. Jackson, 205 Ark. 435, 186 S. W. 2d 787. We affirm the Chancery decree in favor of the Bank on the Cape County Milling Company stock certificates.
II. The Issues Behveen Lester Gill and American Insurers. On February 7, 1957, the indebtedness of H. Noble Gill to the Bank had become so large that it was in excess of the aggregate amount of credit that the Bank could extend to one individual (that is, it was in excess of $60,000.00); so on the date mentioned Lester Gill, as a favor to his brother, H. Noble Gill, and at the request of the Bank, executed a note to the Bank for $25,000.00, signed by Lester Gill. H. Noble Gill gave his personal note to Lester Gill for $25,000.00, which was endorsed and was also held by the Bank; and Lester Gill claimed that the Bank agreed that he would be subrogated to the security of the Cape County Milling Company stock certificates held by the Bank. Lester Gill intervened in this litigation to have his indebtedness paid out of any excess of the proceeds of said security after the Bank had been paid; and the Bank acquiesced in such intervention. American Insurers resisted the claim of Lester Gill.
In addition to its claim for all the stock certificates of Gill, as previously discussed, American Insurers further claimed: (a) that on February 28, 1958 H. Noble Gill executed a “Transfer of Stock” to it, whereby American Insurers became entitled to all the stock certificates of EL Noble Gill held by the Bank; (b) that the pledge instrument held by the Bank would not cover the Lester Gill claim; and (c) that the claim of subrogation was a mere afterthought.
The Chancery decree was in favor of Lester Gill’s claim; and a careful study convinces us that the decree in favor of Lester Gill was correct. It was clearly established that Lester Gill’s note was credited as a payment on H. Noble Gill’s indebtedness to the Bank; that H. Noble Gill’s note to Lester Gill was held by the Bank as collateral of the Lester Gill note; and that the loan agreement of H. Noble Gill to the Bank covering pledge of collateral covered any and all direct, indirect, absolute, or contingent liabilities of El. Noble Gill to the Bank, as well as any “endorsement, draft, bill of exchange, note, guarantee, letter of credit, or other obligation, or in any other manner.” Furthermore, there was positive testimony of the express representations of the Bank officials to Lester Gill that he would be subrogated to the Bank’s security.
The Chancellor saw the witnesses and heard them testify and believed their testimony; and we cannot say that the Chancellor’s findings on this issue are against the preponderance of the evidence. So we affirm the decree in favor of Lester Gill for subrogation. See Talbot v. Wilkins, 31 Ark. 411; and Briscol v. American Southern Trust Co., 176 Ark. 401, 4 S. W. 2d 912.
III. Amounts Received by American Insurers From Cape County Milling Company. It was shown that the Cape County Milling Company paid to American Insurers, or paid to others for its use and benefit, the total sum of $21,572.07. These payments were because American Insurers assumed control of Cape County Milling Company after February 28,1958; and this amount of $21,572.07 was claimed by American Insurers as ‘ ‘ dividends. ’ ’ American Insurers had acquired from another party the certificates for one-fourth of the common and preferred stock in Cape County Milling Company, and was entitled to actually receive only one-fourth of the $21,572.07; so in fact received an excess of $16,790.05. If the sale of the Cape County Milling Company stock fails to bring enough to satisfy the judgment of the Bank and Lester Gill, judgment shall then go against American Insurers and in favor of the Bank and/or Lester Gill for the deficit, up to the $16,-790.05, being three-fourths of the amount received by American Insurers from Cape County Milling Company.
IY. The Issues Behoeen American Insurers and Mrs. Gladys Gill, Executrix of the Estate of H. Noble Gill, Deceased. The Chancery Court found and decreed that the American Insurers had no valid claim to the stock of H. Noble Gill in the Cape County Milling Company that was pledged to the Bank; that the “transfer instrument” relied on by American Insurers was ineffectual; and that the Estate of H. Noble Gill should receive any and all proceeds from the sale of the pledged Cape County Milling Company stock above what was necessary to pay the Bank and Lester Gill. The American Insurers has appealed from such decree in favor of Mrs. Gill, Executrix; and we conclude that the Chancery Court was in error in the decree in favor of Mrs. Gill, as executrix, as against the American Insurers.
The American Insurers’ Life Insurance Company was organized on February 28, 1958, in Little Rock, Ar kansas; and H. Noble Gill was the moving spirit in the said organization. Among other incorporators, there were W. H. Patton, an accountant, and E. J. Butler, an attorney. The plan of H. Noble Gill was to organize the American Insurers’ Life Insurance Company, to transfer to it substantially all of his various holdings and equities for no par value stock in American Insurers; and then to sell some of the said stock without incurring any large income tax liability. Gill did transfer to American Insurers by deed all of his equity in 2,000 acres of land in Mississippi County, Arkansas, 5,500 acres in the State of Mississippi, and certain other assets; for all such transferred and attempted transferred assets Gill received, either outright or in escrow, a total of 1,941,468 shares of no par value stock in American Insurers.
Among other stocks which H. Noble Gill attempted to transfer to American Insurers was his stock in the Cape County Milling Company, but this stock was pledged to the Bank, as previously mentioned, and Gill was unable to obtain the release of the stock from the pledge. When the final date arrived for Gill to transfer his holdings to the American Insurers for the said no par value stock, he informed his fellow incorporators that his stock in the Cape County Milling Company (he owned three-fourths of the total stock) was pledged to the First National Bank in Blytheville and he would have to transfer the stock subject to the claim of the Bank. There was insistence that the insurance organization be immediately completed and the charter issued that day, so E. J. Butler, as the organizing attorney of American Insurers, prepared this instrument, which H. Noble Gill executed:
“TRANSFER OF STOCK
“THIS WRITING WITNESSETH: That I, H. Noble Gill, of Blytheville, Arkansas, have on this twenty-eighth day of February, 1958, and by this instrument do on this date, bargain, sell, transfer, assign and set over unto the American Insurers’ Life Insurance Company, Little Rock, Arkansas, 4,023 shares of the capital stock of the Cape County Milling Company, Jackson, Missouri, said shares being represented by Cape County Milling Company Stock Certificate Numbers 61, 62, 63, and 66 and in consideration therefor, I have received from American Insurers’ Life Insurance Company of Little Bock, Arkansas, 450,023 shares of the no par capital stock of said Insurance Company.
“I hereby warrant to American Insurers’ Life Insurance Company, Little Bock, Arkansas, that the value of the Cape County Milling Company stock is $450,028.84 based on appraised values of The Lloyd Thomas Company, Chicago, Illinois, and I at this time leave up with American Insurers’ Life Insurance Company 438,608 shares of its stock in escrow to guarantee the value of the Cape County Milling Company stock, which is hereby transferred to said Insurance Company, and I do hereby irrevocably approve, constitute and appoint Tull Johnson my attorney to transfer the said Cape County Milling Company stock on the books of the said corporation with full power of substitution in the premises.
“WITNESS my hand on the date and year herein-before first written.
“/s/ H. Noble dill
“Witnessed by /s/ E. J. Butler.”
We have held in Topics I and II, supra, that the Bank, as the holder of the stock certificates, had a superior claim for itself and for Lester dill; and we now hold that the instrument entitled “Transfer of Stock” was effectual and valid as between H. Noble dill and American Insurers to transfer his remaining interest in the pledged stock to American Insurers. Section 64-310 Ark. Stats, is Section 10 of the Uniform Stock Transfer Act, and reads:
“An attempted transfer of title to a certificate or to shares represented thereby without delivery of the certificate shall have the effect of a promise to transfer and the obligation, if any, imposed by such promise shall be determined by the law governing the formation and performance of contracts.”
When H. Noble Gill signed the instrument entitled “Transfer of Stock” and delivered the real estate deeds to American Insurers, he received a total of 1,941,468 shares of no par value stock in American Insurers. The fact that he left 750,000 shares in escrow does not alter the fact that he received consideration for the transfer. On the strength of the signed instrument, $74,000.00 was paid by American Insurers to the Bank, as heretofore detailed. If H. Noble Gill were living today, he could not avoid his obligations and liabilities under the Transfer of Stock instrument. It is true that the executrix of an estate occupies the double role of being not only the person representing the decedent, but also the representative of creditors, legatees, etc. (Hobbs v. Cobb, 232 Ark. 594, 339 S. W. 2d 318); but Mrs. Gill, as executrix of the estate, stands in this case in the same position as H. Noble Gill would stand if he were alive and before the Court on the contract here involved. In 21 Am. Jur. 583, “Executors and Administrators” § 337, in discussing the contracts of the decedent, the holdings of the various jurisdictions are summarized in this language: ‘ ‘ Generally, all contractual obligations which survive the death of the obligor are binding on his executors and administrators in their representative capacity and may be enforced against his estate to the extent of the assets thereof, subject, of course, to all proper grounds of defense.”
The executrix claims that American Insurers has really disaffirmed the entire transfer of assets by Gill to American Insurers because it filed an instrument declaring the values as represented by Gill to be excessive. But that instrument did not amount to a disaffirmance of the conveyance: rather, it was an affirmance of the contract and a claim of breach of warranty.
The executrix, by cross-complaint against American Insurers, sought to recover the equity of H. Noble Gill in the stock certificates here involved. On such cross-complaint the executrix had a burden of proof which was not discharged. So we reverse all that part of the Chancery decree in favor of the executrix and against American Insurers.
V. The Issues Between The Intervenors And American Insurers. The intervenors were creditors of H. Noble Gill, with claims filed and allowed against his estate, and some, if not all, of these intervenors were creditors of Gill before he made the transfer of his assets to American Insurers. The germane allegations of the interventions were: (a) that the Cape County Milling Company stock pledged to the Bank was worth in excess of $200,-000.00; (b) that the instrument entitled “Transfer of Stock” was of no effect; (c) that stock was not issued and delivered to Gill by American Insurers for the Cape County Milling Company stock; and (d) that the purported transfer of the Cape County Milling Company stock by Gill to American Insurers was a fraudulent conveyance. The Chancery decree awarded relief to Mrs. Gill as executrix and thereby afforded relief to the intervenors. Since we have reversed the decree awarding* relief to Mrs. Gill as executrix, it becomes necessary to consider whether the intervenors have established any right to relief as against American Insurers, the transferee from Gill, even assuming each of the intervenors to have been a creditor of H. Noble Gill prior to the transfer to American Insurers on February 28, 1958.
When we sustained the “Transfer of Stock” instrument against Mrs. Gill, executrix (as we did in Topic IY, supra), we disposed of the claims of the intervenors as to the effectiveness of such instrument; so we pass to the other claims, as heretofore listed. The actual value on February 28, 1958 of the Cape County Milling Company stock pledged to the Bank is a matter of uncertainty. The value was materially increased by the death of H. Noble Gill, because the Cape County Milling Company collected approximately $100,000.00 on a life insurance policy it carried on his life. But for the purposes of this decision, we may assume the total value of the pledged stock to have been $200,000.00 on February 28, 1958. American Insurers issued to H. Noble Gill a total of 450,028 shares of its no par value stock for all of the shares of preferred and common stock in Cape County Milling Company. One fourth of the total shares of said preferred and common stock were owned by Tull Johnson unpledged, and he endorsed and delivered his certificates to American Insurers and in return therefore H. Noble Gill delivered to Tull Johnson 30,000 shares of Gill’s stock in American Insurers. Some of these shares delivered to Johnson came from unpledged shares of H. Noble Gill because he left 438,608 shares in escrow with American Insurers to guarantee the warranty of clear title of the shares pledged to the Bank. The fact that Gill left part of the shares in escrow to guarantee the warranty did not alter the fact that American Insurers had issued the shares to Gill.
The fact that stock issued by American Insurers to Gill had some value at the time of issuance is amply attested by the record: E. J. Butler paid Gill $25,000.00 in cash for 25,000 shares; and W. II. Patton paid Gill $40,000.00 for 40,000 shares. Gill sold stock to a number of people for $1.00 per share; Gill was able to borrow $93,000.00 from a large bank here in Arkansas on the pledge of some of his shares of stock in American Insurers; and shortly before his death Gill was in the process of organizing a sales campaign, to sell some of his shares in American Insurers at $3.00 per share. If the stock Gill received from American Insurers was not worth $1.00 per share, it was because Gill had overvalued his own assets; and if that be true, his creditors were in no worse position after the stock deal than they were before the stock deal. The value of Gill’s estate in 1960 is not the test of the value of the stock he received in 1958. The evidence is entirely insufficient to afford the intervenors any relief on the theory of a fraudulent conveyance under § 68-1302 et seq. Ark. Stats.
After exploring the entire record we reach the conclusion that the intervenors, as creditors of H. Noble Gill, have established no rights in excess of the rights asserted by Mrs. Gill as executrix, and the interventions should have been dismissed for want of equity.
YI. Rulings As To Evidence. In various instances some of the parties to this appeal have complained of the rulings of the Chancery Court, either for admitting, or refusing to admit, tendered evidence. We have not ignored these contentions: rather, we have considered proffered evidence which we found should have been admitted and have disregarded improper evidence against which proper and timely objections were made. It would unduly prolong this opinion and serve no useful purpose to discuss all of these instances. We merely mention them so that no one will think the contentions have been overlooked.
CONCLUSION
The Chancery decree is affirmed in part and reversed in part, all as herein stated; and the cause is remanded to the Chancery Court for further proceedings not inconsistent with this opinion; the costs of this appeal are to be borne equally by American Insurers and the executrix of the estate of H. Noble Gill.
Harris, C. J. and Johnson, J., dissent in part.
With the exception of one block of 30,000 shares, all the other 225 persons who purchased stock in American Insurers purchased the H. Noble Gill shares.
This instrument is copied in toto in Topic IV of this opinion.
The wording of the pledge is an broad as can be imagined. A portion of the wording is mentioned in Topic II infra.
Mr. Butler testified that his check to the Bank was dated March 17, 1958; that a few days later H. Noble Gill delivered to Butler for American Insurers the notes of Gill and the assignment from the Bank; that Butler called Reese at the Bank and was advised that the Bank had credited the $74,000.00 on the said notes, and would not surrender the shares of stock in Cape County Milling Company until additional amounts were paid; so American Insurers learned of all of this in March 1958.
This instrument is copied in toto in Topic IV of this opinion.
The fact that the numbers on the stock certificates differ is immaterial.
For some cases from other jurisdictions involving this section, see Parsons v. Lipe, 286 N. Y. Supp. 60, 200 N. E. 31; Whitney v. Nolan (Mass.), 6 N. E. 2d 386; Johnson v. Johnson (Mass.), 13 N. E. 2d 788; Lockhart v. Dickey (La.), 108 So. 483; Estate of Ezra Connell (Pa.), 128 A. 503, 38 A. L. R. 1362; Salmon v. Moore (Miss.), 118 So. 2d 867. While not directly in point, we call attention to the following as persuasive: Aycock v. Bottoms, 201 Ark. 104, 144 S. W. 2d 43; and Leonard v. Taylor, 183 Ark. 933. 39 S. W. 2d 704.
The Chancery decree contains this language: “e. If the ‘Transfer of Stock’ instrument were definite and certain in its terms and if the estate of H. Noble Gill were barred by estoppel from claiming title and ownership in said stock, such transfer would be void even as against the estate inasmuch as possession of the Cape County Milling Company stock did not accompany such instrument; no good consideration was received by Gill, and the transfer would have, in fact, delayed and hindered the collection of debts by creditors of Gill, from which the Court must presume the intent to hinder and delay creditors. Ark. Stats. Sec. 68-1302, Sec. 68-1304. . . . “(7) The Court concludes that the creditors intervening have sought the basic relief that the stock above described be declared the property of the estate of H. Noble Gill, deceased, which the Court has done, and no further relief or conclusions need be made relative thereto.” | [
116,
109,
-24,
30,
-104,
-30,
58,
-85,
90,
105,
-27,
83,
-3,
-33,
5,
109,
-9,
13,
101,
96,
-73,
-73,
23,
51,
-38,
-69,
105,
-59,
-80,
-33,
-28,
-33,
76,
56,
-118,
-47,
-30,
2,
-57,
28,
94,
0,
43,
-27,
93,
68,
56,
-81,
80,
77,
65,
-98,
-29,
56,
55,
74,
108,
46,
-1,
-68,
-48,
48,
-118,
14,
125,
21,
1,
7,
-102,
71,
88,
14,
-48,
-79,
32,
-28,
114,
38,
-122,
-27,
47,
-99,
8,
34,
99,
19,
21,
-17,
-88,
-120,
55,
62,
-115,
-121,
-110,
0,
3,
40,
-66,
-100,
126,
0,
-121,
-4,
-24,
4,
93,
108,
3,
-114,
-106,
-127,
-83,
-10,
-100,
27,
-13,
75,
52,
112,
-53,
-30,
125,
71,
127,
27,
-57,
-15
] |
Prank Holt, Associate Justice.
In this probate proceeding the appellant, Leandre Green, contests the validity of his father’s will. The Probate Court held the will was valid and admitted it to probate from which judgment appellant brings this appeal.
The testator, Ceasar Green, reputed to be 104 years of age, died in June, 1962. The will in question was executed by him on February 9, 1962. At the testator’s request two reputable businessmen in the County came to his house where one of them wrote the will upon the testator’s insistence after they had advised him to secure the services of a lawyer. As he requested, the will provided that his daughter, Poena Green Smith, appellee, would be the principal beneficiary of his estate. The will mentioned and made a nominal bequest to his other heirs, including his son, the appellant. The testator then signed this will by his mark, his name being written near the mark by the individual who wrote the will. This scrivener failed to write his own name as a witness to the testator’s name and mark; neither did the scrivener affix his signature as an attesting witness to the will. Two wit nesses properly attested the will and, as such, have executed the Proof of Will. The testator’s name was subscribed to the will in this form:
“His
Ceasar X Green Mark
WITNESS:
J. B. Lambert Leslie Smith”
The appellant contends that the testator’s signature is not in compliance with Ark. Stat. Ann. § 60-403 (Supp. 1961) which is as follows:
“Execution.-—The execution of a will, other than holographic, must be by the signature of the testator and of at least two witnesses as follows:
a. TESTATOR. The testator shall declare to the attesting witnesses that the instrument is his will and either
(1) Himself sign; or
(2) Acknowledge his signature already made; or
(3) Sign by marie, his name being written near it and witnessed by a person who writes his oion name as witness to the signature; or
(4) At his discretion and in his presence have someone else sign his name for him, (the person so signing shall write his own name and state that he signed the testator’s name at the request of the testator); and
(5) In any of the above cases the signature must be done in the presence of two or more attesting witnesses.
b. WITNESSES. The attesting witnesses must sign at the request and in the presence of the testator. [Acts 1949, No. 140, § 19, p. 304.]”
Appellee contends that either or both of the attesting witnesses can, in addition to executing the Proof of Will, serve the purpose of being a witness to the testator’s mark since they observed him make his mark. We cannot agree. Sub-section (3) plainly provides tbat a testator’s signature by mark must be witnessed by a person who writes Ms own name as a witness to tbat signature. Sub-section (5) which follows, and is in addition to the requirement of (3), provides significantly that in case sub-section (3) is followed, such act “must be done in the presence of two or more attesting witnesses.” In other words, there are four methods for a testator to sign his will and, as we construe this statute, when we consider it as a whole and sub-section (5) in particular, there must be at least two attesting witnesses in addition to the requirements of either of these four methods. We interpret the provisions of sub-sections (3) and (5) of this statute to be mandatory in requiring a minimum of three subscribing witnesses to make the will in question valid. As we said in Ash v. Morgan, 232 Ark. 602, 339 S. W. 2d 309:
“It is essential to due execution of a will that it be signed or subscribed by the number of witnesses required by the law governing the particular will being made, and subscription by fewer renders the transaction a nullity.”
Nor can the parol evidence of the scrivener in this case supply the deficiency of the required additional witness ’ signature. The statute requires the written signature of such a witness.
Appellant contends that another will by his father, dated in 1958, should be admitted to probate. It is immaterial whether this be done inasmuch as the sole beneficiary named in it, the testator’s wife, pre-deceased him. Thus, insofar as this will is concerned, the decedent’s estate descends and is to be distributed to his heirs as if he had died intestate.
It becomes unnecessary for us to consider the other point advanced by appellant, namely the testator’s lack of mental capacity, since the will in question was not executed in compliance with the quoted statute.
The judgment is, therefore, reversed and the cause remanded with directions to enter a judgment not inconsistent with this opinion. Reversed. | [
-76,
108,
-120,
31,
43,
112,
90,
-70,
113,
66,
35,
83,
125,
-46,
68,
39,
119,
-17,
116,
122,
86,
-77,
23,
97,
82,
-13,
-5,
-41,
53,
-55,
-25,
95,
76,
32,
-94,
-43,
-26,
-118,
-27,
-48,
-114,
91,
9,
113,
-39,
81,
48,
-29,
26,
15,
69,
-2,
-13,
42,
29,
-50,
76,
108,
-39,
-88,
72,
-79,
-99,
5,
121,
23,
-96,
6,
-8,
11,
72,
46,
-104,
29,
0,
-8,
115,
-74,
6,
-44,
43,
25,
12,
102,
34,
32,
13,
-73,
-72,
-102,
-97,
118,
21,
39,
22,
56,
41,
45,
-74,
-38,
56,
16,
-65,
-10,
96,
23,
24,
108,
42,
-113,
-46,
-15,
-95,
-86,
-98,
27,
-29,
107,
16,
81,
-52,
-62,
84,
97,
-7,
-101,
-122,
-78
] |
Sam Robinson, Associate Justice.
The appellants, William E. and Robert J. Kuhl, are chiropractors authorized to practice in the State of Arkansas. On the 8th day of November, 1960, the Arkansas State Medical Board filed a complaint in the Pulaski Chancery Court, wherein it was alleged that the above named appellants were engaged in the illegal practice of medicine in this state. The complaint alleged that the appellants were doing about a dozen different things that constituted the practice of medicine.
On the 5th day of June, 1961, the Arkansas State Board of Chiropractic Examiners, acting on authority of Ark. Stats. 72-407, filed charges against appellants alleging that they had illegally engaged in the practice of medicine as charged in the complaint which had been filed in the Chancery Court by the Medical Board; and further, that they were guilty of unethical conduct. A summons was issued and served.
On June 13, 1961, appellants filed a motion asking that they be given an immediate hearing on the charges which had been filed on June 5. The hearing was set for June 28. On that date when the matter came on to be heard on the merits, appellants made an oral motion that the Chiropractic Board be required to make the charges more definite and certain. The motion was overruled and the Board proceeded with the hearing. After hearing all the evidence produced, the Chiropractic Board ordered that appellants’ license as chiropractors be revoked. By certiorari appellants took the case to Circuit Court where the order of the Board was affirmed.
On appeal to this court appellants contend, first, that the Board’s action in overruling the motion that the charges be made more definite and certain was error that calls for a reversal. We do not agree. The charges were filed by the Board and summons issued and served on June 5, 1961. Allegations charging appellants with the illegal practice of medicine had been filed in Chancery Court by the Medical Board November 18, 1960, more than six months before the charges were filed by the Chiropractic Board. Moreover, during the interim between June 5,1961 and the time of the hearing on June 28, the only thing filed by appellants was a request for an immediate hearing. Not until the day of the hearing on June 28, did appellants ask that the charges be made more definite and certain. In these circumstances there was no error in denying the motion.
While the matter was pending in the Circuit Court appellants filed a motion asking that the Chiropractic Board be required to deliver to the attorneys for appellants “all books, records, correspondence and minutes pertaining to any disciplinary action taken or contemplated against any chiropractor since the creation of the board for the purpose of permitting defendants to inspect same and copy if desired”. The motion was overruled by the trial court. We fail to see in what manner the action taken by the Board in some other case would be relevant to the case at bar.
After the taking of testimony before the Chiropractic Board and while the matter was still in the hands of the Board, Dr. Murphy, a member of the Board, called a doctor on the staff of the Missouri Pacific Hospital and questioned him about certain facts to determine if appellant, Dr. William Kuhl, had testified truthfully or falsely concerning his dealings with the hospital and the treatment of Missouri Pacific Hospital patients. Of course, if the judge of a court or a juror adopted such means to ascertain the facts, we would quickly hold that it was error to obtain evidence in that fashion. But members of the Chiropractic Board are not lawyers and they are not jurors with a judge available to tell them what they may or may not do. In all probability, members of the Chiropractic Board know nothing about the rules of evidence and perhaps they could never hear an involved case without making errors in admitting or rejecting evidence, if their action in that respect were tested by the rules of evidence applicable to a court of law.
In Bockman v. Arkansas State Medical Board, 229 Ark. 143, 313 S. W. 2d 826, we had the same point under consideration and there we said: ‘ ‘ This is not a criminal prosecution, in which the accused is entitled to be confronted by the witnesses against him. It is an administrative proceeding, civil in nature, . . .”. It is further stated in that case that the Board could not proceed at all if it were required to observe technical rules of evidence. Also, we said in the Bookman case: “Upon this point it is our rule in proceedings like this one that the board’s action will not be set aside on certiorari unless there is an entire absence of substantial evidence to sustain the findings, . . .”. But even so, we would send this case back to the Board of Chiropractic Examiners for a new trial if it appeared that appellants did not receive a fair trial, or that Dr. Murphy’s action in talking to a doctor at the Missouri Pacific Hospital, and perhaps other chiropractors, was in any way prejudicial to appellants; but we cannot see how appellants were prejudiced in any manner by the conversations, because regardless of what was said, and notwithstanding anything that may have been said, there is competent evidence in the record which shows that appellants’ license to practice chiropractics must be revoked.
Even though the Board is not bound by strict rules of evidence, the essential rules of evidence by which rights are asserted or defended must be preserved. But a hearing does not cease to be fair merely because rules of evidence and procedure applicable in judicial proceed ings have not been strictly followed, or because some evidence has been improperly rejected or received. Bilokumsky v. Tod, 263 U. S. 149. To render a hearing unfair, the defect or practice must have been such as might have lead to a denial of justice, or there must have been absent one of the elements of due process.
Ark. Stats. 72-604 defines the practice of medicine, in part, as follows: ”... suggesting, recommending, prescribing or administering any form of treatment, operation or healing for the intended palliation, relief, or cure of any physical or mental disease, ailment, injury, condition or defect of any person with the intention of receiving therefor, either directly or indirectly, any fee, gift, or compensation whatsoever; . . .”.
A chiropractic license entitles ‘ ‘ the holder thereof • to adjust by hand the displaced segments of the vertebral column and any displaced tissue in any manner related thereto for the purpose of removing any injury, deformity or abnormality of human beings”. Ark. Stats. 72-404.
Of course if any information Dr. Murphy obtained, not in the presence of appellants, had to be relied on in any respect to support a finding that appellants unlawfully engaged in the practice of medicine, the judgment would have to be reversed; but such is not the case. The printed matter on appellants ’ statement of account form contains a list of the treatments they hold themselves out as giving, which are listed as follows:
“(1) Adjustments, (2) Vitamins or Supplements, (3) Plasmatic Therapy, (4) Traction, (5) Muscle Stimulation, (6) Diathermy, [The generation of heat in tissues of the body, as a result of the resistance presented by the tissues to electric currents of high frequency that is forced through them.] (7) Ultrasonic Therapy, [Super sound wave treatment] (8) Infrared Therapy, [Pertaining to or designating those rays which lie just beyond the red end of the visible spectrum, such as are emitted by a hot nonincandescent body. They are invisible and nonactinic and are detected by their thermal effect. Their wave lengths are longer than those of visible light and shorter than those of radio waves.] (9) Ultraviolet Therapy, [Outside the visible spectrum at its violet end; said of rays more refrangible than the extreme violet rays and opposed to infrared.] (10) Ear Irrigations, (11) X-Rays and Fluoroscopy, (12) Endo or Electrocardiogram, [A tracing made by means of the electric needle of an electrocardiograph which shows the contractions of the heart muscle.] (13) Special Interpretations, (14) Laboratory Examinations, (15) Physical Examinations, (16) Basal Metabolism, [The changes going on continually in living cells, by which energy is provided for vital processes and activities in the body, and new material is produced to repair the waste.] (17) HydroTherapy [Mineral baths] (18) Blood Count — Urine.”
Moreover, appellants sent out literature to other chiropractors offering to do laboratory work and, among other things, they stated: “You no longer have to send your patient or children to other doctors to be treated for stomach worms or pin-worms: Read the enclosed bulletin on the one week treatment and Medication, you may legally give your patient for the above infestations.”
It will be noticed that they advise other chiropractors to give “medication”. They also furnished forms in connection with taking urine specimens in which they indicate that they could diagnose many diseases, including cancer, by examination of the urine. All this adds up to the fact that appellants did not confine their practice to that of chiropractics, but also engaged in the practice of medicine.
Ark. Stats. 72-407 gives the Chiropractic Board authority to revoke appellants’ license “for prescribing any form of medical treatment without having first complied with the law governing the practice of medicine or any method which is not chiropractic”. There is no showing that appellants have complied with the law governing the practice of medicine, and not only is there substantial evidence, but by a great weight of the evidence appellants prescribed treatments and methods of treatment which are not chiropractic.
The'Chiropractic Board’s authority to revoke a license is not an arbitrary one; such authority must be exercised in a proper manner. Ark. Stats. 72-407 gives the Board authority to revoke a license on certain specified grounds one of which is “prescribing any form of medical treatment”. Here, when any and everything that may have been said in appellants absence is wholly disregarded, there remains overwhelming evidence that appellants engaged in the practice of medicine, and it is an aggravated case. The evidence shows that over a considerable period of time members of the Chiropractic Board had attempted, without success, to get appellants to confine their practice to chiropractics. In this case, if the Board had failed to revoke the license on evidence which is properly in the record, there would have been an abuse of authority.
The judgment is affirmed.
See Miller v. Reed, 234 Ark. 850, 355 S. W. 2d 169. | [
112,
-17,
-68,
-84,
10,
-63,
60,
42,
91,
-125,
-11,
115,
-19,
-119,
5,
45,
-31,
45,
80,
113,
-58,
-77,
87,
40,
66,
-45,
105,
-57,
-16,
78,
-28,
-99,
77,
56,
-54,
85,
-58,
74,
-49,
28,
-42,
1,
9,
68,
89,
69,
52,
103,
94,
7,
113,
30,
-63,
46,
30,
-61,
105,
108,
75,
-84,
-47,
-16,
-104,
13,
-17,
18,
32,
36,
-104,
5,
-2,
58,
-120,
49,
-126,
-8,
51,
-74,
10,
84,
91,
-103,
4,
114,
38,
-96,
89,
-17,
120,
-88,
14,
59,
29,
-122,
-94,
65,
-61,
8,
-74,
-80,
100,
80,
14,
124,
-7,
93,
29,
44,
8,
-50,
-108,
-77,
-41,
112,
-100,
35,
-21,
-89,
16,
53,
-59,
118,
125,
79,
19,
27,
-114,
-76
] |
Jim Johnson, Associate Justice.
Appellant Julian Perez was one of three men arrested for robbery of a Safeway Grocery Store. On February 11, 1963, he was charged with robbery by information, and trial was set in Garland Circuit Court for May 9, 1963. On the morning of May 9th, an article appeared in the local newspaper relating the facts of the robbery and stating that the other two men charged in the same robbery had pleaded guilty and been sentenced to six years in the penitentiary. In chambers before trial, appellant moved the court for a continuance because of the article and introduced the article into evidence. The motion for a continuance was denied.
At the conclusion of the trial that day, the jury found appellant guilty and sentenced him to six years in the penitentiary.
Appellant has appealed contending that the trial court erred in refusing to grant a continuance on the motion submitted on the morning of trial.
The applicable Arkansas Criminal Procedure statute on continuances is Ark. Stat. Ann. § 43-1705 (1947), which states:
“Postponement.—When an indictment is called for trial, or at any time previous thereto, the court, upon sufficient cause shown by either party, may direct the trial to be postponed to another day in the same term, or to another term.”
The following section (% 43-1706) provides that the civil procedure statutes (§§ 27-1402-27-1404) on postponement of trial in civil actions will apply to the postponement of prosecutions on behalf of defendants. These civil procedure statutes relate to postponement after amendment of pleadings, continuance for absence of evidence or witnesses, and payment of costs. Review of our case law reveals that other grounds frequently used are physical or mental condition of defendant, objections to the jury, want of time for preparation, absence of counsel, and surprise at trial.
In Moore v. State, 229 Ark. 335, 315 S. W. 2d 907, the trial .court gave permission for television filming in the corridors during appellant’s trial. A radio newscast the night before announced the planned televising, and appellant’s attorney moved for a continuance to determine whether the radio announcement adversely affected his client. The motion was denied, and in upholding that ruling this court stated simply, “We fail to see how the radio announcement could be a cause for continuance. The statutes (Ark. Stats. § 43-1705 et seq.) and construing cases specify the essential content and showing that must be made in a motion for continuance; and no such content or showing was here made.”
There is no doubt that the granting or refusing of a motion for continuance is addressed to the sound discretion of the trial court, Martin v. State, 194 Ark. 711, 109 S. W. 2d 676; Brockelhurst v. State, 195 Ark. 67, 111 S. W. 2d 527; Gentry v. State, 201 Ark. 729, 147 S. W. 2d 1; and will not be reversed unless the trial court abuses its discretion. Burriss v. Wise, 2 Ark. 33; Smith v. State, 200 Ark. 1152, 143 S. W. 2d 190; Turner v. State, 224 Ark. 505, 275 S. W. 2d 24. In Shushan v. United States, 117 F. 2d 110, 133 A. L. R. 1040, cert. den. 313 U. S. 574 (CA 5th La., 1941), the Court of Appeals held that the trial court had not abused its discretion in denying a continuance because of allegedly prejudicial newspaper publicity, pointing out that the trial judge was a resident of the vicinity and personally cognizant of the true situation. In an overwhelming number of cases appellate courts have refused to reverse the trial court for refusing continuances sought on the basis of excitement or prejudice. In Finnegan v. United States, 204 F. 2d 105 (8th Cir. 1953), the Court of Appeals went so-far as to say that newspaper publicity tending to excite public prejudice against a defendant is not usually considered a sufficient reason for granting an application for continuance.
A number of well-reasoned cases have held that refusal to grant a continuance is not an abuse of discretion because voir dire examination is sufficient protection, giving the defendant ample opportunity to determine whether jurors have been prejudiced by newspaper articles about the crime or the defendant. Bianchi v. United States, 219 F. 2d 182 (8th Cir. 1962), cert. den. 349 U. S. 915, 75 S. Ct. 604, 99 L. Ed. 1249; United States v. Hoffa, 156 F. Supp. 495 (D. C. N. Y. 1961); State v. Sheppard, 100 Ohio App. 345, 128 N. E. 2d 471; Wilcoxon v. State, Okl. Cr., 343, P. 2d 194; State v. Sanders, (Mo.) 313 S. W. 2d 658; 39 A. L. R. 2d 1314. In the case at bar, appellant introduced no evidence or testimony to show prejudice, although the burden was upon him to do so. Further, on voir dire, the court examined the jury accordingly:
“The Court: There was an article in the paper, probably some of you read it and some of you did not. Have you read anything in the paper about two of these parties having disposed of their cases prior to this morning, and if you have, would that fact effect you in any way at arriving at a verdict based upon the evidence you hear from the witness stand and the law given to yon by the Court? In other words, anything that you may have read in the newspapers about the other parties involved —if you have read it—from that did you form any opinion as to the innocence or guilt of this defendant?”
The record reflects no affirmative or negative response to this part of the examination. The appellant had the opportunity to examine the panel further on this point if he was not satisfied, and he could and did excuse certain of the jurors. The statute (§ 43-1705, supra) calls for “sufficient cause” for postponement. This we have not been shown and we must therefore affirm the judgment of the trial court. | [
80,
-22,
-7,
30,
24,
-31,
50,
-66,
99,
-93,
38,
82,
-17,
-42,
4,
123,
-69,
79,
116,
121,
-60,
-93,
39,
72,
-22,
-5,
89,
87,
55,
107,
-4,
-44,
12,
48,
-118,
-47,
70,
88,
-63,
92,
-114,
1,
-7,
100,
115,
8,
32,
104,
24,
15,
-79,
-68,
-29,
42,
26,
-62,
73,
40,
75,
47,
-64,
-72,
-45,
29,
-81,
20,
-93,
-91,
-102,
7,
88,
124,
28,
49,
40,
-24,
114,
-106,
-122,
100,
109,
-101,
44,
98,
98,
0,
12,
-21,
-84,
-87,
22,
-106,
-97,
-90,
-104,
65,
75,
12,
-74,
-99,
58,
20,
6,
-2,
-75,
20,
89,
44,
-125,
-49,
-76,
-77,
-115,
41,
12,
27,
-5,
35,
-80,
49,
-50,
-30,
92,
87,
115,
-37,
-50,
-43
] |
Frank Holt, Associate Justice.
The appellant, the City of Piggott, Arkansas, enacted Ordinance 209 declaring that: “ * * * Pinball machines or other gaming devices are a public nuisance * * * ”. The ordinance further provides that it is unlawful for any business establishment or individual to possess pinball machines in any manner within the city. A violation of this ordinance is punishable by a fine of not less than $5.00 nor more than $25.00 per day.
The appellee, Mrs. Dena Eblen, doing business as Paragould Music Company, is the owner of coin operated pinball machines which she had placed on the business premises of the other appellees, Henry C. Martin, doing business as A & W Root Beer Stand; Raymond Arehart, doing business as Ray’s Drive-In; and Amos Latta, doing business as Mohawk Cafe and Latta’s Service Station. These appellees, the machine owner and location owners, brought suit in chancery court seeking injunctive relief and a declaratory judgment invalidating the ordinance.
Appellant, a City of the Second Class, in its response denied that pinball machines are classified in the ordinance as gaming devices and alleged that minors [school children] were permitted to use them and play them in such a manner as to constitute a public nuisance. Appellant contended that it had the power and authority to enact and enforce the questioned ordinance.
The chancery court held the ordinance unconstitutional as being contrary to the Constitution and Statutes of Arkansas by classifying pinball machines as gaming-devices and prohibiting them within the limits of the city. The court permanently enjoined the appellant from enforcing the ordinance as to pinball machines and amusement games as defined by Ark. Stat. § 84-2611. From this decree appellant brings this appeal.
On appeal it is the conteniton of appellant that the ordinance, declaring the possession and operation of pinball machines to be a public nuisance, is not contrary to the Constitution and the Statutes of Arkansas and, further, that a nuisance per se did in fact exist by reason of the operation of pinball machines within the limits of the city.
Appellees and appellant agree by their pleadings that the gross receipts from the pinball machines are distributed equally between the machine owner and the location owner; that the machines are coin operated and permit the person operating the machine, upon deposit of a coin therein, to play a game by the shooting of marbles or round objects which, depending upon the skill of the operator, will register various scores and record them upon the machine; that neither the machine owner nor the location owner pay any rewards for the scores except that free games are given upon certain specified scores being registered; and that the appellees have paid all city and state license fees imposed by both the city and state.
The question presented is whether the appellant has the authority to enact and enforce this ordinance. We have had occasion in many cases to define the extent of the powers of municipalities in our state. We have consistently followed the definition which was reiterated in Yancey v. City of Searcy, 213 Ark. 673, 212 S. W. 2d 546, in the following language:
“It is a general and undisputed proposition of law that a municipal corporation possesses and can exercise the following powers, and no others: First, those granted in express words; second, those necessarily or fairly implied in or incident to the powers expressly granted; third, those essential to the accomplishment of the declared objects and purposes of the corporation, not simply convenient, but indispensable. Any fair, reasonable, substantial doubt concerning the existence of power is resolved by the courts against the corporation, and the power is denied.” [Emphasis ours]
Also see Arkansas Utilities Co. v. City of Paragould, 200 Ark. 1051, 143 S. W. 2d 11; 37 Am. Jur., 722.
The function and purpose of a municipal government was succinctly expressed in Cumnock v. City of Little Rock, 154 Ark. 471, 243 S. W. 57, where we find this principle of law quoted by this court with approval:
* * Municipal corporations are created to aid the State Government in the regulation and administration of local affairs. They have only such powers of government as are expressly granted them, or such as are necessary to carry into effect those that are granted. ’ ’
With this well established principle of law before us we now proceed to review legislation in our state on the subject of coin operated amusement devices. Act 167 of 1931 [Ark. Stat. 84-2601] provides that the business of owning, operating, or leasing such machines is a privilege for which licenses can be required and taxes imposed. Its validity was approved in Thompson v. Wiseman, 189 Ark. 852, 75 S. W. 2d 393. Act 137 of 1933 [Ark. Stats. 84-2602] defines such machines as: “ * * * any machine, * * * which is operated by placing in same through a slot, or any kind of opening or container, any coin, * * * before such machine operates or functions.”
Act 201 of 1939, as amended, [Ark. Stat. 84-2611] specifically provides that amusement games played on pinball machines are lawful even though free games be given upon certain scores being made. This Act provides in pertinent part:
“Amusement games shall include such games as Radio Raffles [Rifles], Miniature Football, Golf, Baseball, Hockey, Bumper, Tennis, Shooting Galleries, Pool Tables, Bowling, Shuffleboard, Pinball Tables, Marble Tables, and other Miniature games whether or not it shows a score and not hereinafter excluded in Section 3 [§ 84-2612] hereof, and where the charge for playing is collected by a mechanical device. The terms ‘any money or property,’ or ‘other articles,’ or ‘other valuable thing,’ or ‘any representative of anything that is esteemed of value,’ as used in the anti-gambling statutes * * * shall not be expanded to include a free amusement feature such as the privilege of playing additional free games if a certain score is made on a pinball table and on any other amusement games described in this section.’ [Emphasis added]
This same Act [Ark. Stats. 84-2613 — 2617] provides for the imposition of a privilege tax by the state at $5.00 per machine annually and, also, permits municipalities to tax the pinball machines provided the municipal tax does not exceed that imposed by the state. This Act [Ark. Stat. 84-2614] further provides that where the state tax has not been paid the machine is declared to be a public nuisance subject to seizure and sale by the state upon an order by the Pulaski Chancery Court if the owner does not redeem the machine within ten (10) days by paying the tax due and the costs. No such power is granted to municipalities if a municipal tax is not paid. Act 60 of 1949 [Ark. Stats. 41-1122 — 1123] makes it unlawful to permit any person under eighteen (18) years of age to play or operate a pinball machine and provides for a fine of not less than $25.00 and not more than $500.00 for violation thereof. Act 120 of 1959 [Ark. Stat. 84-2622] provides that the business of owning, operating, or leasing coin operated devices is a privilege subject to a state tax, and Ark. Stat. 84-2625 imposes an annual license fee of $250.00 and expressly prohibits any munici pality from levying such a privilege tax on the basis of this Act.
Thus, it is readily apparent that a conflict exists between the questioned ordinance and the statutes. In Shipley Baking Co. v. City of Hartford, 182 Ark. 503, 31 S. W. 2d 944, the municipality adopted an ordinance requiring payment of a fee for inspecting food sold in the city. The Legislature had conferred upon the State Board of Health the power to inspect bakeries and regulate the sale of their products. There our court said:
“* * * the statute giving the power of regulation in the sale of foods and drinks was paramount, and that it is elementary law that a municipal ordinance, in so far as it conflicts with the statute, is invalid. The rear son is that the statute of the State operates within the limits of the municipal corporation the same as it does elsewhere, and that local laws and regulations are at all times subject to the paramount authority of the Legislature. Hence, ordinances of cities and towns inconsistent with statutes on the same subject must be held of no effect unless they are authorized by an express legislative grant.” [Emphasis added]
When we apply, in the case at bar, the long recognized rule governing municipal powers, as announced in the cited cases, we must agree with the trial court that the ordinance in question is in conflict with our state statutes on this same subject. The statutes of our state, being paramount and supreme, have pre-empted the appellant in this field of legislation and, therefore, render the ordinance a nullity.
The appellant contends that the use of the pinball machines by minors [school children under eighteen (18) ] constitutes a public nuisance and, therefore, pursuant to Act 24 of 1897 [Ark. Stat. 19-2305] empowering municipal corporations to prevent and abate nuisances the city can validly abate the alleged nuisance by this ordinance. In this case three adult witnesses testified that they had observed children under the age of eighteen (18) playing these machines between school hours. Two of these minors testified that they had played the machines on many occasions. There is no evidence of gambling on these machines. Appellant is not empowered, of course, to declare something to be a public nuisance which the state has clothed with legality because the state law is paramount and supreme. Therefore, this contention is not valid.
Further, we have held in many cases that the mere declaration in a city ordinance that a certain act constitutes a nuisance does not make it such in fact. Ward v. City of Little Rock, 41 Ark. 526; Town of Arkadelphia v. Clark, 52 Ark. 23, 11 S. W. 957; Merrill v. City of Van Buren, 125 Ark. 248, 188 S. W. 537; Wilkins v. City of Harirson, 218 Ark. 316, 236 S. W. 2d 82; Arkansas State Board of Architects v. Clark, 226 Ark. 548, 291 S. W. 2d 262. In Town of Dardanelle v. Gillespie, 116 Ark. 390, 172 S. W. 1036, the city adopted an ordinance declaring the keeping of a pool hall in the city limits to be a nuisance and prohibited the keeping or operation of such. In declaring this ordinance invalid the court said:
“* * * not being nuisances per se, town councils would have no authority to prohibit their maintenance, unless that authority was conferred by express legislative enactment, or unless their maintenance was made unlawful by the laws of the State.”
We have held that although pool halls might be regulated by a city council to prevent them from becoming public nuisances, such authority would not permit a city to suppress completely the existence of a lawful business by imposing an annual fee of $600.00 and requiring a bond of $1,000.00 conditioned upon the observance of certain regulations. Bryan v. City of Malvern, 122 Ark. 379, 183 S. W. 957.
Declaring pinball machines to be illegal is a subject which addresses itself to the wisdom of the legislature. It is not the function or within the power of this court to invade the constitutional authority of the legislature, a coordinate branch of our government. The fact that this ordinance cannot stand does not leave appellant help less and disarmed in suppressing the alleged illegal acts. It is not denied in this case that no request or effort was ever made to invoke any of our penal laws that might be applicable to the facts in this case. The statutes which presently legalize the existence of pinball machines also make it a violation of the law to permit any person under eighteen (18) years of age to play them. [Ark. Stats. 41-1122 —1123, supra] The owners of those establishments which permit children under eighteen (18) years of age to play these machines are subject to these provisions.
The trial court was correct in declaring the questioned ordinance invalid as being contrary to the Constitution and Statutes of this state. The decree is affirmed.
“Nothing herein contained shall be deemed to legalize, authorize, license or permit any machine commonly known as slot machines, Roscoes, Jackpots or any machine equipped with any automatic money payoff mechanism.” | [
113,
-22,
-44,
126,
90,
66,
24,
-102,
67,
-95,
-89,
23,
-83,
122,
20,
121,
-13,
-1,
-48,
121,
-57,
-77,
69,
106,
-44,
-5,
-103,
-43,
-84,
-55,
-28,
-98,
76,
100,
-54,
-35,
86,
102,
-119,
-36,
6,
33,
11,
104,
115,
66,
44,
57,
114,
-117,
49,
31,
-29,
44,
30,
-54,
109,
44,
73,
-66,
113,
-5,
-8,
-99,
125,
22,
-96,
54,
-101,
-123,
-40,
44,
-100,
49,
28,
-88,
51,
-90,
-126,
116,
101,
-7,
-124,
96,
98,
3,
41,
-89,
-88,
8,
14,
-53,
-115,
-121,
-78,
89,
73,
11,
-66,
-107,
114,
16,
10,
-2,
95,
-107,
83,
108,
11,
-50,
-108,
-93,
-91,
104,
4,
98,
-17,
103,
48,
117,
-56,
-2,
95,
68,
-74,
27,
-34,
-44
] |
Frank Holt, Associate Justice.
This action stems from a controversy about the ownership of a $5,644.80 check made payable to the appellant, Saf-T-Boom Corporation. The check ivas accepted and paid by the appellee, Union National Bank, upon an unauthorized endorsement.
The appellant demanded that the Bank make good to it, as the named payee, the check which appellee, Robert L. James, had negotiated upon his unauthorized endorsement. The Bank refused and then froze or impounded the balance in James’ personal account which was the sum of $1,204.58. Thereupon the appellant filed suit against the appellee, Union National Bank, for wrongful payment to James of the $5,644.80 check. The Bank denied liability and as an affirmative defense alleged, inter alia, that the check was given to appellant without consideration and was not drawn in payment of an existing obliga tion to the appellant. The Bank cross complained against James for any amount that might he awarded to the appellant on its complaint. James denied liability to the Bank for cashing the check upon his unauthorized endorsement and cross complained against his employer, Saf-T-Boom Sales and Service Corporation, for sales commissions earned but unpaid to him, together with certain advances made by him to the company. Saf-TBoom Sales and Service Corporation denied the validity of James’ complaint and filed a cross complaint against James for conversion of the $5,644.80 check as company funds belonging to it and in addition thereto asked for damages because of the loss of its franchise rights due to James’ unauthorized endorsement, or conduct, all of which James denied.
The appellant, Saf-T-Boom Corporation, is an Arkansas corporation and is the owner and manufacturer of a safety device for crane-type heavy equipment. On February 1, 1960, appellant entered into a contract with appellee, Saf-T-Boom Sales and Service Corporation, a separate and distinct Arkansas corporation, which contract granted to it the exclusive franchise to market these devices within the United States with the exception of the State of Arkansas. On February 1, 1961, Saf-T-Boom Sales and Service Corporation made a contract with the appellee, Robert L. James, by which he became its general manager and sales representative. He was, also, a director of Saf-T-Boom Corporation. In June of 1961, Robert L. James and Jack E. Hill, a fellow salesman, sold twelve of these safety devices, or $5,644.80 worth of them, to the Elliott Equipment Company of Nashville, Tennessee. Based on this sale, the Sales and Service Corporation forwarded a purchase order to Saf-T-Boom Corporation which in turn filled the order by causing the twelve devices to be shipped direct to Elliott, the purchaser. The appellant billed Saf-T-Boom Sales and Service Corporation for the amount of the sale, less the sale commission of 50%. The Sales and Service Corporation billed Elliott. In paying for these devices Elliott, the purchaser, made the $5,644.80 check payable to Saf-T-Boom Corporation, the appellant, and mailed it to 1613 Main Street, Little Bock, Arkansas, which address was the joint office of both corporations. On July 3, 1961, upon receipt of the check at this address, James proceeded, without authority, to endorse the check “Saf-T-Boom Corporation—B. L. James, Director” and added, “Bobert L. James,” his personal endorsement. He then presented the check for payment to appellee, the Union National Bank of Little Bock. The Bank honored his endorsement and deposited $5,044.80 in Bobert L. James’ personal account and gave James the balance of $600.00 in cash. The check was duly paid by the drawee bank at Nashville, Tennessee. At the time of this transaction the appellant, Saf-T-Boom Corporation, maintained its corporate bank account with the appellee, Union National Bank. The Bank had on file the resolution of the appellant’s Board of Directors and a signature card authorizing the recognition by the Bank of only two signatures. It is undisputed that James had no authority to endorse this check. Neither did he have authority to negotiate checks for the Sales and Service Corporation.
At the time of this transaction, James contended that his employer, the Sales and Service Corporation, was indebted to him for commissions in the sum of $7,156.25. As distributor, the Sales and Service Corporation was indebted at this time to Saf-T-Boom Corporation, the owner and manufacturer of the safety device, in the amount of $8,874.54.
This litigation was submitted to the Circuit Judge, sitting as a jury, who found that the purchaser, Elliott, was indebted to appellee, Saf-T-Boom Sales and Service Corporation; that the check in question was erroneously made payable to the order of appellant, Saf-T-Boom Corporation, and that the Sales and Service Corporation was the legal owner of the check; that James should have delivered the check to his employer, the Sales and Service Corporation; that Sales and Service Corporation was indebted to James for commissions earned in the sum of $7,156.25; that James had possession of $4,480.00 from the proceeds of the Elliott check; the Court then held that appellant was not a “holder of the check for value” and dismissed the complaint of the appellant; the court also dismissed the cross complaint of the Bank against James and gave him judgment against the Sales and Service Corporation for $2,676.25 [after allowing a credit of $4,480.00] on his cross complaint; the court then rendered judgment against the Bank for $1,204.58, representing the impounded funds in James’ personal account, in favor of the Sales and Service Corporation. From this judgment appellant brings an appeal.
For reversal, Saf-T-Boom Corporation, the sole appellant, contends that as the named payee it is the owner of the check and, since the appellee-bank wrongfully paid the check to James, the Bank is liable to the appellant as payee for the full amount thereof.
In this State we have long adhered to the general rule that when a bank has obtained possession of a check upon the unauthorized or forged endorsement of the payee’s signature and then collects the amount of the check, as was done in this case, the bank is liable to the payee for the entire proceeds of the check, notwithstanding the proceeds thereof were paid to the person who negotiated the check. This question was first considered in Schaap v. First National Bank of Ft. Smith, 137 Ark. 251, 208 S. W. 309, and there our court quoted with approval this language:
“ ‘No equitable considerations can be invoked to soften seeming hardships in the enforcement of the laws and rules fixing liability on persons handling commercial paper. These laws are the growth of ages and the result of experience, having their origin in necessity. The inflexibility of these rules may occasionally make them seem severe, but in them is found general security. ’ ’ ’
Further, Mr. Justice Hart, speaking for our court, said:
“ * * * The general rule is that an unauthorised indorsement is a nullity. * * * In such cases the bank cannot avoid liability by showing that its conduct was governed by good faith and the payee is entitled to recover unless he has been guilty of fraud or negligence in the matter.” [Citing cases — emphasis added] There is no evidence of fraud or negligence by the named payee in this case.
The basis for the almost universal approval of this rule can be summarized in the statement that the possession of a check based upon a forged or unauthorized endorsement of the payee’s signature is wrongful and when the money is collected on such a check the collecting-bank is liable as for moneys had and received, the bank receiving the proceeds for the use of the payee. Therefore, when the bank received the money on the check it had no more title to the money than it had to the check. 9 C. J. 8., Banks & Banking, § 254, pp. 526 & 528; 31 A. L. R. 1068; 67 A. L. R. 1535; 7 Am. Jur., Banks, § 597, p. 432.
In this case it is undisputed that appellee, Robert L. James, had no authority, expressed or implied, to endorse the check in question. When a check is offered to a bank the obligation is upon the bank to determine if the endorsement is genuine and made by the payee or one duly authorized by the payee. Certainly it is a highly suspicious circumstances to cash or credit to one’s personal account a check made payable to a corporation.
The Bank and James assert that the appellant was not the owner or holder in due course because the check was not supported by any consideration. We do not consider this contention as a material issue in this case when viewed in the light of our long established rule of law relating to an unauthorized endorsement.
In appropriate proceedings in law or equity the remaining rights as between the various parties, of course, may be further enforced or adjudicated.
We hold that the appellant’s right of recovery for the full proceeds of the check from the Bank is complete and the Court erred in holding to the contrary. The judgment is reversed and the cause remanded with directions to enter a judgment in favor of Saf-T-Boom Corporation against the Bank for $5,644.80 and interest.
See also Wayne Tank & Pump Co., v. Bank of Eureka Springs, 172 Ark. 775, 290 S. W. 370; Shultz Const. Co., v. Crawford County Bank, 182 Ark. 569, 32 S. W. 2d 177.
For recent cases in other jurisdictions on the question of ownership or bank’s liability, see Brede Decorating, Inc., v. Jefferson Bank & Trust Co., (Mo. 1961) 345 S. W. 2d 156; AEtna Casualty & Surety Co., v. Lindell Trust Co., (Mo. 1961) 348 S. W. 2d 558; Leadbetter v. Meadow Brook National Bank, (N. Y. 1963) 236 N. Y. S. 2d 659. | [
48,
-24,
-32,
92,
10,
-32,
58,
-101,
91,
-88,
-75,
83,
-23,
97,
4,
101,
-9,
109,
-12,
122,
-41,
-77,
7,
106,
-46,
115,
-7,
-59,
49,
105,
-68,
86,
76,
48,
-118,
-43,
98,
-48,
-59,
-100,
-50,
32,
43,
100,
-3,
-48,
48,
-81,
4,
75,
1,
-100,
-29,
60,
63,
74,
109,
46,
107,
-86,
-48,
-15,
-114,
-59,
125,
80,
-80,
38,
-108,
37,
88,
46,
-104,
51,
1,
-8,
114,
-90,
-126,
84,
97,
-7,
12,
102,
98,
98,
-75,
-17,
-4,
-104,
39,
-33,
15,
-121,
-42,
121,
33,
43,
-66,
-100,
-6,
17,
-98,
-4,
-6,
29,
21,
108,
11,
-54,
-108,
-77,
15,
38,
-97,
11,
-17,
-85,
48,
97,
-51,
-93,
93,
23,
59,
23,
-122,
-48
] |
Frank Holt, Associate Justice.
This is an action resulting from an intersection collision between a car being operated by the appellant, Katie Jarrett, and owned by her husband, Bobby Jarrett, and a car belonging to and being driven by the appellee, LeRoy Matheney. The appellee instituted suit against appellants to recover damages; the appellants filed an answer denying the allegations and by counterclaim sought damages from the appellee. A trial resulted in a jury verdict for the plaintiff-appellee, assessing his negligence at twenty-five per cent (25%) and that of appellant, Katie Jarrett, at seventy-five per cent (75%). A judgment was accordingly entered, from which comes this appeal.
The collision occurred at a “T” intersection. Mrs. Jarrett was driving from west to east across the top of the “T” and Mr. Matheney was approaching the intersection from the south going north to make a left turn at the intersection. These were gravel, country roads. Mrs. Jarrett adduced evidence to the effect that Matheney “cut the corner” or “hugged the curve” as he turned left into the intersection and collided with her vehicle. The appellee, Matheney, and his witnesses denied this and maintained that he was in his proper lane of traffic and stopped at the intersection when Mrs. Jarrett’s vehicle collided with his. The left front of Matheney’s vehicle and the right front of the Jarrett vehicle were damaged. According to the physical evidence, the collision occurred while both cars were in the intersection.
For reversal appellants assign as error the Court’s giving Instruction No. 8-A which reads as follows:
“When two vehicles enter an intersection from different directions at the same time, the driver of the vehicle on the left shall yield the right-of-way to the vehicle on the right. However, a vehicle which has entered an intersection first, while in the exercise of reasonable care for his own safety and the safety of others, has the right-of-way over another vehicle approaching the intersection but not having entered it. ’ ’
It is the appellants’ contention that: “The Court should have omitted an instruction on intersection right-of-way because appellee cut the corner.” We think this contention is not well taken inasmuch as this was disputed by appellee. According to Matheney’s evidence, he had stopped his automobile at the intersection and was in his proper position on the road preparing to turn to his left into the intersection and that while in this position the appellant’s vehicle collided with his. As stated, Mrs. Jarrett’s evidence was in direct contradiction.
This conflicting evidence presented a question for the jury to resolve which it did in favor of the plaintiff. We must view the evidence in this case in the light most favorable to the appellee. Menser v. Danner, 219 Ark. 130, 240 S. W. 2d 652.
In objecting to the Court giving Instruction No. 8-A the appellants rely upon East v. Woodruff, 209 Ark. 1046, 193 S. W. 2d 664. We do not think that case is authority for the objection appellants made. It was there undisputed that a vehicle entered the intersection improperly and, further, the collision occurred outside the intersection.
The appellants next contend for reversal that “the Court should have modified the instruction on intersection right-of-way to apply it only when a vehicle lawfully entered the intersection from the right or lawfully first entered the intersection.” The Court refused to modify Instruction No. 8-A to read as follows:
“When two vehicles enter an intersection from different directions at the same time, the driver of the vehicle on the left shall yield the right-of-way to any vehicle lawfully entering on the right. However, a vehicle which has lawfully entered an intersection first while in the exercise of reasonable care for his own safety and the safety of others has the right-of-way over another vehicle approaching the intersection but not having entered it.”
Appellants argue that “if there is any factual issue whether the appellee cut the corner the appellants are entitled to have the Court tell the jury that the first in the intersection rule does not apply if they find he cut the corner.” Appellants argue further that “the instruction as given by the Court preempts the right-of-way to the first entrant even though the ‘corner cutting’ statute was violated, if the violation of the statute is consistent with due care, which the jury may very well find to be true.”
Appellants urge that the rule in East v. Woodruff, supra, requires giving the instruction as modified. We cannot agree. We think Instruction 8-A as given was a correct declaration of the law’ under the evidence in this case and that the Court was correct in refusing to modify the said instruction.
We consider the case of Brown v. Parker, 217 Ark. 700, 233 S. W. 2d 64, controlling in the case at bar. In this case there was a conflict in the evidence as to priority of entry into the intersection. There the Court gave this instruction:
“You are instructed that if you find and believe from the evidence in this case that Carl Parker entered the intersection of South 21st and Dodson before the car operated by Mrs. Charles Brown entered the intersection, then you are instructed that Parker was entitled to proceed through the intersection unmolested and this would be true, even though you might find that Parker failed to stop before entering Dodson Avenue. Notwithstanding the fact that Dodson Avenue is a through street, if Parker was in the intersection, then it was her duty to yield the right-of-way to Parker. If you find that she failed to yield the right-of-way to Parker when she was under duty to do so, and that such failure on her part was negligence and that such negligence was the sole and proximate cause of the accident or accidents, then in that event you cannot return a verdict against Parker in this case.” [Emphasis added.]
In Temple v. Walker, 127 Ark. 279, 192 S. W. 200, we held the Court was in error in instructing the jury that the defendant would be liable if he violated a City Ordinance and such act was the proximate cause of the accident, regardless of whether the defendant was guilty of negligence in the operation of his automobile. There we said:
“In the recent case of Bain v. Fort Smith Light & Traction Co., 116 Ark. 125, 172 S. W. 843, we had occasion to consider the question of negligence as predicated upon a violation of a city ordinance regulating traffic in its streets, and the leading cases upon the subject are cited there. It was there held that such ordinances are admissible in evidence to be considered in the determination of the question of negligence resulting in an injury which would have been averted had the ordinance been observed; but that the observance or non-observance of the ordinance is not determinative of the question of negligence.” [Emphasis added.]
In the case at bar there is substantial evidence that Mr. Matheney was stopped at the intersection in his proper lane of traffic when the collision occurred. Who was negligent, under the conflicting evidence in this case, was a question of fact for the jury and we must view this determination in the light most favorable to the appellee. Menser v. Danner, supra. In this case we find the following succinct statement:
“The sum and substance of the court’s instructions to the jury in regard to the right-of-way at the intersection was that, if Mrs. Danner was in the intersection first, and there was no negligence on her part in getting there first, then she had the right-of-way, which is the law of this State. Brown v. Parker, 217 Ark. 700, 233 S. W. 2d 64.” [Emphasis ours.]
We think such statement is applicable to the case at bar when we consider the Court’s Instruction No. 8, 8-A, and Defendant’s Instruction No. 3, all of which the Court gave to the jury. These instructions comprise a fair and correct statement of the law and sufficiently covered the points raised by appellants. The issue in this case, under the conflicting evidence, is not whether there was an illegal or unlawful entry into the intersection, but whether there was negligence which was the proximate cause of the accident.
Finding no error the judgment is, therefore, affirmed.
The Court also gave Instruction No. 8 which reads: “The following traffic rules are provided by the Statutes of the State of Arkansas, and, if violated, such violation may be considered by the jury as evidence of negligence. In this connection, you are told that a violation of a traffic statute is not, of itself, negligence, but you may consider it as evidence of negligence.”
Following this Instruction the Court gave defendant’s Instruction No. 3 which reads as follows: “(1) Upon all roadways of sufficient width, a vehicle shall be driven upon the right half of the roadway. [Ark. Stat. Ann. §75-607 (Repl. 1957).] (2) The driver of a vehicle intending to turn at an intersection shall do so as follows: Approach for a left turn shall be made in that portion of the right half of the roadway nearest the center thereof and after entering the intersection the left turn shall be made so as to leave the intersection to the right of the center of the roadway being entered. [Ark. Stat. Ann. §75-615 (b) (Repl. 1957).] (3) No person shall turn a vehicle from a direct course upon a highway unless and until such movement can be made with reasonable safety. [Ark. Stat. Ann. §75-618 (a) (Repl. 1957).]” | [
-45,
-4,
16,
108,
-114,
32,
34,
-102,
96,
-95,
-65,
19,
-81,
-61,
29,
51,
-17,
-3,
81,
42,
-9,
-29,
23,
-13,
-14,
-13,
-13,
79,
-121,
-20,
125,
-10,
76,
48,
-54,
85,
70,
11,
-28,
122,
-114,
-98,
40,
120,
-55,
2,
-24,
56,
4,
15,
113,
-113,
-77,
44,
24,
-57,
105,
104,
-21,
-72,
-63,
120,
-51,
-123,
91,
2,
-77,
52,
-66,
11,
90,
0,
-104,
49,
0,
-8,
54,
-90,
-109,
116,
105,
-101,
28,
34,
103,
0,
65,
-51,
-83,
-120,
38,
126,
15,
-123,
26,
41,
73,
0,
-73,
-103,
123,
18,
70,
126,
-36,
85,
29,
40,
1,
-21,
-112,
-79,
-113,
114,
-100,
67,
-5,
13,
-112,
113,
-23,
-20,
93,
-59,
86,
-69,
-98,
-106
] |
Carretón Harris, Chief Justice.
Helen Cash, appellee herein, was a nominee for the office of school hoard director at the regular school election held in St. Joe School District No. 69 of Searcy County, on December 5, 1961. Her name was printed on the ballot. Noel Baker, Jr., appellant herein, qualified as a write-in candidate for the same position. Two hundred thirty-five (235) ballots were cast at the election, and at the conclusion thereof, the election officials certified appellee as the duly elected director of said school district. Within the time prescribed by law, appellant filed his complaint alleging that he received a majority of the votes cast in said election, and that the judges and clerks at said election had wilfully refused to count and tabulate 176 ballots which had been cast by legal electors of the district for him as a write-in candidate for the aforesaid office. One hundred seventy-one (171) names were then listed as individuals who allegedly voted for contestant. Appellant then prayed that these uncounted ballots be counted and tabulated, and that he be declared the duly elected school director. Appellee filed an answer denying that Baker had received a majority of the legal votes cast, but stated that she had no objection to a recount of the ballots, “and the legal votes received by each party hereto be determined and ascertained. ’ ’ The case was heard on April 27, 1962, at which time the court announced:
“Under the pleadings in this case, it seems that the only way it can be determined which of these candidates received the highest number of legal votes is to open the ballot box and count the votes. First, it will be necessary that it be shown that the ballot box is intact, that it is in the same condition it was immediately after the election, in other words that the ballots have not lost their integrity. It will be necessary to show that before they would be legal evidence. ’ ’
Appellant then called as his witness Mrs. Jimmie Lee Falls, County and Circuit Clerk of Searcy County. Mrs. Falls testified that the ballot box was in the same condition (at the time of the hearing) as when delivered to her by the judges of the election immediately after the certification of the vote. She stated that she sealed the box on the night of December 5. “I took a strip of paper and put it across on it and sealed it. I put scotch tape on it on each side and I initialed that piece of paper that I sealed it with.” She testified that the ballot box was still in the same condition as when she sealed it.
Following her testimony, the court stated:
1 ‘ The Court thinks it has been sufficiently established that the ballot box is intact and the ballots are in the same physical condition that they were at the time they were delivered to the Clerk, so it is hereby ordered that the Clerk as official custodian of the ballot box bring the box into open Court and to open it for the inspection of interested parties.”
The ballot box was then opened, and the ballots were individually counted by the clerk, the court reporter, and the attorneys for both parties, the court directing that the ballots should be challenged by counsel as the count proceeded. During the count it developed that a number of ballots reflected that both candidates had been voted for, i. e., an “x” had been placed in the square opposite the name of Helen Cash, and the name of Noel Baker, Jr. had been written in on the next line, and an “ x ” placed in the square by his name.
After completing the counting, appellant called his father, Noel Baker, as a witness. Baker testified that he saw each ballot as it was counted on December 5, 1961, and no ballot that was counted at that time contained an “x” in both squares. Noel Baker, Jr., then testified that the ballot box had a different appearance at the present (time of the hearing) than when delivered to the clerk on December 5. He stated, “Well, when it was delivered to her, she took an envelope and rolled it up and took mucilage and stuck it over the box like that.” Upon request, appellant was given 10 days in which to file a. motion challenging the integrity of specific ballots, though the court held that the integrity of the ballot box and verity of the ballots as evidence had not been destroyed. Thereafter, appellant filed his motion asking the court to direct the County Clerk to bring into court the official list of electors voting at the election, together with the tally sheets, and, further, to direct the County Treasurer to produce the stub box containing the signature of the voters. Further :
‘ ‘ That when said votes were opened it was disclosed that Forty-seven (47) or more votes which were cast for Contestant disclosed that said voters wrote in the name of Noel Baker, Jr., and placed an “x” in the square opposite his name written in and that according to affidavits hereto attached subsequent to said Election, an “x” had also been placed after the printed name of Helen Cash; thus further destroying the verity of these ballots and further that Forty-seven (47) ballots marked in this manner are too many to have been marked inadvertently by the voters and further that many of the ballots show to have been pulled from the sealed box through the slot by a wire. ’ ’
The motion was supported by the affidavits of 159 qualified electors who stated that they had voted for Baker, “and that if an “x” appears after the name of Helen Cash, Contestee, it was placed therein by some other person, after they had placed their ballot in the ballot box on the day of the election. ’ ’
This motion was denied, following which the court rendered its findings of fact and conclusions of law, as follows:
“After a recount of the ballots in open Court in the presence of the parties and attorneys, and after hearing all the testimony in the case, the Court finds the following facts:
“That a total of 235 ballots were cast in the school election in St. Joe District; that 70 ballots were cast for the contestee which are not contested, and that 53 ballots were cast for the contestant which are uncontested; that 47 ballots were cast on which there was a write-in and both boxes were marked with an “ x ”; that 23 ballots were cast on which there was no write-in name and both boxes were marked with an “x”; that 21 ballots were cast with neither box marked with an “x”; that 8 ballots were cast with no write-in name and an “x” marked in the box below the name of the printed candidate Helen Cash; that 13 ballots were challenged because of irregularities in the name of the write-in candidate.
“It was stipulated by the parties, and the Court so holds that the 47 ballots on which both boxes were marked with an “x” are not legal votes.
“As to the 23 ballots with no write-in name but both boxes marked with an “x”, it could not be reasonably contended that the voters of these ballots intended to vote for the contestant, since they did not write his name on the ballot. The more serious question is whether or not they should be counted for the contestee. The ballots indicate to the Court that they were intended to be votes for the contestee. Of course, the extra “x” mark is superfluous. It doesn’t appear to the Court that this is a strong enough reason to disfranchise these voters.
“The 21 ballots which have no “x” mark in either box are irregular and cannot be counted for either candidate.
“It is the opinion of the Court that the 8 ballots with no write-in name, but the “x” mark is in the box below the name of the printed candidate, and no “x” mark following the name of the printed candidate, are illegal votes, and cannot be counted.
“With reference to the 13 miscellaneous challenges, ballots No. 277, 56, 73 and 57 are for Frank Winder as a write-in candidate, obviously these ballots cannot be counted. Ballot No. 11 was cast for W. R. Baker as a write-in, and ballot No. 54 was cast for James Baker as a write-in; obviously these cannot be counted for the contestant. The other 7 miscellaneous challenged ballots, while irregular in form have some indication that the voters intended to cast their ballots for the contestant, and these 7 votes are allowed for the contestant.
“Therefore, the Court finds that the contestant received 60 legal votes and that the contestee received 93 legal votes in said election.”
Thereupon, the court entered its judgment finding that Helen Cash was the duly elected school director of St. Joe School District No. 69, and from such judgment appellant brings this appeal.
The above findings concisely state the view of the trial court, and we proceed to briefly review those findings.
While no formal stipulation was entered into that ballots carrying an “x” in both boxes would not count for either side, the parties agreed to treat such ballots in that manner, and in tabulating the individual votes, used that method. The court’s finding that the parties had stipulated that such votes would not be counted is supported by the record; for that matter, appellant does not dispute the fact. We hold that the court ruled correctly as to these 47 ballots.
We likewise agree with the court’s determination as to the 23 ballots with no write-in name, but with an “x” appearing in both boxes. The “x” in the box after a blank was meaningless, and the court properly counted these votes for appellee.
Certainly the action of the court in holding that the 8 ballots were not votes for either candidate cannot be complained of by appellant since there was no possible way that the votes could have been counted for him.
Six (6) ballots were cast for other write-in candidates, and appellant cannot claim these votes. Seven (7) votes, though irregular in form, were allowed for Baker.
The court erred in one respect, vis., in its ruling relative to the 21 ballots wherein Noel Baker, Jr.’s name was written in but no "x” was placed in the box opposite his name. In Clement v. Davis, Law Rep. of Dec. 17, 1962, 362 S. W. 2d 706, decided subsequent to the trial court’s decision in this case, we held that it is unnecessary to the validity of a write-in vote that a cross mark appear in the square at the right of the name. Baker should therefore have been allowed 21 more votes, but this would not change the outcome of the election.
When all the votes that Baker could possibly lay claim to (counting both those for “Noel Baker, Jr.,” and “Noel Baker”) are added, we find a total of 128. Yet, appellant’s motion was supported by the affidavit of 159 persons. Obviously, a large number of these persons were in error, since there is no contention that Baker’s name was erased from any ballot. Favorable action by the court on Baker’s motion would have had the same effect as holding another election, to which relief appellant was not entitled.
Since the error herein pointed out does not change the result of the election, the judgment is affirmed.
THE COURT: The Court has already passed on the question of the integrity of the ballot box. Testimony was taken on that this morning, and both parties had an opportunity to question the condition of the ballot box fully this morning and testimony was offered and further testimony could have been offered as to the appearance and' condition of the box, as to whether or not it showed any signs of being tampered with, and that question I think was fully developed this morning, so far as the appearance of the box itself is concerned.
Also, on some of these ballots, the name of “Noel Baker” rather than “Noel Baker, Jr.” was written in.
Broken down as follows: 60 allowed by the court, 47 not counted for either side, and 21 with no “x” in the box. | [
-11,
-4,
-32,
76,
10,
-31,
74,
-114,
114,
-93,
-89,
83,
-83,
82,
28,
117,
-77,
63,
-111,
105,
-50,
-94,
19,
64,
54,
-13,
-55,
-43,
-73,
-37,
-12,
-1,
76,
-80,
-102,
-43,
70,
66,
-49,
92,
-50,
2,
-22,
67,
95,
-30,
44,
40,
58,
-113,
117,
94,
-29,
44,
30,
79,
77,
36,
-37,
125,
64,
-79,
-104,
5,
109,
23,
-79,
-90,
-98,
-125,
-56,
110,
-104,
48,
-126,
-8,
58,
-90,
-126,
-42,
41,
-87,
8,
100,
98,
16,
-123,
-17,
-68,
-55,
15,
118,
29,
-26,
-106,
73,
105,
46,
-76,
-99,
-15,
80,
-118,
118,
-29,
69,
28,
44,
-113,
-50,
-12,
-77,
13,
62,
-120,
43,
-17,
59,
48,
113,
-52,
-10,
92,
70,
51,
27,
-49,
-46
] |
Frank Holt, Associate Justice.
This is an appeal from a condemnation proceeding. The appellant, the Arkansas State Highway Commission, brought this suit to acquire land in the Crystal Hill area of Pulaski County needed for the construction of a portion of Interstate Highway No. 40. Four different tracts of land, each belonging to the appellees, M. E. and Ann Ruth 'Witkowski, wore involved in this proceeding and separate verdicts wore rendered as to each tract. This appeal relates only to tract 41 which consists of 9.05 acres from a part of 41.88 acres. The other three tracts consist of several platted lots. Tract 41, or the 9.05 'acres,, is raw acreage. Other facts pertinent to this appeal are discussed in connection with the three points appellant urges for reversal.
POINT 1. Appellant contends that it was reversible error for the court to admit in evidence appellees’ Exhibit A and B, with testimony relative thereto, which are plats showing the subject property as being divided, into lots, blocks and streets.
Exhibit A is a map showing the general location of appellees’ four tracts of property in relation to other property in the same area, some of which is subdivided into lots, blocks and streets and some of which appears as raw acreage. The map also represents that a large portion of the 9.05 acres involved [tract 41] is divided into two tiers of lots numbered 1-25 with a street running between the two rows.
Exhibit B is another plat or map showing only the same numbered lots, their size, a street, a road and 31.5 acres of appellees’ property as being “reserved for future development.”
Appellees, landowners, purchased this property in 1954 and began to subdivide it in 1956. They were also successful in bringing to this property such improvements as a road, gas and water lines. In February, 1961, before the taking of the property in September, 1961, appellees had their regularly employed civil engineer prepare Exhibits A and B in furtherance of their plans to subdivide the property for residential purposes. This property is in the midst, or nearby other property which is platted into and recorded as subdivisions.
Appellee, M. E. Witkowski, had previously acquired other property and developed such into subdivisions. This was his fifth such venture. It is undisputed that the highest and best use of the property in question is for residential purposes. These exhibits were offered and admitted in evidence only for the limited purpose of showing the highest and best use of the property as being for residential purposes and for the further purpose of showing the improvements existing thereon [gas and water lines and gravel road] some several months before the taking by the appellant. This evidence could not result in conjecture or speculation by the jury as to market value to the prejudice of appellant. Ark. State Highway Comm. v. O & B Inc., 227 Ark. 739, 301 S. W. 2d 5.
Appellant urges that the exhibits are inadmissible as evidence in view of our ruling in Arkansas State Highway Comm. v. Watkins, 229 Ark. 27, 313 S. W. 2d 86. The facts in that case, on this point, are quite different. There testimony was admitted as to the number and value per lot of the property. It is true that witnesses in the case at bar testified they considered the value of other lots in the area; however, there was no testimony as to the value per lot of the subject property. The testimony, as to value, was on a raw acreage basis of the tract. Thus, we hold that the court was correct in admitting appellees’ Exhibits A and B under the facts in this case.
POINT II. Appellant next contends that there was reversible error by the court in permitting E. T. Caldwell, a witness for appellees, to testify as to a comparable sale of property by him without the proper foundation of comparability to the property in question. Mr. Caldwell testified that he had recently sold, for $1,900.00, a block of land 150 feet wide and 284 feet long located in the Crystal Hill area. Mr. Caldwell testified that although he lived in the Crystal Hill area he did not know Mr. Witkowski or the location of any of his property. The only evidence as to proximity to subject property is reflected by appellees’ Exhibit A and then proximity must be based upon conjecture. No further evidence by Mr. Caldwell or any other witness was offered to show a comparison or similarity between the Caldwell and Witkowski property [tract 41].
Evidence of a sale of property to establish the market value of another is admissible when similarity be tween the two tracts has been shown. City of Little Rock v. Sawyer, 228 Ark. 516, 309 S. W. 2d 30.
There can be no fixed definition of similarity or comparability. Similarity does not mean identical, however it does require some reasonable resemblance. See Nichols, Eminent Domain, Vol. 5, § 21.31, p. 439. There are certain criteria of similarity which can be utilized to establish a reasonable resemblance. Important factors of similarity to be considered are location, size and sale price; conditions surrounding the sale of the property, such as the date and character of the sale; business and residential advantages or disadvantages; unimproved, improved or developed land. None or any combination of these criteria were sufficiently shown, “connected up” or “tied in” as between the Caldwell and Witkowski tracts to establish a reasonable resemblance. In the case at bar the jury could only speculate in applying the evidence in question to the market value of the subject property.
Since the proper foundation was not laid for the admissibility of the questioned evidence, we must consider this prejudicial error for which we reverse this case.
POINT III. Appellant next contends that it was reversible error to refuse to strike the testimony of appellees’ witness, Thomas Cox, because he was not sufficiently familiar with the subject property to testify as to the value of same on a “before and after” basis. Since this case is being reversed we see no need to discuss this point inasmuch as this alleged error is not likely to occur in another trial.
Reversed. | [
117,
110,
-12,
124,
-118,
-64,
58,
-103,
67,
-87,
-73,
83,
47,
-62,
25,
97,
-89,
61,
-44,
105,
-121,
-14,
71,
51,
80,
-13,
83,
-57,
-6,
77,
100,
-42,
78,
33,
-54,
87,
-58,
72,
-19,
88,
-114,
13,
27,
76,
-39,
64,
58,
111,
18,
15,
117,
-115,
-14,
44,
48,
-61,
73,
44,
75,
-82,
89,
-72,
-108,
-105,
95,
6,
33,
36,
-104,
7,
72,
74,
-112,
49,
8,
-72,
119,
38,
-122,
100,
3,
-39,
12,
40,
99,
1,
-55,
-25,
-8,
28,
6,
-8,
45,
-90,
-126,
8,
67,
65,
-65,
-108,
88,
86,
-59,
-2,
-18,
-123,
91,
104,
-123,
-50,
-110,
-79,
-57,
-72,
-111,
75,
-29,
3,
48,
116,
-51,
-30,
93,
-57,
23,
31,
14,
-46
] |
Ed. F. McFaddin, Associate Justice.
This is a workmen’s compensation case. The appellant, Mrs. Looney, was an employee of appellee, Sears Roebuck and Company, at Camden, and received an injury which arose out of and in the course of her employment. Compensation was awarded by the Commission; but on this appeal Mrs. Looney presents two issues; (a) that she was entitled to a greater percentage of disability than was awarded; and (b) that the Commission should not have allowed Sears to take credit for certain wage payments.
I. The Percentage Of Disability. On May 4, 1957 Mrs. Looney received an injury which ultimately resulted in phlebitis in her left leg. A number of physicians testified, and from such testimony the Commission concluded that Mrs. Looney had suffered permanent partial disability of 30% to the body as a whole. Mrs. Looney insists that the preponderance of the evidence shows that her disability is at least 50% to the body as a whole. On appeal to this Court in a case like this one we are not concerned with the preponderance of the evidence: rather, we are concerned with whether there Avas substantial evidence to support the award made by the Workmen’s Compensation Commission. See Ark. Workmen’s Comm. v. Sandy, infra. A review of the evidence shows that there is substantial evidence to support the finding of the Commission. Dr. H. Reichard Kahle, an expert of New Orleans, Louisiana, stated that Mrs. Looney had a disability of 30% to the body as a whole; and such testimony is substantial evidence.
It is true that other physicians stated that Mrs. Looney had a greater percentage of disability than that stated by Dr. Kahle; but his testimony was substantial and the Commission had the right to follow his testimony, rather than that of some of the other experts. In Ark. Workmen’s Compensation Comm. v. Sandy, 217 Ark. 821, 233 S. W. 2d 382, we said:
“This court has held that the degree of disability suffered by an injured employee is a factual question to be determined from the evidence in the case. Caddo Quicksilver Corporation v. Barber, 204 Ark. 985, 166 S. W. 2d 1; Bookout v. Reynolds Mining Company, 213 Ark. 198, 209 S. W. 2d 881. In the instant case, the medical testimony as to the extent of claimant’s disability was conflicting, and the Commission evidently chose to accept the report of Dr. Cheairs. The courts are without authority to reverse the conclusion of the Commission in this regard. Mechanics Lumber Company v. Roark, 216 Ark. 242, 224 S. W. 2d 806. On the whole case, there is substan tial evidence to support the Commission’s finding of fact, and the Circuit Court erred in setting aside the order of the Commission.”
We find no merit in the first point urged by Mrs. Looney.
II. Deductions Alloived Sears For Excess Of Wages Over Compensation. This point has given us serious concern. Mrs. Looney received her original injury on May 4, 1957. She was absent from work until July 29,1957, when she resumed work. During said absence, Sears paid her full wages, which amounted to $601.73 more than her workmen’s compensation payments would have been. This excess of $601.73 is here involved. Mrs. Looney resumed work in July, 1957, and worked until December 10, 1958, when her illness necessitated further rest. Sears paid her full wages from December 10, 1958 until March 1, 1959, which wages were $690.22 more than her workmen’s compensation payments would have been; and this excess of $690.22 is also here involved.
When Mrs. Looney wrote Sears in February 1959, offering to return to work, Sears advised her that her place had been filled, and that she was no longer employed. Thereafter, she received only workmen’s compensation payments of $35.00 per week instead of wages. When the Workmen’s Compensation Commission made the award to Mrs. Looney, the Commission allowed Sears to take credit against such award for the said $601.73 and the said $690.22 previously mentioned, and making a total credit of $1,291.95. Mrs. Looney insists that Sears is not entitled to deduct the said $1,291.95 from the amount of the workmen’s compensation award due her; and we agree with Mrs. Looney on this point.
In allowing Sears to take credit for the $1,291.95, the Workmen’s Compensation Commission was proceeding under the authority of Lion Oil Co. v. Reeves, 221 Ark. 5, 254 S. W. 2d 450. But the facts in the case at bar do not bring this case within the holding in Lion Oil Co. v. Reeves. In that case, Lion paid Reeves during his injury period certain amounts ‘ ‘ aggregating full wages ’ ’; and Lion was allowed to receive credit for the excess of the amount paid over what the workmen’s compensation payments would have been for the period. The reason this Court allowed Lion such credit is found in this sentence in the opinion: “It is highly improbable that Reeves thought the excess payments he received were gratuities, and certainly the oil company was endeavoring to provide for the worker’s current needs.” In the case at bar, the excess of wages paid over workmen’s compensation payments for the same period was specifically intended by Sears as a gratuity. Here is the testimony of Sears’ witness and manager on this point:
“Q. Do you know why these overages were paid?
“A. Under company policy we normally, when someone is injured, pay them full salary for a period to see how they get along, in excess of the statutory requirements as we would in an illness case.
“Q. Then, if the person comes back to work, what disposition is made of the overage?
“A. None.
“Q. In other words, it is just a gratuity to them?
“A. Yes.”
Since the excess of wages over compensation as received by Mrs. Looney, was intended by Sears as a gratuity, Sears cannot now be heard to claim otherwise in the teeth of the quoted testimony. It was not until Mrs. Looney offered to return to work in February 1959 that Sears ceased paying wages and started workmen’s compensation payments of $35.00 per week, effective March 1, 1959. To allow Sears to now claim credit for the said excess of $1,291.95 would, in effect, be to allow Sears to recover payments it voluntarily made. The quoted testimony above clearly distinguishes the case at bar from that of Lion Oil Co. v. Reeves.
And for future guidance in such cases, we think it wise to now limit the holding of Lion Oil Company v. Reeves to its own particular facts. We hold that under- Ark. Stat. Ann. §81-1319 (m) (Repl. 1960), it is only “advance payments of compensation” for which the employer is entitled to reimbursement; and we make a clear distinction between “payment of wages” and “advance payments of compensation.” When an employer continues to pay salary or wages to an injured employee during any time of injury, and such payments are in excess of workmen’s compensation benefits, then when a workmen’s compensation award is subsequently made, the excess of the wages paid over the weekly compensation award cannot be deducted from the award. The policy of employers to pay an injured employee the prevailing wage scale while inactive during an injury period is in line with the modern concepts of employer-employee relation and is to be encouraged, but the employer cannot make such payments and later claim credit for the excess as against an award made.
It follows, therefore, that the Commission was in error in allowing Sears to deduct $1,291.95 from the disability payments to be made to Mrs. Looney; and for such error the judgment of the Circuit Court is reversed and the cause is remanded to the Circuit Court with directions to remand to the Commission to correct such error in the award and in the attorneys ’ fees calculated on it. | [
80,
-22,
-47,
13,
8,
96,
50,
-118,
97,
-123,
37,
95,
-27,
116,
-99,
55,
-13,
125,
-47,
59,
-10,
-93,
19,
-53,
-46,
-73,
-7,
-59,
-79,
107,
-28,
-43,
69,
48,
-126,
-43,
-26,
72,
-19,
84,
-50,
-122,
-85,
-49,
89,
-112,
56,
62,
-48,
79,
-111,
-2,
83,
46,
28,
79,
44,
46,
75,
48,
-16,
-31,
-86,
13,
125,
16,
-109,
68,
-98,
-121,
-40,
15,
-40,
-80,
33,
-24,
50,
-74,
-58,
52,
11,
-71,
12,
98,
99,
32,
20,
-91,
100,
-8,
15,
-9,
-99,
-91,
-78,
8,
-54,
75,
-76,
-99,
120,
4,
14,
120,
-9,
-51,
92,
108,
-37,
-105,
-106,
-79,
79,
96,
-98,
-93,
-21,
-113,
-112,
117,
-50,
-94,
92,
2,
123,
-101,
-61,
-118
] |
George Rose Smith, Associate Justice.
The appellant Brown and the appellee Land, Inc., were the proprietors of adjoining residential subdivisions in suburban Little Bock. This is a suit by Land to enjoin Brown from committing repeated trespasses upon two very narrow strips of ground that Land claims to have reserved as unplatted buffer zones between the two additions. The chancellor issued a preliminary injunction, but upon final hearing that order was dissolved and the plaintiff Land was denied any relief. Brown became the appellant by first lodging the record in this court, but the main questions are presented by Land’s cross appeal, which we discuss first.
In 1958, before any of the property was platted, Brown owned a tract that was bordered on the north and on the west by an L-shaped parcel owned by Land. On September 3, 1958, Land recorded a plat of what we will refer to as Briarwood Addition No. 1, lying immediately north of Brown’s property. Later on Land dedicated what we will refer to as Briarwood Addition No. 2, lying immediately west of Brown’s property. In both cases the original plat proved to be defective, and in both cases Land subsequently filed an amended and substituted plat in which an attempt was made to reserve a narrow strip along the common boundary with Brown. The two phases of Briarwood Addition involve wholly distinct issues and must be considered separately.
The original plat of Briarwood Addition No. 1 showed a street, 25 feet in width, named Princess Drive, that lay along the southern edge of the addition and abutted Brown’s property to the south. A municipal regulation requires that a dedicated street be at least 50 feet wide. "What Land actually intended, without so stating, was to dedicate a half street, in the expectation that Brown would contribute the other half.
Brown, however, refused to donate the other half of the street, and, in fact, it developed that he had acquired title by adverse possession to part of the 25-foot strip platted by Land as Princess Drive. To meet this difficulty Land filed a revised plat of Briarwood No. 1, in which. Princess Drive was moved northward 25 feet, leaving an unplatted strip between the south edge of this street and Brown’s northern property line, as established by adverse possession.
When Brown later platted his own tract as Cardinal Heights Addition and began using Princess Drive as a means of access in the development of his property, Land brought this suit for an injunction. Land contends that it effectively canceled its original dedication of Princess Drive and that therefore Brown commits a trespass whenever he crosses the buffer strip that Land reserved in its revised plat.
We think the chancellor was right in holding that the first dedication was still in force, so that Brown was entitled to use Princess Drive as a public thoroughfare. It is conceded that Land sold a number of lots in Briar-wood No. 1 between the filing of the original plat and the filing of the amended plat. Thus at the outset Land is confronted with our long-established rule that when the owner of land plats it into lots and blocks and sells lots by reference to the plat, he is held to have dedicated the streets to public use, “and such dedication is irrevocable.” Mebane v. City of Wynne, 127 Ark. 364, 192 S. W. 221.
In seeking to escape the effect of this settled principle Land argues that its initial dedication of Princess Drive was merely conditional, since the width of only 25 feet did not conform to the city’s minimum requirement. Nevertheless, the city approved the original plat, and there was nothing to put innocent purchasers of' lots within the addition on notice that the dedication of Princess Drive was subject to retraction. Apparently the 50-foot minimum requirement is not rigidly adhered to by the city, for it seems to have approved the revised plat also, even though it purported to dedicate only a 25-foot right of way for Princess Drive. The appellee cites Love v. Hicks, 214 Ark. 229, 215 S. W. 2d 138, as authority for its contention that the dedication of a half street is revocable, but in that case the 20-foot strip in dispute was not shown by the plat to be a street, as is the ease here.
It is also argued that the original bill of assurances for Briarwood No. 1 reserved to a majority of the landowners within the addition the power to set aside any provision in the dedication. Hence, it is argued, the revised plat was a valid exercise of this reserved power and effectively superseded the first attempted dedication of Princess Drive.
We need not determine whether it would be possible for the proprietor of an addition to reserve the power to do away with the streets within the area after he had sold lots by reference to the plat, for in this instance the language of the bill of assurances is not so unmistakable as it would have to be to achieve that result. This is the pertinent sentence in the bill of assurances: “Any and all of the covenants, provisions or restrictions set forth in this Bill of Assurances may be amended, modified, extended, changed, or cancelled, in whole or in part, by a written instrument signed and acknowledged by the owner or owners of over fifty per cent (50%) in area of land in this Subdivision ...”
It will be seen that the power is reserved to change or cancel any “covenants, provisions or restrictions” in the bill of assurances. It seems plain that the reserved power was intended to apply to such matters as the restriction of the land to residential use, limitations upon the size and location of structures within the addition, minimum requirements for the area and width of lots, a prohibition against the keeping of animals or poultry, and many other similar covenants and restrictions that are set forth in the bill of assurances. By contrast, the location of the streets is shown by the plat rather than by the bill of assurances and does not fall within the general scope of a covenant, provision, or restriction. We think it clear that in order for the dedicator to reserve such a far-reaching and drastic power as that of vacating a street, perhaps even after homes have been built in reliance upon its existence, the intention should be ex pressed so clearly as to leave no room for doubt. Since that degree of clarity is wanting here, we conclude that Land did not retain the authority to set aside its dedication of Princess Drive. With respect to this phase of the cross appeal the decree is affirmed.
The first plat of Briarwood Addition No. 2 portrayed the subdivision as being bounded on the east by the Brown tract, as defined by the original Government survey. It was found, however, that Brown had maintained an encroaching fence along this boundary for many years and had acquired title by adverse possession to part of Land’s property. '
To meet this difficulty Land decided to replat Briar-wood No. 2 and to that end directed its engineers to survey a line that would lie slightly west of Brown’s fence, so that there would be no question about Land’s title. Land’s engineers testified positively that these instructions were obeyed, that while the fence was still standing they surveyed a line lying slightly west of the fence and revised the dimensions of the abutting lots to leave an unplatted buffer strip between the fence line and the eastern boundary of the lots. A new plat of Briarwood No. 2, conforming to this survey, was filed.
Thereafter Brown, in the course of developing his Cardinal Heights Addition, sought an outlet for his main sewer line. To this end he bought Lot 224 of Briarwoo'd No. 2, which was one of the eastern tier of lots in that addition, and ran his sewer line from Cardinal Heights across Lot 224 to a sewer main that Land had placed in the street immediately west of Lot 224. In its complaint in the case at bar Land sought to require Brown to remove the sewer line from the unplatted strip that separated Lot 224 from what had become Cardinal Heights. In defending the case Brown contended, and the chancellor found, that Land’s engineers, in resurveying the property, had failed to leave any space between Lot 224 and the fence line. Hence there was no trespass, and the request for a mandatory injunction was denied.
We think the weight of the evidence to be against the chancellor’s conclusion. By far the most convincing testimony is that of Land’s engineers, who alone surveyed the line while the fence still existed. Brown’s witnesses did not attempt to determine the location of the fence until after it had been removed. Their efforts to reconstruct the position of a line that admittedly was not straight are not persuasive. Indeed, the testimony of Brown’s principal witness, Powers, is actually favorable to Land, indicating that Lot 224 lies about two feet west of the fence line. Even such a narrow strip is sufficient to support Land’s prayer for relief, as the rule of de minimis does not apply to controversies involving the ownership of real property. Leffingwell v. Glendenning, 218 Ark. 767, 238 S. W. 2d 942. Upon this phase of the cross appeal the decree must be reversed and the cause remanded for the entry of a mandatory injunction.
By the direct appeal Brown contends that the chancellor erred in failing to award him damages for Land’s wrongful procurement of the temporary injunction (with respect to the alleged trespasses in Briarwood No. 1). There is, however, no proof by which these damages can be determined in dollars and cents, and the chancellor’s action in charging the costs against Land was in effect an award of nominal damages to Brown. Reader Railroad v. Green, 228 Ark. 4. 305 S. W. 2d 327. The decree is therefore affirmed upon the direct appeal, with the appellee to recover its costs in this court only. | [
-13,
123,
-40,
108,
-102,
-96,
56,
-71,
104,
-86,
-25,
95,
127,
72,
20,
37,
-93,
125,
65,
43,
-59,
-14,
71,
-62,
-16,
-13,
-14,
-3,
-7,
-35,
-41,
87,
76,
32,
-62,
31,
70,
-94,
108,
24,
-114,
-115,
8,
69,
-111,
96,
52,
107,
64,
15,
81,
-97,
-77,
44,
49,
-57,
40,
60,
89,
57,
81,
-8,
-83,
-123,
125,
6,
-96,
100,
-108,
-125,
88,
10,
-112,
53,
-128,
104,
55,
-90,
-106,
116,
3,
-101,
-120,
-94,
98,
9,
105,
-73,
-8,
-7,
14,
122,
-115,
-90,
-58,
24,
65,
98,
-68,
-101,
125,
4,
103,
124,
-26,
-107,
26,
60,
13,
-89,
-10,
-79,
-49,
-8,
-118,
-125,
-9,
7,
48,
112,
-53,
-114,
94,
-9,
94,
91,
78,
-8
] |
Carretón Harris, Chief Justice.
This is ail eminent domain action instituted by the State Highway Commission against Ethel M. Ptak; J. B. Hawthorne and wife, Ethel Hawthorne, and Guy W. Alexander and wife, Gladys Alexander, to acquire additional property along Highway No. 270 for highway purposes. In July, 1961, the commission filed a complaint and Declaration of Taking, depositing the sum of $50.00 for Tract No. 1 (owned by Ethel Ptak); $1,300.00 for Tract No. 2 (owned by the Hawthornes), and $500.00 for Tract No. 14 (owned by the Alexanders). The Circuit Court of Scott County entered its order, giving possession of the property to the Highway Commission. On May 22 and 23, 1962, the case Avas tried in the Scott County Circuit Court and the jury returned the following verdicts relative to the tracts herein mentioned :
Tract No. 1, owned by Mrs. Ptak, the sum of $850.00.
Tract No. 2, owned by the Hawthornes, $8,000.00.
Tract No. 14, owned by the Alexanders, $3,000.00.
From the judgment entered on these particular tracts, the Highway Department brings this appeal. For reversal, appellant asserts that the court erred in not striking the testimony of Tiny Powell, a real estate dealer, for the reason that Powell was not qualified to give an opinion as to market value, since <£ (a) he did not know market value in the area, and (b) he did not know the physical facts about the property to be valued. ” It is likewise asserted that the court committed reversible error by permitting testimony relative to the cost of moving certain houses on Tracts- No. 2 and No. 14.
Mr. Powell is in the real estate and insurance business, having been so engaged for 12 years. He is a resident of Mena, owns the Midwest Realty Company, and was the only value witness called by the land owners.
As far as general qualifications are concerned, the witness would appear to be qualified in the field of real estate values, and probably was sufficiently familiar with market values in the area (though he did not specifically so state), but after reviewing the evidence, we agree with appellant that Mr. Powell did not seem to be well versed as to the physical facts concerning the properties herein involved.
The Hawthorne tract was composed of approximately 46 acres, and the Highway Department condemned .015 of an acre. Mr. Powell valued the entire tract at $25,000 before the taking, and $10,000 after the taking. We have held that where there is a partial taking of a land owner’s property, the measure of damages is the difference between the market value of the whole land before the taking and the value of the remainder after the taking. Arkansas State Highway Commission v. Fox, 230 Ark. 287, 322 S. W. 2d 81. But the fact that Mr. Powell gave the property a before (the taking) and after (the taking) value does not, within itself, raise the testimony to that degree kno.Wn as substantial evidence. As was stated in Arkansas State Highway Commission v. Byars, 221 Ark. 845, 256 S. W. 2d 738,
“There was no evidence introduced tending to prove the damages except the opinions of witnesses as to the value of the land taken and as to the market value of the properties before and after the taking. Where a witness gives his opinion as to damages, such testimony must be considered in connection with related facts upon which the opinion is based. * * * Whether there is substantial evidence to support a verdict is not a question of fact, but one of law. Because a witness testifies as to a conclusion on his part does not necessarily mean that the evidence given by him is substantial, when he has not given a satisfactory explanation of how he arrived at the conclusion.”
In Missouri-Pacific Transportation Company v. Bell, 197 Ark. 250, 122 S. W. 2d 958, we also stated that whether there is any substantial evidence to support the verdict, is a question of law and not of fact. In St. Louis S. W. Ry. Co. v. Brasswell, Admr., 198 Ark. 143, 127 S. W. 2d 637, it was stated,
“It would seem, however, that in any view to be taken, the issues are whether the evidence is substantial, and who is to judge of that quality. If this is not a question of law, then substantiality loses its significance, with the result that any testimony may suffice. If we acquiesce in this construction there is an abdication of judicial responsibility. ’ ’
This, then, being the rule, let us look at the testimony of Mr. Powell in this ease.
Relative to Tract No. 2, the Hawthorne land, the following appears in the transcript:
“Q. Now then, let’s go down to the Jim Hawthorne property. That’s Tract Two, Three and Seventeen. Is it your understanding that Tract Number Two includes the Jim Hawthorne houses north of the highway?
A. Yes, sir.
Q. Now on what highway was that — is Jim Hawthorne’s property located on?
A. 270.
Q. And on which side of the highway is Tract Number Two?
A. My understanding is it’s on the north side.
Q. Now what do you find there along the highway of Tract Number Two abutting up close to the highway?
A. I would like to ask a question here to clarify my own mind, please sir. You spoke of Tract 16, did you not?
Q. I think it is 17, Mr. Powell.
A. I probably included that in this Tract 2, if it’s all on the north side. * * *
Q. How much land — do you know how much land [land taken from Tract No. 2] ?
A. Only the front footage that I have and that’s what I based nay appraisal on was front footage. In my belief you cannot base highway values on acres.
Q. Yes, sir. Now on a front footage there will he still have the same front footage after this widening?
A. Well, I am sure, he will have the same front footage.
Q. He will still have the same length of front footage will he not?
A. Possibly.
Q. You don’t know sir?
A. Well, according to the map it should be.”
Tract No. 14, owned by the Alexanders was composed of approximately 30 acres, and the Highway Department condemned 0.46. Powell valued the entire tract at $15,000 before the taking, and $4,500 after the taking. Relative to the land, the testimony included:
“Q. How many acres of frontage do Mr. and Mrs. Alexander have in Tract 14?
A. Prom an acreage standpoint I couldn’t tell you.
Q. How many feet of frontage do they have ?
A. Mr. Alexander ?
Q. Yes.
A. A total of 792 feet, I believe — on the south side of the highway. * * *
Q. Do you have any idea how much land the highway department is condemning from this Tract 14?
A. I didn’t consider it from the standpoint of acreage.
Q. Do you knoAV how many square feet the Highway Department has condemned?
A. No.
Q. Do you know how wide the strip is the Highway Department is condemning?
A. Yes sir, around 27 feet wide — I wouldn’t be positive about that.
Q. You didn’t know that the Highway Department is condemning a little less than half an acre?
A. I wasn’t interested in the acreage.
Q. You didn’t think that was of any importance?
A. No, the frontage involved was the thing that I was looking at. * * *
Q. On this property he has a log house. Is that correct?
A. Yes.
Q. Do you have any idea how far that log house is from the right of way?
A. Prom the new survey you mean?
Q. Yes sir.
A. Exact footage I couldn’t say. I didn’t measure it.
Q. He also has on there a chicken house, does he not?
A. Yes.
Q. And an orchard?
A. Yes sir.
Q. And a pump house and two wells?
A. Yes sir. There’s two wells on the property to my knowledge.
Q. And a workshop and a garage?
A. Yes sir.
Q. All these things are still there after the taking are they not?
A. To my knowledge, yes sir.
Q. Did you know that Mr. Alexander had his property up for sale and was asking $8,500 at the time the Highway Department took the property?
A. No, I did not.
Q. Would you have given any consideration to that had you known it?
A. Pardon me?
Q. Would you have paid any attention to that if you’d known it?
A. I would have at his request. ’ ’
Tract No. 1, owned by Mrs. Ptak, was composed of approximately 2% acres, and the Highway Department condemned .002 of an acre. Mr. Powell valued this tract at $10,000 before the taking and $1,000 after the taking. Prom the record:
“Q. With reference to Tract No. 1 of which Mrs. Ptak is admitted to be the owner, what would you say would be the fair market value of this particular tract of land in the condition it was in July of 1961 immediately before they enlarged the highway?
A. A minimum of $10,000.00.
Q. Now what would you say was the fair market value of this particular tract of land immediately after this highway had been enlarged and the work done there ?
A. Well, I hadn’t particularly noticed it until May 17 and at that time I figured it was worth $1,000.00.”
Here, an objection was interposed by the department to the effect that an appraisal is to be made on the basis of value immediately before and immediately after the taking, and Mr. Powell then testified that the value immediately after the taking in July, 1961, and May 17, 1962, was the same.
We think it apparent from the quoted testimony that the witness was not sufficiently familiar with the properties to make a proper appraisal, and that under these circumstances, his testimony cannot be considered substantial evidence. In fact, the trial court evidently strongly considered striking the testimony. Again, quoting the record,
‘ ‘ Q. Do you have any idea how many acres were in Tract 14 — on the south side that belonged to the Alexanders before the taking? A. No, not the acreage. I believe I stated a few minutes ago I didn’t know the acreage in it. I wasn’t interested in the acreage. Mr. Robinson: ‘Now at this time I would like to make a motion (before the bench). I’d like to move to strike his testimony. He doesn’t know the lengths involved, or how much land the Highway Department is taking. I don’t see any way in the world he could appraise that property with any basis in fact at all. For that reason I move that his testimony be struck — on these three properties I have just cross examined him on.’
The Court: ‘I certainly feel inclined to grant the motion. This witness has shown an absolute disregard of any sincere attempt to reach an evaluation of these properties. He acts totally indifferent except rattling off the figures without giving any basis for it. I’m going to take your motion under consideration. ’ ’ ’
Subsequently, however, the court denied the motion.
We think appellant’s objection to the testimony was proper. Powell was not familiar with the total acreage involved before the taking, nor the acreage remaining after the taking, nor did he know how many square feet were taken. He stated that he appraised the property entirely on a frontage basis. Such an appraisal, of course, relates to only a portion of the property, and was only an additional fact to be considered in the overall appraisal. He was not familiar with the distances of the improvements from the right of way; he was not acquainted with the construction plans, and did not know the proposed status of the properties after completion of the work. Much of the witness’ testimony leaves the impression that his inspection of the premises was only casual, and in some instances it would appear that his information was acquired by means other than viewing the property. For instance, in his appraisal, he apparently combined Tracts No. 2 and No. 17 (both owned by Hawthorne) as one tract for appraisal purposes. These tracts are over a mile apart, and are separated by property owned by several different persons. When asked as to which side of the highway Tract No. 2 was located, he replied, “My understanding is its on the north side. ’ ’
In appraising the Ptak property after the taking, Powell stated that he had not particularly noticed that property until May 17,1962, (a few days before the trial) whereas the actual taking had occurred in July of the previous year. The witness testified that the “corner has been killed”, (Ptak property), meaning that the property was inaccessible at the time of the trial, but he admitted that he did not know whether it would be inaccessible when the construction had been completed: “I don’t know what the planning is on it, no * * * I looked at it as I seen it — as is.” Of course, on May 17, construction of the highway was in progress, and it would appear that Mr. Powell’s appraisal took into consideration the disrupted condition of the land at this particular time. This was not a proper element of damage. We have held ‘ ‘ that a municipality or other public agency, in the construction or improvement of streets, is not responsible in damages for temporary interference with the use of abutting property.” Donaghey v. Lincoln, 171 Ark. 1042, 287 S. W. 407.
While two of the three land owners testified as to-the before and after value of their respective properties, it is extremely doubtful that their testimony, standing-alone, could meet the test of substantial evidence. Much of Mr. Hawthorne’s testimony was prefaced by “I guess,” and portions of Mr. Alexander’s testimony were likewise rather indefinite. At any rate, Mr. Powell appeared to be the principal witness for appellees, and we certainly are unable to say that the jury disregarded his testimony. We have held many times that where error is committed, and proper objection is made, such error will be treated as prejudicial unless it be shown that the appellant was not prejudiced thereby. Equitable Discount Corp. v. Trotter, 233 Ark. 270, 344 S. W. 2d 334.
Appellant’s second point relates to the court’s alleged error in permitting evidence relative to the cost of moving certain houses on Tracts No. 2 and No. 14. Testimony was introduced as to the cost of relocating the houses by a house mover, plumbing contractor, electrician and a carpenter. Testimony showed that the total cost of moving the Alexander house would amount to $2,719.60, and the total cost of moving several houses on the Hawthorne property was given as $3,952.80. It might be first said that some of this testimony was entirely speculative and remote. An example is given by testimony of Fred Austin, an electrician. From the record:
“Q. Did you go to Jim Hawthorne’s property?
A. Yes, sir.
Q. How many houses did you see there * * *
Q. Now the house south of the highway, I will ask you if this is the house that you went to which has been marked Exhibit No. 15. Is that the picture of it — that’s south of the highway?
A. I believe so.
Q. Now then, what would you say was the cost of restoring the electrical appliances and wires in that house ?
A. That was the one on the south side?
Q. Yes sir.
A. That would be $85 on that one.
Q. Isn’t it a fact that you only looked at three houses of Jim Hawthorne on the north side?
A. Yes, that’s right. The ones on up I didn’t go look at.
Q. Have you got those combined or have you separated those three houses on the north side?
A. Those on the north side I just estimated the moving of the poles and everything that it would take and then it would average out at $100 a house.
Q. A $100 on each house?
A. Yes sir, and $35 on running wire to the well if they moved the well — if a new well was drilled. ’ ’
Evidence of the cost of improvements for restoration purposes and of relocation costs is proper. Arkansas State Highway Comm. v. Speck, 230 Ark. 712, 324 S. W. 2d 796. But, as was stated in that case,
“Let it be borne in mind that these prospective expenditures are not the measure of damages, but are only an aid in determining the difference in the before and after value of the property.”
Again, in Kirk v. Pulaski Road Improvement District No. 10, 172 Ark. 1031, 391 S. W. 793, we stated,
“The record also shows that it would cost more than $2,000 to erect a retaining wall which would prevent the embankment of the plaintiff’s property, abutting the improved street, from further caving in. While this proof was competent to show the damage to plaintiff’s property it was not the measure of her damages. In cases of this sort, the owner is entitled to recover the difference between the market value of her property before the taking or damage to it and the market value afterwards. ’
It follows that restoration costs are proper evidence, but this cost must be fairly definite, and the evidence should reasonably define the improvements or changes that must be made, i.e., the distances that the houses must be moved, etc. Actually, the testimony in this case is somewhat contradictory. Alexander testified that it was extremely doubtful that his house could be moved at all, since it was of log construction with a concrete foundation, and it would be almost impossible to move it without tearing it up. Hawthorne also testified that at least one of his houses could not be moved. The mere fact that a building is closer to the highway does not, in itself, establish damage. In fact, in some instances, benefits might accrue which would offset any damage. The land owner must show that the proximity of the highway to his house, occasioned by the taking, decreased the market value of the property, and the difference in such value before and after the taking would constitute the damage, rather than the cost of moving the house. Mississippi State Highway Commission v. Smith, 192 So. 447. Of course, if the jury should find that the cost of moving a house would call for a greater expenditure than the damage occasioned by the proximity, the land owner would only be entitled to the proximity damage.
It is apparent that the jury considered the cost of moving the houses as actual damages rather than as an aid in determining the difference in the before and after value of the property. The record reflects the following:
‘ ‘ (At 3:45 the Foreman of the jury came in alone and inquired of the Court and counsel, if the jury could return a verdict which included cost of moving houses and make a requirement that the houses be moved. The Court instructed them that they could not place such a requirement in this verdict.) ”
For the reasons herein set out, the judgment is reversed and the cause is remanded to the Scott County Circuit Court.
Numerous other parties and numerous tracts of land were included in the suit, but this appeal relates only to the tracts and parties mentioned.
The property is located at Wye City, not a great distance from Mena.
Powell never did testify that he made an actual appraisal of the property before July, 1961. He stated that he had been “acquainted”' with the property for ten or eleven years.
According to Witness Powell, the highest and best use of the Hawthorne and Ptak properties was for commercial purposes. | [
-12,
106,
-16,
61,
10,
-32,
24,
-103,
106,
-14,
-10,
91,
-85,
71,
16,
35,
-25,
45,
117,
105,
-43,
-13,
19,
-125,
80,
-45,
123,
-49,
49,
93,
-11,
-44,
72,
32,
-54,
31,
70,
0,
-59,
26,
78,
6,
-120,
-23,
-55,
-30,
60,
43,
16,
72,
117,
-114,
-13,
44,
61,
-29,
73,
46,
-33,
42,
-120,
-72,
-72,
20,
95,
6,
17,
36,
-104,
-125,
-56,
106,
-104,
49,
-104,
-8,
119,
-90,
-106,
-28,
7,
-101,
-116,
38,
102,
0,
85,
-1,
-88,
-100,
14,
-2,
-87,
-90,
2,
40,
-62,
64,
-73,
-100,
125,
80,
75,
126,
-25,
69,
89,
108,
15,
-82,
-42,
-15,
-121,
124,
-104,
3,
-61,
-127,
48,
115,
-49,
-25,
93,
37,
54,
-69,
14,
-79
] |
Ed. F. McFaddin, Associate Justice.
The primary question in this case is the width of the right of way of Highway No. 71 through Arabella Heights Addition to Texarkana in Miller County. The appellant contends that the right of way is 100 feet wide, and the appellees claim that the right of way is only 80 feet wide. The Trial Court agreed with the appellees, and the Highway Commission brings this appeal on that issue. Also, there is a second issue which relates to the refusal of the Chancery Court to reopen the case for further testimony.
I. The Width Of The Right of Way. In 1925 there was filed the original plat of Arabella Heights, which showed a 60-foot right of way for the Lynn Ferry Road running diagonally through the addition. On November 25, 1927, the County Court of Miller County, on petition of the State Highway Commission, made an order for changes in Highway No. 71; and, according to that order, a right of way 100 feet wide was designated for the highway through Arabella Heights; and the change in location placed the new highway approximately two blocks south and west of the old Lynn Ferry road. In 1929 there was filed a revised plat of Arabella Heights Addition; and this 1929 plat showed the highway right of way as taking a course and direction practically, if not identically, the same as the 1927 County Court order; but the 1929 plat showed the hightoay right of way to be only 80 feet wide instead of 100 feet wide, as in the County Court order.
It is this difference of 20 feet (being 10 feet on each side of the present highway) that is the subject of this litigation. Various persons purchased property and con structed buildings on the faith of the 1929 plat, some of the buildings even being on the 10-foot strip in question on each side of the highway. It is definitely shown that in all of the time from 1929 to 1962 the State Highway Commission has made no use of any part of the presently claimed 10-foot strip on each side of the 80-foot right of way shown on the 1929 revised plat.
In 1962 the Highway Commission undertook to take possession of the additional 10-foot strip on each side of the 80-foot right of way, claiming that the 1927 County Court order made the right of way 100 feet and that the landowners were bound by that court order. Thereupon, the appellee Cook, as owner of property which included the 10-foot strip, filed this suit to enjoin the Highway Commission from entering on the 10-foot strip. Other landowners similarly situated intervened and made common cause with appellee Cook, and all of these landowners are appellees herein. The Highway Commission, in addition to claiming the full 100-foot right of way under the 1927 County Court order, also asked for a declaratory judgment to the effect that the right of way was in fact 100 feet, as fixed by the County Court order.
With the issues thus joined, the burden was on the Highway Commission to show notice to the landowners of the making of the 1927 order by the County Court; and the Highway Commission proceeded with its case. There was no evidence that any landowner in Arabella Heights had ever filed any claim for compensation under the 1927 order; so, to show notice to the landowners of the 1927 order, the Highway Commission undertook to establish that there was an actual entry on the lands under the County Court order which was dated November 25, 1927. A witness called by the Highway Commission was Mr. M. A. Lynn, an assistant resident engineer of the Highway Department. He testified that he was working for the Highway Department when Highway No. 71 was constructed, and that the work started on Highway No. 71 in Arabella Heights either in the later part of 1926 or the early part of 1927. Mr. Lynn testified that the route was surveyed and laid out in 1925 or early 1926, and that the construction in Arabella Heights “where somebody could go out and see they were building a road” ivas in late 1926 or early 1927.
After the witness Lynn had testified, the appellees insisted, and the Court found, that the Highway No. 71 was constructed before the County Court order of November 25, 1927, and therefore the County Court order was no notice to the landowners since the highway had already been constructed when the order was made. The appellees made applicable to the situation here such cases as Arkansas State Highway Comm. v. Dobbs, 232 Ark. 541, 340 S. W. 2d 283; and Arkansas State Highway Comm. v. Anderson, 234 Ark. 774, 354 S. W. 2d 554. In the case of Arkansas Highway Commission v. Dobbs, we had before us a situation in which a highway was already in existence when a County Court order was placed of record showing an enlarged right of way; property owners received no notice of said order by summons or by entry on the alleged widened portion; and this Court held that the County Court order was, in itself, no notice to the abutting landowners, citing and relying on Bollinger v. Highway Comm., 229 Ark. 53, 315 S. W. 2d 889; and Highway Comm. v. Holden, 217 Ark. 466, 321 S. W. 2d 113.
In the latter case of Highway Comm. v. Anderson, we followed the same rule as in Highway Comm. v. Dobbs, and differentiated the case from that of Highway Comm. v. Cook, 233 Ark. 534, 345 S. W. 2d 632, where there had been payment of claims under the County Court order and such payments did, of course, constitute notice.
Thus, on the evidence offered, the Chancery Court held that the Highway Commission had failed to sustain its position: it had failed to show that there ivas ever any entry under the 1927 County Court order and had also failed to show any other notice to the landowners of the 1927 County Court order. The decree of the Chancery Court was in favor of the landowners ; and we find no error in that decree.
II. Refusal To Reopen The Case. We are thus brought to the second issue in the case in which the appellant complains of the refusal of the Chancery Court to reopen the case for further and contradictory evidence. The case was tried in the Chancery Court on April 26, 1962; and at the conclusion of the hearing on that date the Court announced its decision, as heretofore stated. On May 2,1962, the Highway Commission filed a motion asking that the Chancery Court reopen the case so that the Highway Commission might present other evidence as to when Highway No. 71 was actually constructed through Arabella Heights. Mr. Lynn, the witness offered by the Highway Commission in the original hearing, desired to state that he had made a mistake in his testimony, and that the highway through Arabella Heights was not actually constructed until after the County Court order. The effect of such change of testimony would have been material. It really amounted to a recantation by the witness Lynn of his former testimony. The Highway Commission offered to support Mr. Lynn’s recantation by copies of letters and other matters in the files of the Highway Commission. The Chancery Court conducted a hearing on the motion of the Highway Commission to reopen the case; and on May 15, 1962, refused to allow the case to be reopened.
To discuss the various problems relating to surprise, diligence and recantation, would serve no useful- purpose. After carefully examining the record, we have concluded that the Trial Court did not abuse its discretion in refusing to allow the case to be reopened; and so we affirm the action of the Chancery Court in that matter.
Finding no error, both the decree and the order of the Chancery Court are in all things affirmed.
This order was under § 76-917 Ark. Stats. In addition to the cases hereinafter cited, the following are some that also concern rights of the landowners under this section: Sloan v. Lawrence Co., 134 Ark. 121, 203 S. W. 260; Greene Co. v. Hayden, 175 Ark. 1067, 1 S. W. 2d 803; and Miller Co. v. Beasley, 203 Ark. 370, 156 S. W. 2d 791.
This is in keeping with our holding in Arkansas Highway Comm. v. Anderson,................Ark................., 354 S. W. 2d 554.
So the case of Arkansas Highway Comm. v. Cook, 233 Ark. 534, 345 S. W. 2d 632, has no factual application to the case at bar.
The Highway Commission had asked for a declaratory judgment. The decree recited that the Commission “may post proper security with the Clerk of this Court in this cause for the just compensation of the plaintiffs and interveners for the proposed taking- of their property aforesaid, . . . and upon the due posting of such security the defendant Commission may show the same to this Court and apply for a supersedeas of the injunction . . .” The Highway Commission did post the bond and did apply for and receive a supersedeas. | [
-15,
-17,
-16,
-20,
122,
-64,
24,
-104,
90,
-29,
-91,
95,
-83,
91,
12,
113,
-89,
53,
81,
41,
-27,
-93,
87,
-94,
80,
-13,
-37,
-57,
-5,
-51,
102,
-41,
76,
32,
-53,
21,
36,
72,
-25,
92,
-50,
6,
-101,
65,
-39,
-126,
48,
59,
0,
15,
117,
13,
-45,
44,
24,
-57,
-88,
44,
91,
46,
25,
-8,
-98,
-100,
95,
4,
-111,
100,
-104,
1,
-8,
56,
-104,
-11,
0,
56,
119,
-92,
-106,
118,
11,
-101,
12,
32,
102,
1,
97,
-123,
-16,
-72,
7,
-6,
-83,
-89,
-106,
24,
-55,
64,
-65,
-99,
121,
2,
7,
122,
-18,
-60,
89,
108,
12,
-94,
-112,
-15,
-57,
-76,
-128,
67,
-21,
1,
18,
113,
-49,
-10,
95,
102,
112,
-101,
78,
-112
] |
Carleton Harris, Chief Justice.
This suit involves the question of whether a certain deed should he can-celled. Stephen Vaughan was the owner of a certain 40 acres in Pulaski County, Arkansas. After the death of Vaughan, and through a division of this property by the exchange of deeds, a daughter, Lee Anna Vaughan, became the record owner of 10 acres (of the 40), which is the property in dispute in this litigation. Lee Anna died on February 5, 1951, leaving a son, Charles Lafayette (hereinafter called Lafayette), as her only heir. Lafayette, who, according to the testimony, drew Welfare benefits because of mental deficiency, sometimes worked at the Sutton Grocery, with which some of his relatives traded.
In the meantime, the property here involved had forfeited because of the non-payment of taxes, and Robert L. Kumpe purchased same at a Sheriff’s Tax Sale, and on January 7, 1950, received a deed to the property from the Pulaski County Clerk. After the death of Lee Anna Vaughan, Lafayette and other relatives learned of the sale of the 10 acres to Mr. Kumpe. Lafayette, together with Ollie Vaughan Fuller, a cousin, went to Mr. H. M. Sutton, Sr., and requested his aid in getting the property back. Sutton, according to the evidence, promised to help, and, thereafter, events admittedly occurred as follows:
About April 7,1951, Kumpe and wife, at the request of Sutton, executed a quitclaim deed, conveying the property to Lafayette; this deed was delivered to Sutton upon the latter’s paying to the grantors the sum of $50.00 in cash. The deed was not recorded. On April 27, 1951, Lafayette died intestate, leaving appellants as his heirs at law. Sutton refused to deliver to appellants the deed executed by Kumpe and wife, and refused to accept payment of the debt (occasioned by the payment of the money to Kumpe by Sutton on behalf of Lafayette at the time of the delivery of the deed). On May 7,1951, Kumpe and wife, at the request of Sutton, executed and delivered to the latter another quitclaim deed, conveying the same property to Sutton that Kumpe had previously deeded to Lafayette. This deed was recorded the following day.
On December 6, 1952, appellants, Stephen Vaughan, an uncle of Lafayette, William Vaughan, an uncle, and Ollie Vaughan Fuller, Aretha Harris Odom, Helen D. Harris, Elsie Harris Terry, and James Russell Harris, cousins of Lafayette, instituted suit against H. M. Sutton, Sr., and his son, H. M. Sutton, Jr., alleging that the defendants had fraudulently obtained a deed from R. L. Kumpe in the name of H. M. Sutton, Sr., in an effort to defraud appellants of their property; that they (appellants) had offered to pay the balance due on the property, but that the defendants had refused to accept same, and they prayed that, upon depositing into the registry of the court the amount found to be the balance due from Lafayette, H. M. Sutton, Sr. be ordered to execute his deed, conveying the property to them. On December 8, a notice Lis Penclens was filed by appellants, setting out that appellants were claiming the property under a deed executed by Kumpe to Sutton, Sr., and that Sutton was holding as a trustee for their benefit.
On December 20, H. M. Sutton, Jr., filed a separate answer, setting up that he had no personal knowledge of the transaction, had nothing to do with it in any manner, and asking that the complaint be dismissed as to him. H. M. Sutton, Sr., on the same date filed a motion to make the complaint more specific. After filing one amendment to their complaint, appellants, on April 10, 1953, filed a second amendment stating, in effect, that they had mistakenly sued H. M. Sutton, Jr., that he was in no way involved in the litigation; “that the party they intended to sue, and against whom they now adopt their original complaint, is H. M. Sutton, Sr.,” and relief was sought, as originally prayed, against this defendant. A new summons was issued, and the Return of the Sheriff of Pulaski County reflects that H. M. Sutton, Sr., was personally served on April 13, 1953. Prom that time to the day of trial, Sutton never filed any sort of pleading. On May 17, 1954, Sutton and wife conveyed the property to appellees, W. R. Davis and Lula M. Davis for a cash consideration of $1,500.00. Thereafter, in May, 1955, Davis and wife filed a motion alleging that they had purchased the property from Sutton, were the real parties in interest, and should be made parties defendant. On September 7, 1955, the motion was granted. The Davises then filed an answer, denying all material allegations of the complaint.
Appellants then further amended their complaint by asserting that Davis and wife had received the deed to the property “long after the suit had been filed and with notice thereof. ’ ’ The court was asked to cancel the deed from Sutton to these defendants. On June 21, 1962, the cause was tried, and at the conclusion thereof, the court dismissed the complaint for want of equity, and quieted and vested title in the appellees, W. H. Davis and Lula M. Davis. Prom the decree so entered, appellants bring this appeal.
We are firmly and unhesitatingly of the opinion that this decree should be reversed, and we think that appellants have established their case by evidence that is clear, cogent, and convincing. Lincoln Puller, who had married Ollie Vaughan, testified that Lafayette had worked for Sutton, and on learning of the forfeiture of the land, had asked Sutton for his help. Puller testified that he was present and heard Lafayette make the request for financial assistance in recovering the property, and heard Sutton agree to render the aid. Ollie Vaughan Puller testified that she later heard Sutton tell Lafayette that he had obtained the deed from Kumpe, and would turn it over to her cousin “when he finished paying him the money what he owed him. ’ ’ Robert L. Kumpe, a postal transportation clerk, testified that he bought the property in question at the tax sale, and subsequently received a deed from the clerk. Thereafter, he was contacted by Sutton who desired to purchase the property for Lafayette. Prom the record:
“Well, this fellow Lafayette, I don’t even remember whether that was his last name or first name, but anyway, it stuck in my memory because you know that French name for a colored fellow, I thought was kind of peculiar. * * * And Lafayette owed him some and he was — wanted me to make out the deed to Lafayette and he would act as his agent. ’ ’
The witness then testified that he and his wife signed a deed, conveying the property to Lafayette, and the Notary Public who took the acknowledgement, delivered it to Sutton. Kumpe stated that Sutton later called him again and advised that Lafayette had died,
“So because Lafayette owed, him some money, he wanted me to make out the deed to him, make another deed to him. * * * Well, it was kind of aggravating. It was against my policy. My policy was when I bought this land I let the people that owned it, I let them have it back for taxes and a little interest, but anyone else why I would appraise it you know and get some value out of it, but he was so insistent and I was kind of aggravated with him anyway and my wife was kind of sick, so I went against my policy and he had another deed made out. .* * I carried the deed over to him, Mr. Sutton, and he said he would dispose of the other deed.”
Kumpe was positive that at the time the first deed was given, Sutton had stated that he was acting for Lafayette, and it is totally undisputed that the first executed deed named Lafayette as the grantee.
Testimony on the part of appellants reflected that following the death of Lafayette, Sutton advised representatives of appelants,
“You will have to pay me $40.00 before you can get these papers.” Ollie Vaughan Fuller testified that when this amount of money was offered to Sutton, he refused it and stated that he would have to receive $60.00; that Sutton said,
“Don’t be in a hurry. We have plenty of time. What do you all want to be in a hurry for % ’ ’
Subsequently, Sutton refused the $60.00 when it was tendered to him.
Appellees first argue that there was no writing signed by Sutton to the effect that he would hold the deed and deliver same to Lafayette upon repayment, and that the agreement therefore was in violation of the Statute of Frauds. In answering this contention, we need go no further than to state that the Statute of Frauds was not pleaded, and we have held on numerous occasions that that statute is an affirmative defense which cannot be relied upon unless specifically pleaded. William v. Jones, Special Administrator, 208 Ark. 303, 186 S. W. 2d 160. S. H. Kress Co. v. Moscowitz, 105 Ark. 638, 152 S. W. 298, and cases therein cited.
Appellees then assert that neither a resulting trust, nor a constructive trust, was created for the reason that the misrepresentation that creates a trust of this character must be made before, or at the time, legal title is acquired by the promissor; appellees contend that the circumstances herein do not bring into being a constructive trust because the legal title (in the first deed) was actually placed in Lafayette, though that grantee paid no part of the consideration. From the brief:
“Here, H. M. Sutton, Sr., procured the execution of the first deed by Robert L. Kumpe conveying the property to Charles Lafayette, and H. M. Sutton, Sr., paid the full consideration for such conveyance and received and kept the deed. Charles Lafayette never paid any part of the consideration. After the death of Charles Lafayette, H. M. Sutton, Sr., received a new deed from Robert Kumpe conveying the lands to H. M. Sutton, Sr. There was no fraud, actual or otherwise, in the transaction.
“At the time Charles Lafayette allegedly entei'ed into negotiations with Sutton to assist him in acquiring Kumpe’s tax title to the property, neither Lafayette nor these Appellants had the slightest right, title or interest therein; the time for redemption from the tax sale having expired during the lifetime of Lee Anna Vaughan.”
Actually, it is not necessary, in determining this litigation to enter into a detailed discussion of whether either a resulting or constructive trust was created, for the evidence establishes unquestionably that Kumpe and wife executed the first deed to Charles Lafayette. This means that at the time of the second deed, Kumpe had no title to convey. Therefore, the second deed, naming Sutton as grantee was of no effect. Of course, since the deed was not recorded, a bona fide purchaser could have obtained a valid deed from Kumpe, but Sutton (having the deed in his possession) had full knowledge that Lafayette held the legal title. This actually disposes of the litigation, but we think also that a “trust ex maleficio” or constructive trust was raised under the circumstances of this csae. It is true that normally, when a constructive trust arises, legal title has been placed in one person, though the beneficial interest is to be enjoyed by another person, but we do not consider this an absolutely essential element. In Wofford v. Jackson, 194 Ark. 1049, 111 S. W. 2d 542, this court, quoting from Pomeroy’s Equity Jurisprudence, said:
“ ‘Constructive trusts include all those instances in which a trust is raised by the doctrines of equity for the purpose of working out justice in the most efficient manner, * * * They arise when the legal title to property is obtained by a person in violation, express or implied, of some duty owed to the one who is equitably entitled, and when the property thus obtained is held in hostility to his beneficial rights of ownership. ’ ’ ’
At any rate, equitable relief should not be refused because of technical distinctions, where the evidence firmly establishes that fraudulent acts have been committed, and equitable principles violated. Here, it is plain that Sutton advanced the money (which was paid to Kumpe) for the benefit of Lafayette, and was holding the deed as security for the repayment of the money; it even appears that Kumpe might not have sold the property except for the fact that it was being returned to the original owner.
According to the testimony of Lee Smith, a real estate salesman for 20 years in the city of Little Rock, the 10 acres involved in this litigation, if sold together with the other 30 acres, would be worth $1,000.00 per acre; if sold separately from the other 30 acres, the property would have a value of $750.00 per acre. The witness stated that in 1951, if sold with the 30 acres, the land would have been worth approximately $250.00 per acre, and if sold separately, should have brought $200.00 per acre. Sutton did not see fit to file an answer denying the allegations of the complaint, and we think the evidence clearly establishes that, upon learning of the death of Lafayette, he saw an opportunity to acquire the title for himself, and accordingly “put off” the appellants until a second deed could be acquired from Kumpe.
W. ft. Davis and Lula M. Davis, appellees herein, were not innocent purchasers, having purchased the property from Sutton on May 17,1954. This was a year and a half after the first suit was filed by appellants; a year and a half after the notice Lis Pendens, and over a year after the complaint was amended and a new summons served on Sutton. Davis testified that he bought the property through a realtor and “thought he was buying it from Vaughan.” He stated that he had bought a lot of property without an abstract, and was “gambling” on this property.
In accordance with the views herein expressed, the decree is reversed and the cause is remanded to the Chancery Court with directions to cancel the deed from Kumpe to Sutton, to cancel the deed from Sutton to the Davises, and to take the proper and necessary steps to invest title to the property here involved, in the heirs of Charles Lafayette, as prayed by appellants.
There is no explanation in the record of why the case remained pending for 9 years after the second summons was served on H. M. Sutton, Sr., and 7 years after the motion filed by Davis.
It is not clear from the record whether Sutton paid Kumpe $40.00 or $50.00 for the first deed.
This statement had reference to the deed and a mortgage which appellants testified was given to Sutton by Lafayette to secure the money advanced by Sutton for the purchase from Kumpe, but the execution of the mortgage was not established by competent evidence.
Definitions of a resulting trust and a construction trust are cited in Mulligan v. Payne, 232 Ark. 922, 341 S. W. 2d 53
According to Bouvier’s Law Dictionary (3rd Revision) Vol. 1, “on account of misconduct.”
It was stipulated between the parties that O. D. Burroughs possessed practically the same qualifications as those of Smith, and his testimony would be the same as that of Smith. | [
116,
109,
-40,
108,
8,
-80,
11,
42,
107,
33,
119,
83,
111,
-47,
1,
109,
97,
45,
-43,
122,
-59,
-77,
63,
45,
-62,
-13,
-23,
-51,
-80,
93,
-4,
87,
76,
40,
-118,
-43,
-30,
98,
-27,
-44,
-106,
0,
11,
100,
89,
-80,
52,
107,
22,
15,
117,
-114,
-14,
46,
53,
110,
-52,
46,
91,
46,
80,
-70,
-98,
-121,
127,
3,
-80,
38,
-104,
1,
72,
104,
-104,
49,
-120,
-8,
115,
38,
-122,
84,
2,
-101,
12,
38,
-25,
-112,
77,
-17,
-72,
-120,
39,
119,
-123,
-90,
-108,
72,
35,
68,
-65,
-99,
121,
20,
-53,
-10,
-25,
21,
92,
40,
7,
-114,
-106,
-95,
14,
116,
-128,
35,
-61,
15,
-14,
117,
-49,
-30,
92,
-61,
49,
-101,
-114,
-14
] |
Jim Johnson, Associate Justice.
This is an appeal from a conviction for aggravated assault. Appellant, Albert Frank Baker, and the prosecuting witness had been acquainted for about ten years and had previously had trouble of a non-violent nature. On March 15, 1962, they met inadvertently at a place of business in Lincoln, Arkansas. A conversation ensued during which the prosecuting witness armed himself with a piece of a grain drill and appellant armed himself with a mowing-machine sickle guard. Both left the building by the front door and a fight ensued in which the prosecuting witness used a stabilizer bar from a Ford tractor, which was in his car, and appellant used the sickle guard. Both parties received some injuries, and after the prosecuting witness had knocked appellant down with the stabilizer bar, they were separated, the sheriff was called, and appellant placed under arrest. Appellant was charged by information with the crime of assault with intent to kill. At trial, the jury returned a verdict of guilty of aggravated assault and fixed appellant’s punishment at a fine of $1,000.00 and 180 days in jail. Appellant has appealed from the judgment on the verdict.
Appellant’s principal point urged for reversal contends, “That the court erred in refusing- to permit appellant to testify about and to show the jury the nature and extent of the injuries he sustained at the hands of the prosecuting witness.”
The record relative to this point is as follows:
4 ‘ Q. In what condition — tell the jury in what condition were your wounds ?
“Prosecuting- Attorney: State objects. Not material for the purpose of this action.
“The Court: I will sustain the objection. What is the materiality!
“Defendant’s Counsel: It certainly is material. We would like to make a record on it.
“The Court: All right, make your record. I will sustain the objection. It was an hour later.
“Defendant’s Counsel: Pardon! I don’t know what the time was.
“The Court: I will sustain the objection. You can make your record, in the absence of the jury.
“Defendant’s Counsel! (Out of the hearing of the jury.) Let the record show that if he were permitted to answer, this witness would state that he received a serious injury, cut several inches long on the top of his head and that he was bleeding profusely from that wound Avhen he arrived at the sheriff’s office and that he remained there for approximately one and one-half hours before he Avas ever taken to a physician for examination or treatment.
“The Court: All right.
“Defendant’s Counsel:
Q. Mr. Baker, were you later, or ultimately taken to a doctor.
A. Yes, sir.
Q. Who took you!
A. Bill.
Q. Bill Brooks!
A. Yes.
Q. To AAdiich doctor were you taken!
A. He took me down to that clinic. I believe his name was Dr. Clark.
Q. Dr. LeMon Clark! He saAV you!
A. Yes, sir.
Q. Did Dr. Clark examine you, sir!
A. Yes, sir.
•Q. Will you tell the jury what, if any, treatment he administered to you?
Prosecuting Attorney: State objects.
The Court: Sustained. It isn’t material.
Defendant’s Counsel: We certainly think it is material, the kind of injuries Mr. Baker sustained.
Prosecuting Attorney: Doesn’t matter whether if was little, great, or what, under our theory.
The Court: The burden is on the state.
Defendant’s Counsel: (Out of hearing of the jury.) Note our exceptions and let the record state that if permitted to answer, this witness would state that Dr. Clark examined his injuries and sutured the wound in his head and that it took eleven stitches to sew up the wound. ’ ’
The State forcefully argues that the trial court acted properly in excluding evidence of appellant’s injury since it was not relevant due to the fact that self-defense was not part of appellant’s plea. Appellant’s plea to the information was not guilty. Under the general plea of not guilty appellant had the right to avail himself of any defense which the testimony adduced tended to establish. Flake v. State, 156 Ark. 34, 245 S. W. 174. Appellant testified that he thought the fight was over when he and the prosecuting witness left the building; that the prosecuting witness then pulled an iron stabilizer bar from his car and swung the bar at appellant with both hands, at which time appellant threw the sickle guard which bounced off the top of the prosecuting witness’ head. In our view, testimony such as this brought into issue the question of whether appellant acted in self-defense. It follows therefore under the facts in this case the jury should have had the benefit of this excluded testimony on the question of who was the probable aggressor.
Reversed.
Holt J., disqualified. | [
80,
106,
-72,
30,
11,
96,
42,
24,
96,
-122,
-26,
83,
-19,
-49,
9,
105,
57,
61,
85,
97,
77,
-77,
83,
81,
-10,
-13,
89,
-43,
59,
-54,
-27,
-12,
76,
112,
-62,
85,
34,
8,
-91,
28,
-50,
0,
-69,
120,
82,
2,
16,
58,
16,
15,
49,
62,
-29,
42,
31,
-49,
77,
40,
74,
-66,
-47,
-79,
-128,
-99,
-83,
18,
-93,
-90,
-98,
7,
80,
110,
-104,
49,
0,
120,
114,
-90,
-128,
-44,
37,
-103,
8,
98,
102,
16,
9,
71,
56,
-23,
47,
126,
-99,
-89,
-112,
72,
73,
8,
-68,
-97,
107,
20,
-82,
116,
-11,
93,
92,
108,
7,
-54,
-108,
-79,
-17,
36,
30,
73,
-21,
13,
48,
113,
-52,
-30,
84,
69,
122,
-37,
-125,
-13
] |
WAYMOND M. BROWN, Judge.
| Appellant appeals from the circuit court’s February 20, 2014 order appointing appellees as guardians of Louise Alma Shepherd a/k/a Louise Whaley. On appeal, appellant argues that the" circuit court erred in (1) failing to obtain a professional evaluation prior to the court hearing for the appointment of a guardian; (2) allowing appellees to intervene in the guardianship of Ms. Whaley; and (3) failing to take into consideration the order of preference in appointing a guardian as set out in Arkansas Code Annotated section 28-65-204. We reverse.
Louise Whaley, the proposed ward, was 91 years old at the beginning of this case and had been living alone for some time in a house on property that she owned. Her estate, including three or four rental properties, was worth somewhere between $1,000,000 and $1,500,000. She had two children, both sons; both are deceased. Appellant |2is the daughter of one of Ms. Whaley’s sons. In June or July of 2013, appellant, along with the rest of the family, became concerned about Ms. Whaley’s health and her ability to take care of her basic needs.
On July 29, 2013, appellant petitioned the court for ex parte temporary guardianship and permanent guardianship over Ms. Whaley’s person and estate. The petition was accompanied by an unverified letter from Dr. Thirumal Reddy Dubakka from the Longevity Center at St. Vincent Health System stating that it was his opinion that Ms. Whaley “requires assistance for all medical, business and financial matters.” All family members required to have notice of appellant’s petition — Ms. Whaley’s other five grandchildren — were notified of her petition, and each filed a waiver of notice in which they consented to appellant being appointed as Ms. Whaley’s permanent guardian. An order appointing appellant as the temporary guardian of Ms. Whaley’s person and estate was entered on August 6, 2013.
On September 23, 2013, Pam and Don Beckham, neighbors of Ms. Whaley, claiming to be “close acquaintances” of Ms. Whaley, filed a motion for leave to intervene along with a motion for an expedited hearing on that motion. The court granted the motion to intervene and noted that appellant and appellees had waived the ninety-day hearing requirement in an order entered on October 22, 2013.
|sOn November 6, 2013, appellees filed a verified petition to be appointed as the permanent guardians of Ms. Whaley’s per son and estate. On December 17, 2013, appellees moved for a mental evaluation of Ms. Whaley pursuant to Arkansas Rule of Civil Procedure 35 and Arkansas Code Annotated section 28-65-212. The motion was granted in an order entered on January 10, 2014. However, no mental evaluation was performed. Instead, the parties had the attorney ad litem meet with Ms. Whaley and “she believe[d Ms. Whaley was] incapacitated.” The parties felt this was sufficient.
In an order entered on February 20, 2014, the circuit court appointed appellees as the guardians of Ms. Whaley’s person and First Community Bank as guardian of her estate. Appellant timely appeals from this order.
We review probate proceedings de novo on the record but will not reverse a circuit court’s factual determinations unless they are clearly erroneous. A finding is clearly erroneous when, although there is evidence to support it, the appellate court is left on the entire evidence with the firm conviction that a mistake has been committed. In conducting our review, we give due regard to the opportunity and superior position of |4the trial court to determine the credibility of the witnesses. We do not, however, defer on pure issues of law.
Appellant’s first argument on appeal is that the circuit court failed to obtain a professional evaluation prior to the hearing. She argues that because the statute uses the word “shall,” the court was required to obtain a professional evaluation and its failure to do so constituted clear error.
We note first that appellant failed to raise this argument below, which would typically make the argument unpreserved for review, thereby preventing this court from addressing the merits. However, as noted by appellant and unaddressed by appellee, our supreme court found that we can address the merits despite such a failure where the finding of incapacity was based in part upon mandatory professional evaluations that did not satisfy the- statutory requirements of Ark.Code Ann. section 28-65-212(b). This is because it is not incumbent upon appellant to ask the trial court to consider the relevant statutes that must be satisfied prior to a finding of incapacity and because Rule 52(b)(2) of the Arkansas Rules of Civil Procedure provides that, in a bench trial, the sufficiency of the evidence to support the trial court’s findings may be raised whether or not any objection |swas made below. Accordingly, we are permitted to address the merits of appellant’s argument despite her failure to raise it below.
Arkansas Code Annotated section 28-65-212 provides that a professional evaluation shall be performed prior to the court hearing on any petition for guardianship with certain exceptions, inapplicable here, and that the evaluation shall be performed by a professional or professionals with expertise appropriate for the respondent’s alleged incapacity. “Professional” means a physician, licensed psychologist, or licensed certified social worker with training, experience, and knowledge of the particular alleged disability of the respondent. “Evaluation” means a professional assessment of the abilities of the respondent and the impact of any impairments on the individual’s capability to meet the essential requirements for his health or safety or to manage his estate. This court outlined our review of questions of statutory interpretation in Schueller v. Schueller, as follows:
This court reviews questions of statutory interpretation de novo because it is for the appellate courts to decide what a statute means. The basic rule of statutory construction is to give effect to the legislative intent. The doctrine of strict construction is to use the plain meaning of the language employed. Where the language of the statute is unambiguous, we determine legislative intent from the ordinary meaning of the language used. In considering the meaning of a statute, we construe it just as it reads, giving the words their ordinary meaning and usually accepted meaning in common language.
lfiArkansas Code Annotated section 28-65-212 uses the word “shall” which is typically mandatory; however, appellees note that it is well-established Arkansas law that the word “shall” in the statute indicates mandatory compliance with the statute’s terms unless compliance would result in an absurdity. Accordingly, they essentially argue that where the parties agree that a person is incapacitated, to require more — as the statute does — would be an absurdity. We do not agree with appellees argument in this set of circumstances.
In determining the incapacity of a person for whom a guardian is sought to be appointed for cause, other than exceptions which are inapplicable here, Arkansas Code Annotated section 28-65-211 necessitates that the court shall require that the evidence of incapacity include the oral testimony or a sworn written statement of one or more qualified professionals, whose qualifications shall be set forth in their testimony or written statements. It is undisputed that there was no oral testimony or sworn written statement of a qualified professional as required by Arkansas Code Annotated section 28 — 65—211(b)(1).
Arkansas Code Annotated section 28-65-105 states that guardianship for an incapacitated person shall be:
(1) Used only as is necessary to promote and protect the well-being of the person and his or her property;
|7(2) Designed to encourage the development of maximum self-reliance and independence of the person; and
(3) Ordered only to the extent necessitated by the person’s actual mental, physical, and adoptive limitations.
Without the required professional evaluation, the circuit court did not have sufficient evidence to find that a guardian needed to be appointed for Ms. Whaley. Accordingly, the circuit court’s failure to obtain a professional evaluation prior to the court hearing prior to the appointment of a guardian was clearly erroneous.
Because we reverse on this point, we do not address appellant’s other points on appeal.
Reversed.
WYNNE, J., agrees.
GRUBER, J., concurs.
. (Repl.2012).
. Appellee Pam Beckham had been named as a taker under Ms. Whaley’s 2010 will and had been granted durable healthcare power of attorney over Ms. Whaley’s healthcare decisions in February 2012.
.An amended order was entered on November 22, 2013, extending appellant’s temporary guardianship until January 23, 2014, the date of the hearing.
. (Repl.2012).
. On the same date, the circuit court entered an order denying appellant’s motion for reconsideration of the appointment of guardian and for a temporary stay before the appointment took effect.
. Hamm v. Hamm, 2013 Ark. App. 501, at 3, 429 S.W.3d 384, 387 (citing Seymour v. Biehslich, 371 Ark. 359, 266 S.W.3d 722 (2007)).
. Wilson v. Lindvall, 2013 Ark. App. 364, at 2, 428 S.W.3d 532, 533 (citing Morton v. Patterson, 75 Ark.App. 62, 54 S.W.3d 137 (2001)).
. Id. (citing Foster v. Hatfield, 2013 Ark. App. 169, 2013 WL 831126).
. Hamm, supra (citing Standridge v. Standridge, 304 Ark. 364, 803 S.W.2d 496 (1991)).
. See Worden v. Kirchner, 2013 Ark. 509, 431 S.W.3d 243; and Diamante, LLC v. Dye, 2013 Ark. 501, 430 S.W.3d 710.
. Cogburn v. Wolfenbarger, 85 Ark.App. 206, 148 S.W.3d 787 (2004) (citing In re Bailey, 299 Ark. 352, 771 S.W.2d 779 (1989)).
. Id.
. Ark.Code Ann. § 28 — 65—212(a)(1) & (2).
. Ark.Code Ann. § 28-65-101(8) (Repl. 2012).
. Ark.Code Ann. § 28-65-101(2).
. 86 Ark.App. 347, 353, 185 S.W.3d 107, 111 (2004) (internal citations omitted).
. Wooley v. Planter's Cotton Oil Mill, Inc., 91 Ark.App. 213, 217, 209 S.W.3d 409, 413 (2005) (citing Ramirez v. White Cnty. Cir. Ct., 343 Ark. 372, 38 S.W.3d 298 (2001)); see Loyd v. Knight, 288 Ark. 474, 706 S.W.2d 393 (1986).
. (Repl.2012).
. (Repl.2012). | [
-45,
-20,
-36,
44,
8,
113,
26,
-80,
83,
-117,
35,
81,
-25,
-38,
21,
107,
-29,
45,
-63,
123,
-47,
-77,
7,
64,
114,
-46,
-109,
-41,
-85,
127,
-28,
-2,
72,
112,
-54,
-43,
70,
-114,
-17,
-48,
6,
3,
10,
-19,
89,
66,
56,
123,
-106,
71,
117,
-98,
-77,
44,
57,
74,
-88,
110,
-39,
61,
24,
-70,
-113,
5,
-37,
2,
-79,
100,
-70,
7,
-8,
62,
-112,
49,
64,
-24,
115,
-74,
-114,
116,
79,
-104,
8,
114,
98,
-127,
108,
-25,
-72,
-128,
30,
126,
-99,
-90,
-110,
41,
107,
79,
-106,
-105,
92,
80,
7,
124,
-25,
-124,
94,
44,
-55,
-114,
-42,
-79,
12,
-104,
-68,
-101,
-29,
71,
52,
113,
-38,
-30,
93,
-58,
51,
27,
-82,
-109
] |
George Rose Smith, J.
The appellees have filed a motion asking us to modify our original holding to the extent of taxing the costs of appeal against the Highway Commission. It is contended that the assessment of any costs against the landowner in a condemnation proceeding would deprive him of his constitutional right to full compensation for his land.
It is true that when the only issue in a case of this kind is the value of the land the owner should not be compelled to pay the costs of a proceeding brought for the purpose of taking his property. Nichols on Eminent Domain (3d Ed.), § 4.109. But this rule does not necessarily apply when there are other issues in the case. Nichols points out, for instance, that when the landowner unsuccessfully contests the validity of the taking he may be compelled to pay the costs. Here, in like manner, the landowners wrongfully demanded and obtained a judgment for the amount of their expert witnesses fees. The Commission was therefore compelled to appeal, and since it obtained a reversal and a substantial recovery upon this issue the case does not fall within the rule relied upon by the appellees.
The motion to retax the costs is denied. | [
-47,
-30,
24,
-68,
43,
-32,
-110,
-71,
73,
-21,
-90,
83,
-81,
-54,
-112,
39,
-29,
63,
117,
107,
-41,
-77,
87,
-14,
-3,
-13,
113,
-35,
121,
-51,
-27,
-42,
76,
57,
-62,
-107,
102,
-118,
-51,
-48,
78,
6,
-103,
77,
-31,
96,
48,
75,
18,
11,
49,
-113,
-29,
44,
25,
-63,
9,
44,
59,
-87,
-63,
-71,
-66,
13,
95,
4,
49,
116,
-104,
-61,
74,
106,
16,
25,
2,
-56,
115,
-90,
7,
84,
5,
-101,
-120,
-24,
98,
17,
117,
-1,
-40,
-104,
47,
-104,
-115,
-122,
-45,
24,
66,
97,
-74,
-97,
108,
2,
39,
126,
-26,
20,
-99,
108,
-113,
-17,
-106,
-94,
-113,
108,
-120,
67,
-33,
-125,
16,
97,
-53,
-22,
94,
71,
114,
-101,
15,
-104
] |
Ed. F. McFaddin, Associate Justice.
From a decree reforming an insurance policy and rendering judgment for loss claimed, the appellant prosecutes this appeal.
On July 27, 1953 appellee Hardwicke purchased a truck from King Motor Company in Clarksville. For the unpaid portion of the purchase money Hardwicke executed a title retaining note, payable monthly over a period of twenty-four months. The note, dated July 27, 1953 and providing for twenty-four monthly payments, was forthwith assigned by King Motor Company to Commercial Credit Corporation. Included in the note was $143.40 as the amount of the insurance premium which was paid by the holder of the note to the appellant, Calvert Fire Insurance Company. The insurance policy (covering collision damage) issued by appellant Calvert Fire Insurance Company, was dated July 27, 1953, and clearly stated that it expired on July 27, 1955. The policy was delivered to Hardwicke and was at all times in his possession.
On August 4, 1955, after the expiration date stated on the policy, Hardwicke’s truck was damaged beyond repair and he filed this suit in equity to reform the insurance policy so as to extend its expiration date beyond August 4, 1955, and to recover on the reformed policy for the loss he had sustained on August 4, 1955. Trial in the Chancery Court resulted in a decree granting Hardwicke the prayed relief; and this appeal challenges the correctness of such decree.
The appellant claims that the evidence is insufficient to support a reformation of the policy; and such claim requires a statement of the applicable law, and a determination whether the evidence was sufficient to justify reformation. Our cases recognize that an insurance policy, like any other contract, which by reason of mistake in its execution does not conform to the real agreement of the parties, may be reformed in a court of equity. See Phoenix Insurance Co. v. State, 76 Ark. 180, 88 S. W. 917, and cases there cited. But the party seeking to reform the insurance policy must offer testimony that is clear and convincing. See Moline Timber Co. v. Schaad, 181 Ark. 854, 28 S. W. 2d 336.
Under the rules thus stated, we examine the evidence to see if it is sufficient to support the decree rendered. Hardwicke did not establish that there was, in 1953, any mistake as to the date of the beginning and the date of the end of the insurance coverage, i.e., from July 27, 1953 to July 27, 1955. Rather, he claimed that he was subsequently led to believe that the insurance coverage would be extended beyond July 27, 1955 because the Commercial Credit Corporation had agreed to extend the final payment on the title retaining note. If there had been such subsequent agreement it would not have reformed the original policy, but it would be in the nature of an oral agreement to extend the period of the insurance coverage. Even the preponderance of the evidence is against Mr. Hardwicke on this extension theory:
1. The only persons with whom Mr. Hardwicke had any conversations were representatives of the Commercial Credit Corporation, and they were not representatives of the Calvert Fire Insurance Company. Both of these representatives testified unequivocally that they did not make, and could not have made, any agreement with Mr. Hardwicke about extension of the insurance coverage.
2. Mr. Hardwicke offered evidence that the Calvert Fire Insurance Company was owned by the Commercial Credit Company which also owned Commercial Credit Corporation, the holder of the title retaining note; but such evidence, standing alone as it did, was not sufficient to support a decree to pierce the fiction of the corporate entity and make the agents of the Commercial Credit Corporation, ipso facto, the agents of the Calvert Fire Insurance Company. It was definitely established that there was only one person in this State recognized by the Insurance Department of Arkansas as legally qualified to countersign insurance policies for the Calvert Fire Insurance Company; and Mr. Hardwicke did not claim to have even seen or heard of that person.
3. Mr. Hardwicke claimed that after July 27, 1953 the Insurance Department of Arkansas reduced the premiums to he paid on insurance policies like the kind Calvert Fire Insurance Company had issued to Hardwicke, and that, therefore, the reduced rate should apply here so as to extend the period of the Hardwicke policy. But the fallacy of this contention is found in the testimony of a deputy of the State Insurance Commissioner of Arkansas who stated, without contradiction, that the reduced premium applied only to policies issued after September 4, 1953, unless the old policies previously written were surrendered and new policies issued in lieu thereof. Mr. Hardwicke did not claim to have complied with such rule of the State Insurance Department.
After a careful study of all the evidence we are forced to the conclusion that Mr. Hardwicke made no case against appellant Calvert Fire Insurance Company. The Chancery decree is reversed and the cause remanded, with directions to set aside the decree and dismiss the complaint. | [
52,
-3,
-44,
-116,
8,
96,
50,
26,
-37,
65,
37,
-45,
-67,
-62,
12,
39,
-25,
9,
-59,
34,
-9,
-93,
22,
35,
-46,
-77,
-7,
-49,
49,
93,
-20,
118,
76,
58,
-118,
85,
-90,
-119,
-59,
30,
-50,
-122,
59,
-27,
-39,
65,
52,
121,
17,
13,
85,
-97,
-29,
46,
17,
-61,
105,
40,
107,
33,
-39,
-16,
-117,
15,
127,
21,
-79,
4,
-104,
45,
122,
15,
-108,
49,
9,
-8,
115,
-90,
-58,
116,
45,
-103,
8,
102,
98,
16,
1,
-17,
-88,
-104,
39,
106,
47,
-90,
-106,
56,
43,
5,
-66,
-99,
124,
22,
-121,
124,
-2,
5,
29,
44,
5,
-117,
20,
-95,
-55,
96,
-100,
11,
-18,
3,
-74,
112,
-49,
-24,
93,
71,
121,
-77,
-106,
-9
] |
Ed. F. McFaddin, Associate Justice.
This appeal questions the decree of the Chancery Court made to obtain the dower previously awarded to the wife in a divorce decree. On July 25, 1958 the Pulaski Chancery Court rendered a decree awarding Mrs. Mary Horn (appellee here) a divorce from J. W. Horn (one of the appellants here), and the decree contained this language as to dower and retained jurisdiction:
“The Court further finds that Plaintiff is entitled to the sum of $11,666.66 as a statutory dower settlement of and from the monies of defendant, said sum being one-third of the monies of defendant, and which said sum is hereby decreed to said plaintiff against defendant as a property settlement. It is therefore considered, ordered and decreed by this Court that defendant J. W. Horn shall pay immediately to plaintiff the said sum of $11,666.66, for which execution, garnishment, and citation for contempt may issue as upon a judgment at law. . . . The Court doth retain control of this cause for such further orders and proceedings as may be necessary to enforce the rights of the parties herein. . . . ”
It had been shown in the divorce case that Mr. Horn had recently received the sum of $35,000 cash in a settlement with the Rock Island Railroad Company; and the Court awarded Mrs. Horn $11,666.66 from said amount. Later, Mr. Horn sought to have the decree of July 25th modified, and claimed that he had no money at the time the decree was rendered; but such effort at modification was unsuccessful and the decree of July 25, 1958 has long since become final and is not an issue on this appeal.
Mr. Horn did not pay the dower awarded to Mrs. Horn, and in September, 1958 she filed in the Pulaski Chancery Court her petition and amended petitions alleging, inter alia, that Mr. Horn was attempting to conceal his assets by having his property placed in the name of W. C. Irwin and Mary Irwin, husband and wife; and certain definitely described property in G-arland County, Arkansas was listed in the petitions. The Arkansas Trust Company of Hot Springs was also named as a garnishee. The status of the Irwins when brought into the case and their objections to such procedure will be discussed in Topic I, infra. Trial in the Pulaski Chancery Court resulted in a voluminous record. On November 2, 1959 a decree was rendered in which the Pulaski Chancery Court found that Horn had concealed his assets by putting them in the name of the Irwins and that the Irwins were trustees of the Horn assets. The decree directed execution issue against specific property to satisfy the dower award of Mrs. Horn; and it is from the said decree of November 2, 1959 that this appeal is prosecuted both by Mr. Horn and by the Irwins.
I. Jurisdiction And Venue. As aforesaid, Mrs. Horn filed her petition in the Pulaski Chancery Court in September, 1958 and for the first time named the Irwins. They filed a demurrer to the petition and amended petitions, stating that, “. . . the Court has no jurisdiction of the persons or subject of the action, and that the complaint did not state facts sufficient to constitute a cause of action.” When the demurrer was overruled, the Irwins filed answer and proceeded to trial, which resulted in the decree of November 2, 1959, as aforesaid. On appeal the Irwins now say: “ (a) Appellee’s petition was an action independent of the divorce; and (b) the venue of a subsequent suit would be in G-arland County. ’ ’ To sustain their contentions, the Irwins cite: Renn v. Renn, 207 Ark. 147, 179 S. W. 2d 657; Hardy v. Hardy, 228 Ark. 991, 311 S. W. 2d 761; Wilson v. Wilson, 163 Ark. 294, 259 S. W. 742; Fullerton v. Fullerton, 230 Ark. 539, 323 S. W. 2d 926; Harris v. Smith, 133 Ark. 250, 202 S. W. 244; Ark. Mineral Products Co. v. Creel, 181 Ark. 722, 27 S. W. 2d 1003; and also the following sections of Arkansas Statutes: 34-1214, 29-506, 29-508, 27-601, and 27-613.
The gist of the Irwin argument is that: (1) when the Pulaski Chancery Court rendered judgment for Mrs. Horn for $11,666.66 such judgment made her a creditor of Mr. Horn; and (2) as a creditor she should have proceeded in G-arland County to seek to set aside the alleged fraudulent conveyances involving the real estate in that County. We do not agree with the Irwins in these contentions. There are several possible answers, but we need give only one. In the divorce decree of July 25, 1958, the Court found that Mr. Horn had certain moneys and that $11,666.66 was one-third of the said moneys; and this amount was awarded Mrs. Horn as “statutory dower”; and the decree retained control of the cause “for such further orders and proceedings as may be necessary to enforce the rights of the parties herein.” When Mr. Horn did not pay the money in accordance with the decree, Mrs. Horn had a right to ask the Chancery Court to aid her in obtaining her dower. She had learned that Mr. Horn was transferring his property and assets to the Irwins, and she caused them to be cited into the Pulaski Chancery Court.
Mrs. Horn’s proceedings against the Irwins were in the nature of an equitable garnishment. In Riggin v. Hillard, 56 Ark. 476, 20 S. W. 402, Chief Justice Cockrill said: “Every equitable proceeding wherein a remedy is devised to apply the debt of a third person to the extinguishment of the plaintiff’s demand against his debtor is a suit for an equitable garnishment.” In So. Lbr. Co. v. Riley, 224 Ark. 298, 273 S. W. 2d 848, we held that garnishment in equity was available as a remedy to reach property fraudulently conveyed. And in Sneed v. Sneed, 172 Ark. 1135, 291 S. W. 999, we held that equitable garnishment was the proper remedy allowed a divorced wife, to whom the husband owed money, to impound a fund due the husband. Mrs. Horn wanted to ascertain and subject to her dower claim whatever funds or properties the Irwins had that belonged to Mr. Horn. Under § 31-513, Ark. Stats, the Pulaski Chancery Court had power to issue garnishment and/or execution on its decree of July 25, 1958. See The McGehee Bank v. Greeson, 223 Ark. 18, 263 S. W. 2d 901.
The Court found that the Irwins had in fact received money from Horn and held property for him, and execution was then issued by the Pulaski Chancery Court. Under § 30-202, Ark. Stats., an execution may be levied on property conveyed to defraud creditors. See Baldwin v. Williams, 74 Ark. 316, 86 S. W. 423. What the Pulaski Chancery Court did in the case at bar is very much like what the Perry Chancery Court did in Morgan Utilities v. Perry County, 183 Ark. 542, 37 S. W. 2d 74. See also Merchants & Farmers Bank v. Harris, 113 Ark. 100, 167 S. W. 706. The cases cited by the appellants, as previously listed, have factual situations far different from those existing in the case at bar; and we find no merit to the Irwins’ contentions as made under this point.
II. The Facts. The Irwins, as well as Mr. Horn, most vigorously contend that the evidence in the case at bar does not support the Chancellor’s finding that the Irwins had any money or property belonging to Mr. Horn at any time after July 25, 1958; and this contention necessitates a brief recital of the salient facts. As previously indicated, Mr. Horn obtained a settlement of $35,000 cash for injuries which he received while working for the Rock Island Railroad Company. On March 24, 1958 Mr. Horn (listing his residence as 518 Ringo, Little Rock, Arkansas) opened up three accounts in the Arkansas Trust Company in Hot Springs, Arkansas. The first was for $5,000; the second was for $5,000; and the third was for $24,500. On March 25, 1958 (just five days later) Mr. Horn closed out all three of these accounts.
The testimony is crystal clear — in fact, it is practically admitted — that on March 25, 1958 Mr. Horn delivered to W. C. Irwin a cheek for $24,500, and on the same day W. C. Irwin opened an account in the Arkansas Trust Company and deposited therein the $24,500 check that Mr. Horn gave him. The Irwin account was styled, “W. C. Irwin or W. C. Irwin, Jr., Agent.” From that account Irwin bought the real estate and the personal property here involved. The photostats of the cheeks and the bank records establish all these facts without a doubt. But to overcome the effect of the above proof, both Mr. Irwin and Mr. Horn testified to a most bizarre statement of facts. Mr. Horn said he transferred the $24,500 to Irwin so Irwin could let him have money when he wanted it, even when the banks were closed; that from time to time he obtained cash from Irwin for large sums of money; and that he gambled away this money at the races, and various other places, so that by July 25, 1958 Horn had no money, and in fact owed money to Irwin.
Irwin testified to practically the same statement of facts: that he paid Horn in cash from money that Irwin had in his safe at the Martin Recreation Center in Hot Springs; that at one time he gave Horn three $500 bills; and by July 25, 1958 Irwin had paid Horn back all of Horn’s $24,500. Irwin explained the record of checks from the Arkansas Trust Company by saying that he paid Horn in cash and then used the trustee account in lieu of opening up a personal account. This testimony was most bizarre and the Chancery Court did not believe the testimony. On appeal the attorneys for Irwin and Horn tell us that the testimony of their clients is uncontradicted by anyone and that the Chancery Court committed reversible error in failing to believe the stories of Irwin and Horn. That is the gist of this point.
We hold that the Chancery Court was not bound to give credence to the stories told by Irwin and Horn. All the testimony offered to prove a return of any part of the $24,500 by Irwin to Horn was the testimony of these parties; and each was an interested party in this proceeding by Mrs. Horn to recover her dower. The testimony of a litigant interested in the result is never considered uncontradicted in weighing such testimony. In Metcalf v. Jelks, 177 Ark. 1023, 8 S. W. 2d 462, we said: “Another rule established by this Court is that the testimony of a party to an action, who is interested in the result, will not be regarded as undisputed in determining the legal sufficiency of the evidence. K.C.S.R. Co. v. Cockrell, 169 Ark. 698, 277 S. W. 7; Gish v. Scantland, 151 Ark. 594, 237 S. W. 98.” One strong bit of testimony is that a part of the $24,500 was used by Irwin to purchase a house in Hot Springs and pay for the furnishings in the house; that Horn was living in the house at the time of the trial; and that he sought to claim the house as his homestead and the furnishings as his personal exemptions against Mrs. Horn’s dower claim. How, then, can Horn be heard to say that he is renting the house and furniture from his good friend Irwin! It would unduly prolong this opinion to detail other evidence.
The decree of the Pulaski Chancery Court is affirmed.
The specific property (both real and personal) was sold and purchased by Mrs. Horn for the amount of her dower claim.
The record before us fails to disclose that Mr. Horn ever filed any pleading or objection to the venue of the Pulaski Chancery Court, so this topic involves only the Irwins.
We have a number of other cases on equitable garnishment. Some of them are cited in C. A. Rees & Co. v. Pace, 156 Ark. 473, 246 S. W. 491.
An interesting case from a sister jurisdiction and involving the wife’s effort to recover dower in property fraudulently conveyed is Newton v. Falligant, 166 Ga. 450, 143 S. E. 391. | [
84,
108,
-11,
93,
-54,
80,
42,
-120,
98,
29,
117,
-45,
-27,
98,
0,
105,
34,
75,
81,
105,
-9,
-73,
95,
64,
106,
-77,
-39,
-51,
-67,
-51,
-89,
-42,
77,
32,
-54,
85,
102,
74,
-59,
92,
-50,
7,
11,
-19,
-39,
-60,
48,
107,
80,
13,
97,
-114,
-14,
43,
53,
74,
108,
44,
125,
43,
-40,
-70,
-118,
12,
127,
6,
17,
36,
-104,
15,
72,
14,
-104,
21,
0,
-24,
123,
54,
6,
116,
73,
-71,
13,
-92,
102,
35,
4,
-1,
-72,
-116,
70,
124,
-115,
-89,
-14,
72,
106,
65,
-65,
-108,
126,
-44,
-121,
116,
-3,
-115,
93,
108,
11,
-49,
-106,
-93,
20,
59,
-98,
19,
-29,
-61,
52,
81,
-53,
-78,
92,
71,
113,
-101,
-122,
-41
] |
Carleton Harris, Chief Justice.
On March 17, 1959, appellant, E. E. Talley, a resident of Jackson County, Arkansas, instituted suit against J. H. Morphis and Frank Anderson, in the Circuit Court of that county, for alleged injuries suffered, and damages sustained in Jackson County when Talley’s automobile was struck by a freight truck owned by Morphis, and driven by Anderson, both residents of Pope County. Morphis and Anderson filed an answer denying any negligence, and further stated that “the damages, if any, sustained by the plaintiff, were caused by the unlawful and negligent acts of the plaintiff, E. E. Talley, and George Davis.” Davis, a neighbor of Talley, had used his truck to push Talley’s car, which would not start, from the latter’s yard out onto the pavement of the highway, and for a short distance thereafter. A counterclaim was filed wherein Morphis sought recovery for damages to his tractor, trailer, and cargo of potatoes, and Anderson sought judgment for personal injuries. Thereafter, on April 22nd, Morphis and Anderson instituted suit in the Circuit Court of Pope County against Davis, and obtained service on Davis the following day; on May 22nd, appellant filed a motion to make Davis a third party defendant in the Jackson County suit. Appellees, Morphis and Anderson, replied to the motion, asserting that because of the action instituted against Davis in Pope County, the Circuit Court of Jackson County was without jurisdiction to make Davis a third party defendant. The court granted the motion, and Talley filed his third party complaint against Davis, setting out the allegations of negligence, contended by Morphis and Anderson in their suit against Davis in the Pope Circuit Court. The prayer was “that plaintiff have judgment against the defendants, J. H. Morphis and Frank Anderson, as prayed in his original complaint. In the alternative, plaintiff prays that he have judgment against the defendants, J. H. Morphis and Frank Anderson, and against the third party defendant, George L. Davis, in the sum of $25,000 damages, if it should he found that the third party defendant, George L. Davis, so negligently operated his truck as to prevent the defendant, Frank Anderson, the driver of the tractor trailer of the defendant, J. H. Morphis, from avoiding collision with plaintiff’s automobile by steering said tractor trailer to the right and the rear of plaintiff’s automobile. As a second alternative, plaintiff prays that the proportion and extent of contribution as between the plaintiff and the third party defendant, George L. Davis, be determined by the court, if it should be found that the collision here in controversy, was the result of the concurrent negligence of the plaintiff and of the third party defendant, George L. Davis, and not the result of the negligence of Frank Anderson, the driver of the tractor trailer, belonging to defendant, J. H. Morphis.” After the court had refused a motion by Morphis and Anderson to vacate its order of May 22nd, they, reserving their rights relative to the jurisdiction of the court to make Davis a third party defendant, filed their third party complaint against Davis, alleging the same concurrent negligence on the party of Talley and Davis, as previously alleged in their counterclaim against Talley. Davis denied any negligence, and on June 9th, the cause went to trial. The court directed a verdict in favor of the third party defendant, Davis, and the jury returned a verdict finding that Talley should be charged with 66 2/3% of the total negligence resulting in the collision, and appellees, Morphis and Anderson, should be charged with 33 1/3%. The jury found no damages were sustained by Talley or Anderson, but found that Morphis was damaged in the amount of $8,666. On June 19th, judgment was entered in favor of appellee Morphis, against appellant Talley, in the sum of $5,777.32. From such judgment, Talley brings this appeal, and Morphis and Anderson have cross-appealed.
In contending for reversal, appellant lists several points, but all relate to, and are included in, the conten tion that there was insufficient evidence to support the jury verdict.
Talley’s version of the collision was as follows: On the morning of December 12, 1958, he started to town. His car would not start, and he asked his neighbor, G-eorge Davis, to give him a push, the latter complying with the request. Talley stated that he drove up the highway about three hundred yards, looked in his rear-view mirror, and saw a truck coming, but it was some distance back. He testified that he put out his hand and signaled a left turn, holding the hand out for a hundred feet or better before proceeding to start the turn; he heard no horn from any approaching vehicle. “Just as my wheels got off the slab, something hit me, and I went out, and I never knowed no more. ’ ’ Talley then detailed his injuries.
Davis testified that he pushed Talley for seventy or seventy-five feet on the highway before the latter’s car started. According to the witness, Talley traveled about two-tenths of a mile before making a signal for a left turn. Davis, about fifty yards behind Talley, stated that he put on his brakes, slowing his car to permit Talley to get out of the way. “About that time, the truck pulled beside me and blew his horn. Well, when he blew his horn, Mr. Talley, I seen Mr. Talley was already in the turn. I seen there was going to be an accident.” He first testified that Talley gave a turning signal about one hundred sixty feet before reaching the point of the collision, although on cross-examination he stated, “Well, he could have held it out 100 feet or he could have held it out five feet, but he held it out long enough that I could see he was going to make a left hand turn. ’ ’
Anderson testified that he saw Talley and Davis enter the highway, being from three-tenths to four-tenths of a mile from them at the time . . . that he (Anderson) was driving at approximately fifty miles per hour . . . that he sounded his horn as he came up to Davis, who was about fifteen feet back of Talley . . . that he did not see Talley give any signal for a turn . . . that after the collision he asked Davis if he saw Talley give any signal, and Davis replied, “I don’t know, I knew he was going to turn.”
Appellees contended at the trial that Talley was hard of hearing, and appellant admitted this to be true; they also contended that his eye-sight was not good. Talley, who was not wearing glasses at the time of the collision, stated that ten or fifteen years back he wore glasses, but was not presently using them. “Do you still have some glasses ? A. No, sir, I have not, I broke my glasses. Q. But you used to wear them before you broke them? A. Oh, several years ago, but I lost them and never did get no more so I just went right on. Q. You do not have any glasses with you now in your back pocket? A. They are no good. They are broke. Q. But you do have some in your back pocket? A. Yes, sir, but they’re no good. Q. But you didn’t have those on, or any other glasses on, at the time of the accident? A. No, sir.” Appellant testified that after first observing the truck through the mirror, he ‘ ‘ didn’t look back anymore.” On cross-examination, he was less positive about giving the signal for the turn a hundred feet back, and admitted that he could have been closer to the point of the collision.
As was stated in Hot Springs Street Railway Company v. Hill, 198 Ark. 319, 128 S. W. 2d 369:
“In determining the sufficiency of the evidence to support a verdict, the Supreme Court views it with every reasonable inference arising therefrom in the light most favorable to the appellee, and if there be any substantial evidence to support the verdict, it will not be disturbed on appeal.”
In Alexander v. Botkins, 231 Ark. 373, 329 S. W. 2d 530, we said:
“Accordingly, though appellants presented evidence which, if believed by the jury, would have justified a verdict for them, we are here only concerned with whether the evidence offered by appellee was of a substantial nature, sufficient to support a finding that the collision was the result of negligence on the part of Mrs. Alexander, rather than the result of negligent acts on the part of Johnny Botkins.”
That same language is most pertinent here, for certainly there was sufficient evidence, if believed by the jury, to justify a verdict for appellant. On the other hand, the jury could have found that Mr. Talley did not signal a turn, or, could have believed, from the evidence, that even though his signal was given, it was not given in conformity with the statute, which provides that “A signal of intention to turn right or left shall be given continuously during not less than the last one hundred feet traveled by the vehicle before turning.” Here, Talley admitted that the signal might not have been given for that distance. Appellant likewise admitted that he did not again look through the mirror to ascertain the whereabouts of the truck after first seeing it, at which time “it was a good piece down the road”; the jury could have found that Anderson blew his horn (which was also testified to by Davis), but that Talley, because of deafness, did not hear it. Any, or all, of these conclusions could have been reached by the jury, from which they found the negligence upon which their verdict was based. We conclude that the testimony was sufficient to support the findings of the jury.
The cross appeal relates to the action of the court in permitting Talley to bring in Davis as a third party defendant, it being contended that this was error. Our statutory provisions relative to venue are found in §§ 27-610 and 27-611, Ark. Stats. (1947) Anno. Appellees assert that, under our holdings involving the interpretation of these sections, where several parties are involved in an automobile collision, and actions are brought in more than one county having venue, the one first acquiring service of summons on his adversary has the right to litigate his claim or portion of the lawsuit in the jurisdiction or venue of his choice. We have so held. See Kornegay v. Auten, Judge on Exchange, and Melton, Administrator v. Auten, Judge on Exchange, 203 Ark. 687, 158 S. W. 2d 473. The circumstances, however, in this litigation, present an unusual question, not previously passed upon, for § 34-1007 provides, inter alia:
“Before answering, a defendant seeking contribution in a tort action may move ex parte or, after answering, on notice to the plaintiff, for leave as a third-party plaintiff to serve a summons and complaint upon a person not a party to the action who is or may be liable as a joint tortfeasor to him or to the plaintiff for all or part of the plaintiff’s claim against him. If the motion is granted and the summons and complaint are served, the person so served, hereinafter called the third-party defendant, shall make his defense to the complaint of the plaintiff and to the third-party complaint in the same manner as defenses are made by an original defendant to an original complaint. The third-party defendant may assert any defenses which the third-party plaintiff has to the plaintiff’s claim. The plaintiff shall amend his pleadings to assert against the third-party defendant any claim which the plaintiff might have asserted against the third-party defendant had he been joined originally as a defendant. The third-party defendant is bound by the adjudication of the third-party plaintiff’s liability to the plaintiff as well as of his own liability to the plaintiff and to the third-party plaintiff. A third-party defendant may proceed under this section against any person not a party to the action who is or may be liable as a joint tortfeasor to him or to the third-party plaintiff for all or part of the claim made in the action against the third-party defendant.
(2) When a counterclaim is asserted against a plaintiff he may cause a third-party to be brought in under circumstances which under this section would entitle a defendant to do so.”
Talley, of course, sought to file his third-party complaint under paragraph (2). Considering the statutes, here under discussion, separately, it would appear that both appellant and appellees proceeded in accordance with statutory provisions; obviously, however, this cannot be done in the instant case, for a conflict arises.
Upon, consideration, we have reached the conclusion that there are additional facts present in this litigation, which preclude a clear determination of which statute (venue, or third-party practice under uniform contribution among tort-feasors act) pre-empts the other when conflicts arise. Here, appellant had filed his complaint against appellees only. If, in filing their counterclaim, appellee had sought recovery against Talley solely because of his negligence, and Talley had then endeavored to bring in Davis as a third-party defendant — the question, heretofore posed, would be squarely before the Court. However, appellees alleged the sole proximate cause of the collision to be “the joint and concurrent negligence of E. E. Talley and George Davis. ’ ’ Accordingly, alleged negligence on the part of Davis was first averred by appellees, even though they sought no judgment against him in the Jackson Circuit Court. Also, suit was not instituted in Pope County by appellees until after the counterclaim had been filed against Talley in Jackson County. This suggestion of liability on the part of Davis by appellees undoubtedly precipitated Talley’s motion to make Davis a party. We think, under those circumstances, it was within the sound discretion of the court to grant the motion. See Rudolph v. Mundy, 226 Ark. 95, 288 S. W. 2d 602. The error, if any (and we do not say it was error), though it cannot be strictly and technically classed as invited error, was certainly closely akin in principle, for appellant’s motion, not only was likely initiated because of appellees’ pleadings, but the logic of making Davis a defendant was supported by appellees’ allegations.
Finding no error, the judgment of the court, both on direct and cross appeal, is affirmed.
Interventions were filed by three insurance companies who had issued policies covering damages to the tractor, trailer, and load of potatoes, caused through collision, seeking subrogation in event of recovery by Morphis.
Paragraph B, § 75-618, Ark. Stats. Anno. | [
-16,
-32,
-32,
47,
8,
-29,
16,
26,
-45,
35,
117,
-45,
-85,
79,
85,
57,
-22,
-83,
-44,
-53,
-19,
-93,
17,
-10,
-110,
-77,
-23,
-35,
-75,
-51,
101,
-42,
76,
112,
-54,
21,
-58,
64,
-123,
-98,
78,
32,
-87,
-20,
89,
19,
48,
56,
20,
15,
5,
-113,
-62,
46,
57,
79,
105,
44,
-5,
34,
-64,
-80,
-118,
5,
124,
23,
-79,
38,
-101,
33,
122,
30,
-112,
-79,
32,
-8,
114,
-90,
-126,
-12,
105,
-103,
8,
38,
102,
0,
77,
-17,
-120,
-120,
7,
-6,
-103,
-90,
14,
33,
11,
79,
-65,
21,
123,
21,
94,
126,
-4,
21,
28,
40,
37,
-114,
-112,
-95,
-115,
33,
-100,
3,
-29,
7,
48,
117,
-115,
-26,
93,
5,
58,
-109,
7,
-112
] |
Paul Ward, Associate Justice.
This appeal by George J. Goodin challenges the action of the Chancery Court in awarding to his wife and their two minor children exclusive occupancy of the dwelling owned jointly by them and at the same time denying the wife’s petition for a divorce.
The parties were married on May 24, 1947, and lived together until August 15, 1959, at which time appellee and the two children (ages about 6 and 12) left the home in which they had all been living in the City of Fort Smith. On the following day appellee filed suit for divorce on the general ground of neglect and mistreatment. She prayed not only for divorce but for custody of the children and for alimony and child support.
Before the final order from which comes this appeal there were several preliminary hearings and orders. The first hearing was held on November 24, 1959, at which an allowance of $25 a week was made for the support of appellee and the children and the cause was finally set for March 8,1960. On this date, after hearing testimony, the Chancellor denied appellee’s prayer for a divorce, bnt decreed that she should have permanent care and custody of the two children with the understanding that she would not remove them from the jurisdiction of the court without permission; that appellant should have reasonable rights of visitation; and that appellant should pay $25 a week for the support of appellee and said children. Following that order, appellee and the children moved into the house owned by the parties, by the entirety, located on Chaffee Drive in Fort Smith. Almost immediately thereafter appellee filed a Motion in which she asked that appellant be enjoined and restrained from entering the premises and that the court fix a specific time and place for appellant to visit the children. A Response to this Motion was filed by appellant and on March 15,1960, the court made the following findings: That subsequent to the court’s decree of March 8, 1960, and without the knowledge or consent of the appellee, the appellant moved into the home in which the appellee had been living with their children; that such act on the part of appellant, along with other conduct on his part, was detrimental to the health and welfare of the children; that the decree of March 8, 1960, should be withdrawn and the case continued under the previous Order made on November 24, 1959; that final adjudication on the divorce petition be taken under advisement; that the Order made on November 24, 1959, should be amended to give appellee possession of the home and furnishings located on Chaffee Drive. The Order of the court was in compliance with the above findings.
After another hearing a final decree was entered on May 6, 1960, in which it was ordered: That the petition for divorce be denied at this time; appellee shall have custody of the children subject to appellant’s right of visitation at all reasonable and proper times; appellee shall have exclusive possession of the family home and furniture, as well as possession of the newest car, so that the children may be properly reared, can attend church and take care of medical treatments; the appellant shall continue to pay $25 per week for the support of the two minor children; appellee shall pay the house payments due out of the child support so long as she continues to occupy the house with the children; and this Order shall remain in effect as to the occupancy and payments on the family home so long as appellee continues to reside therein.
The only ground urged for a reversal, as stated by appellant, is that “the Chancellor erred in excluding the appellant from the jointly owed property of the parties.”
In support of the above contention appellant relies almost exclusively on the decision in the case of Walls v. Walls, 227 Ark. 191, 297 S. W. 2d 648. The particular language contained in that opinion upon which appellant relies is found at page 194 and 195 of the Arkansas Reports.
In the cited case, the Chancellor gave exclusive possession of the home to the wife and children but this holding was reversed by this court. The essence of the court’s holding appears to be that the wife had established no meritorious cause for leaving her husband and three older children and refusing to live with him. In the case under consideration, the situation is different in that respect. The effect of the Chancellor’s holding was that appellee was justified in leaving appellant. We have reviewed the record in this connection and are unable to say that the Chancellor’s finding is not supported by the weight of the testimony. This being the situation the court had authority to give the exclusive possession and occupancy of the property to appellee and the children. In the case of Cassell v. Cassell, 211 Ark. 489, 200 S. W. 2d 965, we held that the trial court had jurisdiction to give the wife the right of exclusive possession of the dwelling property even though her petition for a divorce was denied. The decision rested on the ground that such an order did not amount to a permanent disposition of property rights. Likewise, the order of the court in the case under consideration is not a permanent disposition of property rights. The latter portion of the decree states: “this order shall remain in effect as to the occupancy and payments on the family home so long as the plaintiff continues to reside on said premises.” It was also stated in the Order “that the petition for a divorce by the plaintiff be denied at this time” (Emphasis supplied.)
This is one of those unfortunate situations where a home with children has been, at least temporarily, broken up, and the court is faced with the task of finding the best possible solution. We are reluctant to say we could find a better solution than the one reached by the Chancellor. As in many other such cases we are reminded that the Chancellor saw and heard the witnesses, an advantage denied to us. Possibly the Chancellor entertained the hope of a reconciliation in the future. This of course would be the happy solution. In the meantime it appears more reasonable to us that the wife and children, rather than the husband, should be provided a place to live.
Appellee has cross-appealed from the portion of the decree refusing her a divorce. It would serve no useful purpose to set forth the evidence in this connection. We have carefully reviewed it and find that it fully supports the Chancellor’s decision.
From the above it follows that the decree of the trial court is affirmed both on direct appeal and cross-appeal.
Affirmed. | [
81,
-88,
-12,
110,
11,
35,
74,
42,
98,
-85,
39,
83,
-23,
-41,
64,
125,
-126,
47,
69,
104,
-47,
-73,
71,
96,
-14,
-5,
-103,
-43,
-80,
93,
-76,
-33,
76,
97,
-54,
-44,
34,
-54,
-113,
-100,
-114,
1,
105,
-19,
-40,
-122,
40,
97,
18,
47,
17,
-114,
-13,
-84,
56,
-45,
72,
46,
91,
52,
-48,
-72,
-114,
85,
-3,
7,
-111,
103,
-98,
69,
64,
46,
-104,
49,
-120,
-24,
51,
-90,
-126,
116,
69,
-69,
8,
48,
98,
2,
-88,
-41,
-72,
-88,
78,
62,
29,
-26,
-110,
89,
43,
97,
-66,
-79,
109,
20,
15,
122,
126,
5,
28,
100,
-82,
-113,
-108,
-95,
-123,
56,
-114,
18,
-21,
-91,
2,
113,
-53,
-94,
124,
71,
59,
-101,
-114,
-70
] |
Jim Johnson, Associate Justice.
This case involves a suit on a promissory note, set-off and counterclaim.
Appellants, Robert H. Harris and Adelyn Harris, on May 30, 1952, sold to appellees, C. F. Perron and Ruby Perron, a house and lot located in Benton for the sum of $21,000, of which amount a down payment of $10,905 was made. The balance of $10,095 was to be paid in monthly installments of $100 each. The down payment of $10,905 consisted of a cash payment of approximately $1,000 and delivery of a promissory note in the face amount of $13,500, dated July 26, 1949. This note was executed by Carl L. Barnes and Jewel Barnes, payable to the order of Henry Y. Young and Nelle F. Young. At the time of the making of the down payment there was a balance owing on the note of approximately $9,095. The note was endorsed by the payees to appellees. Appellees in turn endorsed the note in favor of appellants. Default was made in payment of the note and suit was instituted in the Circuit Court of Saline County against C. F. Perron and Ruby Perron as endorsers on the note for the sum of $5,783.48, representing the balance due on the note after allowing all credits. A set-off and counterclaim was filed by appellees for fixtures and shrubbery which were removed from the premises after the sale and prior to delivery of possession in the amount of $5,000. Upon trial of the case before a jury a verdict in the amount of $83.48 was returned in favor of appellants. Thereupon, appellants moved for a judgment notwithstanding the verdict which motion was granted in part by the trial court in the amount of $783.48. This appeal is from the verdict of the jury and the ruling of the court.
For reversal, appellants contend that there is no substantial competent evidence to support the jury verdict and that the trial court committed error in failing to enter a judgment notwithstanding a verdict in favor of appellants in the amount of $4,256.48.
The record reveals the testimony to he undisputed that there is a balance due on the note of $5,783.48. Endorsement of the note was admitted by appellees. Therefore, the only question presented in trial of the case was the amount of set-off due appellees. The only testimony introduced on behalf of appellees regarding the set-off claimed is that of appellee, Ruby Perron. This testimony consisted of claims for specific amounts for the removal, by appellants, of three specific items which, according to appellees’ testimony, were to remain with the house. The first item claimed is for the removal of three rugs or carpets from the dining room, living room and front bedroom. Appellee, Ruby Perron, testified that the value of these items was “about $1,300 or $1,400.” The second item claimed in the set-off is for a bamboo curtain which appellee testified appellant told her was worth $100. The third item claimed is for 17 camellias removed from the premises. The value of these was put at $7.50 each, being the replacement cost of each of the 17 camellias at $7.50 each, amounting to $127.50. This constitutes the only testimony introduced by appellee as to the value of property removed or damages claimed in the set-off. While giving appellee’s testimony its strongest probative force, even though it was vigorously disputed by appellants, it is impossible for us to find, from appellee’s own testimony, the value of the property removed and damages sustained to be in excess of $1,627.50.
The record contained other evidence which was immaterial to the issue here involved that could have easily confused the jury as to its duties and responsibilities in this case. However, on the basis of the competent evidence relative to the value of the property removed, or damages sustained by appellant, and since the jury had been instructed to award judgment to appellant in the amount of $5,783.48, reduced by the amount of the set-off, if any, the most the jury could have reduced the undisputed balance due on the note would have been $1,627.50.
Being unable to find any evidence in the record which would substantiate a reduction in a greater amount, we are, therefore, compelled to follow our oft repeated rule that the question of sufficiency of evidence is a matter of law, there being no substantial evidence to sustain the verdict of the jury or the judgment of the trial court, and the cause appearing to have been fully developed, the judgment is reversed and the cause is remanded to the trial court with orders to enter judgment in favor of appellant in the amount of $4,155.98. See: Shanks v. Clark, 175 Ark. 883, 300 S. W. 453; Jackson v. Carter, 169 Ark. 1154, 278 S. W. 32. | [
-13,
124,
-32,
92,
26,
96,
10,
-118,
114,
96,
34,
83,
-21,
-58,
1,
109,
-74,
45,
113,
105,
-27,
-77,
23,
-38,
-46,
-69,
-39,
85,
49,
77,
-76,
-41,
76,
112,
-118,
-107,
-62,
-62,
-59,
20,
-50,
-95,
121,
-28,
-39,
-62,
48,
59,
4,
8,
21,
-18,
-13,
47,
57,
66,
109,
44,
-5,
60,
-56,
-72,
-101,
21,
-1,
21,
-79,
101,
-102,
67,
120,
106,
-112,
49,
24,
-8,
118,
-74,
66,
52,
105,
25,
8,
98,
102,
50,
1,
-17,
-72,
-120,
15,
-34,
29,
-90,
-112,
89,
74,
45,
-74,
-100,
-4,
20,
-121,
126,
-10,
5,
29,
40,
7,
-18,
-44,
-79,
29,
59,
20,
11,
-1,
39,
48,
96,
-49,
-32,
124,
71,
58,
-109,
-50,
-79
] |
JOHNSON, J.
This is a bill in chancery, filed by Blakeley against Biscoe, to which the defendant has filed a general demurrer. Blakeley, in his bill, alleges that in the year one thousand eight hundred and twenty-one, administration of the estate of Moses Graham was duly granted to him in the county of Clark; that he proceeded to sell the personal estate of Graham according to law, taking notes or bonds of the purchasers amounting to six hundred and fifty-three dollars; that shortly after the sale he employed the defendant Biscoe, to act as his agent in all things pertaining to the administration of the estate, and that Biscoe undertook and faithfully promised to do and perform every duty required of the complainant in relation to his administration, and finally to settle the same as required by law, and to pay over the balance of the" assets, if any, after the settlement, to the complainant, • and as a consideration for his services, Biscoe was to retain six per centum out of the amount of the estate; that Biscoe agreed and bound himself to keep a just and true account of all money received by him, as agent, stating when it was received and how appropriated, and to exhibit the account to the complainant whenever requested; that the complainant, in pursuance of the agreement, delivered the notes taken at the sale before mentioned, amounting to $633, to the defendant Biscoe, who received and collected the amount of the notes. The bill further alleges, that the defendant Biscoe failed and still refuses to make the settlement of the administration, refuses to account for and pay over the money in his hands unexpended, and also refuses to exhibit a just and true account of all moneys received, of whom received, to whom paid, and for what purpose. The prayer of the bill is, that the defendant may be compelled to state and set forth a just and true account of his agency, pay over the money remaining in his bands, and for general relief.
Upon the case just stated the question arises whether a court of chancery can entertain jurisdiction. Where there is a plain and adequate remedy at law, a court of chancery will not grant relief. This principle has become a maxim in the code of equity, and is sustained by innumerable authorities. 1 Bibb, 212; 2 Bibb, 273. Is there a plain and adequate remedy at law for the ease stated in the present bill? The case stated and set out in the bill is nothing more nor less than a contract between the plaintiff and defendant, by which the latter agrees to act as the agent of the former in collecting certain bonds or notes, and of attending to the settlement of an intestate’s estate, and to pay the balance over. For the breach of this contract the' law surely affords an adequate remedy without a resort to equity. An action on the case, either in contract or in tort, is the appropriate action in which the plaintiff may recover all the damages to which he is entitled. If he seeks a recovery only of the money remaining in the hands of the defendant as in the present bill, the action of assumpsit is the appropriate remedy. If he also claims damages, as he would seem to do in the present bill, a special count for the non-feasance or misfeasance, will afford redress. It is manifest, then, that there can be no necessity to resort to a court of equity to obtain relief. It is not a case for an account, as has been contended. A bill for an account will lie only when there are mutual demands forming the ground of a series of accounts on one hand, and a series of payments on the other, and not merely one payment and one receipt 1 Madd. Ch. 570; 6 Ves. 136; 9 Yes. 473. Nor does the bill allege the necessity of coming into chancery for a discovery. There is no allegation that the plaintiff is unable to prove the contract and the delivery of the notes to the defendant. Upon the whole we think it-a clear case for an action at law, which is competent to afford ample redress, and consequently the chancellor will not take jurisdiction. Demurrer sustained. | [
-74,
-8,
-40,
109,
-40,
32,
40,
-102,
-61,
99,
39,
83,
-19,
78,
16,
39,
-30,
57,
85,
107,
-57,
-13,
15,
83,
-30,
-77,
-43,
71,
-67,
-51,
-27,
-42,
76,
32,
-64,
-107,
102,
-62,
-63,
-112,
78,
41,
9,
-19,
-7,
64,
48,
-5,
21,
11,
85,
-113,
-13,
43,
57,
75,
105,
40,
121,
-93,
-48,
-88,
-98,
-115,
95,
6,
17,
101,
-8,
83,
74,
126,
-128,
53,
1,
-24,
115,
-90,
38,
84,
5,
9,
9,
98,
34,
49,
33,
-1,
-78,
-120,
39,
-6,
29,
-89,
-110,
120,
67,
77,
-66,
-107,
124,
16,
-89,
116,
-29,
-99,
88,
44,
16,
-113,
-106,
-109,
-115,
62,
-100,
11,
-2,
23,
48,
113,
-49,
-30,
92,
103,
56,
-101,
-113,
-33
] |
OPINION OF
THE COURT.
This is a motion by the defendants to quash the return of a scire facias executed in the same manner as a summons. It is contended that the statute does not embrace this writ, and that it cannot be executed as an ordinary summons, but must be served agreeably to the common law. Geyer’s Dig. p. 245, § 10, declares that “the original process in all actions of slander, trespass, assault and battery, actions on the case for trover or other wrongs,- and personal actions,” shall be a writ of summons. It further provides that service of a summons shall be by reading the writ, declaration, petition, or statement, to the defendant, or by delivering him a copy thereof, or leaving such copy at his usual place of abode, with some person of the family above the age of fifteen years, and informing such person of the contents thereof; such service to be at least fifteen days before the return day of the writ. There is also a statute among the territorial acts (Acts 1818, p. 35), which, without naming any particular action, provides generally that notice on all suits then pending, or thereafter to be commenced, might be served by leaving a copy as above indicated. The service of the scire facias under consideration is agreeable to the direction of this statute, and the question is whether it is sufficient.
There can be no doubt it was the object and intention of the legislature, by using general language respecting suits, to include this writ, and treat it as an action. A scire facias is declared to be a judicial writ founded on some matter of record, such as a recognizance or judgment. 2 Tidd, Prac. 982. It is said by Lord Coke (3 Co. Litt. 290b, 524): “Although it be a judicial writ, yet in law it has ever been held to be an action to which a party could plead, and a release of all actions includes a scire facias.” Skin. 6S2; 10 Mod. 258; 2 Term It. 46; 1 Term It. 267; 4 Bac. Abr. tit. “Scire Facias,” 409; 2 Ld. Raym. 1048; 2 Wils. 251. It will be perceived, upon examination, that many of these cases are somewhat conflicting, and most of them apply to suits brought upon recognizances, or to repeal letters patent, or on like subjects, when it is declared to be either an original, or in the nature of an original writ. 2 Tidd, Prac. 983-1035. And the courts appear to have frequently determined that it was a judicial, or in the nature of an original, writ, as best suited their rules of practice, and consequently no satisfactory test is given whereby the distinction can always be exactly ascertained. And without attempting to reconcile these differences, we. say that in this instance, if it can be considered as process intended to notify a party of an action pending, agreeable to the statute cited, as we think it may, the service is good, and we overrule the motion.
Motion overruled. | [
-16,
-4,
-106,
-82,
42,
97,
-72,
-72,
67,
99,
51,
-77,
-17,
-30,
20,
99,
125,
111,
84,
75,
-50,
-90,
-105,
73,
114,
-13,
-58,
-43,
49,
-51,
-17,
116,
70,
36,
-30,
-44,
-26,
104,
-127,
-46,
-94,
-91,
-103,
-27,
-15,
44,
52,
49,
-14,
15,
113,
126,
-29,
46,
26,
-62,
-87,
56,
-39,
44,
-64,
-104,
-113,
-107,
59,
18,
-95,
38,
-99,
75,
88,
46,
-124,
25,
0,
-22,
115,
-74,
14,
-12,
107,
57,
40,
102,
98,
-127,
85,
-85,
-72,
-120,
95,
120,
44,
38,
-79,
65,
11,
37,
-106,
-1,
61,
-108,
47,
118,
-17,
-99,
27,
38,
31,
-113,
-60,
-93,
29,
54,
58,
97,
-14,
53,
16,
49,
-60,
-4,
92,
-61,
17,
-37,
-114,
-34
] |
KENNETH S. HIXSON, Judge.
|, Appellant James Washington d/b/a Washington Repair Service (“Washington”) appeals the October 31, 2013 judgment entered against him and in favor of appellee Kingridge Enterprises, Inc. (“Kingridge”), following a bench trial on competing breach-of-contract claims. Washington appeals the trial court’s findings that Kingridge prevailed on breach of contract and that Kingridge was entitled to a $5500 attorney-fee award. We affirm the trial court’s judgment.
As part of a renovation project, Kin-gridge hired Washington to install heating-ventilation-and-air-conditioning (HVAC) units and duct work in a commercial building located on Broadway Street in Little Rock. The parties executed a written contract in October 2012, in which Washington agreed to provide all material, labor, and permits, and to complete the job in a timely and workmanlike fashion for a contract price of $17,500. The ^contract was not completed on time or in accordance with the written terms. In December 2012, Kingridge filed suit in Pulaski County Circuit Court for breach of contract and re-plevin of certain materials purchased by Kingridge but in the possession of Washington. In February 2013, Washington counterclaimed for breach of contract for Kingridge’s failure to pay for the labor he invested on the job. Although Washington resisted the replevin claim, in March 2013, the trial court ordered Washington to return the HVAC equipment purchased by Kingridge. In April 2013, Washington filed another breach-of-contract claim alleging that Kingridge failed to pay the entire contract price of $17,500.
After the September 2013 bench trial, the trial judge concluded that Kingridge sustained $2262 in damages, offset by Washington’s entitlement to $1000 for unpaid labor. The result was a net judgment in Kingridge’s favor of $1262. The trial court awarded Kingridge $215 in costs and $5500 in attorney fees. Washington appeals, arguing that the trial court erred (1) by not finding that Kingridge waived any breach by continuing to accept Washington’s work after the initial alleged breaches; (2) by not finding that Kingridge was guilty of the first material breach of contract; and (3) by awarding attorney fees to Kingridge instead of Washington, or alternatively, by improperly awarding attorney fees that were not reasonable or supported by the evidence.
In review of a bench trial, we determine whether the trial court’s findings were clearly erroneous or clearly against the preponderance of the evidence. Bowen v. Gardner, 2013 Ark. App. 52, 425 S.W.3d 875. Disputed facts and determinations of credibility of the witnesses are within the province of the fact-finder. Id. A trial court’s conclusions of law, however, |sare reviewed de novo and are given no deference on appeal. Id. A prevailing party in a breach-of-contract action is permitted to seek attorney fees. See Ark.Code Ann. § 16-22-308 (Repl.1999). The standard of review for an attorney-fee award is abuse of discretion. Farm Bureau Cas. Ins. Co. v. Krouse, 2010 Ark. App. 493, 375 S.W.3d 763.
To place these arguments in context, we examine the evidence presented at trial in greater detail. Kingridge was renovating a commercial building. Washington submitted a bid to install new four-ton and five-ton package HVAC units with duct work, and to repair old duct work, for $17,500. Kingridge accepted the bid, and the parties entered into a detailed four-page-typed contract on October 23, 2012. The contract provided in part that Washington had reviewed Kingridge’s city-approved architectural plans and specifications, and Washington agreed to “furnish all material,, equipment and perform all labor necessary to complete” the HVAC “modifications, relocation(s) and installations per the Plans.” The contract attached, as exhibits, Washington’s one-page proposal bid, as well as Kingridge’s architectural plans and specifications. In the contract, the parties agreed that “time is of the essence” and that the work was to be “substantially completed on or before” November 26, 2012. The agreed price was to be paid in percentage installments (35%, 40%, and 25%) triggered by defined periods of satisfactory progress on the job. Washington agreed to complete the job “in a workmanship like manner and in compliance with all building codes and other applicable laws” and agreed to obtain at his own expense “all permits necessary for the work to be performed.”
14Work commenced in early November. Almost immediately, Washington informed Kingridge that he was financially unable to purchase the HVAC materials or a city permit required for the project. Consequently, Kingridge purchased the HVAC systems, purportedly costing in excess of $6700. Kingridge also paid $183 for a necessary city permit. On November 13, Washington asked for and received a loan of $400 from Kingridge. Washington signed an interest-bearing promissory note to ensure repayment, which was anticipated to be repaid out of his earnings on this job. The job was not completed by November 26, and attempts to resolve the problems were unsuccessful, so Kingridge terminated the contract. Kingridge contended that Washington’s work was not satisfactory at any point along the project and that Washington refused to work out a mutually agreeable solution. Washington countered that Kingridge was responsible for several of the problems, refused to allow him to complete the job, and failed to pay for his labor.
After the contract had been terminated, Washington refused to deliver the HVAC units to Kingridge. In December 2012, Kingridge sued Washington for return of the HVAC equipment it had purchased (the replevin action), for breach-of-contract damages that included the additional costs to get the job completed in a satisfactory-manner, and for “additional administrative costs” of $2500. Kingridge also asked for court costs and attorney fees. Washington resisted the breach-of-contract and replev-in claims. In February 2013, Washington filed a counterclaim alleging that Kin-gridge was the party that breached the contract and sought payment of $5543.66 for “the work that was completed prior to [Kingridge’s] breach.” Washington also asked for court costs and attorney fees.
|fiThe court held a hearing on the replev-in cause of action in March 2013, and the trial judge ordered Washington to immediately deliver the specifically described HVAC equipment to Kingridge. Shortly after the order for delivery, in April 2013, Washington filed another counterclaim for breach of contract, seeking the full $17,500 contract price, plus his costs and attorney fees.
Following discovery, a bench trial was conducted in September 2013, at the conclusion of which the circuit judge announced his decision from the bench. The judge considered the testimony of several witnesses, one of whom was Washington, as well as multiple documents entered into evidence. The judge disallowed Kingridge the $2500 in administrative costs it sought, but he awarded Kingridge damages in the amount of the difference between the contract price and what it cost Kingridge to have the job completed, which totaled $2262. The judge then awarded Washington $1000 for the value of his labor. This computed to a net judgment of $1262 in Kingridge’s favor. The judge then announced that he would award a reasonable attorney fee to Kingridge. The judgment entered in favor of Kingridge included damages of $1262, costs of $215, and attorney fees in the amount of $5500. Washington filed a timely notice of appeal.
Appellant’s first two points on appeal are so closely related that they will be considered together. Washington concedes that the contract required him to pay for the permit and the equipment, which he did not do. Washington argues that because Kingridge paid for its own equipment and permit (which were obviously breaches of the agreement), Kin-gridge waived its right to enforce the contract against Washington. He cites to Clear Creek Oil & Gas Co. v. Brunk, 160 Ark. 574, 255 S.W. 7 (1923), Stephens v. West Pontiac-GMC, Inc., 7 Ark.App. 275, 647 S.W.2d 492 (1983), and Southern Pipe Coating, Inc. v. Spear & Wood, Mfg. Co., 235 Ark. 1021, 363 S.W.2d 912 (1963), as support for this argument. Washington also argues that Kingridge was the materially breaching party that terminated the contract by not allowing him to finish, entitling him to recover on his breach-of-contract claim, citing to Southern Pipe Coating, supra. We disagree that the trial court clearly erred.
A material breach of a contract occurs when there is a failure to perform an essential term or condition that substantially defeats the purpose of the contract for the other party. Spann v. Lovett & Co., Ltd., 2012 Ark. App. 107, 389 S.W.3d 77; Roberts Contracting Co. v. Valentine-Wooten Rd. Pub. Facility Bd., 2009 Ark. App. 437, 320 S.W.3d 1. An influential circumstance in determining whether a breach is material is the extent to which the injured party will obtain the substantial benefit that he reasonably anticipated. Boellner v. Clinical Study Ctrs., LLC, 2011 Ark. 83, 378 S.W.3d 745.
While Kingridge allowed Washington to continue to provide labor after it purchased the HVAC materials and permit, the material breach was Washington’s failure to provide competent workmanship in a timely fashion that complied with city codes and the renovation plans. Kin-gridge was compensated for the cost to complete the contract after Washington’s breach. Washington was compensated for the reasonable value of labor provided before termination of the contract. These were questions of fact pertaining to whether the breaches were material and when they occurred. We hold that the trial court’s factual findings are not clearly erroneous. We affirm on the first two points on appeal.
17Lastly, Washington contends that the trial court erred in awarding attorney fees because (1) he (Washington) should have prevailed on points one and two above, and (2) even if fees were permissible, there is no evidence to substantiate the attorney fees or any discussion of the many factors to be considered by a trial court pursuant to Chrisco v. Sun Industries, Inc., 304 Ark. 227, 800 S.W.2d 717 (1990). We dispose of Washington’s first argument by affirming the judgment in favor of Kin-gridge. We dispose of Washington’s second argument without reaching the merits because Washington has not preserved the issue for appellate review.
Typically, the prevailing party files a posttrial motion for attorney fees under the procedure set forth in Arkansas Rule of Civil Procedure 54(e). In this case, however, no posttrial Rule 54(e) motion was filed. The trial judge announced from the bench that he would award a reasonable attorney fee to Kingridge, asking Kin-gridge’s attorney to prepare the precedent. Washington did not object. A few weeks later, judgment was filed, reciting a $5500 attorney-fee award. Washington did not file any posttrial motion objecting to the fees, before or after judgment was filed, and instead filed a notice of appeal from the judgment.
To preserve the issue of attorney fees for review on appeal, an appellant must raise the issue to the trial court “at least by filing a motion to amend the judgment pursuant to Rule 52(b).” Farm Bureau Mut. Ins. Co. of Ark v. David, 324 Ark. 387, 393-94, 921 S.W.2d 930, 933 (1996). Likewise, in Zhan v. Sherman, 323 Ark. 172, 913 S.W.2d 776 (1996), our supreme court rejected Zhan’s challenge on appeal to the trial court’s award of court costs to Sherman on the basis that Zhan failed to preserve it for appellate review. The Zhan court Rheld that if Zhan believed the trial court to have erred in awarding costs, Zhan should have raised the issue to the trial court by means of a postjudgment motion under Arkansas Rule of Civil Procedure 52. Zhan, 323 Ark. at 177, 913 S.W.2d at 779. See also Turner v. Brandt, 100 Ark.App. 350, 353, 268 S.W.3d 924, 925-26 (2007) (holding attorney-fee issue waived on appeal for failure to raise the issue to the trial court, “perhaps via a motion to amend the judgment pursuant to Arkansas Rule of Civil Procedure 52(b)”). Here, Washington generally denied • that Kingridge was entitled to attorney fees in his answer, but he failed to object or make any record before the trial court, as required by our appellate courts. Accordingly, we do not address the merits of that issue.
Affirmed.
HARRISON and WOOD, JJ„ agree. | [
-48,
104,
-4,
-52,
28,
65,
26,
-38,
79,
-93,
100,
87,
-23,
-121,
28,
75,
-29,
91,
96,
99,
81,
-93,
19,
67,
-42,
-13,
-5,
-51,
-71,
109,
-16,
-106,
76,
32,
-62,
-115,
-58,
-62,
-35,
-40,
-50,
4,
43,
-28,
-47,
3,
52,
90,
118,
11,
49,
-122,
-13,
44,
21,
67,
108,
62,
121,
44,
81,
-7,
34,
5,
127,
20,
-112,
37,
-98,
75,
80,
38,
-104,
57,
33,
-24,
114,
-90,
-58,
-12,
3,
59,
9,
36,
98,
48,
1,
-25,
-20,
-20,
38,
-34,
-113,
-91,
-111,
56,
91,
7,
-74,
-100,
120,
18,
5,
-34,
-26,
12,
95,
44,
-125,
-114,
-10,
-31,
15,
64,
-100,
3,
-50,
6,
50,
100,
-49,
-30,
125,
-58,
51,
-49,
94,
-65
] |
J. Seaborn Holt, Associate Justice.
Appellant, Mrs. Clyda McKinnon, Administratrix of the Estate of Harvey McKinnon, Deceased, brings this appeal from a judgment in favor of appellee, Southern Farm Bureau Casualty Insurance Company, on a claim of appellant against appellee for $5,000.00 under the terms of one of appellee’s policies. The insurance policy named as the insured: “Kenneth McKinnon and/or Harvey McKinnon” and covered bodily injury liability, property damage liability, medical payments, comprehensive damages and collision damages. The present appeal deals only with the extent of the medical coverage.
Harvey McKinnon was killed in an automobile accident while riding in an automobile owned and operated by his son, Kenneth, and insured by appellee casualty insurance company. Kenneth was a minor when he purchased the car and when it was first insured on his initial application. This original policy was renewed from time to time, each time in the name of “Kenneth McKinnon and/or Harvey McKinnon” (his father) and even after Kenneth reached his majority, the policy (the one here involved) continued the name of “Kenneth McKinnon and/or Harvey McKinnon.” Appellant alleged in her complaint: “That the defendant issued their policy number A280601 to ‘Kenneth McKinnon &/or Harvey McKinnon.’ That among the provisions of said policy there was a ‘Medical payment’ coverage known as ‘Coverage C’ that this coverage was paid for and applicable to this policy and to this insured. ¶ That the said ‘Medical Payment — Coverage C’ in said policy reads as follows: ‘II. Medical Payments — Coverage C: To pay all reasonable expenses incurred within one year from the date of accident for necessary ambulance, hospital, professional nursing and funeral services to or for: Division 1 (a) The named insured and, while residents of the same household, his spouse and any relative of either, who sustains bodily injury, caused by accident while in or upon entering or alighting from, or through being struck by any automobile; (b) in the event of the death of the first individual named as insured caused by accident while in or upon, entering or alighting from, or through' being struck by any automobile, the sum of $5,000.00 less any payments otherwise made hereunder on account of such injury. * * * ¶[ That ‘Medical Payment-Coverage C’ Division 1 (b) section of said-policy and by reason of the clause naming the insured ‘Kenneth McKinnon &/or Harvey McKinnon,’ the defendant is liable to pay, because of the death of Harvey McKinnon, the sum of $5,000.00, as provided for in said policy.” (Emphasis ours) Appellee answered with a general denial. Trial was had by agreement before the court and as indicated, there was a judgment in favor of appellee, casualty company.
For reversal, appellant contends: “The appellee by using ‘&/or’ in naming the insured created an ambiguity, and said ambiguity must be construed most strictly against the appellee insurer; that the phrase ‘&/or’ is typed and the phrase ‘first individual named’ is printed, — under well settled rules of construction the written phrase takes precedence over the printed phrase ; The effect of the appellee’s theory is that the appellee intended to and did, perform a nullity by placing Harvey McKinnon’s name in the clause naming the insured in this policy, because under the appellee’s theory the placing of Harvey McKinnon’s name in the clause naming the insured did nothing more than was done by the printed policy.”
It thus appears that one clause in the policy refers to the named insured and another clause to the first individual named as insured. Both clauses were correctly set out in appellant’s complaint above. Appellant’s counsel insists that since the phrase “&/or” is used, this means that either of the persons named can be chosen as the first named insured. It is further argued that the phrase “&/or” is susceptible of more than one meaning and creates an ambiguity which under our long established rule of strict construction against the company, the appellant should prevail. While it is true that we resort to such rule of construction when there is ambiguity, our rule is equally well established that where no ambiguity exists, we are not required to use a forced construction which is plainly outside the language of the policy. Here, we think, the policy is clearly susceptible to but one construction under its term, “in the event of the death of the first individual named as insured caused by accident * * which are definite and certain and the language used unmistakably insured the life of Kenneth Mc-Kinnon only, the first individual named as insured. Plainer language could not have been used.
Appellant’s further contention “that the phrase ‘&/ or’ is typed and the phrase ‘first individual named’ is printed; under well settled rules of construction the written phrase takes precedence over the printed phrase we hold to be without merit. It is only where the written (or typed) and printed words are so contradictory that an ambiguity arises that one must yield to the other. As indicated, we find no ambiguity or contradiction here. The controlling rule is clearly announced in 29 Am. Jur. Insurance No. 161: Variance — Between Written and Printed Matter: It is the rule with reference to insurance policies, as well as other contracts, that the written portion of an insurance policy must be taken as more immediately expressive of tbe intention of the parties than the printed portion, if there is any repugnancy or conflict between them, and that in such case the written portion prevails. This rule however, applies only where the written and printed words so contradict each other that the one must yield to the other; where they do not, the policy must be so construed as to give effect to every part of it, and the writing and the print are to be construed so that both can stand, if possible,” and in Insurance Law and Practice, Appleman, § 7522, we find: “In construing an insurance policy or certificate, all parts, both printed and written, should be given effect, if possible. In construing insurance contracts, the court must take the policy as it finds it, and where it is in printed form with written parts introduced into it, must take the whole together, both written and printed. Wherever possible, the courts will harmonize such clauses if they can be reconciled by any reasonable construction, since it cannot be assumed that the parties intended to insert inconsistent provisions. ¶[ Of course printed parts of a policy may be modified by written endorsement. And the general rule is that while written and printed portions of a policy will be reconciled, if possible, if they are definitely repugnant, the written clauses will be given effect over the printed. Accordingly, where written and printed portions of the policy are inconsistent, the written clauses will prevail. The same preference is given to a typewritten expression as to one in writing . . .”
We said in State Farm Mutual Automobile Insurance Company v. Belshe, 195 Ark. 460, 112 S. W. 2d 954: “ ‘It will not be questioned that the parties can make any contract of insurance not prohibited by law, and there appears to be good reason why an indemnity company would not be willing to assume the risk for damages resulting from cars being driven or operated by persons under sixteen years of age.’ (Citing authorities.) We think the foregoing quotation is a well-considered expression of opinion, sound from every viewpoint; that the insurance company may make use of such language as it may please to express the conditions upon which it is willing to issue its policy. The insured, by acceptance, approves such policy with all the conditions therein contained, so long as they- are reasonable and not contrary to public policy. Our attention has been called by appellant to an opinion in which we find well stated the same principle; but, * * * contracts of insurance, like other contracts, are to be construed according to the sense and meaning of the terms which the parties have used, and if they are clear and unambiguous, their terms are to be taken and understood in their plain, ordinary and popular sense. * * * ¶ The distinction we think these authorities make is one that is found in the construction or meaning of a policy as written. The courts have made no effort in any of the cases to fix or determine liability not contracted for; and only in those cases wherein there is ambiguity has the court found reason to resort to a construction most strongly against the insurance company.”
Finally, appellant’s argument that if the life of Harvey McKinnon were not insured, his name as an insured served no beneficial purpose whatever to him or his estate. We do not agree. Under the plain terms of the policy here, Harvey McKinnon and his wife were clearly afforded the following benefits: “(1) Bodily Injury and (2) Property Damage Liability while using the insured vehicle without the consent of Kenneth * * * (3) Comprehensive and (4) Collision Damages and Losses to the insured car while using same without the consent of Kenneth or while the insured vehicle was being used by any other person with their consent, * * * (5) Bail Bonds required because of accident or traffic law violations while using the insured vehicle without the consent of Kenneth and to release any other vehicle being used by them not owned by a member of their household; (7) Emergency Road Service, including first aid, delivery of gasoline, oil, battery and tires, and towing of car while using insured vehicle without Kenneth’s consent * * * (8) Medical, Hospital, and Funeral ex penses incurred by or for them because of accidental injury while in or upon entering or alighting from, or through being struck by ANY AUTOMOBILE, even though Kenneth not be a member of their household.”
On the whole case, finding no error, the judgment is affirmed.
Ed. F. McFaddin, Associate Justice concurring. The purpose of this concurrence is to give my views for affirmance of the judgment of the Trial Court.
The appellant insists that the words and symbols, “and/or”, created an ambiguity. Even if we admit that an ambiguity was so created, then the effect of the ambiguity would be to admit testimony to explain it. This case was tried before the Circuit Court without a jury and testimony was introduced which had the effect of explaining the ambiguity.
The Circuit Judge found for the appellee, and that finding has the force and effect of a jury verdict. So, as I see it, the only way the appellant could prevail now would be to contend that she was entitled to an instructed verdict even with the testimony introduced. I cannot support that contention, even if made. The insistence that there was an ambiguity falls far short of the claim for an instructed verdict. | [
-80,
108,
-68,
-84,
25,
98,
98,
2,
123,
-110,
37,
83,
-5,
-62,
29,
103,
-26,
61,
-31,
106,
-75,
-93,
23,
114,
-14,
-13,
-21,
-57,
-77,
89,
-17,
127,
77,
40,
-118,
69,
66,
11,
-51,
20,
-114,
-118,
-71,
-27,
89,
18,
-76,
122,
116,
71,
85,
-97,
-85,
42,
59,
-58,
44,
42,
91,
-96,
-39,
-96,
-117,
5,
127,
16,
-80,
6,
-70,
47,
90,
26,
-104,
-71,
8,
-4,
114,
-90,
-42,
36,
35,
-103,
8,
102,
115,
32,
4,
-27,
108,
-104,
7,
95,
15,
-123,
-106,
121,
41,
10,
-105,
31,
126,
21,
15,
124,
-8,
93,
92,
45,
35,
-117,
-44,
-79,
-17,
-32,
-100,
10,
-18,
-117,
54,
113,
-49,
-78,
85,
-57,
126,
27,
27,
-38
] |
Paul Ward, Associate Justice.
This litigation relates to the taking of property for highway purposes, and the principal question involved is the sufficiency of the notice of entry by the State Highway Department. The chancellor held in effect that there was no sufficient notice of entry, hence this appeal by the Highway Department.
The essential facts are not in dispute.
At the July, 1929 term of the Johnson County Court there was placed of record, at the request of the Arkansas Highway Commission, an Order appropriating certain lands for the purpose of making ‘ ‘ changes ’ ’ in State Highway No. 64 (commonly known as the Ozark-Clarksville Road). The lands affected by this Order extended along or near highway 64 a distance of 6 or 7 miles, and they were described relative to a Centerline, starting at the Franklin-Johnson County Line and running west. Said Centerline was designated by a lengthy compilation of survey notes setting forth “Stations”, degrees, and distances — there being 39 Stations in all. Following this there was a separate compilation of figures showing the extent of the appropriated lands north and south of each Station, vary ing in an overall width of from eighty feet to one hundred eighty feet. At the end of the Order was a warning that the affected landowner “must present his claim to the court within one year from the date of this Order (July 13, 1929) or be forever barred. ”
A portion of the Centerline ran along a street in the town of Coal Hill upon which street abutted the property of the three appellees herein. At this place the Order affected property forty feet on each side of the Centerline, whereas the existing street was apparently only twenty feet wide. None of the appellees made a claim for damages within the said one year period.
In 1932 or 1933 the State Highway Department improved and surfaced the entire width of the said street without objections from appellees. After this and up to the year 1959 the Highway Department, according to the great weight of the evidence, did nothing to indicate it was claiming control over or intended to use any of appellees’ property abutting the street or highway, but it did maintain the street or highway for a width of approximately twenty feet. Also, at no time after the Order and before it began its improvements in 1932 or 1933 did the Highway Department mark off, stake off, or otherwise physically indicate it was claiming use of more land than the original street.
In 1959, when the Highway Department undertook to improve and widen the street or highway in front of appellees’ property they refused to give possession or entry, and the Highway Department asked for injunctive relief in the Chancery Court to obtain possession of and entry upon the additional land covered in the County Court Order. The chancellor granted the Highway Department the right of entry to the extent it desired, but only on condition that it post a cash bond “to guarantee payment of the defendants’ damages, if any” for the land so appropriated.
In reaching the conclusion to affirm the Chancellor, in requiring the Highway Department to post a bond to guarantee payment to appellees for their land used in widening the street or highway in front of their homes, we by-pass certain procedural questions raised by the pleadings and argued in the briefs, and base our decision on the ground that, under the facts and circumstances of this particular case, appellees had no adequate notice of entry by the Highway Department relative to the subject lands.
Underlying our approach to this issue is Article 2, Section 22 of the Arkansas Constitution which reads: “The right of property is before and higher than any constitutional sanction; and private property shall not be taken, appropriated or damaged for public use, without just compensation therefor. ” It is conceded that appellees ’ property has been taken and that they have received no compensation therefor. It is also reasonably certain that they will not receive compensation unless it is paid by the Arkansas State Highway Department.
For a reversal appellant relies heavily on the general rule well established by many decisions of this court that a landowner has a limited time to file a claim for land condemned for public purposes under a lawful court order, and that this limited time begins to run when the land is actually taken, that is, when an entry is made by the condemner. Thus it is here argued that the Highway Department made an entry in 1932 or 1933 when it improved the street or highway in front of appellees’ property, that such entry was made pursuant to a lawful Order by the County Court in 1929, and that appellees filed no claim within the time provided by the Order. It is taken as conceded that the County Court Order was lawful and that appellees filed no claims within the time allowed by the Order. It is appellees’ contention however that under all the facts and circumstances shown by the record here the entry by the Highway Department in 1932 or 1933 did not constitute notice to them that the State was entering upon or was taking any land outside the bounds of the original street or highway. As heretofore indicated we agree with appellees’ contention.
From a practical or common sense standpoint, it is not unreasonable to believe that appellees were lulled into inaction and entrapped into a failure to file claims. It is axiomatic that insufficient notice is no notice at all. Certainly the County Court Order would have conveyed to appellees no clear conception of the extent of the taking had they known about it. The Order was not even published and it is not shown that appellees had actual knowledge of its existence. Therefore the entry by the Highway Department on the already existing street was not actual notice that abutting lands were being taken or would ever be used. It is not unreasonable to assume that appellees, like most people in similar circumstances, would not object to but would be pleased with the improvement that was being made, and consequently they had no desire to seek compensation. Under these circumstances the chancellor was properly alert to prevent an obvious injustice to appellees, providing he could do so without violating previous decisions of this court. A careful examination of some of our decisions leads us to conclude that the Chancellor’s findings were proper and justified.
In Bollinger v. Arkansas State Highway Commission, 229 Ark. 53, 315 S. W. 2d 889, there existed a factual situation almost parallel to the one in this case, and the court there gave Bollinger an opportunity to file his claim with the county court some 30 years after the condemning order was made and after the first taking by the Highway Department. Also in that case, unlike this case, there was evidence that the landowner had actual notice of the original taking. In State Highway Commission v. Holden, 217 Ark. 466, 321 S. W. 2d 113, where there was a County Court Order without notice to the landowners the court approved this language:
“It is our view that the act of taking is not complete when the judgment of condemnation is rendered. Since such judgment may be without notice, the lawmaking body must have had in mind an order of condemnation followed by entry upon the land. Such entry, being physical and visible, affords the proprietor an opportunity to exact payment or to require a guaranteeing deposit.” (Emphasis supplied)
In that case the Court said “. . . that the landowner is entitled to damages as of the date when the act of taking is complete — that is, when his lands are actually-entered and taken under the order. ’ ’ (Emphasis supplied) The Court also said: “The fact that the Highway Commission had put stakes through Holden’s land before he planted the crop is not determinative. There were several sets of stakes; and the highway was not constructed along one line of stakes, but went according to another line. ’ ’
Appellant cites several cases to sustain the proposition that entry upon part of a right-of-way is an entry on all of it. Typical of the cases cited are Campbell v. Southwestern Telegraph & Telephone Company, 108 Ark. 569, 158 S. W. 1085, and Arkansas Fuel Oil Company v. Downs, 205 Ark. 281, 168 S. W. 2d 419. In the former case the right-of-way was deeded by the landowner, hence there could be no question about the extent of the right-of-way. In the latter case appellee sued in tort for injuries received on the right-of-way, and the decision in no way affects the issue here involved. The cases heretofore cited emphasized the important distinction between a situation where the landowner is a party to the condemnation proceedings and a situation, as here, where the landowner was not a party and where he had no actual notice.
Our conclusion therefore, based on the facts and circumstances of this case as heretofore set forth, is that appellees did not have such notice, either in 1929,1932 or 1933, of appellant’s intention to take to the full extent of the Order so as to start the running of the statute of limitations against their claims. Consequently, the decree of the trial court is affirmed, but the cause is remanded to give appellees an opportunity to prove their damages and recover judgments therefor. Also, in order to avoid further misunderstanding and litigation, we here announce that when and if such judgments are obtained they must be paid by appellant provided they are not paid upon proper presentation to the County Court of Johnson County.
Affirmed and remanded. | [
-11,
-17,
-4,
124,
26,
64,
26,
-119,
83,
-85,
100,
83,
-17,
-62,
11,
113,
-90,
61,
81,
121,
-27,
-73,
83,
-30,
18,
-13,
-37,
69,
61,
93,
100,
87,
76,
64,
-54,
21,
-58,
64,
-123,
-36,
-50,
34,
-5,
77,
-55,
33,
56,
107,
22,
-113,
21,
-113,
-13,
-84,
25,
113,
-23,
44,
-53,
-82,
81,
-6,
-86,
-43,
126,
20,
33,
68,
-102,
5,
120,
43,
-112,
113,
8,
56,
119,
-90,
-106,
116,
13,
-103,
8,
-90,
98,
1,
37,
-17,
-88,
-88,
14,
-6,
45,
-90,
-128,
24,
99,
0,
-98,
-107,
125,
84,
71,
126,
-26,
5,
89,
40,
7,
-54,
-80,
-75,
-127,
-24,
-124,
3,
-29,
-115,
48,
113,
-53,
-26,
93,
-57,
50,
-69,
-122,
-8
] |
George Rose Smith, J.
The appellee's husband, Walter Odom, owned eighty acres of land at the time of his death, intestate and without issue, in 1957. Odom was survived by his widow and by four brothers, six sisters, and the five children of a deceased sister. The widow, who received a half interest in the land as her dower, at first attempted to obtain deeds from her husband’s heirs to the other one half interest. Most of the heirs signed such a conveyance, but there is a question whether those deeds were ever delivered to the grantee.
This proceeding was originally a partition suit filed by the appellee against those of her husband’s heirs who refused to sign a deed to her. By an amendment to her complaint the appellee asserted as an alternative ground for relief that in about 1955 her husband had conveyed the land to himself and the appellee as tenants by the entirety, that the deed had been destroyed under the mistaken belief that it was of no validity, and that the title to the land should be quieted in the appellee as the surviving tenant by the entirety. The original defendants, joined by other heirs who intervened in the case, filed a motion to strike the alternative prayer for relief on the ground that the widow had elected her remedy by initially basing her complaint upon the conveyances assertedly signed by part of her husband’s heirs. The chancellor denied this motion and eventually upheld the appellee’s title under her claim to be the surviving tenant by the entirety.
The chancellor was right in refusing to strike the alternative count in the amended complaint, for the case does not fall within the doctrine of election of remedies. In the typical situation involving that doctrine a single transaction presents the plaintiff with a choice of inconsistent remedies. For example, in the leading case of Belding v. Whittington, 154 Ark. 561, 243 S. W. 808, 26 A. L. R. 107, cited by the appellants, the vendors in a contract for the sale of land had refused to execute a deed to the property. This breach of contract afforded the vendees a' choice between suing at law for damages or suing in equity for specific performance. We held that the purchasers had elected their remedy by filing an action at law for breach of contract, which precluded them from dismissing that case and bringing a suit in equity for specific performance.
In the case at bar the widow’s choice is not between two remedies stemming from the same transaction; it is between two entirely separate causes of action. In substance her amended complaint says that she is entitled to have her title quieted pursuant to the unrecorded destroyed deed that created a tenancy by the entirety during her husband’s lifetime. If, however, she is unable to prove that cause of action then she seeks alternative relief pursuant to the deeds executed after her husband’s death.
We see no real distinction between this case and our holding in Allen v. First Nat. Bank of Batesville, 231 Ark. 201, 321 S. W. 2d 750. There the plaintiffs, as the heirs of C. M. Edwards, sought to recover property upon either of two alternative inconsistent theories: (a) Edwards was incompetent to make a will, or (b) if he should be found to have been competent then the other claimants to the property had chosen to accept only a small portion of the estate. The trial court required the plaintiffs to elect between these contradictory theories, but we held the alternative prayers to be permissible, saying:
“The court placed too great a burden on the plaintiffs. It was impossible, or at least exceedingly difficult, for the plaintiffs to know at that time whether C. M. Edwards was competent or incompetent to make the wills in question. In fact they would never know for a certainty until the issue was decided in court. The two causes of action were pleaded, we think, alternatively as shown by the complaint and the prayer . . .
“In reaching the conclusion that appellants (the plaintiffs) should not have been required to elect, we are not overlooking the authorities presented by the appellees, and we recognize that the dividing line between when an election should be required and when it should not be required is not always clear and distinct, as is the case here. However, we feel that in equity matters any doubt should be resolved in favor of the pleader to the end that there may be a decision on the merits rather than on the pleadings and thereby avoid a possible miscarriage of justice.”
In the case at hand the appellee was faced with the necessity of proving by clear and convincing evidence that her husband had executed a deed creating a tenancy by the entirety. She, like the plaintiffs in the Allen case, could not foretell with certainty that she would be able to sustain her burden of proof. We perceive no injustice to the appellants in a rule that permits an alternative precautionary pleading, so that both possible causes of action may ultimately be decided upon the merits.
As a second ground for reversal the appellants insist that the existence of the missing deed was not estab listed by tbe required quantum of proof. Tbis question is not free from doubt, but after studying tbe record we are unable to say that the chancellor was in error in finding tbe plaintiff’s proof to be sufficiently clear and convincing.
Tbe appellee testified that her husband, in order to assure her tbe ownership of tbe property in case of bis death, executed a deed to himself and her. (Tbis would create a tenancy by tbe entirety. Ebrite v. Brookhyser, 219 Ark. 676, 244 S. W. 2d 625, 44 A. L. R. 2d 587.) She describes tbe deed as being just like tbe one they already bad except that her name was added. She kept tbe deed until her husband took it to tbe county seat with tbe intention of recording it, but upon his return be told her that be bad not recorded tbe instrument, as someone in tbe courthouse bad informed him that tbe conveyance was not needed for bis wife’s protection. Tbe unrecorded deed was burned up with some trash.
There is no sound reason to doubt tbe veracity of tbe appellee’s testimony. She and her husband bad been married for about thirty-five years; it was quite natural for him to safeguard her interest in tbe property. Tbe fact that tbe deed was executed is confirmed by the testimony of tbe notary who prepared it, an apparently disinterested witness. There is no testimony whatever to tbe contrary. In view of all tbe circumstances we are of tbe opinion that tbe appellee sustained her burden of proof.
Affirmed. | [
-77,
124,
-48,
12,
40,
-32,
10,
-72,
-14,
-29,
37,
85,
-17,
67,
16,
45,
-93,
109,
65,
107,
87,
-77,
87,
0,
-10,
-13,
-13,
-35,
-68,
-19,
100,
95,
72,
32,
2,
-43,
-25,
-94,
77,
88,
14,
0,
-120,
109,
-39,
-111,
48,
107,
0,
9,
65,
-113,
-13,
-82,
49,
71,
108,
42,
89,
45,
-64,
-88,
-68,
4,
127,
7,
-112,
69,
-100,
35,
-54,
-114,
-104,
25,
0,
-24,
51,
-74,
-126,
116,
77,
25,
40,
34,
102,
0,
77,
-1,
-104,
-72,
46,
-2,
13,
7,
-106,
120,
97,
96,
-82,
-104,
125,
84,
35,
-12,
-18,
-35,
76,
40,
11,
-81,
-42,
-79,
-123,
-6,
-116,
3,
-17,
-101,
48,
113,
-53,
-22,
125,
71,
119,
-109,
-114,
-111
] |
Jim Johnson, Associate Justice.
This case involves the violation of an agreement which was made in order to accomplish the consolidation of two school districts.
In 1947 a majority of the qualified electors of Cherry Hill School District No. 21 of Perry County signed a petition requesting that that District he dissolved and the territory annexed to Perryville School District No. 7 of Perry County. Prior to the signing of the petition the electors and patrons of the Cherry Hill School District had an agreement with the School Board of the Perryville School District that a ward school with one teacher would he maintained at Cherry Hill schoolhouse so long as at least ten students were in average daily attendance at said ward school.
On August 26, 1947, the Perry County Board of Education entered its order dissolving the Cherry Hill District. In accordance with the agreement and the order of the County Board of Education, the School Board of the Perryville District continued to maintain the ward school at Cherry Hill until the opening of school on August 31, 1959. At that time the Perryville School Board refused to maintain the ward school at Cherry Hill and forced the students to attend school at Perryville.
The plaintiffs, who are qualified electors and patrons of Perryville School District No. 7, and also qualified electors and patrons of what was formerly Cherry Hill School District No. 21, filed suit against the Directors and Superintendent of the Perryville School District to require them to continue to operate the ward school at Cherry Hill, and in the alternative, asking that the order of the County Board of Education dissolving the Cherry Hill District and annexing said District to the Perryville District be set aside, and the Cherry Hill District be restored as it was prior to the order of the County Board of Education.
The defendants demurred to the complaint on the ground that the complaint, as amended, did not state a cause of action. The Chancery Judge sustained the demurrer and dismissed the complaint. The plaintiffs bring this appeal alleging error by the trial court in sustaining the demurrer and dismissing the complaint.
The appellants urge that the agreement to operate the ward school at Cherry Hill was a condition to the annexation and that this agreement was made a part of the order of the County Board of Education when they dissolved the district. It is true that the agreement was made a part of the order of the County Board of Education. It is further true that ethics is on the side of appellants. Even so, our research reveals the cold letter of the law to be on the other side. This being so, we have no choice but to find contrary to appellants position. School District Directors can only enter into agreements which bind their districts and the inhabitants thereof by reason of express statutory authority. School District No. 18 of Jackson County v. Grubbs Special School District, 184 Ark. 863, 43 S. W. 2d 765. A person contracting with a Board of Education is presumed to know the limitations of its powers and can acquire no right by contract which said board is not clearly authorized to make. Rural Special School District No. 50 v. First National Bank, 173 Ark. 604, 292 S. W. 1012.
There is no statutory authority giving school directors the power to enter into contracts agreeing to maintain a school at a certain place indefinitely. The powers of school directors are conferred by law for public purposes, and the exercise thereof, involving as it does a matter of future policy properly subject to change to meet changing conditions, cannot be restricted by an agreement of the nature of the one here involved. To hold otherwise would create a school at Cherry Hill not subject to change by anyone as long as the condition is met.
Based upon this reasoning, appellants’ remaining contention that the action of the Perryville School Board is in the nature of a collateral attack on the order of annexation made by the County Board must also fail since the part of the order concerning the future opera tion of the Cherry Hill School was void because the School board possessed no authority to make the agreement.
Equity being bound to follow the law, we conclude that the decree of the Chancellor must be affirmed. | [
-15,
-4,
92,
124,
26,
-92,
26,
-82,
112,
-85,
39,
-45,
-17,
-35,
9,
125,
-74,
45,
81,
105,
-11,
-77,
83,
-128,
-112,
-45,
-19,
85,
-77,
110,
-12,
95,
76,
48,
-118,
-35,
-58,
74,
-53,
-44,
-114,
3,
-3,
66,
83,
-61,
60,
49,
18,
14,
37,
106,
-13,
60,
60,
67,
-56,
44,
-7,
-81,
65,
-15,
-98,
-60,
125,
6,
-71,
101,
-98,
-121,
-8,
106,
-100,
53,
-96,
-72,
18,
38,
18,
-44,
9,
9,
-120,
-30,
99,
3,
-96,
-9,
-72,
-103,
78,
-70,
45,
-90,
-112,
88,
122,
0,
-66,
28,
117,
80,
11,
126,
-26,
5,
31,
40,
-28,
-114,
-108,
-77,
-98,
-32,
-122,
7,
-21,
32,
48,
16,
-61,
-74,
92,
-25,
50,
-101,
78,
-40
] |
Ed. F. McFaddin, Associate Justice.
This is a claim against an estate for personal services rendered the deceased. The claimant is the appellant, M. J. Trotter; and the appellee, Mrs. Helen K. Kemp, is the executrix of the estate of Mrs. Josephine Page, who departed this life testate on May 17, 1958 at an age in excess of 90 years. Appellant Trotter presented his claim against the estate for $11,850.00. The Probate Court allowed the claim in the amount of $120; and Trotter has appealed.
Entirely disregarding Trotter’s testimony, the facts clearly establish that he lived in the home of Mrs. Page and cared for her for the last three years of her life; that he was not related to her in any way; and that the decedent recognized her obligation to the appellant and contemplated compensating him in addition to what he had been paid. He is entitled to some compensation. See Harris v. Whitworth, Admr., 213 Ark. 480, 211 S. W. 2d 101.
Except for Mr. Wills’ testimony (subsequently mentioned in this paragraph), there is no testimony as to any contractual amount for Trotter’s services, but be could recover on a quantum meruit basis. See Nissen v. Flournoy, 160 Ark. 311, 254 S. W. 540; and Suits v. Chumley, 218 Ark. 488, 236 S. W. 2d 1001. Trotter failed to show the quantum meruit value of his services. Mr. Wills testified, when called by the executrix, that Trotter told Wills about six months before Mrs. Page’s death that he (Trotter) . . was staying there every night he was in town and that Mrs. Josie Page was paying him $2.00 a night and his evening and morning meal.” Since this is the only value stated, Trotter is limited to the figure of $2.00 per night.
Even though Trotter had cared for Mrs. Page for many years it must, of course, be conceded that Trotter could make no claim for services in excess of three years prior to Mrs. Page’s death, since there was no written contract. § 37-206, Ark. Stats. So the maximum amount that the evidence would support is a total of 1095 nights (3 years) at $2.00 a night, which would be $2190. But Mrs. Page was in the hospital for seven nights immediately preceding her death, and that would leave only 1088 nights, or a total of $2176 as the maximum amount that could be allowed Trotter in this case. The executrix introduced checks issued to Trotter by Mrs. Page dated within three years of her death and totalling $809. These checks would constitute evidence of payment to that amount in the absence of any proof to the contrary, and there was none. Deducting the $789 from the $2176 would leave $1367 as the maximum amount that Trotter can recover under the evidence in this case.
The Probate Court allowed Trotter only $120. This was on the basis that, calculating from some date in October 1957, and assuming that Trotter was paid in full up to that time, there would only be a balance of 60 nights for which he was not paid. But we try these probate cases de novo on the record (see Suits v. Chumley, 218 Ark. 488, 236 S. W. 2d 1001); and we find nothing in the record to substantiate the assumption that Trotter was paid-in full to any date in October 1957, or to any other date. Of course, Trotter insists that his services were worth far more than $2.00 a night; but the answer is, he did not prove his services. The executrix contends that Trotter has been paid; but the answer is that payment was not established. The claim of Trotter should have been allowed for $1387, according to the calculation heretofore made.
The judgment is reversed and the cause is remanded, with directions to enter a judgment as herein stated.
George Rose Smith, "Ward and Robinson, JJ., dissent. | [
19,
-20,
-56,
-20,
24,
32,
26,
-102,
115,
-61,
51,
91,
-21,
-59,
16,
43,
99,
79,
81,
107,
22,
-77,
38,
34,
-46,
-13,
-95,
-35,
-111,
79,
-20,
-41,
68,
32,
-118,
-43,
-62,
-53,
-63,
82,
10,
-120,
-119,
97,
89,
-46,
48,
89,
-36,
95,
113,
-50,
-1,
46,
21,
99,
108,
58,
123,
41,
-40,
-76,
-85,
-115,
122,
22,
-112,
71,
-100,
47,
-40,
10,
-102,
61,
0,
-56,
49,
-90,
-126,
116,
67,
-103,
12,
102,
98,
48,
5,
-21,
-84,
-115,
10,
-14,
29,
-89,
-66,
121,
107,
77,
-106,
-100,
122,
0,
15,
118,
-12,
85,
-100,
-92,
11,
-82,
-106,
-93,
8,
-27,
-100,
-118,
-25,
37,
48,
113,
-49,
-30,
88,
70,
59,
-101,
-98,
-101
] |
George Rose Smith, J.
This is an action by tbe appellant for personal injuries resulting from a severe electrical shock. At tbe close of tbe plaintiff’s proof tbe trial court directed a verdict for the defendant. Tbe principal question is whether tbe plaintiff’s evidence made a case for tbe jury.
At tbe outset tbe appellee asks that tbe judgment be affirmed on account of tbe appellant’s failure to abstract any of tbe testimony beard in tbe court below. Tbe appellee, however, has sufficiently supplied tbe defect to enable us to pass upon tbe principal issue, and consequently we determine the case upon its merits. See Supreme Court Rule 9 (e).
Gardner, the appellant, was employed by Allbright Brothers Construction Company, a firm of contractors. Allbright maintained a storage yard for heavy equipment in an open field near Newport. The storage yard was crossed by the appellee’s high-voltage distribution lines, the lowest line being 17 feet 8 inches above the ground.
On the day of the accident Allbright’s employees were using a winch truck, equipped with a boom, to pick up and move heavy objects on the storage yard. It was Gardner’s job to fasten the cable to the object being shifted about and to guide the article during its movement. As a heavy sledge was being moved in this fashion the upper five inches of the boom came in contact with the appellee’s line. An electric current traveled down the cable being held by Gardner and inflicted severe and extensive burns to his body.
The complaint alleged that the appellee was negligent in maintaining its line in violation of the minimum clearances fixed by Rule 232A of the National Electrical Safety Code, which seems to be a set of regulations adopted by the electrical industry. The rule cited in the complaint provides minimum clearances for overhead wires in five specific topographical situations, one of which is the crossing of “driveways to residence garages.” In that situation the minimum height for the lines is twenty feet. It is conceded that Allbright’s storage yard did not contain either a driveway or a garage and so did not fall within the literal language of the rule relied upon.
In this court the appellant argues that the safety code evidently could not enumerate all the countless varieties of terrain crossed by overhead lines. Hence, it is suggested, the five physical situations described in the code should be interpreted as representative types, each applying to all other situations most nearly similar to it. Upon this theory it is contended that a storage yard is more comparable to a residential driveway than to any of the other four situations; therefore such a yard calls for a minimum overhead clearance of twenty feet.
In view of the record before us we cannot justify a reversal of the trial court upon the appellant’s theory. The complaint contained a specific allegation of negligence, that the appellee maintained a high-voltage line in violation of the clearances set forth in Rule 232A of the code. The appellee, acting upon a reasonable construction of the complaint, was entitled to (and apparently did) prepare its defense upon the assumption that the plaintiff would attempt to bring the case within one of the five situations described in Rule 232A. These situations included the crossing of wires over railroad tracks, public streets and alleys, driveways to residential garages, and spaces accessible to pedestrians only. The plaintiff’s proof, as we have seen, did not bring the case within any of the specific situations covered by the rule.
The alternative theory now urged by the appellant is not covered by the allegations of the complaint, for this theory does not involve a violation of Rule 232A. Instead, it involves a violation of a common law duty of ordinary care, with the safety code provision as to residential driveways having evidentiary value by way of analogy. It appears from the appellee’s abstract of the testimony that the plaintiff offered some expert testimony tending to support his present theory. The court did not err in sustaining an objection to this proof, as ordinarily it is not error to exclude evidence relating to an issue not pleaded. Bluff City Lbr. Co. v. Hilson, 85 Ark. 39, 107 S. W. 161. The court might, in its discretion, have permitted a new issue to be introduced during the progress of the trial, Manufacturers’ Furn. Co. v. Read, 172 Ark. 642, 290 S. W. 353; but we perceive no abuse of the court’s discretion. See also Jonesboro Coca-Cola Bottling Co. v. Holt, 194 Ark. 992, 997, 110 S. W. 2d 535. At the end of the plaintiff’s case the court ruled that the code provision relating to wires crossing residential driveways was not applicable to this case. In response to the court’s inquiry about additional evidence the plaintiff’s counsel elected to stand upon their pleadings and proof. In these circumstances no reversible error has been shown.
Affirmed. | [
-80,
120,
-40,
-116,
24,
99,
58,
-6,
121,
-84,
-73,
-41,
-67,
-53,
-115,
35,
-93,
113,
113,
41,
117,
-77,
27,
-61,
-110,
-13,
-77,
-43,
-72,
78,
104,
-100,
77,
112,
74,
5,
-26,
-120,
-51,
92,
-50,
5,
40,
-23,
25,
64,
42,
127,
20,
95,
65,
-98,
-5,
44,
24,
-49,
8,
42,
-21,
-68,
-63,
121,
-94,
21,
125,
20,
35,
4,
-98,
1,
100,
54,
-40,
-67,
0,
-24,
114,
-74,
-109,
-12,
33,
-119,
0,
-30,
102,
8,
13,
-89,
-20,
-72,
15,
-74,
-113,
-90,
54,
40,
49,
15,
-65,
-67,
96,
48,
38,
126,
-14,
93,
94,
108,
-121,
-121,
-76,
-75,
-115,
96,
-100,
-110,
-49,
-125,
16,
112,
-34,
-86,
95,
36,
87,
31,
79,
-82
] |
George Rose Smith, J.
In the summer of 1959 the appellants, a retired school teacher and his wife, came to Arkansas with the thought of buying a farm or business with their savings. On July 25 they executed a contract by which they agreed to buy the Bachelor Hotel in Conway from the appellee Gorman for $85,000, with $8,500 being paid in cash and the remainder being payable one month later. The contract required Gorman to furnish good title to the premises.
After signing the contract the Carricks went back to Colorado to arrange for the sale of their home. They returned to Conway about the middle of August and assumed the possession and control of the hotel. The sale was not consummated on August 25, as expected, because the Car- ricks were still trying to raise the rest of the purchase money. In the latter part of September, with the sale still awaiting completion, the Carricks made up their minds that they had been defrauded. They abandoned the hotel and went back to Colorado.
This suit was brought by Gorman, to enforce a demand note assertedly given by the Carricks for the unpaid purchase price. (The Carricks say the note was merely tentative, being dependent upon the due completion of the sale.) The defendants filed an answer and cross complaint seeking a rescission of the contract and a recovery of their down payment and of certain expenditures for the improvement of the hotel. Gorman’s real estate agent, who had received the down payment, was brought in as a third party defendant.
At the trial Gorman introduced the demand note and rested his case. The Carricks assumed the burden of going forward with the evidence and introduced proof in support of their answer and cross complaint. When the Carricks reached the close of their case Gorman undertook to file a demurrer to their evidence. This demurrer was sustained by the chancellor, upon the theory that the Carricks had offered no substantial competent evidence to sustain their position. Werbe v. Holt, 217 Ark. 198, 229 S. W. 2d 225. This appeal is from a decree dismissing the cross complaint and foreclosing Gorman’s lien.
The appellants are right in contending that Gorman was not entitled to file a demurrer to the evidence. In the absence of a statute our practice does not recognize that particular pleading. Kelley v. Northern Ohio Co., 210 Ark. 355, 196 S. W. 2d 235. Our only statute upon the subject provides: “Upon the closing of plaintiff’s or moving party’s proof and an announcement by plaintiff or moving party to that effect,... the defendant, or defendants, may file a written motion challenging the sufficiency of the evidence ...” Ark. Stats. 1947, § 27-1729.
The statute refers only to the situation at the close of the plaintiff’s or moving party’s proof. We need not speculate whether the defendant might be regarded as the moving party if lie filed a pleading confessing the plaintiff’s whole canse of action and thereby assumed the true burden of proof rather than the mere burden of going forward with the evidence. Here the Carricks denied the validity of the note sued upon. The plaintiff Gorman was therefore compelled to offer proof of his cause of action, which he did by introducing the note. In response to that proof the defendants presented testimony to show that the note was given merely for accommodation, as well as evidence supporting their cross complaint for rescission. Neither the restricted language of the statute nor its basic intent can be regarded as allowing the plaintiff to test the defendant’s proof when both parties have offered substantive evidence to support their contentions. We must conclude that Gorman’s attempted demurrer to the evidence was not a permissible pleading. In the Kelley case, supra, we held that one who files an unauthorized demurrer to his adversary’s evidence thereby waives the right to adduce additional proof. It follows that Gorman waived his right to offer further evidence, and the case comes to us for final trial de novo upon the record made below.
On the merits the merchantability of Gorman’s title emerges as the decisive issue. A purchaser, until he accepts a deed to the land, is entitled to rescission upon a showing that the vendor’s title is not marketable. Sutton v. Ford, 215 Ark. 269, 220 S. W. 2d 125. Here it appears that the Carricks neither accepted a deed nor approved the deposit of a deed in escrow. Indeed, Dr. Carrick testified without contradiction that he had not even reached the point of employing a lawyer to examine the title.
The undisputed evidence shows that Gorman’s title is not merchantable. Two surveyors testified that the brick wall of the hotel building encroaches upon the adjoining land, some of which is owned by the United States. It goes almost without saying that in this situation the seller’s title is not merchantable. Thompson on Real Property (Perm. Ed.), § 4586. In fact, Gorman does not in his brief deny that his title is defective. Instead, he advances two reasons for a rejection of the appellants’ request for rescission.
First, it is contended that the chancellor was right in excluding all testimony about the encroachment, as this defect was not specifically pleaded in the cross complaint. It appears, however, that the cross complaint did allege that ‘ ‘ the title to said hotel real property ... is not marketable.” This assertion was a mere conclusion of law, but Gorman nevertheless filed a responsive pleading in which he expressly denied that his title was not merchantable. It was not until the surveyors ’ evidence was offered at the trial that Gorman interposed the objection now before us.
We hold that the objection came too late. A motion to make more definite and certain is the proper way to pinpoint an adversary’s error in pleading a conclusion of law. When a litigant elects to join issue with such a defective allegation he waives the defect and cannot raise his point for the first time by an objection to the evidence. Choctaw, O. & G. R. R. Co. v. Doughty, 77 Ark. 1, 91 S. W. 768; Jonesboro, L. C. & E.R.R. Co. v. Roard of Directors, 80 Ark. 316, 97 S. W. 281; Wassell v. Sprick, 208 Ark. 243, 185 S. W. 2d 939.
Secondly, the appellee insists that a vendee cannot avail himself of defects in the vendor’s title without first giving the vendor notice and a reasonable opportunity to cure the flaw. This is true, and the rule would be applicable if the Carricks had taken the initiative in seeking to obtain a cancellation of the contract without affording Gorman a chance to remedy defects found in the title. Mays v. Blair, 120 Ark. 69, 179 S. W. 331. But when, as here, it is the seller who brings the matter to a head by filing suit to enforce the contract, and the purchaser pleads a defect in the title, it would be manifestly impractical to permit the seller to ask in the middle of the trial that the hearing be adjourned to afford him an opportunity to remedy the defect. Hence the rule is that a vendor must have good title when he sues for specific performance. Thompson, supra, § 4641; Powell on Real Property, § 928.
It follows from what we have said that the appellants are entitled to the entry of a decree canceling the note and the contract of sale and restoring to them their down payment, with interest. They are not, however, entitled to recover the sum sought for their improvements, as their proof is deficient in failing to show the extent, if any, to which the asserted improvements enhanced the value of the hotel property. Abraham v. Hatchett, 128 Ark. 15, 193 S. W. 72, 6 A. L. R. 88.
Reversed. | [
-13,
122,
-128,
110,
-120,
96,
40,
-72,
106,
-119,
55,
83,
-19,
68,
16,
97,
-30,
61,
69,
105,
-60,
-73,
23,
98,
82,
-13,
-79,
-59,
-67,
-49,
-92,
-41,
76,
36,
-54,
93,
-58,
-118,
-55,
-40,
30,
8,
8,
101,
-7,
-48,
48,
-37,
6,
15,
33,
-113,
-13,
44,
61,
-53,
13,
46,
105,
45,
-56,
-7,
-101,
13,
127,
23,
17,
117,
-98,
1,
120,
12,
-112,
113,
8,
-88,
114,
54,
-122,
116,
71,
-118,
8,
32,
98,
34,
-59,
-9,
48,
-84,
47,
-9,
-99,
-89,
-46,
88,
67,
99,
-66,
-103,
120,
16,
33,
114,
-30,
13,
89,
108,
15,
-49,
-42,
-77,
7,
36,
-102,
27,
-1,
31,
32,
112,
-51,
-92,
92,
67,
113,
-101,
-114,
-16
] |
Paul Ward, Associate Justice.
Appellant was charged with stealing a chain saw valued at more than $35. He was convicted on circumstantial evidence and sentenced to one year in the penitentiary. On appeal appellant insisted that the circumstantial evidence was insufficient to sustain the verdict and judgment.
Mack Henry, the owner of the chain saw, testified in substance to the following: I live three miles south of Salem, and I am the owner of a chain saw which was taken from my property on July 5, 1959, (Sunday) around 5 p.m.; later the saw was brought back to me by the deputy sheriff; I can identify the saw by the chain in which one screw was missing; the saw cost $239 and the market value would be about $125. Gwen Logan in substance stated: I passed by Mr. Henry’s place on the 5th day of July, 1959, about 4:30 or 5 p.m., there was a dark blue or black 1949 or 1950 Ford sedan car with two men standing by it — the car had a cracked windshield. Kathleen Logan in substance stated: I was coming back from church on 5th of July, 1959, and when I passed the Henry place I saw a Ford car parked, two men were standing beside the car, one of them dressed in khaki, one of the men was the appellant Bynum Hammond. Cornell Wayne Cheek in substance stated: I have known appellant for several years. On July 5, 1959, I saw him driving a black 1949 or 1950 Ford; the windshield was out; when I saw appellant I was on the road to Mack Henry’s place and it was late in the afternoon. David Jones, a state policeman, in substance stated: I went to appellant’s place on the 19th of July and asked him if he had seen the property that had been reported stolen; he went to the smokehouse and brought out a saw and told me he had bought the saw in West Plains; that he did not know who he had bought it from and did not have a bill of sale; there was a 1949 or 1950 Ford sedan setting in front of his house with a cracked windshield, and the right-hand side of the windshield was -broken out. He stated that it was his car. Elvie Lau, a deputy sheriff, stated that he accompanied the state trooper to appellant’s home where he saw the above described Ford parked in front of his house with half of the windshield broken out; that when they got the saw, appellant stated that he had bought it in West Plains and that he had borrowed $50 from the bank to pay for it. Bill Young stated that he had been in the chain saw business about three years. After examining the saw, which was supposed to have been stolen and which was an exhibit in the trial of the case, stated that the market value would be somewhere from $40 to $60.
We find no merit in appellant’s contention that there was no evidence to prove the identity of the saw or its fair market value. It was, of course, necessary to show that the market value of the saw was more than $35, otherwise, a conviction under Ark. Stats. § 41-3907, could not be sustained. The testimony of the owner of the saw and the testimony of Young was, we think, substantial evidence from which the jury was justified in finding that the saw had a market value of at least $40. Likewise, the identification of the saw made by the owner supplied substantial evidence to sustain the jury’s verdict. In the case of Burrell v. State, 203 Ark. 1124, 160 S. W. 2d 218, the court among other things said, “. . . it is also a well-settled rule that the evidence admitted at the trial will, on appeal, be viewed in the light most favorable to the appellee, and if there is any substantial evidence to support the verdict of the jury it will be sustained.”
Appellant’s strongest contention is that the circumstantial evidence in this case is not sufficient to support the verdict of guilty. In support of this argument appellant relies on what this court said with reference to circumstantial evidence in the cases of Reed v. State, 97 Ark. 156, 133 S. W. 604, Turner v. Walnut Ridge, 186 Ark. 899, 56 S. W. 2d 759. In the Reed case the court, after reviewing the lengthy testimony, had this to say: “There may he in this testimony some evidence of suspicion against defendants, but at the most it is a circumstance of bare suspicion. But mere circumstances of suspicion are not sufficient upon which to base the conviction for a crime, which must be established by substantial evidence to the exclusion of a reasonable doubt.” In the Turner case the court cited the Reed case with approval and reáched the same result. In doing so the court made this statement: “The testimony recited raises a serious suspicion that appellant had intoxicating liquor at his home for the purpose of sale; but convictions cannot be sustained upon suspicion merely. There must be testimony which, when given its highest probative value, proves that the accused had committed the offense charged.”
The court has, however, on many occasions sustained convictions on circumstantial evidence; see: Lackey v. State, 67 Ark. 416, 55 S. W. 213; Bartlett v. State, 140 Ark. 553, 216 S. W. 33; Scott v. State, 180 Ark. 408, 21 S. W. 2d 186, Huffman v. State, 222 Ark. 319, 259 S. W. 2d 509; Miller v. City of Helena, 224 Ark. 1016, 277 S. W. 2d 841.
In the Lackey case, supra, the court (in reviewing circumstantial evidence) said: “The doctrine of reasonable doubt applies to the general issue of guilty or not guilty, tut it does not apply to each item of testimony or to each circumstance tending to show the guilt of the defendant.” (Emphasis supplied.) In the Huffman case, supra, the court approved this instruction: “You are instructed that although it is competent to convict on circumstantial evidence before you would be authorized to convict on such evidence, the facts and circumstances in evidence must point with reasonable certainty to the defendant’s guilt and they must be consistent with each other and consistent with the defendant’s guilt to the exclusion of every reasonable hypothesis of his innocence.” In the Scott case, supra, we find this statement: “The defendant was convicted on cir cumstantial evidence, but there is no difference in the effect between circumstantial evidence and direct evidence. In either case it is a question for the jury to determine, and, if the jury believes from the circumstances introduced in evidence, beyond a reasonable doubt, that the defendant is guilty, it is the duty of the jury to find him guilty just as it would be if the evidence was direct.” In the Miller case, supra, the court quoted with approval: “There is no greater degree of certainty in proof required where the evidence is circumstantial than where it is direct, for in either case the jury must be convinced of the guilt of the defendant beyond a reasonable doubt.”
In the case under consideration the evidence against appellant amounts to more than a suspicion of guilt. It amounts, we think, to substantial evidence. One strong factor, not heretofore mentioned, is the fact that the missing saw was found in appellant’s possession and no satisfactory explanation, consistent with innocence, was given by him. At least the jury evidently did not believe the explanation given, as it had a right to do.
In the case of Duty v. State, 212 Ark. 890, 208 S. W. 2d 162, where the appellant was charged with and convicted of grand larceny the court said:
“Without further recitation of the testimony it may be said that it was clearly shown that appellant was in possession of property recently stolen and the jury evidently did not accept appellant’s explanation of his possession. This testimony alone would suffice to sustain the larceny charge. See Mays v. State, 163 Ark. 232, 259 S. W. 398, and cases there cited.” (Emphasis supplied.)
It is our conclusion that there was substantial evidence to support the jury’s verdict of guilty, and the judgment of the trial court is therefore affirmed.
Affirmed. | [
80,
-18,
-40,
-100,
26,
-32,
42,
24,
115,
-25,
-26,
83,
-83,
-57,
67,
105,
-77,
-1,
85,
97,
-17,
-77,
35,
99,
-62,
-13,
-7,
-44,
-67,
74,
-92,
85,
9,
100,
-118,
29,
98,
-120,
-83,
-36,
-50,
37,
-22,
115,
-40,
16,
-92,
-81,
-12,
10,
117,
-98,
-77,
46,
20,
-18,
41,
40,
75,
63,
112,
57,
-78,
13,
-97,
18,
-93,
6,
-82,
37,
-8,
46,
-104,
-79,
16,
-24,
123,
-106,
-128,
-12,
5,
-113,
12,
38,
34,
1,
93,
-57,
-24,
-40,
47,
126,
-97,
-89,
-112,
104,
35,
105,
-97,
-99,
111,
16,
60,
-4,
-26,
68,
89,
100,
-85,
-49,
-80,
-111,
-119,
112,
-98,
-70,
-21,
-111,
35,
113,
-49,
-94,
94,
101,
121,
-101,
-114,
-13
] |
Paul Ward, Associate Justice.
This appeal involves the disposition of United States Series E Bonds by a testator. The trial court held that the bonds were included in the word “cash”, and this appeal follows.
Robert McCulloch executed his will on October 14, 1939 and died, testate, January 11,1949. Certain legatees filed a petition in the Probate Court in July 1949 asking to have the will construed. A final determination was not made by the Probate Court until September, 1958, but the executors in the meantime administrated the estate and kept the assets practically intact.
The subject will, in all essential parts reads as follows:
“. . ., first I direct that all my just debts be paid out of my estate, second I give Finch McCulloch and Luciel McCulloch my home place consisting of one hundred (105) and five acres more or less, Second I give to Finch McCulloch and Luciel McCulloch all my personal property Store and goods therein and all accounts due me except money to my Grandaughter Ella May Parrott I give the sum of one hundred dollars to Irine McCulloch I give the sum of one hundred dollars to Florence McCulloch I give the sum of one hundred dollars to Luciel McCulloch I give the sum of Five Hundred dollars all remaining cash to be divided equally between Finch McCulloch James E. McCulloch Lydia Parrott and Luciel McCulloch. I hereby appoint James E. McCulloch and Finch McCulloch sole executors of this Will without bond. ” (Emphasis supplied.)
It was stipulated and agreed by all parties that the assets of the estate (with the amounts and valuations calculated at the time of the final order of the Probate Court in 1959) consisted of the following:
(a) The home place, 103.50 acres, value $2,000.00
(b) Household goods, value 119.00
(c) Farm equipment, value 38.00
(d) Deposits in New Edinburg Bank 717.12
(e) Deposits in Merchants & Planters Bank 1,575.40
(f) Deposits in Warren Bank 1,507.26
(g) Five Series E Bonds, maturity value 3,600.00
(h) Three notes signed by James McCulloch (amount and disposition not in dispute).
The testator was survived by two sons and two daughters; James E. McCulloch, Finch McCulloch, Luciel McCulloch and Lydia (McCulloch) Parrott, all of whom are beneficiaries under the will. He was also survived by three grandchildren; Ella May Parrott, Florence McCulloch and Irine McCulloch, all of whom are likewise beneficiaries.
The proof shows, and it is not here disputed, that: (a) the store and its contents were owned by the testator at the time the will was made but were disposed of by him before his death in 1949; and, (b) the testator did not own the Series E Bonds at the time the will was made but purchased them in his own name before his death.
This litigation arises over the ownership of the Series E Bonds. It was and is the contention of Finch McCulloch and Luciel McCulloch that these bonds belong to them by virtue of the language in the first part of the will. In other words, these appellants contend that the said bonds constituted personal property and should not be classified as cash. On the other hand appellees contend that the said bonds should be treated as cash the same as the bank deposits. As so classified, appellees contend that the proceeds of the E bonds should “be divided equally” between the children of the testator under the latter portion of the will. It will be seen therefore that this contest is between Finch McCulloch and Luciel McCulloch (appellants herein) who claim all the proceeds of the said E bonds, and James R. McCulloch and Lydia (McCulloch) Parrott (appellees herein) who contend that they should each receive % of the proceeds of the said E bonds.
The trial court, in a somewhat comprehensive opinion dated September 9, 1958, among other things found; that the store and its contents had been sold prior to the testator’s death and that this bequest to the appellants lapsed; that the only question is, does the words “personal property” in the will necessarily include the E bonds; that said bonds were not transferable and can only be cashed and the proceeds transferred; that the E bonds were purchased by the testator after the will was executed, and since the testator did not make the bonds payable to appellants he thereby indicated an intent to treat the bonds as cash, and; the E bonds should be distributed equally among the appellants and appellees. (The........................judge was not surviving when these findings were made.)
After careful consideration we have arrived at the conclusion that the result reached by the learned Chancellor cannot be sustained. Although we have received little assistance from our own decisions cited in the briefs or revealed by our own research, other authorities appear to be harmonious to the effect that ordinarily the word “cash” does not include bonds. Set out below are pertinent excerpts from some of the many authorities examined.
In Jordan v. Chamberlain et al, 46 Cal. App. 2d 16, 115 P. 2d 235, in construing a will the court said:
“In the instant case there is nothing to indicate that the decedent intended that the word ‘cash’ be used in any other or different sense from that which ordinarily attaches to it. Cash is ‘current money in hand or readily available ’. ”
In that same case, the court cited with approval: “ ‘ Cash’ means especially ‘ready money’ at command, subject to free disposal; not tied up in a fixed state. It is almost equivalent to the term ‘loose money’.” The Supreme Court of New Mexico, in Hanny v. Joyce et al, 37 N. M. 569, 25 P. 2d 806, in dealing with the allowance of fees of an administrator, stated (at page 573): “The trial court also announced the view that government bonds were to be deemed ‘cash’ within the meaning of the statute. We think the statute incapable of such interpretation.” In the matter of In re Feist’s Will, 170 Misc. 497, 10 N. Y. S. 2d 506, where a will was being construed, the court said: “ ‘Cash’ means especially ‘ready money’ at command, subject to free disposal; not tied up in a fixed state.” Similarly in In re Hinds’ Will, 270 App. Div. 408, 61 N. Y. S. 2d 748, we find the court holding that “money” did not include stocks and bonds.
We do find however that there are circumstances under which the courts are inclined to give a broader meaning to the word “cash” than is indicated above. One circumstance is where other language in the will would indicate such broader meaning but we find no such language in the will under consideration here. The other circumstance is where a part of the testator’s estate would be undisposed of by the will unless a broader meaning is given to the word “cash”. See: In re Feist’s Will, supra, In re Hinds’ Will, supra, and Campbell v. St. Joseph’s Industrial School, 30 Del. Ch. 84, 53 A. 2d 768. But this circumstance is not found in Mc-Culloch’s will. Regardless of whether we accept the view of appellants or the view of appellees all his property is disposed of by the will.
We recognize the wholesome and well established rule of construing a will so as to carry out the intentions of the testator. However, we find very little in this will to reveal McCulloch’s intentions. If any intention at all is revealed it could well be to give the bonds to appellants. We refer to the fact that he gave appellants the store and its contents, but these items were disposed of before his death. It could be reasonably inferred that he intended them to have the bonds in the place of the other items. We see no force in the argument that McCulloch would naturally want to treat all his children alike, and, therefore, intended to divide the bonds equally among them. This argument is refuted by other terms of the will which are not challenged.
For the reasons heretofore set forth the decree of the trial court is reversed.
Harris, C. J., and George Rose Smith, J., not participating. | [
-16,
108,
-104,
-34,
-70,
-80,
10,
-102,
98,
-21,
53,
83,
-83,
-50,
21,
99,
-14,
125,
69,
105,
-1,
-77,
71,
81,
83,
-13,
-105,
-59,
53,
89,
-28,
95,
72,
96,
10,
85,
-62,
-113,
-59,
124,
-52,
13,
120,
-83,
-55,
80,
49,
107,
18,
9,
81,
30,
-9,
43,
61,
-22,
104,
40,
75,
-71,
-48,
-80,
-85,
7,
-3,
23,
-127,
7,
-80,
5,
104,
46,
-104,
53,
-128,
-24,
58,
-106,
-122,
84,
43,
-65,
12,
118,
-26,
16,
73,
-49,
-104,
-88,
6,
-38,
-121,
-89,
-42,
89,
-95,
99,
-76,
29,
108,
0,
14,
-12,
-18,
-107,
28,
108,
13,
-113,
-42,
-125,
41,
124,
-100,
27,
-6,
35,
48,
113,
-49,
-126,
76,
103,
120,
-109,
-122,
-45
] |
George Rose Smith, J.
On August 17, 1951, the city of Harrison conveyed a tract of about three acres, lying within the city and across the street from the county hospital, to Boone Lodge No. 314, Free and Accepted Masons. In 1959 the Lodge announced its intention of constructing a shopping center upon the land. This proposal aroused at least a limited amount of opposition, especially on the part of certain physicians who felt that the tract was needed for the future expansion of the county hospital. In the course of the controversy the Lodge’s right to use the property for commercial purposes was questioned. In order to settle the dispute the appellees, officers of the Lodge, brought this suit on June 16, 1959, to quiet the Lodge’s title. The city made no defense, but the county and the doctors, who were joined as representative taxpayers, attacked the city’s 1951 deed to the Lodge. This appeal is from a decree upholding the deed and quieting title in the Lodge.
The appellants first contend that the tract in question was dedicated to park purposes by the city council in 1948 and that the restriction is still in force. The facts pertinent to this contention are these:
Back in 1943 the city had purchased a tract of about ten acres which was known as Johnson Park (though it was not used as a park) and included the land now in issue. Five years later the city sold the west half of Johnson Park to Boone county as a site for a county hospital. In preparing to build the hospital the county applied, through the State Board of Health, for a grant of federal funds. The Board of Health, before approving the proposed site, asked the county to obtain from the city a written agreement that the east half of Johnson Park would be maintained as a park and would never be used for business or residential facilities. To this end the city council, on April 21,1948, adopted a resolution reading in part as follows :
“That the City of Harrison enter into an agreement with Aubrey Hickenbottom, Boone County Judge, wherein for the consideration of the construction of the Boone County Hospital on the west half of Johnson Park, the City of Harrison agrees that the east portion of said park shall be hereafter maintained by the city as a park and shall never be used for the construction of business or residential facilities.”
A signed and attested copy of the resolution was filed with the Board of Health, but nothing else was done toward putting the resolution into effect. The resolution was left in the city recorder’s office, unsigned and unpublished. No written agreement between the city and the county, as contemplated by the resolution, appears to have been made. No instrument of any kind, giving notice of the resolution, was placed of record in the county recorder’s office. And there is no proof that the Lodge, in buying the property from the city three years later, had any knowledge of the resolution.
Upon these facts the tract was not irrevocably impressed with its asserted character as a public park. By the resolution the city council expressed its intention to execute a contract dedicating the land to park purposes, but the intent was not carried into effect. No notice of the city’s proposal was given, either by publication of the resolution, by the recordation of an acknowledged instrument in the county recorder’s office, or by actual use of the property as a park.
Regardless of the city council’s expectations, the mere passage of the resolution did not create in any one a vested right to demand that the land be devoted forever to public use. Legislative measures are, in the absence of vested rights, subject to repeal by later action of the legislative body. Files v. Fuller, 44 Ark. 273. It is our opinion that the resolution was effectively abrogated by the 1951 ordinance which authorized a sale of the property to the Masonic Lodge without any restrictions upon the use of the land.
A second contention is that this 1951 ordinance, by which the sale was authorized, was not properly enacted, for the reason that the aldermen’s yeas and nays were not recorded. Ark. Stats. 1947, § 19-2403. The minutes of the council meeting recited that seven aldermen, who were named, were present and that one alderman, also named, was absent. In recording the passage of the ordinance in question the minutes recited that all the aldermen present voted in favor of it.
These facts constitute a substantial compliance with the statute. The purpose of recording the votes is “to make the members of the council feel the responsibility of tbeir action when important measures are before them, and to compel each member to bear his share in the responsibility, by a record of his action which should not afterwards be open to dispute.” Cutler v. Russellville, 40 Ark. 105. The procedure in this case satisfied the purpose of the statute, by making the position of each alderman a matter of record, and consequently this procedure has uniformly been held to be sufficient. McQuillin, Municipal Corporations (3d Ed.), § 14.04.
We do not reach the merits of the appellants’ other two attacks upon the city’s sale to the Lodge. It is contended that the purchase price of $1,000 was so grossly inadequate as to indicate fraud and that the sale should be set aside because five of the seven aldermen who voted for the sale were members of the Lodge, though not themselves pecuniarily interested in the transaction. Even if these two charges be conceded to be well founded the sale would at most be voidable, not void. Ordinary principles of limitations and laches operate against the city with respect to a proprietary matter such as the sale of land. Helena v. Hornor, 58 Ark. 151, 23 S. W. 966; Jensen v. Fordyce Bath House, 209 Ark. 478, 190 S. W. 2d 977. Any right the city may have had to avoid the sale for inadequacy of price or for conflict of interest is evidently barred by its unexcused inaction for nearly eight years.
Affirmed. | [
-11,
-53,
-36,
124,
26,
-32,
4,
59,
98,
-86,
119,
27,
-19,
40,
9,
61,
-85,
61,
81,
89,
-27,
-79,
83,
38,
-14,
-13,
-17,
-43,
-15,
77,
-10,
-27,
76,
52,
74,
-67,
-62,
-58,
-51,
20,
-36,
-107,
57,
77,
-43,
-64,
52,
59,
86,
10,
117,
15,
-11,
-90,
52,
-29,
41,
44,
75,
-83,
81,
-6,
-68,
5,
126,
7,
1,
96,
-104,
-125,
88,
122,
-48,
53,
-16,
-120,
81,
-74,
-58,
52,
13,
-119,
8,
34,
102,
0,
-23,
-1,
-96,
-98,
14,
20,
-99,
-89,
-122,
72,
80,
-126,
-76,
-100,
113,
16,
3,
120,
-26,
20,
93,
40,
73,
-50,
-10,
-75,
-49,
-88,
-114,
3,
-9,
15,
48,
81,
-53,
3,
95,
-57,
-80,
91,
15,
-32
] |
George Rose Smith, J.
In 1959 the appellant and his wife were living apart from each other and had the sum of $6,075 on deposit in a joint savings account in the appellee bank. Mrs. McGuire obtained possession of the passbook, and for that reason the bank refused to permit the appellant to draw money from the account. The appellant brought this suit against the bank, asking either that the account be changed to his name only or that he have judgment for the sum on deposit. The bank filed an answer bringing Mrs. McGuire into the case and offering to pay out the money in accordance with its regulations, which require a presentation of the passbook. In the course of the first trial the bank offered to pay the money into court, but the appellant’s attorney refused this offer. At the close of the plaintiff’s proof the chancellor sustained a demurrer to the evidence, but on appeal we directed that the ownership of the funds be determined on the merits. McGuire v. Benton State Bank, 231 Ark. 608, 331 S. W. 2d 258.
At the time of the final hearing the proof showed that there was then only $1,900 left in the account, the rest of the money having been withdrawn by Mrs. McGuire. Her withdrawals were of two sorts: First, on the day after the chancellor sustained the demurrer to the evidence Mrs. McGuire drew out half the money in the account. Secondly, in a pending suit for separate maintenance Mrs. McGuire had been awarded temporary alimony and attorney’s fees. McGuire v. McGuire, 231 Ark. 613, 331 S. W. 2d 257. It appears that in the interval between the two trials that were had in the case at bar Mrs. McGuire collected the sums due her by cashing checks drawn against that half of the account remaining in the bank.
At the conclusion of the final hearing the chancellor delivered an oral opinion holding that the original account of $6,075 belonged equally to the husband and wife and, further, that the $1,900 still on hand should be held in the registry of the court until McGuire’s exact indebtedness to his wife could be determined in the separate maintenance suit. The final decree, entered several months after the trial, confirmed the equal division of the account, directed that the remaining $1,900 be paid to McGuire, and absolved the bank from any liability to McGuire. This appeal is from that decree.
In substance the appellant urges two points for reversal. First, it is contended that the chancellor was in error in holding that the amount originally in the account should be divided equally. McGuire proved that all the money on deposit came from his earnings through the years as a railroad employee. On the basis of this proof he insists that the money was entirely his and that his wife should receive none of it, or at most not more than the one third allowed by statute in divorce cases. Ark. Stats. 1947, § 34-1214.
We think the chancellor’s decision was correct. A joint bank account such as this one has been held to constitute an estate by the entirety in the sense that upon the death of either spouse the title passes to the survivor. Dickson v. Jonesboro Trust Co., 154 Ark. 155, 242 S. W. 57; Black v. Black, 199 Ark. 609, 135 S. W. 2d 837. But while both spouses are alive the estate is not a true common-law tenancy by the entirety, for, as we observed in the cases cited, either of the owners may extinguish the joint estate as to any part of the money that is withdrawn from the account and reduced to separate possession. Hence in a case like this one the intention of the parties and all other pertinent circumstances must be considered in determining the- question of ownership.
We do not agree with McGuire’s contention that the issue of title is to be decided solely as between him and the bank, without regard to the fact that Mrs. McGuire is a party to the suit and the additional fact that a separate maintenance case is shown to be pending. On the first appeal we recognized the existence of a dispute between the McGuires, saying: “It is self-evident that there is a controversy between Mr. and Mrs. McGuire as to the ownership of the money. . . . The ownership of the money will have to be determined sometime, and there is no good reason why it cannot be done in this litigation.” The judgment in this case will be res judicata in any other proceedings between the husband and the wife. Hence the issue should not be confined to the dispute between the appellant and the bank.
Upon the proof as a whole we cannot say that the chancellor was wrong in finding that the funds belonged equally to Mr. and Mrs. McGuire. At the time of their separation the couple had been married for twenty-two years. Although Mrs. McGuire did not contribute directly to the bank account it is quite evident that the family’s ability to save was due in a substantial measure to her assistance in supporting the household. The McGuires lived for years upon a homestead that Mrs. McGuire had received from her first husband. Mrs. McGuire had no children of her own, but she brought up Mr. McGuire’s two children by an earlier marriage. The money she earned' by taking in washing and ironing and by baby sitting was used to meet household expenses. The couple had kept their savings in a joint account since 1947. We are of the opinion that Mrs. McGuire was legally and equitably an equal co-owner of the account.
The appellant’s second contention is that the bank, by honoring Mrs. McGuire’s cheeks during the pendency of this suit, rendered itself liable to him for the full amount of her withdrawals. In making this argument the appellant relies upon two statutes. First, Ark. Stats., § 67-521, permits a bank to make payments from a joint account to either depositor “prior to the receipt by said bank of notice in writing signed by one of such joint tenants not to pay such deposit in accordance with the terms thereof.” It is suggested that the appellant’s complaint constituted the requisite written notice. Secondly, Ark. Stats., § 67-523, provides that notice to a bank of an adverse claim to a deposit standing to the credit of any person shall be effectual if the claimant procures a process against the bank in a cause wherein the person to whose credit the deposit stands is made a party. It is contended that the summons served upon the bank constituted a process within the meaning of the statute.
We think it to be immaterial whether the bank violated either or both of the statutes in question, for even if it be assumed that a violation occurred it does not necessarily follow that the bank has incurred any liability to the appellant. The purpose of the statutes is to require the bank to keep the deposit intact until its ownership can be determined. If that course had been followed it does not appear to us that the appellant’s position would be any better than it is now. That is, the court should still have awarded half the account to Mrs. McGuire and, by consolidating the two pending eases, could still have charged McGuire’s half of the account with his delinquent indebtedness for alimony and attorney’s fees. Thus the appellant has not sustained the burden of proving that he has been prejudiced by the bank’s action in honoring Mrs. McGuire’s checks. We do not find in the two statutes any legislative intention that a merely technical violation, resulting in no actual loss to the complainant, should entail either a penalty against the bank or a windfall to the depositor. Hence the chancellor was right in dismissing the complaint against the bank.
Affirmed. | [
114,
120,
-96,
124,
72,
-16,
42,
-70,
83,
-127,
-75,
-45,
-3,
64,
4,
105,
-16,
107,
65,
97,
-10,
-77,
23,
98,
-6,
-13,
-83,
-59,
-67,
-34,
-84,
85,
13,
48,
-22,
29,
102,
-109,
-53,
117,
30,
4,
-87,
65,
-7,
-64,
53,
103,
2,
15,
17,
-99,
-11,
44,
57,
82,
72,
8,
-39,
-71,
-64,
-9,
-118,
68,
127,
28,
-79,
85,
-122,
6,
88,
46,
-40,
53,
32,
-72,
48,
-90,
26,
116,
107,
-69,
45,
104,
98,
0,
-75,
-37,
-76,
-84,
-122,
-74,
-99,
-121,
-110,
89,
1,
45,
-68,
-104,
108,
17,
38,
-4,
-88,
20,
25,
104,
77,
-33,
-42,
-78,
-115,
124,
-114,
11,
-1,
-65,
32,
113,
-54,
-128,
76,
87,
123,
-109,
-98,
-7
] |
Carleton Harris, Chief Justice.
This is an appeal from a judgment of the Garland Circuit Court wherein the action of the County Judge, H. C. Warren, in dismissing the board members of the Ouachita General Hospital of Garland County, was upheld. The record reflects that Judge Warren assumed office as County Judge of Garland County on January 1, 1959, and attended a meeting of the Board of Governors on January 2d, at which meeting the Judge presided. At that time, Judge Warren asked for the resignation of all members of the board, stating that certain members had not conducted themselves properly, and that he would be unable to work with certain members of the board. No resignations were submitted, and Judge Warren obtained the appoint ment of a “Citizens Committee” to investigate conditions at the hospital. One member was appointed by the City Council, one by the Chamber of Commerce, one by the Garland County Medical Association, and one was appointed to represent the Quorum Court, Judge Warren being the fifth member. This committee went to the hospital, together with Judge Warren’s attorney, and there heard testimony from various witnesses, mostly persons who held complaints against the hospital. No member of the board was present during the taking of testimony. Subsequently, a report was prepared by Judge Warren’s attorney, setting forth the findings of the committee, and making the recommendation that the board should resign, but this report was not signed by any member of the committee. Thereafter, Judge Warren notified the members of the board that a hearing would be conducted for the purpose of determining whether the members should be removed from the board. Following the filing of various motions, such hearing was conducted, and on April 29, 1959, Judge Warren directed the following letter to the board:
“April 29, 1959
Board of Governors
Ouachita General Hospital
Hot Springs, Arkansas
Gentlemen:
This is to advise you that based upon the Citizen’s Committee Beport; facts developed at the hearing held as a result of my request that each of you tender your resignations, and based upon the Statutes of Arkansas relative to the duties placed upon members of the Board of Governors of county hospitals and the general law of Arkansas, I find that each of you should be removed from your present position as a member of the Board of Governors of the Ouachita General Hospital, and this action is taken for the general betterment of the operation of the hospital.
According to the evidence and testimony presented at the hearing, it does not appear that all of the mem bers of the present Board of Governors were aware of certain conditions that existed and of certain transactions that transpired, bnt that, in my opinion, does not excuse those members as it was the duty of each member to acquaint himself with all aspects of the operation of the Ouachita General Hospital.
You are hereby relieved from your duties as of the 1st day of May, 1959.
(signed) H. C. Warren
H. O. (Dusty) Warren,
County Judge”
Appellants filed a “Petition for Review” with the Circuit Court of Garland County, and on October 6th, 1959, that court affirmed the action of the County Judge in dismissing the board. From such judgment comes this appeal. For reversal, appellants assert three points, as follows:
“I.
The Board of Governors of Ouachita General Hospital were never informed of the causes of their removal and the letter of IT. C. Warren, County Judge of Garland County, Arkansas, dated April 29, 1959, notifying the Board of Governors of their removal did not specify any of the causes or grounds for removal upon which the action was predicated.
II.
The causes for removal cited in the order of the Circuit Court of Garland County, Arkansas, of October 7, 1959, affirming the action of the County Judge in removing the members of the Board of Governors of Ouachita Hospital do not show sufficient grounds for removal.
III.
The hearing by H. C. Warren as County Judge of Garland County, Arkansas, conducted in connection with the removal of the Board of Governors did not meet the requirements of due process or of Justice and fair dealing. ’ ’
In view of the conclusion we have reached, only points one and three will be discussed, and will be considered in reverse order.
At the outset of the proceeding, appellants moved that Judge Warren disqualify himself from presiding at the hearing, alleging that he was personally and politically biased and prejudiced against the members of the board, was personally interested in the outcome of the hearing, and had individually instituted actions in the Chancery Court against members of the Board. Judge Warren ignored this motion to disqualify, and the Circuit Court refused to grant a petition for a writ of mandamus requiring Warren to disqualify. This Court, in a Per Curiam order of March 23,1959, denied petition for writ of mandamus and for a stay order, holding that the county judge “is not disqualified to act in what is essentially an administrative matter.” As a basis for the motion, appellants point out that Judge Warren requested the resignation of the board almost immediately upon being inaugurated as county judge, and that this fact clearly showed that his mind was already made up that the board should be removed, prior to conducting the hearing. Evidence also reflected that during the political campaign of 1958, Judge Warren ran a political advertisement wherein Hill Wheatley, chairman of the board, was accused of active political interest in behalf of Judge Warren’s opponent; in their brief, appellants further state:
“. . . that at a so-called ‘Citizens Committee’ hearing which drafted the report, the meeting was presided over by appellee, the witnesses were provided by him and that no member of the Board was called or asked to appear before the Committee; that appellee’s mind had been made up prior to the hearing and that he had a personal interest in the outcome of two lawsuits pending in the Chancery Court of G-arland County, Arkansas. ’ ’
Of course, though the hearing was essentially administrative, it was “Quasi-judicial” in nature, and appel lants cite authority from McQuillin on Municipal Corporations and American Jurisprudence to support their contention that appellee should have disqualified. For instance, in 42 American Jurisprudence, § 137, p. 479, it is stated:
“. . . An administrative hearing in the exercise of judicial or quasi-judicial powers must be fair, open and impartial. The right to such a hearing is an inexorable safeguard and one of the rudiments of fair play assured to every litigant by the Fourteenth Amendment as a minimal requirement. There can be no compromise on the footing of convenience or expediency, or because of a natural desire to be rid of harassing delay, when that minimal requirement has been neglected or ignored. The breadth of administrative discretion places in a strong light the necessity for maintaining in its integrity the essentials of a fair and open hearing. When such a hearing has been denied, the administrative action is void. The requirements of fairness are not exhausted in the taking or consideration of evidence, but extend to the concluding parts of the procedure as well as to the beginning and intermediate steps.”
At page 311, § 21:
“An administrative officer exercising judicial or quasi-judicial power is disqualified or incompetent to sit in a proceeding in which he has prejudged the case, or in which he has a personal or pecuniary interest, where he is related to an interested person within the degree prohibited by statute, or where he is biased, prejudiced, or labors under a personal ill-will toward a party. ’ ’
We agree that this correctly states the law; however, there is an exception, which is mentioned in § 22. That exception occurs where the authority of the administrative officer is exclusive, and no legal provision for calling in a substitute is provided. In Corpus Juris Secundum, Vol. 67, § 66, p. 277, a concise, though thorough statement relating to disqualification is found.
“A board or official assuming to try charges against an officer or employee must establish its jurisdiction to do so when challenged, since there is no presumption as to its power in this respect. While it is sometimes provided that the trial or hearing may he conducted by the head of the department in which the person charged is serving, ordinarily it is necessary that the hearing be before an unprejudiced official, where a hearing before such a person can be had without disregard of the terms of the statute providing for the hearing and without defeating its purpose. Where the statute dearly requires the hearing to be held before a designated administrative officer, and no other officer can hold the hearing, the language of the statute may not be disregarded, or the legislative intent defeated, by holding that the designated officer is disqualified.
Mere prejudice or alleged prejudice on the part of an official authorized by statute to remove does not affect his right to remove an officer or employee in conformity with statutory proceedings where no provision is made for a hearing before another official in such a case; and the fact that a superior officer authorized to try his subordinates on charges preferred had previously reprimanded or disciplined them does not per se, in the absence of statutory mandate prohibiting it, disqualify him from trying them on charges preferred. The power of removal is not confined to matters with respect to which the officer conducting the hearing has no personal knowledge or as to which charges have not been made or instigated by him, and such superior officer may make charges on his own knowledge and remove the officer or employee charged if, after a hearing, he determines that such charges are sustained. ’ ’
Our statute, relative to the appointment of county hospital boards, is § 17-1502, Ark. Stats. Anno., and provides that the board of governors shall consist of seven members, qualified electors of the county wherein the hospital is located, and who shall be appointed by the county judge for staggered terms from one to seven years. Further:
“All appointments made to fill vacancies caused by-expiration of terms or by death shall be for a period of seven (7) years and such method shall be followed in making such appointments until each member of the board shall be appointed for a term of seven (7) years. The duty to appoint the initial members of this board and to fill vacancies in case of death, resignation, expiration of terms, or for any other reason shall be that of the County Judge. In the event of misconduct or refusal to act, any member of the Board may be removed for cause.”
Since, under our statute, the sole authority to appoint and remove is placed in the County Judge, hearings for determination of whether board members should be removed are exclusively within his jurisdiction, and appellants ’ contention for disqualification cannot be sustained.
We come now to a consideration of appellants’ listed point No. 1. Generally, proceedings for removal are commenced by furnishing an officer or employee with a notice or statement setting forth the reason or grounds for discharge or proposed discharge. In some states, there is a statutory requirement that this be done. Our statute makes no such requirement, but this Court has held that the authority to remove officials “for cause” carries with it the implied restriction, that upon accusation being made, the cause must be stated, with leave to the accused to present his defense. See Williams v. Dent, 207 Ark. 440, 181 S. W. 2d 29. Written charges were not preferred in the instant case; however, pursuant to a request by appellants’ counsel, the attorney for Judge Warren, a few days prior to the hearing, directed a letter to appellants’ attorney, specifying certain charges, as follows : a violation of Act 481 of 1949, as amended, which requires the submission of monthly reports of the hospital operations to the county judge and quorum court; the awarding of the laundry contract of the hospital to a member of the board; disagreement between personnel of the hospital and the Welfare Department, which had resulted in the latter’s refusal to send patients to the hospital; refusal of the Board of Governors and Administrator to pay several thousand dollars due the Southwest Blood Banks; refusal to permit patients in the hospital to leave that institution until proper arrangements had been made for payment of their bills; and the use of $15,000 of hospital funds for the purchase of real estate, and the taking of the deed in the name of the hospital rather than the county. Evidence relating to these charges was presented at the hearing, and evidence was also presented relative to alleged misconduct, not specifically included in counsel’s letter; for instance, testimony was offered to the effect that state welfare patients, whose medical expense had been paid in full by the State Welfare Department, had received additional bills from the hospital.
Testifying at the hearing were Jerry Poe, Chamber of Commerce member of the Citizens Committee, Dr. Lon E. Reed, Citizens Committee representative of the Garland County Medical Society, Kenneth P. Cain, committee representative from the City Council, Fred Shelton, County Clerk of Garland County, Richard Hobbs, Judge Warren’s attorney, George C. Allen, Secretary to the County Judge, Mrs. Iva Harris, Juvenile Probation Officer, Mrs. Gladys Ridgeway, Director of Public Welfare in Garland County, Harry Keaton, Certified Public Accountant, S. T. Whitworth, Administrator of the Hospital, DeVere Dierks, member of the board, J. Muriel Reed, member of the board, Hill A. Wheatley, member of the board, Mose Holiman, member of the board, and J. M. Lowrey, former County Judge. The “Citizens Committee” report was offered in evidence, though the testimony of the three committee members was not entirely in accord with the report. Various alleged offenses were included in the testimony, and the four board members, along with certain of the above witnesses who testified in their behalf, offered testimony in defense of the charges against them.
It is at once obvious, from a study of the transcript, that some of the accusations made at the hearing, even though sustained, would not justify removal. We are unable to determine whether the Judge was justified in ordering the removal of the board, for we do not know which charges and proof he relied upon.
This Court has emphatically stated upon two occasions that in removing an official from office, the specific charges upon which the removal was based, must be stated. In Williams v. Dent, supra, we said:
“It is not enough, in the affirmative language of a resolution, to throw a cloak of anonymity over the cause and arbitrarily assert that cause exists. * * * It may have been that purely personal dislike, or incompatibility not associated with official duties, animated the final result. If this were the basis of removal there was no cause within the meaning of the statute.”
In Martin v. Cogbill, Commissioner, 214 Ark. 818, 218 S. W. 2d 94, this Court stated:
“The record in this case is a voluminous one and the review of all the testimony would require an opinion of interminable length, but it is certain that all the charges were not sustained and it is doubtful if any of them were. It cannot be known therefore whether Cog-bill was removed upon testimony legally sufficient to support a charge constituting cause of removal. * * * Nevertheless the order of the Council in ordering Cog-bill’s removal imputes the finding that his presence and continued service on the board is inimical to the public welfare, or that he is unfit to occupy that position. He was entitled therefore to know upon what specific finding he was ordered removed.
It may also be said that testimony was offered as to certain alleged derelictions not specified in the petition to the Council praying Cogbill’s removal, and for aught we know from the record before us the Council’s action may have been based upon that testimony, and if so that action was unauthorized. See Williams case, supra.”
The latter paragraph might well apply in this case, for testimony was offered at the hearing in regard to certain alleged practices at the hospital which, if true, were inimical to the welfare of the institution.
It will be noted in reading Judge Warren’s letter of dismissal to the Board, heretofore set out in full, that no specific reasons were given for removing the board. They are only told that the dismissal is “based upon the Citizen’s Committee Report; facts developed at the hearing as a result of my request that each of you tender your resignations, and based upon the Statutes of Arkansas relative to the duties placed upon members of the Board of Governors of county hospitals and the general law of Arkansas * * This covers a multitude of matters and alleged infractions, and we are, of course, unable to determine the particular acts relied upon by the County Judge to sustain his action.
The judgment of the Garland Circuit Court is therefore reversed, but without prejudice to appellee’s right to proceed in a manner not inconsistent with this opinion.
McFaddin, J., not participating.
Emphasis supplied.
Emphasis supplied.
See Warren v. Reed, 231 Ark. 714, 331 S. W. 2d 847.
See Warren v. Wheatley, 231 Ark. 707, 331 S. W. 2d 843. | [
52,
-32,
-108,
92,
42,
-63,
26,
-78,
82,
-85,
119,
115,
-87,
57,
5,
123,
-61,
63,
-43,
121,
-27,
-73,
17,
104,
-30,
-37,
-7,
-59,
-78,
-3,
-10,
-3,
73,
120,
-118,
-43,
70,
96,
-49,
-100,
-58,
35,
-85,
117,
81,
-128,
56,
39,
94,
31,
85,
31,
-29,
44,
22,
67,
-52,
44,
-37,
41,
80,
-77,
8,
7,
127,
5,
33,
38,
-101,
-125,
-40,
46,
-103,
48,
-60,
-4,
51,
-74,
-126,
84,
15,
-39,
12,
116,
98,
1,
12,
-81,
-96,
-120,
30,
-98,
-99,
-90,
-78,
33,
-29,
9,
-105,
-111,
126,
22,
-126,
126,
102,
-123,
80,
44,
-62,
-114,
-98,
-91,
22,
-67,
-98,
51,
-21,
-53,
48,
113,
-115,
-26,
93,
-58,
51,
27,
-50,
-80
] |
RITA W. GRUBER, Judge.
|! This is a breach-of-contract case. The sole issue on appeal is whether substantial evidence supports the jury’s award of damages. We hold that substantial evidence does not support the jury’s award, and, accordingly, we reverse the trial court’s denial of appellant’s motion for judgment notwithstanding the verdict (JNOV) and remand with instructions to the trial court to enter judgment consistent with this opinion.
Appellant, Baptist Memorial Hospital-Mississippi County, Inc., d/b/a Baptist Memorial Hospital-Blytheville, and d/b/a Baptist Memorial Hospital-Oseeola (BMH), recruited Dr. Madhu Kalyan, M.D., appellee, in the spring of 2002 to come to Mississippi County, Arkansas, to practice medicine. In connection with this, the parties entered into several agreements in May 2002, including a Physician Agreement, Promissory Note and Security Agreement, Lease Agreement for Medical Office Building, and Lease Agreement 12for Use of Shared Physician Office Space. Pursuant to these agreements, BMH guaranteed Dr. Kalyan monthly draws for income assistance and practice expenses in exchange for Dr. Kalyan’s agreement to practice medicine full-time in Mississippi County. The draws were guaranteed for two years, at which point Dr. Kalyan would be obligated to repay the total amount advanced to him. If Dr. Kalyan continued practicing medicine in Mississippi County longer than two years, the debt would be forgiven at a rate of twenty-five percent per year. In July 2002, Dr. Ka-lyan moved with his family from the Chicago area to Mississippi County and began practicing medicine.
On May 16, 2003, Dr. Kalyan’s attorney wrote a letter to BMH terminating the Physician Agreement. Thereafter, Dr. Kalyan left Mississippi County and began practicing in Fayetteville, Arkansas. BMH filed a complaint against Dr. Kalyan, alleging breach of contract and seeking damages. Dr. Kalyan filed an amended answer and counterclaim. He admitted in his answer that he had agreed in the Physician Agreement to repay the amount of all advances, loans, and draws but denied that he was obligated to repay the amounts to BMH, pleading set-off as an affirmative defense. His amended answer included the additional affirmative defense of estoppel, pursuant to which he contended that he relied to his detriment on BMH’s representations that there was a need for his services as a pulmonologist when BMH knew or should have known that there was not adequate demand for his specialty. He alleged two counts in his counterclaim: (1) BMH negligently recruited him, and (2) BMH misrepresented material facts while recruiting him.
The case was tried before a jury on October 24-26, 2011. The parties agreed to a 1 sstipulation of facts, which the judge read to the jury before trial began, stating that the jury should consider these facts to be admitted. Included in the stipulation was Dr. Kalyan’s acknowledgment that he had received the sum of $228,350.74 from BMH under the Physician Agreement and Promissory Note and that he had not repaid any of this amount. The parties also stipulated to certain exhibits, including all four agreements between the parties and a statement reflecting all amounts advanced by BMH to Dr. Kalyan, the amounts repaid by Dr. Kalyan, and the monthly rent due, which totaled $228,350.74.
BMH presented the testimony of four witnesses, three of whom were involved in recruiting Dr. Kalyan, who testified that, while Dr. Kalyan was recruited to practice as a pulmonologist, they all knew that there was not sufficient need at the time for a full-time pulmonologist in Mississippi County and, thus, they all told Dr. Kalyan that he would need to supplement his practice with general internal medicine. The fourth witness, Debbie Lassiter, worked for BMH as manager of planning and research. She testified that she prepared the community-needs assessment for the area for pulmonology. The results of her analysis indicated the need at .86 (1.0 means the need is for one full-time doctor). She testified that the need for internal medicine in the area at the time of the assessment was 3.68.
Dr. Kalyan presented the testimony of Dr. Joe Jones, who had lived and practiced internal medicine in Mississippi County since his graduation from medical school in 1979. He testified that he gave his opinion to BMH that specialists needed to be affiliated with a group and begin in the area by working part-time, such as a day a week, and build up a practice slowly. He testified that there was not enough business in the area for a pulmonary ^specialist to make a living without spending years developing a practice. He said that he got the impression from talking with Dr. Ka-lyan that Dr. Kalyan thought that he needed to practice internal medicine in addition to pulmonology to stay busy. Dr. Jones said that he told Dr. Kalyan this could be a mistake because few internal-medicine physicians would refer to him for pulmonary issues if they were concerned he might keep their patient referrals for their internal-medicine needs, too.
Phillip Koonce, a Blytheville accountant, testified that he had been Dr. Kalyan’s accountant while he lived in Mississippi County. The essence of his testimony was that, in his opinion, Dr. Kalyan was having financial problems.
Finally, Dr. Kalyan testified that he was board certified in internal medicine, pulmonary medicine, critical-care medicine, and sleep medicine. He said that BMH recruited him for a full-time pulmonary position. He testified that he was never told that he would be required to practice internal medicine. He said that the demand was not sufficient in his area of expertise and that he began having financial difficulties because of the insufficient number of patients. He testified that he had other opportunities when he accepted the BMH position that would not have required him to incur debt. He testified that he had not paid back any of the money advanced under the Physician Agreement. He admitted that his wife, also a doctor, wanted to move to a place where she could practice and that he began looking elsewhere because he was not seeing the volume of patients that he needed to be successful. Both Dr. Kalyan and his wife found jobs in Fayetteville. He signed a contract with his new Fayetteville employer on March 26, 2003. He testified that he understood the forgiveness ^provisions of the Physician Agreement but did not think that he had to repay the money BMH had advanced to him through draws because “there was not enough pulmonary medicine for me to practice even if I stayed for six years.”
The case was submitted to the jury with the following three interrogatories (followed by the jury’s responses): 1) Do you find from a preponderance of the evidence that Dr. Kalyan breached the contract with Baptist Memorial Hospital? Yes; 2) Do you find from a preponderance of the evidence that Baptist Memorial Hospital should be estopped from enforcing the contract against Dr. Kalyan? No; and 3) How much are the damages Baptist Memorial Hospital is entitled to recover from Dr. Kalyan? $46,478.38. The trial court’s instructions to the jury included the following statement with regard to damages:
If any interrogatory requires you to assess the damages of [BMH] you must then fix the amount of money that [BMH] proved will reasonably and fairly compensate it for the element of damage resulting from the breach of contract. The element of damage that [BMH] claims is the amount of money that [BMH] loaned to Dr. Madhu Kalyan.
After the trial, but before judgment was entered, BMH filed a motion for judgment notwithstanding the verdict, contending that there was not substantial evidence to support the jury’s award for damages in any amount other than $228,350.74. BMH argued that it offered the amount of $228,350.74 in damages — the amount the parties had stipulated that BMH had advanced to Dr. Kalyan under the agreements and that he admitted he had not repaid. BMH argued that Dr. Kalyan had offered no evidence regarding damages. The court denied BMH’s motion, and BMH appealed.
This court dismissed BMH’s appeal without prejudice on September 11, 2013, for lack of jurisdiction because the trial court had not disposed of Dr. Kalyan’s counterclaim in Ra written order. Baptist Mem’l Hosp.-Miss. Cnty., Inc. v. Kalyan, 2013 Ark. App. 481, 2013 WL 4830352. The trial court entered an order dismissing Dr. Kalyan’s counterclaim with prejudice on February 24, 2014. This court now has jurisdiction to decide BMH’s second appeal challenging the trial court’s denial of its motion for JNOV.
Our standard of review of the denial of a motion for directed verdict is whether the jury’s verdict is supported by substantial evidence. Stewart Title Guar. Co. v. Am. Abstract & Title Co., 363 Ark. 530, 539, 215 S.W.3d 596, 601 (2005). Similarly, in reviewing the denial of a motion for JNOV, we will reverse only if there is no substantial evidence to support the jury’s verdict and the moving party is entitled to judgment as a matter of law. Id. Substantial evidence is that which goes beyond suspicion or conjecture and is sufficient to compel a conclusion one way or the other. Cont’l Carbonic Prods., Inc. v. Cohen, 96 Ark.App. 305, 310, 241 S.W.3d 296, 301 (2006).
The jury determined that Dr. Kalyan breached the contract with BMH and that BMH was not estopped from enforcing the contract. The only question is whether substantial evidence supports the jury’s award of damages in this case in the amount of $46,478.38. BMH argues that it was the only party that presented evidence of damages, an amount that Dr. Kalyan stipulated he had taken in draws and failed to repay. BMH contends that Dr. Kalyan presented no evidence regarding damages and thus that there is no substantial evidence to support the jury’s award of $46,478.38.
The only dollar amounts entered into evidence were the amounts that Dr. Ka-lyan received from BMH in draws under the Physician Agreement, the monthly rent charged, and |7the moving expenses paid on Dr. Kalyan’s behalf. All of these amounts were set forth in a statement, an exhibit to which the parties stipulated, which totaled $228,350.74. Although Dr. Kalyan pleaded set-off as an affirmative defense in his answer, he presented no evidence at trial regarding amounts that should be set-off. Indeed, in his response to BMH’s motion for entry of an order dismissing his counterclaim, he specifically stated that he “did not present any proof relating to damages for negligent recruitment or material misrepresentation ... and no instructions were given relating to damages or set-off as a result of any damages which might have been awarded.”
The jury found that Dr. Kalyan breached the agreements with BMH. The breach alleged, and the only breach ever argued by the parties, was that Dr. Kalyan accepted the position to work full-time in Mississippi County; that BMH paid and Dr. Kalyan received guaranteed draws for income assistance and practice expenses under the Physician Agreement; that the Physician Agreement required Dr. Kalyan to repay amounts advanced unless he practiced long enough to receive debt forgiveness; that the amount Dr. Kalyan received under the agreements was $228,350.74; that Dr. Kalyan left Mississippi County after ten months of practice; and that Dr. Kalyan had not repaid any of the amount he had received from BMH. Although Dr. Kalyan presented evidence at trial that BMH should be estopped from enforcing the contract against him, the jury found that BMH was not estopped. Finally, he presented no evidence at trial regarding amounts that should be set off.
The evidence is uncontradicted that Dr. Kalyan received $228,350.74 in draws pursuant to the Physician Agreement. Dr. Kalyan’s only argument that he was not required |sto repay that amount was that BMH was estopped to enforce the contract. Although he alleged set-off in his answer, he failed to present evidence of set-off. And his counterclaim alleging negligent-recruitment and misrepresentation was dismissed. We hold that substantial evidence does not support the jury’s verdict. See, e.g., Coleman v. Utley, 153 Ark. 233, 240 S.W. 10 (1922).
Dr. Kalyan argues that BMH has waived the right to object to the jury’s damages award because it failed to object to the interrogatory allowing the jury to set the amount of damages. He cites Willis v. Elledge, 242 Ark. 305, 413 S.W.2d 636 (1967), in which the court held that it could not consider appellant’s argument that the evidence was insufficient to submit the issue of punitive damages to the jury where appellant failed to object to the punitive-damage instruction. Willis is not persuasive in this case. BMH is not objecting to the giving or failure to give an instruction on damages. It contends that substantial evidence does not support the jury’s award. BMH argues that it requested the jury to award $228,350.74. Whether substantial evidence would have supported some other award, more or less than $228,350.74, is not before us. BMH argues, and we agree, that substantial evidence does not support the jury’s award here.
Finally, Dr. Kalyan contends that BMH failed to move for a directed verdict at the conclusion of his ease on the issue of es-toppel and thus has waived the right to request a motion for JNOV. The jury determined the issue of estoppel in BMH’s favor. BMH is not challenging the jury’s determination on that issue. BMH’s challenge is to the jury’s award of damages.
| ^Reversed and remanded.
WYNNE and BROWN, JJ., agree. | [
80,
-20,
-11,
125,
26,
96,
48,
18,
113,
43,
39,
83,
-91,
-48,
29,
111,
-94,
125,
97,
115,
-41,
51,
7,
97,
-14,
-105,
-21,
-59,
-80,
-49,
-12,
-35,
77,
60,
-54,
-43,
-26,
74,
-51,
84,
66,
-122,
-87,
108,
89,
-62,
52,
58,
88,
6,
117,
-98,
-85,
40,
50,
79,
-19,
40,
91,
53,
88,
-79,
-120,
-123,
111,
5,
-79,
36,
-104,
15,
-38,
110,
-112,
49,
11,
-56,
114,
54,
-62,
52,
71,
-71,
12,
98,
102,
2,
29,
-3,
-32,
-72,
15,
110,
13,
-90,
-109,
104,
91,
10,
-105,
-100,
94,
92,
4,
-6,
-11,
20,
31,
108,
2,
-50,
-48,
-79,
25,
-28,
-108,
34,
-17,
67,
-80,
81,
-51,
-14,
92,
-57,
59,
27,
27,
-110
] |
DAVID M. GLOVER, Judge.
11Appellant Vincent Bogard was charged by criminal information with the offenses of robbery and theft of scrap metal. After a bench trial, the Pulaski County Circuit Court found Bogard guilty of robbery, but found him not guilty of theft of scrap metal. At the sentencing hearing, the trial court placed Bogard on three years’ probation, fined him $500 plus court costs, and ordered him to pay restitution of $1,996.50. On appeal, Bogard argues that the trial court erred in ordering him to pay restitution in connection with the alleged commission of theft of scrap metal given the fact that Bogard was found not guilty of this offense by the trial court. We agree with Bogard’s argument and reverse the trial court’s order for restitution; we further remand this case and order the trial court to direct that any restitution already paid by Bogard be refunded.
I?At trial, Bradley Rogers, an employee of Whitwell and Ryles Real Estate Investments, testified as follows. On July 22, 2013, he arrived at a house located at 2 Wimberly Drive between 7:45 and 8:00 a.m. to begin work. As he pulled up, he noticed that the air-conditioning unit on the left side of the house had been taken apart and the condensing coil had been taken out. Rogers called his employer and reported the problem. Later, Rogers noticed a white, extended-cab truck pull up and stop; a man exited the truck on the passenger side, walked toward the house, grabbed the garbage can, and began pulling it toward the truck. When Rogers and his co-worker, Richard Barry, confronted the man, asked him to stop, and questioned what he was doing, the man (identified by Rogers as Bogard), told them.that he needed to get some trash out of his truck. When Rogers and Barry told him that he could not do that, Rogers was able to look into the trash can and saw that the condensing coil missing from the air-conditioning unit was inside the trash can. When Rogers saw the missing coil, he told Barry to call 911. Rogers testified that Barry then stepped into Bogard’s way, and Bogard shoved Barry, ran to the truck, and left. Rogers called 911 with the license-plate number and a description of the truck, and police were able to locate and arrest Bogard. Rogers said that to his knowledge, none of the actions taken by Bogard were authorized.
Steven Whitwell testified that he was part owner and part of management of the LLC that owned 2 Wimberly Drive. According to Whitwell, the company purchases properties to rent and sell. Whit-well said that on July 22, he was notified that the air-conditioning unit at 2 Wimberly Drive had been destroyed and that the cost to temporarily fix the unit and to ^permanently replace it was $1,939.50.
The trial court found Bogard guilty of robbery but not guilty of theft of scrap metal. At the sentencing hearing, the prosecuting attorney asserted that Bogard had to pay restitution and at trial the ■ victim had testified to the amount of restitution. Bogard objected, claiming that no restitution was owed because the purpose of restitution was to make the victim whole with respect to the financial injuries suffered as a result of the crime committed; the State’s restitution amount was based on the damage done to the air-conditioning unit; and Bogard was found not guilty of theft of scrap metal. The State countered that an element of robbery is intent to commit a theft, and Bogard was convicted of robbery. The trial court overruled Bo-gard’s objection. The State then gave the victim’s name as Steven Whitwell. The trial court placed Bogard on three years’ probation, fined him $500 plus court costs, and ordered him to pay $1,996.50 in restitution to Steven Whitwell. Bogard now brings this appeal.
Arkansas Code Annotated section 5-4-205 (Repl.2018), provides,' in pertinent part:
(a)(1) A defendant who is found guilty or who enters a plea of guilty or nolo contendere to an offense may be ordered to pay restitution.
(b)(1) Whether a trial court or a jury, the sentencing authority shall make a determination of actual economic loss caused to a victim by the offense.
(Emphasis added.) The goal of restitution is to make a victim whole. Jester v. State, 367 Ark. 249, 239 S.W.3d 484 (2006). This court has held that it is error for a defendant to be ordered |4to pay restitution for offenses with which he has not been charged or to which he did not plead guilty or no contest. Simmons v. State, 90 Ark. App. 273, 205 S.W.3d 194 (2005); Fortson v. State, 66 Ark.App. 225, 989 S.W.2d 553 (1999). In the present case, while Bogard was charged with theft of scrap metal, he was acquitted of this offense at the bench trial.
A person commits robbery if, with the purpose of committing a felony or misdemeanor theft or resisting apprehension immediately after committing a felony or misdemeanor theft, the person employs or threatens to immediately employ physical force upon another person. Ark.Code Ann. § 5-12-102(a) (Repl.2013). Bogard does not contest the sufficiency of the evidence to support the robbery conviction. The victim of the robbery was Richard Barry; he did not testify at trial; therefore, no economic-loss evidence as to Barry was presented at trial. The “victim” named by the State as the person to whom restitution was due was Steven Whitwell; but all of Whitwell’s testimony went to the economic damage suffered from the destruction of the air-conditioning unit. However, Bogard was acquitted of the theft-of-scrap-metal charge.
The State argues that while Bogard was acquitted on the theft-of-scrap-metal offense, he was found guilty of robbery by the trial court, which qualifies as being found guilty of “an” offense under Arkansas Code Annotated section 5 — 4—205(a)(1) that authorizes an order of restitution. The State’s position is that a defendant who is found guilty of any offense may be ordered to pay restitution, regardless of whether the offense caused any actual economic loss to the victim. We disagree. While there was some actual economic loss in this situation — the destruction of the air-conditioning unit — Bogard was acquitted of the offense |fithat corresponded with that economic loss — theft of scrap metal. The victim of the robbery for which he was convicted, Richard Barry, presented no evidence that he suffered any actual economic loss. Therefore, the trial court erred in ordering Bogard to pay restitution to Whitwell for the air-conditioning unit, and we reverse that decision. We also remand this case to the trial court to direct that any restitution already paid by Bogard to Whitwell be refunded. See Simmons, supra (holding that the State must obtain a conviction related to the charges in order to seek restitution based on that conviction).
Reversed and remanded with instructions.
PITTMAN and WHITEAKER, JJ., agree.
. We note that Whitwell’s testimony regarding damages and the amount of restitution ordered to be paid differs by $57. | [
-48,
104,
-56,
-100,
58,
-96,
42,
-70,
83,
-91,
114,
22,
-19,
66,
21,
43,
-14,
-5,
-11,
113,
-45,
-77,
11,
99,
-38,
-77,
-13,
-127,
48,
75,
-28,
-41,
28,
96,
-54,
93,
6,
64,
-27,
92,
-122,
5,
42,
-42,
-11,
64,
32,
42,
4,
15,
113,
-100,
-10,
46,
16,
79,
105,
40,
93,
-87,
80,
-14,
-15,
5,
107,
22,
-125,
5,
-100,
37,
-8,
12,
-100,
53,
0,
-72,
115,
-74,
-122,
116,
9,
-97,
-115,
102,
98,
0,
29,
79,
-32,
-120,
47,
-2,
-97,
-89,
-104,
41,
27,
109,
-74,
-97,
114,
22,
52,
-36,
-25,
21,
93,
108,
-127,
-58,
-108,
-109,
13,
36,
-114,
-6,
-5,
-91,
32,
117,
-51,
-94,
92,
7,
121,
-101,
-98,
-41
] |
Sam Robinson, Associate Justice.
This action was filed by appellants under the provisions of the Declaratory Judgment Act (Ark. Stats. § 34-2501, et seq.) against the Arkansas State Revenue Commissioner to determine the validity of Act 120 of 1959.
The complaint alleges that: Appellant Brown is the owner of Tia Wanna Club in Little Rock and owns in connection therewith one music vending machine, or “juke box”, which is operated by a coin slot device; appellant Farr, a resident of Texarkana, Texas, does business as Central Music Company and owns and leases several music vending machines, all located in the State of Arkansas; both appellants have attempted to purchase privilege tax stamps for each machine as required by Ark. Stats. § 84-2604, but appellee has refused to sell them same because appellants have not complied with the provisions of Act 120 of 1959.
The Act in question declares the owning, operating or leasing of coin operated machines such as those owned by appellants to be a privilege and requires, before the issuance of a license, that applicant must, among other things, pay an annual fee of $250, procure a surety bond of $3,000, be above 21 years of age, and be a resident of the State of Arkansas for at least one year prior to the date of application. At least one-half of any partnership or corporation applicant must be owned by an Arkansas resident who has been such for at least one year prior to the date of application.
There are a number of other provisions of the Act relating to requirements for issuance of a license and regulatory features thereafter, which need not be detailed here. Appellants ’ petition alleges that the provisions of the Act are “arbitrary, capricious and discriminatory and are confiscatory in their purpose” and violate the Arkansas Constitution, particularly §§ 2, 3, 18, 19 and 29 of Article 2, and are a denial of equality of privileges and authorize the creation of a monopoly and are a restraint of trade.
Appellee filed a demurrer to the petition on the ground it does not state facts sufficient to constitute a cause of action. The chancery court sustained the demurrer, and hence this appeal.
For reversal appellants make a number of arguments in addition to those alleged in their petition, but it is not necessary to set them out here. The petition alleges that Act 120 of 1959 is arbitrary, capricious, discriminatory and confiscatory, in violation of the Arkansas Constitution. Whether or not these allegations are true is a question of fact which if proved could render the statute unconstitutional. The provisions of the Declaratory Judgment Act set forth the manner by which determinations of issues of fact shall be made. Ark. Stat. § 34-2508. The decree must therefore be reversed with directions to overrule the demurrer and for further proceedings not inconsistent herewith. | [
112,
-18,
-16,
124,
24,
-32,
18,
-70,
83,
-93,
-25,
19,
-87,
82,
20,
123,
-13,
127,
113,
105,
-34,
-73,
7,
72,
-64,
-69,
-39,
85,
-72,
75,
-28,
-108,
72,
52,
-54,
85,
68,
122,
-91,
28,
86,
40,
9,
97,
121,
65,
20,
106,
2,
3,
113,
-121,
-61,
44,
28,
74,
105,
46,
-39,
-70,
113,
-70,
-37,
13,
125,
22,
33,
36,
-53,
5,
-40,
62,
-100,
-79,
64,
-88,
115,
-90,
-126,
116,
111,
-39,
32,
98,
98,
-126,
17,
-17,
-68,
40,
6,
-21,
-107,
-122,
-14,
121,
67,
47,
-65,
-108,
126,
4,
9,
-2,
122,
-75,
25,
44,
15,
-50,
-44,
-73,
36,
-13,
-116,
3,
-21,
-29,
48,
117,
-49,
-26,
92,
70,
54,
-118,
-50,
-12
] |
George Rose Smith, J.
This is a suit by the appellant to foreclose a real estate mortgage executed by Henry Dodd on February 9, 1957, securing a note for $256. The debtor died, insolvent, on November 13 of that year, and his estate was administered in the probate court. In the course of those proceedings the adminis trator obtained an order for the sale of the land in question, for the payment of debts. The land was duly sold on April 14, 1959, to the appellee Estes, who bid and paid $260 for the property. The sale was promptly confirmed, and Estes received a deed from the administrator.
Thereafter, on June 22,1959, the appellant filed this foreclosure suit against Estes and the mortgagor’s heirs. The complaint seeks an in rem foreclosure decree against the land. After a trial on the merits the chancellor announced two reasons for dismissing the complaint: First, the plaintiff had failed to prove that Dodd executed the note sued upon, and, secondly, the proceedings in the probate court were a bar to the maintenance of a suit to foreclose the mortgage.
Upon the first point the statutes simplifying the proof of written instruments are not involved, for the complaint was not accompanied by an affidavit of merit, as required by Ark. Stats. 1947, § 27-1142, and the deceased mortgagor was of course not a party to the case within the provisions of § 28-927.
At the trial the plaintiff introduced the original mortgage, which Dodd had signed by mark, before witnesses, and had acknowledged before a notary. The mortgage contains a description of the note and was recorded on November 15, 1957. (The appellees point out that the instrument was not placed of record until two days after Dodd’s death, but we do not see how this fact makes any difference. Martin v. Ogden, 41 Ark. 186.) After the plaintiff had rested the chancellor permitted him to reopen his case and introduce the original note, which was also signed by mark and witnessed. The defendants objected to the introduction of the note, on the ground that the plaintiff had not called anyone to prove its execution by Dodd, but the chancellor permitted the note to be received in evidence.
We are unable to agree with the chancellor’s decision to dismiss the case for want of proof that Dodd signed the note. The mortgage, having been recorded, was admissible without proof of its execution. Straughan v. Bennett, 153 Ark. 254, 240 S. W. 30. Hence the case seems to fall within our holding in Goodman v. Pareira, 70 Ark. 49, 66 S. W. 147, where it was said: “But the deed of trust contained a full description of the notes, and it was duly acknowledged and filed for record. This was sufficient proof of the execution of the notes.”
Moreover, it will be remembered that the court admitted the note in evidence over the same objection that is now urged by the appellees. Had the court sustained the objection the plaintiff might have produced a witness to show that the note was genuine. Thus the reception of the note into evidence may have led the plaintiff astray, and it would be manifestly unfair for us now to hold that his proof is fatally deficient.
The chancellor’s second point concerned the effect of the probate proceedings upon the present suit. It is unfortunate that Estes fell into the error of purchasing encumbered property, but that fact does not entitle him to take free of the mortgage, as a bona fide purchaser. A court can offer at a judicial sale only such title as is held by the person or estate whose interest is being sold. Consequently it is firmly settled that the rule of caveat emptor applies to such a sale, so that the purchaser takes subject to outstanding liens. McIlroy v. Fugitt, 182 Ark. 1017, 33 S. W. 2d 719, 73 A. L. R. 1223. Estes was bound by constructive notice of the appellant’s recorded mortgage.
The record does not support the appellees’ suggestion that the appellant participated in the probate proceedings to such an extent as to waive the lien of his mortgage or to be estopped from asserting it. The appellant filed a claim against the estate, showing it to be a secured claim, but a mortgagee is entitled to prove his claim against the estate of the deceased mortgagor, for otherwise the statute of nonclaim would prevent the mortgagee from reaching other assets if the mortgaged property proved insufficient to satisfy the debt. Hughes, Arkansas Mortgages, § 322. The mere filing of the claim did not affect the appellant’s right to foreclose.
The probate court might have ordered the property sold free of the appellant’s lien by giving him a preferred claim against the proceeds of sale, Ark. Stats., § 62-2609 (e); but there was no attempt to follow this procedure. The administrator simply applied for and obtained a routine order for the sale of the land to pay debts of the estate. It is argued that the appellant should have resisted the order of sale or appealed from it; but there are two short answers to this argument. One, there is no showing that the appellant was given any notice of the order, and, two, any protest by him would have been unavailing, since the probate court unquestionably had the power to order that the estate’s equity in the property be sold for the payment of debts. There is not the slightest intimation in the record that the appellant took any affirmative step that might have induced prospective purchasers at the sale to suppose that the property was being sold free from his mortgage lien.
In the record and in the briefs there is some passing mention of the fact that Estes’s wife is not a party to this proceeding. It is true that Estes has succeeded to the original mortgagor’s interest in the land, and hence his wife’s inchoate dower entitles her to redeem. But the fact that she has not been joined as a defendant does not call for a dismissal of the case; it means only that her right of redemption is not being foreclosed. See Hughes, supra, 369 and 379. Upon remand the plaintiff should be permitted to bring Mrs. Estes into the case if he so desires.
Reversed and remanded for further proceedings. | [
-9,
108,
-124,
76,
-24,
-16,
40,
-118,
-54,
0,
39,
83,
-3,
6,
20,
37,
-25,
45,
117,
105,
-57,
-77,
87,
66,
82,
-13,
-11,
-43,
-11,
-35,
-26,
21,
76,
36,
-62,
93,
-30,
-94,
-61,
80,
14,
7,
9,
-27,
-15,
-128,
48,
107,
68,
13,
84,
-81,
-13,
-81,
61,
107,
77,
46,
-7,
-83,
-56,
-71,
-98,
21,
125,
7,
-79,
117,
-106,
67,
74,
-118,
-104,
53,
0,
-8,
50,
54,
-122,
116,
79,
26,
8,
114,
98,
2,
-27,
-5,
-72,
-118,
35,
-74,
31,
-90,
-105,
72,
82,
33,
-66,
-103,
60,
16,
-81,
-2,
-26,
-123,
29,
108,
23,
-118,
-42,
-109,
7,
-6,
-98,
11,
-9,
-109,
96,
113,
-113,
-96,
94,
101,
125,
-101,
-114,
-79
] |
George Rose Smith, J.
This is a class suit brought by the appellant, as the trustee in bankruptcy for Leach-Rogers Funeral Home, Inc., to enforce what we may conveniently treat as three separate causes of action in favor of the bankrupt corporation. The question here is whether the trustee is entitled to maintain the suit as a class proceeding against ten named defendants as representatives of the Frank Leach Burial Association, an unincorporated association. The chancellor, hearing the matter upon the pleadings alone, sustained the appel lees’ motion to dismiss the complaint insofar as it attempts to state a representative cause of action against the appellees as members of the burial association. "We shall discuss separately the three counts in the complaint.
I. The complaint asserts that the burial association was organized in 1937 as a mutual benefit association and has been operated through the years as an adjunct of the now bankrupt funeral home. It is alleged that in 1957 the burial association became indebted to the funeral home in the sum of $3,225.00 for merchandise and funeral services furnished by the funeral home as death benefits under certificates issued by the burial association. In seeking a money judgment for $3,225.00 the plaintiff asserts that it is impracticable to bring all 1,607 members of the association before the court and that the ten named members should be required to defend for the benefit of all. Ark. Stats. 1947, § 27-809.
This count in the complaint asserts a cause of action that may properly be maintained as a class proceeding, and the chancellor erred in holding otherwise. An unincorporated association cannot be sued in its society name; so a representative proceeding is the usual and proper method of bringing suit against such an organization. Baskins v. United Mine Workers of America, 150 Ark. 398, 234 S. W. 464; Smith v. Ark. Motor Freight Lines, Inc., 214 Ark. 553, 217 S. W. 2d 249. The judgment will determine the question of the association’s liability and, if the plaintiff recovers, will entitle the plaintiff to proceed against the common property of the association.
II. The complaint next asserts that if the trustee in bankruptcy is unable to collect the $3,225.00 account from the property of the burial association he should be awarded a personal judgment against the individual members of the association for any deficiency. The chancellor was right in holding that the personal liability of the various members is not a matter to be determined in a class proceeding. Whether the association owes $3,-225.00 for services rendered by the funeral home is, in the language of the statute, a question of common interest to all the members, Ark. Stats., § 27-809; but the liability of any particular member is a question peculiar to him, upon which he is entitled to notice and an opportunity to present his defenses. See Sturges, Unincorporated Associations as Parties to Actions, 33 Yale L. Jour. 383, where it is said: “Upon return of execution against the common property unsatisfied, supplementary proceedings . . . should be available against any or all of the sui juris members subject to process for the deficiency. Herein will the member have his day in court as to his individual responsibility.”
III. The third count involves an entirely different cause of action. Here it is asserted that Neal and Betty Rogers, who were the owners of the corporate stock of the funeral home, sold the membership lists and management of the burial association to the Dillinger Funeral Home for $3,000.00. It is charged that these lists and management rights were in fact assets belonging to the bankrupt corporation and that Mr. and Mrs. Rogers should therefore be required to account to the trustee for the proceeds of sale. This controversy is between the trustee in bankruptcy and the stockholders of the funeral home; it is of no concern to the members of the burial association. The chancellor’s order merely dismissed this count of the complaint to the extent that it seeks to assert a representative cause of action against the appellees as members of the unincorporated association. It appears that the dispute between the trustee and the Rogerses as individuals is still pending, not having been affected by the order of dismissal. The chancellor was plainly correct in holding that this portion of the complaint did not state a representative cause of action; indeed, we do not construe the appellant’s brief as asserting any contention of error in this respect.
The decree is reversed as to the first count and is affirmed as to the other two. | [
118,
104,
-56,
-68,
24,
-30,
42,
42,
81,
-31,
-91,
-109,
109,
74,
5,
111,
-29,
61,
81,
105,
119,
-77,
71,
34,
-38,
-45,
-3,
-59,
-94,
77,
-92,
-34,
73,
32,
106,
-59,
-57,
-94,
-55,
-36,
14,
0,
9,
97,
-7,
0,
48,
-9,
86,
95,
68,
31,
-5,
-82,
56,
97,
73,
40,
121,
-83,
-64,
-79,
-82,
68,
125,
6,
33,
70,
-66,
-93,
72,
26,
24,
17,
-128,
-24,
32,
54,
22,
116,
99,
-104,
13,
98,
98,
-125,
49,
-27,
-104,
24,
15,
-74,
-99,
-121,
-106,
121,
83,
9,
-66,
29,
126,
16,
-121,
-2,
-20,
85,
26,
-88,
-63,
-50,
-10,
-75,
-121,
-11,
-36,
3,
-1,
-121,
48,
113,
-103,
-94,
93,
-57,
119,
19,
-122,
-104
] |
J. Seaborn Holt, Associate Justice.
This appeal is from the judgment of the Jefferson County Probate Court denying appellant’s motion to probate the alleged will of Mattie Bikard.
Mattie Bikard, aged 79, died on April 27, 1959, after having purportedly executed a will on April 14, 1959, at the home of Dan Ash, sole beneficiary under the will. An objection was made to the probate of the will and a hearing was held, at which time the only question considered by the lower court was whether the will was properly executed or not. Questions of undue influence, fraud, or mental capacity of the testatrix, were not considered. At this hearing it was stipulated by the parties that the two attesting witnesses, Mrs. Ira Dean and B. Z. Hillis, were not present when Mattie Bikard signed the will by her mark, nor were they in the presence of each other, nor did the testatrix acknowledge her signature in their presence.
Our applicable statute relative to the proper execution and attestation of a will is § 60-403, Ark. Stats. 1947 Ann., which provides:
“Execution, — The execution of a will, other than holographic, must be by the signature of the testator and of at least two witnesses as follows:
“a. TESTATOB. The testator shall declare to the attesting witnesses that the instrument is his will and either
“ (1) Himself sign; or
“ (2) Acknowledge his signature already made; or
“ (3) Sign by mark, his name being written near it and witnessed by a person who writes his own name as witness to the signature; or
“(4) At Ms discretion and in Ms presence have someone else sign his name for him, (the person so signing shall write his own name and state that he signed the testator’s name at the request of the testator); and
“ (5) In any of the above cases the signature must be at the end of the instrument and the act must be done in the presence of two or more attesting witnesses.
“b. WITNESSES. The attesting witnesses must sign at the request and in the presence of the testator.”
We think it evident from the above admitted facts that the sections of § 60-403 specifically requiring that a will to be valid must be executed “in the presence of two or more attesting witnesses . . . [and] the attesting witnesses must sign at the request and in the presence of the testator”, were not complied with, and therefore the will must be and is declared invalid.
But, says appellant, there was substantial compliance with the statute here involved (Ark. Stats. § 60-403). What constitutes substantial compliance with a statute is a matter depending on the facts of each particular case. Here neither of the alleged attesting witnesses signed in the presence of the testator, nor in the presence of each other. And at the trial neither of them was called to testify, nor did the proponent of the will offer any explanation as to their absence or failure to testify. Under the facts of the case at bar we hold that the will was not validly executed in the presence of the two persons who signed their names as subscribing witnesses.
Despite the fact that the subscribing witnesses were not pesent when the will was executed the appellant contends that the will can be proved by the testimony of two other persons, Sylvia Ash and Laura Woods, who were present when the will was executed but who did not sign their names as attesting witnesses. This contention is not sound. The statute requires that the attesting witnesses sign the will. Ark. Stats. 1947, § 60-403. “It is essential to due execution of a will that it be signed or subscribed by the number of witnesses required by tbe law governing tbe particular will being made, and subscription by fewer renders tbe transaction a nullity. ’ ’ Thompson on Wills (2d Ed.), § 116. See also Page on Wills (1960 Ed.), § 19.75, and Johnson v. Hinton, 130 Ark. 394, 197 S. W. 706. We therefore conclude that tbe will in question was not executed and attested in tbe manner required by tbe statute.
Affirmed. | [
-13,
109,
-59,
-98,
-85,
-32,
-70,
26,
-14,
67,
-91,
115,
125,
86,
80,
41,
50,
45,
113,
121,
66,
-77,
23,
97,
114,
-5,
-23,
-42,
-79,
-55,
-92,
29,
76,
96,
10,
85,
102,
42,
-63,
16,
-116,
-54,
-119,
113,
-39,
-112,
52,
55,
94,
-117,
-11,
-98,
-77,
41,
31,
102,
108,
108,
123,
-81,
-40,
-80,
-103,
-123,
109,
19,
-126,
7,
-84,
-87,
-40,
10,
-120,
49,
-112,
-24,
51,
-74,
-122,
-42,
11,
89,
4,
102,
86,
48,
12,
-17,
-72,
-102,
15,
126,
-115,
-89,
-110,
89,
-56,
111,
-74,
-35,
113,
80,
42,
-2,
-18,
69,
25,
108,
12,
-49,
-42,
-79,
-75,
52,
-98,
11,
-29,
-84,
18,
113,
-51,
98,
92,
67,
-15,
-101,
-122,
-14
] |
Carleton Harris, Chief Justice.
This is a boundary dispute. The parties to the action derived title to their respective properties from a common grantor, W. L. Fur-low, who at one time owned the entire tract. Appellants instituted suit in the Calhoun Chancery Court, seeking to quiet title to certain lands in themselves, alleging that they had been in possession of such lands since 1932; that Furlow had attempted to convey a portion of their property to appellees on September 14, 1957; that such deed constituted a cloud upon the title of appellants, and they prayed that the deed from Furlow to appellees be cancelled. On hearing, the court dismissed the complaint for want of equity, and found that title to the land in dispute should be quieted and confirmed in appellees. From such decree comes this appeal.
At the outset, it might be mentioned that appellants do not predicate their claim in any respect on adverse possession, but rather base their title solely upon the description in the deed.
The disputed boundary is the northern border of the appellants’ property and the southern border of appel lees’ property. In 1925, W. L. Furlow acquired title by warranty deed to certain lands from Hugh McKinnie, under the following description:
“Starting at the Southeast corner of said Subdivision, run North along the Section line Eighty (80) feet to the Branch or Little Creek, to the point of beginning; thence continuing North along said Section line, two hundred and twenty (220) feet, more or less; to the right-of-way of the Thornton and Alexandria Railroad; thence West along said right-of-way, about Two Hundred Twenty Feet (220), more or less, and thence in a Southwesterly direction, continuing along said right-of-way about Two Hundred Ninety (290) feet, more or less, to the place where said right-of-way crosses said Branch or Little Creek, thence East along said Branch or Little Creek about Five Hundred Feet (500), more or less, to said point of beginning.”
In February, 1927, Furlow conveyed, by warranty deed, to W. S. Nutt, a portion of the above property described as follows:
‘‘Commencing at the Southeast Corner of said Northeast Quarter (NE 14) of the Northeast Quarter (NE 14) and running North on the Section Line 80 feet to a corner on North side of Branch; the point of beginning ; thence running North on said line 184 feet; thence running West 192 feet to the right-of-way of Thornton and Alexandria Railway Company, thence running in a southwesterly direction along said right-of-way, to where said right-of-way crosses said Branch, thence running East along said Branch back to the point of beginning, containing two acres, more or less.”
This description is substantially the same as that in which Furlow acquired title, except that the distance north from the beginning point is stated to be 184 feet instead of 220 feet, and the distance west is stated to be 192 feet rather than 220 feet (this latter difference is not explained by the testimony at the trial and apparently does not raise an issue on this appeal). This land, under the same description, was conveyed by warranty deed from W. S. Nutt and wife to Victor L. Nutt on April 13, 1943. The appellants are the sole surviving heirs and surviving spouse of Victor L. Nutt.
On September 14, 1957, W. L. Furlow conveyed to the appellee and his wife, land on the northern part of his original plot. This land is described in the deed as follows:
“Beginning at the Southeast corner of said Northeast Quarter of the Northeast Quarter, run thence North 264 feet to a point of beginning; running thence North 36 feet to the South line of the right-of-way of the Thornton and Alexandria Railway; thence West 192 feet; thence South 36 feet; thence East 192 feet to the point of beginning, containing 16/100ths of an acre, more or less.”
It is noted that the distance to the beginning point in this deed is the sum of the 80 feet to the point of beginning in the appellants’ deed, plus the 184 feet to the northern boundary of their property, or a total of 264 feet.
This litigation was occasioned by the fact that appellees commenced construction of a building near the boundary of the properties, and appellants contend that the construction was partly placed on a portion of the land which had been deeded to Nutt. According to appellants’ surveyor, the proposed building overlapped about twelve feet on appellants’ premises.
The Nutts ’ principal contention is that references to a monument in a deed prevail over references to distances. In their brief, they state:
“Appellants contend that the location of the Southeast Corner is immaterial for the reason that the deeds from the common grantor, W. L. Furlow, of appellant and appellee described the point of beginning as being a corner on ‘North side of Branch’ and that monument prevails over the distance of 80 feet referred to in said deeds. ’ ’
Further:
“Appellants contend that the call distance in their deed of 80 feet was a mistake in fact and that the reference to the Branch or Little Creek controls.”
Appellants have correctly stated the legal doctrine, that generally speaking, monuments prevail over courses and distances; however, the difficulty in the instant litigation is in locating the designated monuments, and this applies to both the natural and artificial monuments mentioned in the deeds. Six witnesses testified in the case, three for each side. E. N. Lyons, Jr., a surveyor, and two of the appellants, testified in support of the Nutts, and Allison Means, county surveyor of Calhoun County, appellee Hamilton Strickland, and W. L. Fur-low, common grantor to both sides, testified in behalf of appellees. According to the evidence, in 1933, a highway was built along the eastern boundary of the property, and a concrete bridge replaced the wooden structure which had spanned the branch. Witnesses for appellants largely directed their testimony to the effect that the location of the branch was not changed in any manner when the highway was paved. The widow of Victor Nutt stated, on direct examination, that the location had not been changed; however, she subsequently testified that she did not especially remember the old wooden bridge, except to know that such a bridge existed. Lyon was unable to state whether the concrete bridge was placed in the same position as the wooden bridge. Fur-low testified that the course of the branch was first changed by the railroad when it constructed ditches, and subsequently, the Highway Department, in building the highway, “straightened” the branch, and the concrete bridge was moved some distance north of the location of the old wooden bridge. While this evidence was very much in dispute, all parties agreed that the railroad right-of-way could not be located.
Appellants admit that their case is dependent upon establishing that the monument, referred to in the deed, was situated at the time of the conveyance in the same location as at present. We cannot say that this fact was established by a preponderance of the testimony. As we have frequently stated, the Chancellor heard the witnesses, observed their demeanor on the stand, and was therefore in better position to judge the weight of the evidence. See Willis v. Denson, 228 Ark. 145, 306 S. W. 2d 106. The findings of the Chancellor on a fact question, of course, will not be disturbed unless clearly against the preponderance of the evidence.
Appellants assert that the property conveyed to Strickland by Furlow had previously been conveyed to Nutt by the same grantor; i.e., that the thirty-six feet deeded to Strickland was embraced in the broader description by which Nutt acquired title. Appellees, of course, contend to the contrary. The correctness of this assertion is dependent upon the original location of the branch, and as stated in the previous paragraph, we are unable to say that the Chancellor’s findings were incorrect.
Finally, appellants urge that there is sufficient land north of the present location of the branch to allow them a full 184 feet and the appellees 36 feet. They argue that the lower court should have corrected the boundary to this extent. However, this argument appears fallacious, for appellants subsequently state that if there is any impinging upon the railroad right-of-way as a result of this action, “any dispute over the grant conveying railroad right-of-way property can be settled by the railroad and appellee.” If this is a possible result, then appellants are not correct in stating there is sufficient land north of the present location of the branch to allow each party the full distance called for in their respective deeds. In any event, having failed to establish the original location of the branch, the reference to this monument is no longer controlling because of uncertainty and the courses and distances in the deeds are binding upon the parties, and the boundaries established thereby.
Affirmed. | [
-14,
-20,
-7,
76,
-72,
-92,
24,
-70,
105,
-87,
117,
83,
-81,
-56,
25,
119,
-29,
125,
-15,
105,
102,
-13,
82,
-32,
83,
-45,
-37,
77,
-67,
-36,
-12,
71,
76,
33,
-54,
85,
70,
-64,
-51,
-36,
-114,
12,
-71,
65,
-39,
80,
48,
123,
82,
79,
85,
-113,
-14,
44,
25,
99,
-56,
44,
-49,
40,
-112,
90,
-113,
-124,
125,
2,
17,
39,
-72,
-93,
104,
10,
-112,
117,
2,
-24,
115,
-90,
-106,
-12,
11,
-101,
-88,
-90,
-29,
0,
105,
-17,
-72,
-103,
14,
122,
-115,
-90,
-30,
0,
67,
0,
-68,
-99,
124,
65,
71,
116,
-20,
-123,
28,
96,
-83,
-113,
-106,
-95,
-97,
-68,
-114,
7,
-5,
-121,
50,
112,
-49,
-18,
93,
103,
57,
11,
14,
-104
] |
J. Seaborn Holt, Associate Justice.
Appellant, S. O. Boland, brought this suit to cancel an alleged forged mineral deed. Appellees, J. H. Bellis and Heirs of J. H. Bellis, L. H. Owens, Heirs of L. H. Owens, W. E. Witt and Unknown Heirs of W. E. Witt, answered with a denial that the deed was forged. Prom a decree denying appellant the relief prayed is this appeal.
The record reflects that on March 1, 1929, E. A. Woods and wife [the record title owners of a tract of land containing 102 acres] purportedly conveyed a one-half undivided interest in and to the minerals under this land to J. H. Bellis. On April 29, 1930, following the death of J. H. Bellis, his heirs conveyed a part of their mineral rights in the above land to the appellees, Owens and Witt. It further appears that on January 2, 1935 [and recorded January 19, 1935] E. A. Woods and wife had executed and delivered a Federal Land Bank mortgage which recited that it was subject to the above mineral conveyance in question. On November 28, 1947, E. A. Woods and wife sold the 102 acre tract of land here involved to S. L. Boland.
In the trial, Boland claimed that the deed to Owens and Witt was a forgery and in an effort to prove his claim, produced two witnesses, himself and E. A. Woods. They both testified, in effect, that the deed to Owens and Witt was a forgery. As indicated, the testimony of these two witnesses was all the evidence introduced by appellant, Boland. At this point, appellant offered no further testimony. Appellees filed a demurrer to appellant’s evidence, challenging its sufficiency to grant the relief sought under authority of Act 470 of 1949 [Ark. Stats. (1947) § 27-1729 as amended]. After hearing arguments the trial court sustained the demurrer and dismissed appellant’s complaint and this appeal followed.
Appellees argue that, (1) appellant did not produce that quantum of proof required to set aside the mineral deed in question which was acknowledged, recorded, and allowed to remain unchallenged for over thirty years (2) appellant’s proof, even when viewed in its most favorable light, shows that his case is barred by limitations and laches. Here we are confronted with a procedural question, a question of law and not of fact. The present case appears to be practically on all fours with our holding in Werbe v. Holt, 217 Ark. 198, 229 S. W. 2d 225, under a similar fact situation. We there pointed out that it was the duty of the trial court to give the plaintiff’s [appellant] evidence its strongest probative force and to hold against the plaintiff only when after so considering the evidence it should fail to make a prima facie case. “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 reaffirmed this holding in the recent case of Weaver v. Weaver, 231 Ark. 341, 329 S. W. 2d 422.
On this record, we cannot say that there was no substantial evidence offered by appellant to make a prima facie case in his favor. We are not here deciding as to what the chancery court would hold on final weighing of the evidence. We hold that the court erred in sustaining appellees’ demurrer and motion to dismiss and accordingly, the decree is reversed and the case remanded for further proceedings.
Reversed and remanded.
Ward and Robinson, JJ., concur. | [
114,
107,
-12,
29,
74,
96,
106,
-118,
97,
33,
-95,
83,
-19,
-62,
24,
49,
-25,
61,
-11,
104,
-41,
-73,
23,
3,
82,
-77,
91,
-35,
61,
73,
-12,
84,
76,
32,
-54,
95,
-58,
-16,
-57,
88,
-114,
13,
-117,
76,
-39,
16,
48,
111,
112,
75,
81,
-82,
-13,
43,
89,
71,
73,
46,
91,
-80,
89,
-8,
-98,
-60,
-35,
4,
48,
101,
-104,
1,
72,
-118,
-112,
49,
1,
-72,
115,
-74,
2,
-12,
1,
-71,
8,
102,
103,
49,
-19,
47,
-8,
-72,
38,
-6,
-123,
-90,
-42,
72,
99,
104,
-106,
-99,
125,
16,
-121,
-14,
-32,
-115,
29,
44,
6,
-21,
-42,
-93,
-97,
-72,
-99,
19,
-13,
43,
52,
113,
-59,
-94,
92,
71,
121,
-69,
15,
-79
] |
George Rose Smith, J.
This is a contempt proceeding in which the appellants caused the appellee to be cited for an alleged violation of a chancery decree that was entered on October 14, 1959. After hearing the appellants’ evidence the chancellor dismissed the contempt citation on the ground that the complainants had not made a prima facie showing that the earlier decree had been violated. In appealing from the order of dismissal the appellants contend that the chancellor erred in finding their proof to be insufficient.
The parties are adjoining landowners, the appellee owning a forty-acre tract just east of the appellants’ eighty acres. By the original decree the chancellor found (a) that the plaintiffs (appellants) were the owners of the East Half of the Northwest Quarter of a certain section, (b) that the defendant (appellee) was the owner of the Northwest Quarter of the Northeast Quarter of the same section, and (c) that the defendant had an easement for a roadway “consisting of a strip 20 feet wide along the east side of the above described lands of the plaintiffs. ’ ’ The decree confirmed the defendant’s right to the easement, which was described by metes and bounds as the east 20 feet of the eighty-acre tract, and restrained the defendant from trespassing upon other land of the plaintiffs.
The appellants, in asking that the appellee be punished for contempt of court, insist that the appellee has overstepped the 20-foot limitation fixed by the October decree and has actually been using a roadway about 27 feet wide. To prove this assertion the appellants introduced testimony to show that for about 75 years a fence has been recognized as the boundary between the two tracts and, further, that the appellee is using a roadway that extends about 27 feet west of the fence. The appellants failed, however, to prove that the fence is in fact situated upon the true east line of their eighty acres, as that line would be determined by the governmental survey of this particular section. The appellants did not offer any qualified surveyor as a witness. A layman was permitted to describe his efforts to find the boundary line in question, but his testimony is deficient in that he readily admitted that he did not know whether he used the true corner as a starting point. See DuPriest v. Anthony, 226 Ark. 894, 294 S. W. 2d 769. During the trial the chancellor indicated several times that the controlling issue was the location of the true boundary line, and his dismissal of the citation was based upon the complainants ’ failure to supply that proof.
The chancellor’s decision was right. The appellants rely upon cases such as Gregory v. Jones, 212 Ark. 443, 206 S. W. 2d 18, holding that a division fence, even though it is incorrectly located, may become the boundary line as a result of long acquiescence on the part of the adjoining landowners. Those decisions, however, do not govern the case as it now stands. The record before us does not include the proof upon which the original decree was based. That testimony might or might not have supported a finding that the fence line had become the boundary by acquiescence. But even if the appellants were originally entitled to such a finding, the point is that the decree as entered made no reference whatever to the fence that is now shown to separate the properties. The decree simply recited that the present appellants were the owners of the East Half of the Northwest Quarter and that the appellee was entitled to an easement along the east 20 feet of that tract. This language of the decree cannot simultaneously refer to two conflicting boundary lines; it cannot be taken to mean both the fence line and the true line according to the governmental survey. The decree describes the boundary only by reference to governmental subdivisions, and hence the original surveyed line must be regarded as controlling. Desha v. Erwin, 168 Ark. 555, 270 S. W. 965. If the parties really intended to establish the boundary line in accordance with a fence that varied from the true line, that fact should have been stated in the decree. In the absence of such a statement in the original decree the appellants’ proof in the present proceeding must be considered insufficient to support a finding that the appellee is in contempt of court.
Affirmed. | [
-75,
-26,
-36,
44,
-87,
-32,
-72,
-88,
74,
-85,
127,
83,
-19,
66,
0,
51,
-29,
59,
81,
105,
-59,
-78,
87,
82,
114,
-13,
-6,
-35,
-67,
77,
-17,
84,
76,
56,
-54,
95,
66,
-94,
-19,
-40,
-114,
6,
-119,
109,
-47,
-48,
48,
99,
84,
79,
21,
-113,
-13,
-84,
25,
-29,
40,
44,
107,
-87,
-63,
-40,
-66,
5,
94,
6,
49,
119,
-104,
3,
74,
58,
-112,
49,
-127,
-8,
115,
-74,
6,
116,
15,
-103,
40,
-90,
98,
0,
109,
-9,
56,
-52,
14,
122,
-119,
39,
-110,
88,
75,
13,
-66,
-71,
124,
16,
-89,
126,
-26,
-123,
28,
104,
11,
-117,
-110,
-79,
-113,
48,
-114,
19,
-21,
-93,
16,
112,
-51,
-22,
94,
117,
17,
-101,
-114,
-127
] |
Jim Johnson, Associate Justice.
This ease involves an action brought by appellant, Highway Lumber & Supply Company, seeking a mandatory injunction against appellee, Commissioners of West Helena Water Company, requiring it to install water meters and furnish water for two lots in Westwood Subdivision, a housing development of appellant, now situated within the city limits of West Helena.
In 1955 the appellant acquired twenty acres of land and platted the same into fifty-seven lots and dedicated it as Westwood Subdivision, the North line of which is adjacent to Highway No. 20, where appellee maintains a 6" water main with an ample supply of water. The first development made by the appellant consisted of commercial buildings along said North end of the property which appellee serviced from its water mains in the adjacent highway without question.
Appellant, desiring the development of the lots located behind the highway front commercial property for housing, and finding that water to said lots (which were at the time of the dedication of said subdivision located outside the city limits of West Helena) could not be provided directly from the water main in Highway 20, as was done for the front commercial property, sought to and did enter into a contract with appellee on November 18, 1955, whereby water was to be furnished these lots.
Under this contract appellant was required to deposit the sum of $500 for the construction of a 2" line into the subdivision from the 6" main in the highway. The contract provided that the appellant was permitted to build houses on a designated number of lots and upon completion of five houses he was to receive a refund of his original deposit. Appellant and appellee both complied with the terms of that contract and water was furnished to the original five houses. Five additional houses were built by the appellant in the subdivision. These houses were situated upon lots designated in the contract and were also furnished water.
Following the construction of these houses, appellant undertook to further develop the subdivision by building on two adjoining lots which were not included in the contract. These were lots No. 19 and No. 11.
On April 8, 1958, Rolla St. John, to whom the plaintiff had sold Lot No. 19, applied for a water meter for the home on said lot and this was refused. About the same time the plaintiff was completing the home on Lot No. 11 and a water meter for this residence was also denied. The denials of these two water meters brought on this lawsuit. The plaintiff says that the refusal to furnish water to these two lots constitutes an unlawful and unwarranted discrimination; that unless the defend ant is enjoined he will suffer an irreparable injury and is, therefore, entitled to an injunction.
The record reveals that on or about May 21, 1957, and after several years of study, and some 18 months after the execution' of the above limited contract for water service, the water company adopted a Water Main Extension Policy. All of the subdivision developers in West Helena have abided by this policy or expressed a willingness to abide by it and the policy has been applied indiscriminately to all subdivision developers since the adoption of the policy.
Under this policy the Contract For Main Extension for a real estate development requires the subdivision developer to deposit with the water company a sum of money which represents the estimated cost of constructing and installing the proposed main extension. If, after the work is finished, the cost proves to be less than the deposit, the difference is immediately refunded to the developer. Paragraphs four and five are most important to the developer because they provide for the repayment to him of his deposit. Under paragraph four the water company would refund to him at the end of the first year of occupancy of each house three and one-half times the gross amount of water revenue received from each house. There is only one refund to each house in the subdivision. The minimum amount of actual gross revenue for each house shall not be less than Thirty Dollars and the maximum amount shall not exceed One Hundred Dollars. The City of West Helena pays the water company Fifty Dollars per year for each fire plug in town and the water company gives a developer credit for each fire hydrant in the subdivision by refunding to him three and one-half times the revenue from the one fire plug for one year only or $175.
Under paragraph six, their contract is only in effect for six years from the date the main extension is placed in service. Applying the water main extension policy and the contract to the balance of the Westwood Sub division not covered under the original limited water service contract, the following facts developed:
Mr. Gene Cowsert, Manager of the Water Company, testified that the average gross water revenue for each house in Westwood Subdivision amounted to $36 per year. Three and one-half times $36 x 34 houses to be built on additional lots to be serviced equals $4,284, and this sum plus $175 for the fire hydrant equals $4,459. The revised detailed estimate of cost amounted to $4,493. (The first estimate was $4,708.18 and later on was reduced to $4,493.68.)
Mr. Cowsert testified that the appellant would have been entitled to receive all of his money back when he had built 34 houses. Even appellant testified he would have received all of his deposit back in six years.
Mr. Waters, owner-appellant, refused to sign the above contract and in order to obtain water for his subdivision he deposited the sum of $3,370.11 (which was the amount of money required for the construction of the mains he wanted to build at that time) under protest. The water company then constructed the water mains in accordance with the requirements of the Arkansas State Board of Health which provided a six inch main in the western part of the subdivision rather than a two inch main as desired by appellant.
Appellee contends that they refused to provide water to lots No. 11 and No. 19 for several reasons of which the main ones are as follows:
1. Because a two-inch main extended throughout the subdivision would not provide sufficient water pressure for adequate service for the development of the entire subdivision.
2. Because of the Water Extension Main Policy adopted on or about May 21, 1957.
3. Because the Arkansas State Department of Health recommended a six-inch main leading from State Highway No. 20 on the West side of the subdivision to a point . . . (designated in the subdivision). This was purely for the domestic use of water from the standpoint of the Board of Health.
4. Because the Arkansas Inspection and Bating Bureau approved a six-inch main in order to provide sufficient water pressure for adequate fire protection.
5. Because it was necessary to protect the financial stability of the West Helena Water Company.
In support of their refusal, appellee further contends in their argument which was based upon the record that: “Appellant states that for the purposes of this lawsuit it is interested only in these two lots, however, its attorney says ‘that if we build right next to it we are entitled to it. ’ On the plat of Westwood Subdivision the distance from the south end of the original two inch main to the south part of the subdivision, around the bend or loop and thence north to the state highway on the West side of the subdivision is approximately twenty-five hundred fifty feet which lacks approximately one hundred eighty feet of being half a mile. The continuous extension of the two-inch line through the subdivision would be of great advantage to appellant in saving it money but it would be of great disadvantage to the people to whom it sold homes and would also create a huge burden on the water company when later on it would have to come back and duplicate the two-inch main with a six-inch main a distance of approximately six-hundred fifty feet. Without a fire plug in Westwood Subdivision all of the citizens in West Helena would have to pay higher fire insurance premiums. In short, if the position of the appellant were upheld then there would, in fact, be discrimination against the water company, other subdivision developers and the people of West Helena generally.”
The learned Chancellor agreed that appellee’s contentions were valid and refused to grant the mandatory injunction prayed for. On appeal, appellant relies prin eipally upon the following cases: City of Malvern v. Young, 205 Ark. 886, 171 S. W. 2d 470; Pine Bluff Corporation v. Toney, 96 Ark. 345, 131 S. W. 680; Consumers Company v. Hatch, 224 U. S. 148, 32 S. Ct. 465, 56 L. Ed. 703. After careful review on trial de novo we find that the cited cases do not here sustain the points urged by appellant for reversal. To the contrary, however, we do find in the City of Malvern v. Young, supra, quoted from Pond’s Law of Public Utilities, 4th Ed. Vol. 1, § 275, the following:
“Where the location of the prospective customer is unusual and the conditions of furnishing him service are peculiar because of the distance he is removed from the center or thickly populated district of the municipality or because of the sparsely settled- condition of his own neighborhood, it is only reasonable that the public service corporation providing him with its service be permitted to impose other and different conditions from those applicable to a customer centrally located in the thickly populated district of the municipality. . . . And while the public service corporation can not act arbitrarily or discriminate among its customers, present or prospective, where similarly situated, by way of favoring one customer of a class or one class over others a distinction may be made between different customers or classes of customers on account of location, amount of consumption, or such other material conditions which distinguish them from each other or from other classes.”
According to Professor Pond the water company could have made a distinction between different customers or classes of customers on account of location (Westwood subdivision was located in the Western part of West Helena and at the time of the Dedication deed the lots involved in the first contract were not even in the city limits of West Helena), amount of consumption or such other material conditions which distinguishes one customer from another.
The water company denies that there was any discrimination whatsoever against the plaintiff or anyone else. Gene Cowsert, Manager of the Water Company, testified that all other subdivision developers in West Helena had either abided by the policy or expressed a willingness to abide by it and that the policy had been applied indiscriminately to all subdivision developers since the policy was adopted. There was no evidence to the contrary. In fact, the owner-appellant testified as follows:
“Q. Have you reviewed the policy?
“A. Yes, sir; I have read it.
“Q. Do you think it is a reasonable policy?
“A. I don’t see too much wrong with it. . . .”
It is a well established rule that the burden of proof is upon the plaintiff to prove by a preponderance of the evidence that the Water Company acted arbitrarily or abused their discretion. This the appellant failed to do.
Affirmed. | [
113,
106,
-68,
76,
26,
8,
26,
-110,
83,
-69,
-92,
83,
-25,
-128,
28,
97,
-25,
127,
-43,
123,
-27,
-93,
3,
98,
-48,
-13,
-13,
-43,
-71,
108,
-12,
-41,
76,
49,
-54,
-99,
-26,
66,
-51,
-36,
70,
3,
25,
109,
-47,
66,
52,
91,
84,
79,
85,
-116,
-13,
45,
20,
-53,
-103,
46,
75,
53,
64,
-8,
-104,
-107,
-35,
4,
49,
100,
-103,
-61,
104,
88,
-104,
53,
0,
-88,
87,
-90,
-46,
-76,
73,
-101,
40,
-30,
-30,
34,
49,
-25,
-8,
-39,
15,
-2,
-115,
-92,
-110,
24,
67,
96,
-68,
-100,
120,
-106,
-59,
126,
-34,
-59,
95,
44,
6,
-122,
-74,
-95,
-113,
-84,
5,
23,
-17,
3,
48,
52,
-49,
-30,
94,
71,
51,
27,
6,
-47
] |
Ed. F. McFaddin, Associate Justice.
The question here presented is the power of a court of equity to sanction a deviation from one portion of a charitable trust instrument in order to accomplish the larger purpose of the charitable trust. Stated another way, the question is the power of a court of equity to permit a sale of the trust property, even though, the trust instrument states that the property cannot be sold.
In 1889 Joseph Merrill executed a trust indenture creating the Merrill Institute in Pine Bluff. The instrument recited in part:
“Know All Men by These Presents, that I Joseph Merrill of the City of Pine Bluff, in the County of Jefferson in the State of Arkansas being desirous of doing all the good I can while living and that the benefits may last when I am gone, and believing the most effectual way to accomplish this object is to provide some place of instruction and amusement to attract the young white people and bring them under influences calculated to elevate and improve them physically, mentally, morally and spiritually; Now therefore in consideration of One Dollar ($1.00) in hand paid and the premises herein set out, I Joseph Merrill do hereby give, grant, bargain, sell and convey . . .”
Then were named certain trustees, and there was conveyed to them a parcel of real estate which is situated at the corner of Fifth Avenue and Main Street in Pine Bluff. Specific wishes of Mr. Merrill were given for the use of the property as a gymnasium, lecture room, library, and that there be “. . . such other instructions in said Hall as will improve and elevate the physical, mental, moral and spiritual condition of those who attend them; Provided that no Sectarianism or Partisan Politics shall ever be taught therein. No gambling, no intoxicating drinks, no immoral books or other like publications shall ever be allowed in the said Institution. Should the means at the command of the Board of Trustees justify they shall in addition to the above provide and maintain a library with such Literature as shall further the objects of the Institution.” The instrument also recited — and this is the portion that causes the litigation:
“The Trustees shall have no power to sell, convey, or in any manner encumber the property herein conveyed or any part thereof. . . . But a breach of these restrictions herein or any of them, on the part of the Board of Trustees, or by their knowledge or consent shall in no case work a forfeiture of this grant, but shall only give the said Joseph Merrill, his heirs and assigns, and on his or their failure to act, then any resident citizen of the City of Pine Bluff, Arkansas the right to take such actions as will lawfully and promptly secure and maintain all rights and privileges herein granted. ’ ’
With funds provided by Mr. Merrill the trustees erected a building on the property, and the Merrill Institute has continued to this day. In Atkinson v. Lyle, 191 Ark. 61, 85 S. W. 2d 715, there was an effort by the trustees to mortgage the property; but this Court denied the trustees the power to execute the mortgage. For the past several years the trustees have allowed all of the building of the Merrill Institute — except for two store buildings which are rented for revenue purposes — to be used by the Boys’ Club of Pine Bluff; and a splendid youth program has been maintained, with instruction in crafts, physical welfare, showing of moving pictures, etc. But the location of the Merrill Institute is at the most traveled intersection in the City of Pine Bluff, and it is hazardous for youth to go through the traffic to reach the Institute.
Recently, a public spirited citizen of the City has agreed to donate to the Merrill Institute a large tract of land located in a residential district so that a new building may be erected for the Merrill Institute. The trustees can sell the present property at Fifth Avenue a Main Street for $150,000.00; and they propose to use a substantial part of this money to erect a building at the new location; and the trustees are very desirous to accomplish all of this. To test the power of the trustees to sell the original property at Fifth Avenue and Main Street and to use the proceeds for the new building, the appellant, as a citizen and taxpayer, brought this suit against the trustees. After a patient hearing the Chancery Court found that the trustees should be accorded the power to proceed as they planned. The Chancellor delivered a lengthy opinion, a major portion of which we copy:
CHANCELLOR’S OPINION
“This is a friendly suit brought by a taxpayer of Pine Bluff for himself and other taxpayers against the trustees of the Merrill Board. The Defendant Trustees filed an answer and in the answer they pray that this court give them authority to sell property belonging to the Merrill Trust. The Court will treat the prayer contained in the answer as a request for instructions by the Trustees concerning their duties and responsibilities as Trustees.
“The facts as brought out by the evidence, briefly stated, are as follows:
“One Joseph Merrill created the Merrill Institute, a trust, in February, 1889, for the purpose, using the language in the Trust instrument: —‘... to attract the young white people and bring them under influences calculated to elevate and improve them physically, mentally, morally and spiritually’. To carry out this Trust, he conveyed to the Trustees a tract of real property located at 5th and Main Streets in Pine Bluff, and provided for the erection of a building thereon.
“One of the terms of the Trust provides that the trustees shall have no power to sell, convey or in any manner incumber the property.
“There are three issues to be determined by this Court, namely: (1) Is the trust property being used today for the purpose or purposes designated by the settlor? (2) If the Trust property is being used in a manner that accords with the Settlor’s intention, will the Settlor’s intention be thwarted and will the innocent beneficiary suffer if the trustees’ request is denied? (3) If this Court should find that the Settlor’s intention is being thwarted due to no fault of the trustees, but because of unusual circumstances having arisen not foreseen or anticipated by the Settlor, and if the Court should fur ther find that the innocent beneficiary will suffer, does this Court have the right, in the exercise of its inherent equitable powers, to permit the trustees to sell the trust property in deviation from the express terms of the trust instrument?
“These issues will be discussed in the order listed.
“ (1) Is the trust property being used today for the purpose or purposes as set forth in the deed in trust?
‘ ‘ The evidence indicates that since 1946, the property has been used and occupied by the Boys Club of Pine Bluff. Even though Boys Clubs as we know them today were not in existence in the year 1889, the year the deed in trust was executed, nevertheless, there is no question that the present use of the property is completely within the meaning of the trust purposes as set forth in the deed in trust. Mr. Merrill wanted to provide some place of instruction and amusement to attract the young white people and bring them under influences calculated to elevate and improve them physically, mentally, morally and spiritually. It is the opinion of this Court that no youth organization of our community or any other community could meet this requirement any more than a Boys Club. If Mr. Merrill were living today, it is beyond the shadow of a doubt that he would say ‘well done’ to these trustees for the manner in which they have used this property.
“ (2) If the trust property is being used in a manner that accords with the Settlor’s intention, will the Settlor’s intention be thwarted and will the innocent beneficiary suffer if the trustees’ request is denied?
‘ ‘ The Court finds that the Settlor’s intention will not only be thwarted, but that the beneficiary, the Boys Club of Pine Bluff, is suffering and will suffer more as time goes by. The undisputed facts reveal that when Mr. Merrill created this trust in 1889, the City of Pine Bluff was a small town; that there was no vehicular traffic; that there were no thoroughfares running adjacent to the property. The evidence further reveals that since that time, the city of Pine Bluff has grown in population to a metropolis exceeding 50,000 in and around the city. The location of the trust property is in the busiest location in the city, being adjacent to Main Street on the west and Fifth Avenue on the South. Fifth Avenue also is Highway 65, a U. S. Highway running the entire length of the State and heavily travelled. Both of these streets are crowded with vehicular traffic every day to such an extent that an extreme hazard now exists to the young boys who go to and from the Boys Club.
‘ ‘ The Court will observe that it has only been by an act of providence that only two boys have been injured in and around this location . . . It is the opinion of the Court that the circumstances have so changed since execution of Mr. Merrill’s trust declaration that his wishes and purposes are being thwarted. The Court further finds unless relief is granted to the trustees, the innocent beneficiary will greatly suffer, whereas, if their request is granted the wishes and intention of the Settlor will be more fully carried out and the trust property preserved.
“(3) If this Court should find that the Settlor’s intention is being thwarted due to no fault of the trustees, but because of unusual circumstances having arisen not foreseen or anticipated by the Settlor, and if the Court should further find that the innocent beneficiary will suffer, does this Court have the right, in the exercise of its inherent equitable powers, to permit the trustees to sell the trust property in deviation from the express terms of the trust instrument?
“The recent case of The George W. Donaghey Foundation v. Little Rock University, decided in the Supreme Court of Arkansas on the 29th day of February, 1960, and found in Vol. 106 of the Law Reporter, No. 8, at page 245, will become the land-mark case in Arkansas on the authority of trustees to relieve innocent beneficiaries from injury in cases such as is now before the Court.
“The Supreme Court in that case, in placing much emphasis upon the Settlors’ intention, stated as follows:
‘Will equity permit an innocent beneficiary to suffer under sucb circumstances? The answer has been given many times.’
“Then the Court quoted from 1 Restatement of Trusts 2nd, Section 167, under the heading of ‘Change of Circumstances’, as follows:
‘. . . “The Court will direct or permit the trustee to deviate from a term of the trust if owing to circumstances not known to the settlor and not anticipated by him compliance would defeat or substantially impair the accomplishment of the purposes of the trust; and in such case, if necessary to carry out the purposes of the trust, the court may direct or permit the trustee to do acts which are not authorized or forbidden by the terms of the trust.” ’ (My emphasis.)
“The Supreme Court in this important case also quoted from 89 C. J. S. Trusts, Section 87e (2), to the following effect:
‘ “In an emergency, or in circumstances not anticipated by the settlor, an equity court may, in order to preserve the trust or effectuate its purpose, authorize the trustee to deviate from its terms. * * * A Court of equity will put itself in the trustor’s place and endeavor to authorize the trustee to deviate from the terms of the trust in a manner which the court believes the trustor would himself have authorized if he could have anticipated a necessity for subsequent alteration of his plan.” ’
“The general rule as to the powers of a court of equity to act in matters such as this and under circumstances previously set out is found in 54 American Jurisprudence, page 225, where it is stated:
‘While generally the administration of a trust must accord strictly with the intent of the settlor and the terms of the trust, and while ordinarily even a court of equity has no right to authorize the trustee to depart therefrom, and will do all within its power to see that the trust is executed in accordance with its terms, it is generally agreed that a court may, upon the occurrence of emergencies or unusual circumstances not anticipated by the settlor, in order to carry out his ultimate purpose, and to preserve, or to prevent loss or destruction of, the trust estate, in the manifest interest of the trust estate, or, according to some authority, in the interest of beneficiaries or to save them from some plight, permit the trustee, to the extent necessary to such an end, to deal with the trust estate contrary to or in deviation from the express or literal terms of the trust instrument or declaration.’ This citation continues with this statement:
‘In this connection, the court is required to stand in the place of the creator of the trust and authorize what he would have authorized had he anticipated the exigencies rendering some change in his scheme necessary in order to prevent the loss of the subject of it. ’
“In 54 American Jurisprudence at page 226, section 284, the writer makes this statement: ‘ The Court should not substitute its judgment for the judgment and wishes of the trustor, and any power of a court to authorize departures from the trust directions should be exercised no further, it has been held, than necessary for the preservation of the trust property.’
“The basis of this Court’s action in allowing the trustees to sell the trust property and reinvest the proceeds in a more desirable property in a more desirable location is to preserve the trust property and estate for the benefit of the beneficiary.
“In a rather thorough Annotation on this subject in 168 A. L. R. at page 1019, the text writer makes this statement: ‘With scarcely any real dissent the cases, whether of charitable or of private trusts, are to the effect that a court of equity has power, or “inherent power”, to authorize a sale of property contrary to express or implied provisions or the patent general intent of the will or other trust instrument that the property shall not be sold. The statements commonly run to the effect that the power is one which exists in circumstances of emergency or exigency, and especially in circumstances not anticipated or foreseen.’
“At page 1029 of the above mentioned Annotation, we find this statement:
‘Passing notice may be taken of the fact that the proceeds of a sale of trust property sold in emergency stand in place of the property sold and are to be applied to the same general purposes ... A Court may decline to authorize a sale for purposes of reinvestment in the absence of any sufficient showing as to the availability, character, and propriety of reinvestments contemplated. ’
“This Court, prior to entering its Decree allowing a sale, made certain requirements of the trustees. These requirements, which have been met, were as follows:
1. The present property to be appraised by three qualified appraisers;
2. The sale of the present property to be for not less than the appraised value after all expenses paid;
3. Evidence that the Trust held fee title to the property at Ninth and Mulberry, the proposed new location of the Boys Club;
4. Detailed plans for the construction of the new building on the new site, including architect’s drawings, said drawings to include two store rooms to be used for business purposes in accordance with settlor’s wishes;
5. Bids to be accepted on the basis of the architect’s drawings, with successful contractor posting a good and sufficient bond for his good performance of said contract:
6. Under no circumstance is the new building and property to be encumbered and the proceeds from the sale of the present property is to be sufficient to pay all indebtedness connected with the change of location into new building.
‘Under these circumstances, considering Mr. Merrill’s wishes as expressed in his trust instrument, considering the change of circumstances not foreseen by Mr. Merrill in 1889, considering the fact that he expressed a desire in his trust instrument to not only do good during his lifetime, but that ‘the benefits may last when I am gone’, considering all of these matters along with other relevant points, this Court feels that it would be abusing its powers if the request were not granted on the petition of the trustees in this friendly suit. Certainly, no Court should take the arbitrary view under the facts here that a Court of equity cannot act to relieve the situation and preserve the trust estate, in view of the overwhelming majority rule as set out in the above mentioned citations, among many others.
“This Court, in making its ruling herein, is cognizant of the case of Atkinson v. Lyle, 191 Ark. 61. The Atkinson case involved the Merrill trust, the same trust now before the Court. However, this Court is of the opinion that the Atkinson case is not controlling in the case presently before the Court for the reason that the facts of the Atkinson case are different from the facts of the present case. The Atkinson case went to the Supreme Court from the Jefferson Chancery Court. In that case, the trustees of the Merrill Trust proposed to mortgage the building involved in this case, and sell some other property not involved in these proceedings. So, for the purpose of this case, the Atkinson case involved a mortgage of the trust property at Fifth and Main Streets in Pine Bluff, whereas the case at bar involves a sale of this property, with a reinvestment of the proceeds in a more desirable location and a more desirable building.
‘ ‘ On the basis of the facts before the Supreme Court in the Atkinson case, the Court had no alternative but hold as it did, because it can be readily seen that there is a vast difference between placing a mortgage on the property and selling the property under circumstances present in this case. To encumber the property with a Mortgage could certainly create a risk for the trust in that if the mortgage was not discharged, it could be foreclosed and thus the failure and destruction of the trust estate. However, on the basis of the facts before the Court, there is no possibility for the trust to fail or be destroyed. The trustees, under the supervision and control of this Court, have made fool-proof plans to see that Mr. Merrill’s wishes are carried out, the only change being in the location of the property. And as to the change in location, this Court would observe that however evident it might be that the Settlor designed and expected that the lot at Fifth and Main Streets should be the seat of his charity, it is still more evident from the scope and tenor of the deed in trust that it was the charity itself, and not the perpetual use of the location at Fifth and Main Streets for the stated purpose, which the donor had mainly in mind. The testimony was more than substantial to indicate that a continuance of Mr. Merrill’s charity at its present location would fail to secure the object manifestly intended by the donor in his trust instrument.
“So, the opinion in the Atkinson case is not binding and conclusive on this Court or any other court in the State of Arkansas because of the different facts involved. See Beck v. State, 14 S. W. 2d 1101, 179 Ark. 102. Also, the doctrine of stare decisis has no application where the subject matter in a subsequent suit is not identical with that in prior cases. Kincade v. C. & L. Electric Co-operative, 299 S. W. 2d 69, 227 Ark. 321.
‘ ‘ The real holding in the Atkinson case as far as this case is concerned, was that the attempt by the trustees to mortgage the trust property was void because in contravention of the settlor’s express wishes. That portion of the Atkinson opinion that applied to sales of the trust property would be dicta in the case at bar because of the different facts involved. And as was stated in the case of Campbell v. Beaver Bayou Drainage District, 219 S. W. 2d 934, 215 Ark. 187, in following prece dents, Courts are guided by the real holding which is essential rather than by dicta which is incidental.
“For the reasons stated, the complaint will be dismissed and defendants’ request to sell the trust property involved is granted. ’ ’
We need add but little to the foregoing opinion. The Chancery Court correctly held that the main purpose of Mr. Merrill’s trust indenture was to “. . . attract the young white people and bring them under influences calculated to elevate and improve them physically, mentally, morally, and spiritually”, just as stated in the trust instrument. The other matters were specific details, or suggestions, or restrictions. The trust instrument executed in 1889 provided that the property at Fifth Avenue and Main Street could not be sold. But at that time the said location was outside the business district of Pine Bluff. In the transcript before us there is a picture of Main Street in Pine Bluff in 1890 which shows that Fifth Avenue and Main Street was then a timber covered area. Today that location is the hub of the metropolitan area of the City. To keep that specific property today for a youth center will be of danger to youth who might go there for lectures, physical development, etc.; whereas, youth will be greatly benefited by a new location of the Institute. As aforesaid, the prime purpose of the trust is to “. . . provide some place of instruction and amusement to attract the young white people and bring them under influences calculated to elevate and improve them physically, mentally, morally, and spiritually”. With that as the main purpose of the trust, equity has the power to permit the trustees to deviate from the restriction against the sale of the property at Fifth Avenue and Main Street, when it is shown — as here —• that the deviation is necessary to accomplish the main purpose of the trust. Henshaw v. Flenniken, 183 Tenn. 232, 191 S. W. 2d 541, 168 A. L. R. 1010; Amory v. Attorney General, 179 Mass. 89, 60 N. E. 391; Catholic Bishop of Chicago v. Elliott, 14 Ill. App. 2d 495, 144 N. E. 2d 874; Town of S. Kingstown v. Wakefield, 48 R. I. 27, 134 A. 815, 48 A. L. R. 1122; Foust v. Wm. E. English Foundation, 118 Ind. App. 484, 80 N. E. 2d 303; and Shoemaker v. American Security & Trust Co., 163 Fed. 2d 585.
In Slade v. Gammill, 226 Ark. 244, 289 S. W. 2d 176, we allowed the trustees to make a disposition of a portion of the trust property on the doctrine of cy pres. That doctrine is not invoked in the case at bar because the change of location is not a change of purpose of the trust; but what we said in Slade v. Gammill is applicable here in that these trustees have made a ‘ ‘. . . very fine common sense solution of serious difficulties”; and “. . . equity should approve such a solution. . .”. We affirm the decree of the Chancery Court.
The trust instrument provided that the trustees could select their successors, and the standing of the present trustees is unquestioned.
231 Ark. 748, 332 S. W. 2d 497.
Quoting the Trial Court’s opinion as regards Atkinson v. Lyle is not an approval of that holding in Atkinson v. Lyle. Permissible deviation in charitable trust cases is now allowed, just as is being done in the case at bar. | [
-16,
-6,
-36,
78,
74,
-64,
26,
-102,
64,
-86,
35,
19,
105,
-38,
4,
47,
-78,
-67,
85,
115,
-44,
-74,
71,
113,
-46,
-69,
-37,
-59,
-75,
109,
-16,
-43,
72,
32,
-54,
-43,
-42,
-63,
-23,
-112,
14,
-123,
10,
9,
-39,
97,
50,
99,
16,
73,
65,
-98,
-77,
36,
28,
79,
72,
44,
75,
-66,
120,
-72,
-72,
-113,
-5,
23,
-111,
55,
56,
71,
-32,
46,
-104,
49,
-55,
-88,
123,
54,
6,
84,
77,
11,
44,
112,
98,
-112,
33,
-9,
-80,
-120,
-97,
-121,
-115,
-121,
-126,
121,
-22,
73,
-100,
-97,
123,
20,
6,
-8,
38,
-124,
88,
100,
1,
-114,
-42,
-95,
-123,
56,
-39,
11,
-21,
-65,
48,
113,
-50,
-30,
78,
102,
123,
23,
-122,
-79
] |
J. Seaborn Holt, Associate Justice.
This appeal comes from a judgment against appellants, architects, on a jury verdict awarding substantial damages to one injured workman and to the representatives of three other workmen who were killed. The record reflects that the Seventh & Main Street Realty Company, owner of the premises at Sixth and Main Street, entered into an agreement with J. C. Penney and Company to erect a building suitable for Penney to house and sell merchandise. Pursuant to this agreement, Seventh & Main Street Realty Company negotiated with the architectural firm of Erhart, Eichenbaum & Rauch to design and draw the necessary plans for a suitable building. This was done and a contract was let by Seventh & Main Street Realty Company to the J. A. Jones Construction Company of Shreveport, Louisiana. After this contract was let, it developed that Penney was not going to furnish supervision of the construction work, contrary to the owner’s prior understanding that they would. Seventh & Main Street Realty employed the present appellants, architects, to guard its interest by supervising construction of the building, in addition to their architectural duties. For this additional work, appellants were to receive an additional fee over and above their architectural, fee. Work under the contract proceeded and the Jones Construction Company subcontracted the excavation to one Claude Machen. Due to the depth of the excavation and because of danger to adjacent buildings and workmen, the plans for the excavation were set out in some detail in the contract. As the excavation proceeded in depth, it became necessary to shore the walls to prevent sliding and caving of the earth. Serious questions were raised by the field supervisor of the architects, Vance A. Davenport, as to the adequacy of the shoring on the east wall, then seventeen (17) feet deep and perpendicular. Comments by Davenport were to the effect that the shoring of this wall was no better than a “whitewash” and “it wasn’t worth a d — .” With some dispatch, a call was placed by Mr. Eichenbaum, one of the architects, to the general office of Jones Construction Company at Shreveport, requesting that a new job superintendent be brought to the job at once; otherwise, they would ask the owners to stop work on the job immediately, as allowed under the contract. The next day, Friday, the new superintendent arrived on the job and promised to make shoring of the east wall the first order of business Monday morning. There was evidence that a slow drizzle of rain fell over the weekend causing the excavation walls to soften. Monday morning, as Vance Davenport, appellants’ supervisor and superintendent, drove his automobile [which weighed 1,600 lbs.] into the alley near the edge of the east embankment wall, this wall caved in killing three employees and seriously injuring a fourth. It was stipulated: “It is further stipulated and agreed by the defendants Erhart, Eichenbaum & Rauch that Vance Davenport was their agent, servant, and employee and acting within the scope of his employment on the J. C. Penney Company job site at the time of the accident and prior thereto.”
Suit was filed by the injured workman on behalf of himself and by the personal representatives of the three estates of the three workmen who were killed alleging, in effect, that appellants, architects, were negligent in failing to inspect and direct the erection by the contractor of the necessary protection for the workmen according to the plans and specifications, in failing to require compliance in accordance with Little Eock Ordinance No. 2801 and that the negligence of the agent and supervisor, Vance A. Davenport, in driving his automobile through the alley above the excavation when he knew vibrations therefrom might cause the wall to fall, was imputable to them, and that appellants were negligent in failing to stop the work under their powers set forth in the contract until the dangerous conditions had been corrected. Appellants answered, in effect, with a general denial.
Upon a trial of the issues, as indicated, the jury found in favor of appellees and the following judgments rendered accordingly:
“Benjamin Hummonds — $10,000.00
Monteen Criswell— 48,000.00
Lucy Lewis— 48,000.00
Vernie Lowman — ■ 12,000.00”
The points for reversal may be summed up as follows: (1) The appellees have no cause of action on the basis of contract provisions (2) The architects did not breach any contractual duty to the owner (3) There is no substantial evidence that the presence of the Davenport car in the alley caused the cave-in (4) That numerous instructions given by the court and numerous instructions refused by the court were error (5) The verdicts are excessive.
Appellants’ contention under point one has been settled adversely to them in our recent case of Hogan v. Hill, 229 Ark. 758, 318 S. W. 2d 580. Hogan, a contractor, entered into a contract with the Arkansas Highway Commission to do certain work. Hogan violated the safety clause contained in a provision of the contract and as a result, Hill, not a party to the contract, was injured. We there stated: “It will be noted that Hill’s complaint states a cause of action in tort based not only on the common law of negligence, but based also on Hogan Company’s failure to comply with the regulations in the contract relative to public safety. This, we think, he had a right to do. See Prosser on The Law of Torts, 1955, 2d Ed. § 81, p. 478 and 482; Ann. Cas. 1913C, p. 217; Pugh v. Texarkana Light & Traction Co., 86 Ark. 36, 109 S. W. 1019; Hill v. Whitney, 213 Ark. 368, 210 S. W. 2d 800, and Collison v. Curtner, 141 Ark. 122, 216 S. W. 1059, 8 A. L. R. 760.”
Assignment two presents the question of whether the architect breached any duty to the owner, and further the issue if there was a duty whether it did not arise until the excavation was completed. The issue here, we think, is not whether the architect breached any duty to the owner, but whether there was a breach of duty owed to the workmen by the architect arising out of the safety provisions of the contract. In the Hogan case above, Hogan did not breach any duty to the highway commission, but did breach a duty which it owed to the traveling public and for whom the safety provisions were intended. In the case here presented, we hold that there was substantial evidence that appellants, architects, breached a duty owed to the workmen whom the safety provisions of the contract specifically named. Appellants were further obligated to inspect the excavation upon completion and prior to the commencement of concrete work. Section 1-02 (d) of the contract, dealing with inspection and excavation, provides: “Upon completion of excavation, and prior to commencement of concrete work, excavations will be inspected by the Architect to insure that suitable earth foundation conditions have been obtained, and that compliance with the requirements of the specifications and the drawings have been maintained. No concrete shall be placed until this inspection has been made and approval of the Architect has been obtained.”
Mr. Davenport, appellants’ employee and supervisor, testified that the east wall footings were poured Friday afternoon before the accident on Monday; that he was the architects’ inspector or supervisor to see that the plans and specifications were followed; that he did not approve making a vertical cut on the wall, that it was a dangerous thing to do and dangerous to workmen underneath; that the vibrations of any vehicle in the alley would be a contributing factor to the cave-in; that he was familiar with the effect of rain on the banks of an excavation, that the dirt around the excavation was saturated with rain which created a greater tendency for cave-ins; it was his opinion that the wall was dangerous and the shoring inadequate and that one should have people trained to detect a dangerous wall like that, that it would not be noticeable to the average layman or citizen. Section 2801 of the Little Rock Building Code provides: “All excavations for buildings and excavations accessory thereto shall be protected and guarded against danger to life and property.”
As indicated, the architects were paid, in addition to the fee for preparing the plans and specifications, $12,000.00 by the owners to see to it that the terms of the contract between the owners and the contractors were complied with. The contract provides that the general contractor “shall erect such protection as may be required, or as directed by the architect, maintain same, and maintain any existing protections, all in accordance with the governing laws, rules, regulations and ordinances. ’ ’ And, further, the ‘ ‘ contractor shall do all shoring necessary to maintain the banks of excavations, to prevent sloughing or caving, and to protect workmen.” The contract further provides: The architect “shall have general supervision and direction of the work —. He has authority to stop the work whenever such stoppage may be necessary to insure the proper execution of the contract.” It was a question for the jury as to whether the architect was negligent in failing to stop all work until the shoring on the east wall was made safe for the workmen.
Under appellants’ third assignment they argue that there is no substantial evidence that the presence of the Davenport car in the alley caused the cave-in. We do not agree. Without detailing the testimony here, so as not to unduly extend this opinion, we hold that there was substantial testimony from which the jury could have found that the east wall, where the cave-in occurred, was dangerous; that the rain had saturated the ground, giving it a greater tendency to cave-in, that vibrations caused by motor vehicles in the alley above the east wall would have a tendency to cause the wall to fall. In Missouri Pacific Railroad Company v. Henderson, 194 Ark. 884, 110 S. W. 2d 516, we stated our oft quoted rule as follows: “The rule is, and has always been, that where there is any evidence of substantial nature, which, by positive statements or reasonable inference, when given its strongest probative value, tends to support the finding of the jury, that finding will be sustained, although from the record presented to this court it might seem to be against the preponderance of the evidence.” In the case of Lavender, Adm., v. Kurn, et al, Trustees, et al, 327 U. S. 645, 66 S. Ct. 740, 90 L. Ed. 916, the rule is announced in this language: “It is no answer to say that the jury’s verdict involved speculation and conjecture. Whenever facts are in dispute or the evidence is such that fairminded men may draw different inferences, a measure of speculation and conjecture is required on the part of those whose duty it is to settle the dispute by choosing what seems to them to be the most reasonable inference. ’ ’
The fourth assignment of error is the refusal, and giving of numerous instructions over both general and specific objections of the appellants. In answer it suffices to say that we have carefully examined all instructions and objections thereto and find no prejudicial or reversible error in any of them.
The fifth assignment is that the verdict is excessive. Again we do not agree. The extent of injuries is always for the jury and when supported by any substantial evidence, the verdict should not be set aside or disturbed. In Sinclair Refining Company v. Fuller, 190 Ark. 426, 79 S. W. 2d 736, we said: “While the discretion of the jury is very wide, it is not arbitrary or unlimited discretion, but it must be exercised reasonably, intelligently and in harmony with the testimony before them. The amount of damages to be awarded for breach of contract, or in actions for tort, is ordinarily a question for the jury; and this is particularly true in actions for personal injuries and other personal torts, especially where a recovery is sought for mental suffering. # # *
“The amount of recovery in a case of this sort should be such, as nearly as can be, to compensate the injured party for his injury.” And in Cohen v. Ramey, 201 Ark. 713, 147 S. W. 2d 338, we said: ‘‘ The extent of injuries like any other fact is for the jury and when supported by any substantial testimony the verdict should not be set aside or reduced. * * * It is just as much the province of the jury to determine the extent of one’s injuries, and the amount of damages, as it is to determine the question of liability. His injury, pain and suffering are purely questions of fact, and should be left to the jury to determine.”
A local physician, a Dr. Dishongh, who in his official capacity as coroner viewed the bodies of the three decedents to ascertain the cause of death, testified that decedent Abe Lowman sustained only a fracture of the left elbow; that Nathaniel Criswell sustained no bodily injuries whatsoever, and Anderson Lewis apparently sustained a chest injury and he fixed the cause of death of each as suffocation. Here the lips of the victims are sealed and it would be difficult to prove by direct testimony the extent of the decedents’ conscious realization and understanding of the impending peril, agony and horror surrounding their death by suffocation — it could only be shown by circumstantial evidence. Appellants also argue that the awards were excessive for the reason that the jury awarded $12,000.00 to Lowman for conscious pain and suffering and awarded amounts greatly in excess of $12,000.00 to Lewis and Criswell. Jury verdicts do not have to be consistent. Here the jury no doubt took into consideration the fact that Criswell and Lewis each had several dependents, while Lowman had none. We cannot say that the award of $12,000.00 to Lowman for conscious pain, mental anguish and suffering was excessive.
On the whole case, finding no error, the judgment is affirmed.
Harris, C. J., and George Bose Smith, J., not participating; Ward, J., dissents. | [
-16,
122,
-16,
-19,
26,
2,
58,
-102,
73,
-96,
-73,
83,
-83,
-54,
12,
105,
-89,
125,
-47,
-85,
-89,
-77,
23,
-94,
-14,
-13,
-13,
-59,
-80,
109,
-28,
-41,
76,
36,
74,
-113,
-58,
-96,
-51,
92,
-114,
-67,
42,
-18,
-7,
96,
52,
123,
84,
79,
1,
-99,
-13,
44,
24,
-53,
76,
60,
67,
42,
81,
-7,
-24,
-116,
95,
21,
-80,
33,
-70,
7,
-8,
28,
-104,
52,
0,
-24,
115,
-90,
-58,
116,
103,
-69,
12,
98,
98,
48,
-127,
-57,
104,
-16,
47,
-34,
-123,
-91,
-125,
57,
-127,
8,
-100,
-105,
121,
1,
23,
126,
-25,
93,
91,
109,
-125,
-49,
-42,
-79,
-49,
120,
-99,
-101,
-21,
3,
50,
113,
-52,
-96,
93,
69,
115,
-65,
-114,
-47
] |
Sam Robinson, Associate Justice.
The appellant, Larry Covey, was charged with murder in the first degree in the killing of Wilbur Short. He was convicted of voluntary manslaughter and his punishment fixed at four years in the penitentiary. Appellant admits the killing but contends that he acted in self-defense. Ark. Stats. § 41-2231 provides: “Justifiable homicide is the killing of a human being in necessary self-defense, or in defense of habitation, person or property, against one who manifestly intends or endeavors by violence or surprise, to commit a known felony.” Section 41-2236 provides : “In ordinary cases of one person killing another in self-defense, it must appear that the danger was so urgent and pressing, that in order to save his own life, or to prevent his receiving great bodily injury, the killing of the other was necessary, and it must appear also that the person killed was the assailant, or, that the slayer had really and in good faith, endeavored to decline any further contest, before the mortal blow or injury was given. ’ ’
On appeal Covey stoutly maintains that there is no substantial evidence to support the verdict. He is 21 years of age and had been having trouble over a period of months with one Denzil Jones. Covey testified that he had been accused by Jones of causing Jones’ wife to leave him; that he and Jones had engaged in six or eight fights, and in the last fight with Jones he (Covey) was knocked in the head and had to go to a hospital for treatment; that Jones had offered a reward of $100 to anyone who would kill or “scar” Covey. Appellant testified that the last time Jones beat him up, the matter was in municipal court and Jones was fined for the act, and that later he, appellant, obtained a .22 caliber pistol and carried it for his protection.
It appears that on the night of the homicide, at a drive-in known as Lacey’s No. 2, appellant got out of his car to speak to his cousin. At that time he was called by one Sonny Jackson and the two of them went into the restroom. Jackson told Covey that Wilbur Short was present at the drive-in; that he was drunk and crazy and had made threats against appellant. The testimony of Jackson, who was called as a witness by the State, and that of Covey is in. accord in some respects; in others, it is in sharp conflict as to just what occurred and what was said in the restroom. Jackson warned Covey against Short and endeavored to get Covey to leave the drive-in and thereby avoid Short. Covey stated that he knew Short only by sight and conld not believe that Short would want to cause him any harm, but according to Jackson’s version he explained that Short was then the boy friend of Jackson’s ex-wife, and that Short had stated that Covey had taken the girl on an automobile ride and had caused her to wall?: home. Covey contends that Jackson finally stated that Short’s ill feeling toward Covey was due to the influence of Denzil Jones, who was a friend of Short’s. While in the washroom Jackson exhibited to Covey what Jackson says was Short’s pistol, which Short had turned over to him a little earlier that night. Jackson did not state, however, that he told Covey it was Short’s pistol. Covey says that the pistol Jackson exhibited to him was only an imitation pistol and not a real firearm at all; that Jackson made the remark to Covey “you know how that gang fights,” implying that it was with weapons rather than just mere fair fist fighting. In any event, the two agreed that they would leave the washroom by Jackson going in front and if Short was near the door Covey would push Jackson into Short, thereby giving Covey an opportunity to run. But Covey says that upon leaving the washroom and seeing that Short was there, Jackson stepped aside, giving Short an opportunity to attack Covey. The most important facts in the case are the actions of the parties that followed immediately. Short ran at Covey and struck him with his fist and stepped back a couple of steps. Covey was not knocked down, but he also stepped back a couple of steps. Covey says that Short struck him with his left fist and had a pistol in his right hand. Jackson says that Short had nothing in his hand; that when he stepped back after striking Covey he assumed an “open boxing stance. ’ ’ Covey had his pistol in his right-hand pocket; he immediately pulled it and shot Short twice, killing him.
It is impractical to set out here an abstract of all the evidence in the case. The record is rather large and numerous witnesses testified. If Covey’s testimony was true, it would be hard for anyone to say that he was not acting in self-defense in slaying Ms assailant. But on the other hand, if Short had merely struck Covey with his fist and stepped back, assuming the pose of a boxer, ready to engage in a fair fist fight, and in those circumstances Covey shot him down, it cannot be said that the facts do not sustain the conviction of voluntary manslaughter.
“Manslaughter must be voluntary, upon a sudden heat of passion, caused by a provocation, apparently sufficient to make the passion irresistible.” Ark. Stats. § 41-2208. There was considerable other evidence in the ease from which inferences could be drawn as to who was telling the truth, and undoubtedly the jury would have been completely justified in acquitting the defendant if they had believed his version of the killing. The jury had the opportunity to observe all the witnesses and their demeanors on the stand, and was therefore in a much better position than is this Court to judge the credibility of the witnesses.
Jerry Spencer was present at the time of the killing. He was called as a witness by the State and the prosecuting attorney asked him the following question concerning what the deceased said, if anything, immediately after the shooting: “Did you hear this person say anything? A. Seems like he said something like ‘Please don’t shoot me again’, or —” The attorney for the defendant objected. The Court said: “The objection is well taken, because the witness said ‘It seems like he said’. (To the witness) We can go into what it seemed like or what you guess he might have said. If you know what he said, you may so testify.”
“Witness: I don’t know his exact words, but it was something to that effect.
Q. To what effect?
A. To the effect of ‘Please don’t shoot me any more.’ ”
The defendant objected.
“The Court: This man is not a professional witness. I don’t imagine you have testified too much before, have you, Jerry?
“Witness: No, this is the first time I’ve ever been here.
The Court: (To witness) Of course, you cannot testify as to any impression you might have gotten of what anyone has said. If you can remember his exact words, that is the best. If you cannot remember his exact words, but you definitely remember the approximate words spoken, then you may so state, but you cannot give an impression of what he said.
Witness: Well, that was approximately what he said. ’ ’
The defendant made his objections and saved his exceptions, but no objections were made to the remarks of the court as such.
Of course, a witness cannot state his impressions, conclusions, inferences, suppositions or understanding of a matter unless such answer is equivalent to a statement of the fact asked for, but witnesses are not required to give their testimony with absolute positiveness. A witness who is not positive may make a statement of a fact to the best of his recollection or belief and his testimoney should not be excluded because he uses “it is my impression”, “I think”, or a similar expression where he means that he is testifying to the best of his recollection or an indistinct remembrance of facts within her personal knowledge. 98 C. J. S. 79. It appears that although Spencer may not have remembered the exact words spoken by the deceased, he stated what was said approximately, as he remembered it.
Appellant contends that the court erred in allowing him to be impeached on a collateral matter brought out on cross-examination, and if this were the case, it would be error. Everett v. State, 231 Ark. 880, 333 S. W. 2d 233. But appellant asserts here and contended at his trial in circuit court that his trouble with Short grew out of appel lant’s difficulty with Denzil Jones. There was testimony from which the jury could have drawn the inference that Jones had paid Short $100 to harm Covey. Although Covey was not questioned on direct examination about a fight he had with Denzil Jones at Spero’s Drive-in a few months before the killing, on cross-examination the prosecuting attorney asked him questions apparently calculated to establish that insofar as Covey’s trouble with Jones was concerned Covey was the aggressor. On the occasion at Spero’s Covey was in a car with Buford Hester. It was shown by cross-examination of Covey that before the fight with Jones started, Covey had made a phone call. He testified that it was to a young lady at Hooks, Texas. He was asked if, after making the call and returning to the car, he did not say to Buford Hester “he will be here in a minute. ’ ’ Appellant denied making the statement. He was also asked if he did not make the further statement “I am going to make him put up or shut up,” and appellant denied making that statement. It was shown that Covey’s father arrived at the scene and appellant was asked if he did not make the statement to Hester that appellant’s father had hit him by mistake. Appellant denied making this statement.
Buford Hester was called by the State and testified that Covey did make the statement “he will be here in a minute”, and also the other statement to the effect that he was going to make him “put up or shut up”, and that Covey’s father must have hit him by mistake. The implication of this impeaching testimony is that Covey called his father in anticipation of starting a fight with Jones. Appellant blames the killing on Jones and contends that he was wrongfully assaulted by Jones on more than one occasion and that Jones instigated this trouble and caused Short to make the attack upon Covey. In these circumstances we do not believe that it can be said that the State impeached appellant on a collateral matter. Harris v. State, 175 Ark. 1166, 2 S. W. 2d 66.
The court gave instruction No. 8 as follows:
“You are instructed that evidence is of two kinds, namely: direct or positive and circumstantial, and that any fact in the case or any element of the crime charged, may be proven by either kind or by both kinds of evidence ; and if any fact in this case, or any element necessary to constitute the crime has been established by direct or circumstantial evidence, or by both kinds, then such fact or element has been sufficiently proved, and if upon a consideration of all the facts proven in the case you believe beyond a reasonable doubt, that the defendant is guilty of a crime it is your duty to so find.”
Appellant says that no instruction on circumstantial evidence should have been given to the jury. We do not agree. There was a good deal of circumstantial evidence in the case. Much of this kind of evidence was in regard to whether Short was armed with a pistol at the time of the killing.
Appellant also complains of that part of instruction No. 10 wherein the court told the jury: “The killing being proved, the burden of proving circumstances of mitigation that justify or excuse the homicide shall devolve on the accused, unless the proof on the part of the State is sufficiently manifest that the offense amounted only to manslaughter, or that the accused was justified or excused in committing the homicide.” This was not error. The instruction is in the language of the statute (Ark. Stat. § 41-2246) and a similar instruction was approved in Brown v. State, 231 Ark. 363, 329 S. W. 2d 521.
Other assignments of error are argued, all of which we have examined carefully, but we find no error.
Affirmed. | [
112,
-19,
-108,
-36,
8,
32,
26,
60,
-13,
-21,
-16,
-78,
-81,
-57,
69,
105,
113,
93,
85,
97,
-76,
-93,
39,
64,
-80,
51,
121,
-43,
-79,
-36,
-4,
-1,
90,
112,
-54,
89,
-62,
40,
-29,
-46,
-118,
9,
-86,
112,
89,
66,
51,
58,
64,
7,
81,
46,
-30,
42,
18,
-118,
-23,
60,
91,
47,
-48,
16,
-56,
5,
-49,
18,
-77,
-93,
-65,
47,
112,
60,
-40,
49,
8,
-24,
83,
-90,
-128,
116,
-3,
-103,
12,
98,
98,
52,
25,
-52,
-88,
-103,
15,
118,
-113,
-89,
24,
65,
3,
12,
-98,
-99,
110,
-80,
14,
116,
115,
6,
93,
40,
35,
-114,
-108,
-79,
-51,
28,
-108,
-5,
-29,
7,
100,
101,
-50,
98,
84,
101,
113,
91,
-97,
-44
] |
J. Seaborn Holt, Associate Justice.
This is an action for tbe wrongful death of Leonard Vines who was appellant’s husband.
On June 10, 1955, while Leonard Vines was employed by the Southwest Unit Structures, Inc., and while moving a beam with the aid of a “gin pole”, the pole came in contact with a high voltage line built and maintained by appellee, and the electricity coming down the “gin pole” caused Leonard Vines’ death. Alice Vines, widow of Leonard Vines, on March 28,1957, brought suit under Ark. Stats., §§ 27-903 — 27-904, against appellee for her husband’s alleged wrongful death. She prayed judgment: “Individually, — against the defendant in the sum of $80,000.00 for the loss of love, affection, association and consortium; and also the sum of $116,563.04 for the loss of earnings; and as administratrix she prays for judgment against the defendant in the sum of $25,000.00 for pain and suffering that Leonard Vines endured prior to his death”. As indicated, the death of Leonard Vines occurred June 10, 1955. The original, or first suit was filed on March 28, 1957. The case was reached for trial October 20, 1958, at which time appellant [Alice Vines] took a non-suit. Later, a second suit was filed by appellant on July 10, 1959. Appellee [defendant below] demurred to this last complaint on the grounds that since the present suit was instituted under the above sections of the statute and a non-suit was taken by appellant and another suit was filed more than two (2) years from the date the cause of action arose [June 10, 1955], this second suit was barred by the statute of limitations. The trial court sustained this demurrer and dismissed this complaint. This appeal followed.
For reversal appellant says: “(1) That if a new suit be filed within one year from the time of non-suit, then the cause of action is saved even though more than two years had passed since the cause of action arose. (2) That Alice Vines had a personal cause of action, and it was saved from the running of the Statute of Limitations. ’ ’
The two provisions of the statute under which this suit was brought, commonly known as the “Lord Campbell Act”, were enacted in 1883 and provide: “Wrongful death.- — Whenever the death of a person shall be caused by wrongful act, neglect or default, and the act, neglect or default is such as would, if death had not ensued, have entitled the party injured to maintain an action and recover damages in respect thereof, then, and in every such case, the person who, or company or corporation which, would have been liable if death had not ensued, shall be liable to an action for damages, notwithstanding the death of the person injured, and although the death shall have been caused under such circumstances as amount in law to a felony. ’ ’ And ‘ ‘ 27-904. Parties — Beneficiaries-—-Damages—Limitation of action.— Every such action shall be brought by, and in the name of, the personal representatives of such deceased person, and if there be no personal representatives, then the same may be brought by the heirs at law of such deceased person; and the amount recovered in every such action shall be for the exclusive benefit of the widow and next of kin of such deceased person, and shall be distributed to such widow and next of kin, in the proportion provided by law in relation to the distribution of personal property left by persons dying intestate; and, in every such action, the jury may give such damages as they shall deem a fair and just compensation, with reference to the pecuniary injuries resulting from such death, to the wife and next of kin of such deceased person. Provided, every such action shall be commenced within two [2] years after the death of such person.” Ark. Stats., § 27-908.
Prior to 1883, a cause of action for injuries resulting in death did not survive the deceased person or exist at common law, and our legislature enacted the above act obviously to give a cause of action to the widow and next of kin and the personal representative of a deceased person. It will be observed that this act, which creates a cause of action, also has a built-in statute of limitations [§ 27-904] of two years which was in effect when Vines was killed June 10, 1955.
Appellant contends that since suit was first filed on March 28, 1957, well within the two year period following Vines death on June 10, 1955, then non-suited on October 20, 1958, and within a year following the date of the non-suit the present suit was filed, that it was filed in time under our non-suit statute [Ark. Stats., § 37-222] which provides for one year within which to file a new action after non-suit. We do not agree. In Smith v. Missouri Pacific Railroad Company, 175 Ark. 626, 1 S. W. 2d 48, a case in which suit was instituted almost three years after the death of the intestate and based on the above sections [27-903 —27-904], we said:
“The general rule is that, where a canse of action does not exist at common law, bnt is created by the statutes of a State, it only exists in the manner and form and for the length of time prescribed by the statutes of the State which created it. * * * Therefore we conclude that it is now well settled that, where a statutory right of action is given which did not exist at common law, and the statute giving the right also fixes the time within which the right may be enforced, the time so fixed becomes a limitation or condition upon the right of action, and will control, no matter in what forum the action is brought. ’ ’
But appellant says: “(2) * * * that Alice Vines joins in this suit individually for the loss of services and companionship of her husband. This is an individual action on her part, and she should not be deprived of it” and “* * * since her damages in the loss of services and companionship had to be brought in this suit she should not be barred even if the action by the administratrix is barred.” Again we do not agree.
We think it was the intention of the legislature when it enacted Lord Campbell’s Act creating a cause of action, that did not exist before or at common law, “for the exclusive benefit of the widow and next of kin of such deceased person, * * * and, in every such action, the jury may give such damages as they shall deem a fair and just compensation, with reference to the pecuniary injuries resulting from such death, to the wife and next of kin of such deceased person,” [Ark. Stats., § 27-904] to cover and include every right of recovery of pecuniary damages to which the widow would be entitled growing out of her husband’s death, including consortium, loss of services and companionship, and to limit to one cause of action [thus avoiding a multiplicity of suits] which must be brought within a period of two years from the date of her husband’s death. “The term ‘cause of action’ is generally understood as meaning the whole cause of action; that is, all the facts which together constitute plaintiff’s right to maintain the action; every fact which it is necessary to establish in order to support the right to judicial relief.” 1 C. J. S. Actions § 8 (g) p. 986.
Finding no error, the judgment is affirmed. | [
-112,
109,
-100,
14,
-104,
-16,
8,
-104,
115,
34,
-27,
-47,
-19,
-61,
84,
105,
-5,
105,
81,
-21,
-14,
-89,
23,
34,
82,
-105,
-7,
-41,
-88,
125,
110,
-41,
12,
112,
74,
-47,
-28,
-54,
-59,
28,
-106,
2,
-113,
-20,
25,
-48,
50,
-3,
70,
15,
81,
14,
-69,
40,
29,
-49,
105,
44,
89,
41,
80,
-71,
-126,
28,
-33,
22,
-95,
37,
-108,
-121,
104,
88,
-104,
49,
-128,
-24,
114,
-74,
-62,
84,
115,
-103,
12,
-30,
102,
33,
-107,
-89,
-88,
-120,
22,
-66,
-99,
-89,
30,
105,
11,
69,
-68,
-105,
90,
-107,
-123,
126,
-4,
-36,
93,
40,
6,
-114,
-10,
-69,
-50,
-62,
-108,
2,
-21,
103,
48,
117,
-51,
-22,
93,
7,
115,
-97,
-122,
-108
] |
Jim Johnson, Associate Justice.
This appeal seeks to determine whether Chancery Court has jurisdiction to hear a petition to challenge the sufficiency of a joint petition of independent candidates to place their names on the ballot for a general election to be held in an incorporated town.
The appellants are ten qualified electors and taxpayers of the incorporated town of London, Pope County. They filed in the Pope County Chancery Court a petition to challenge the joint petition of a slate of independent candidates who sought the elective offices in the town of London. The challenge was filed under the provisions of Ark. Stats., § 3-839, (Act 352 of 1955). There was no primary election conducted by any political party. Appellants allege that the independent candidates did not comply with the Arkansas Statutes, including the payment of filing fees, and the petition is a nullity. The appellants further seek to restrain appellees, the Board of Election Commissioners, from certifying the election results based upon the joint petition of the independent candidates.
Upon demurrer by appellees, the Pope County Chancellor held that the Chancery Court did not have jurisdiction to hear the challenge. This appeal followed.
The only point relied upon by appellants for reversal is that the Chancery Court erred in refusing to accept jurisdiction.
Section 3-839, Ark. Stats, reads as follows:
“Challenge of Petition. The sufficiency of any petition filed under the provisions of this Act (Sec’s. 3-836 —3-840, same being Act 352 of 1955), may be challenged in the same manner as provided by law for the challenging of initiative and referendum petitions.”
The manner provided by law for the challenging of initiative and referendum petitions is set out in Ark. Stats., § 2-314, (Act 4, Sec. 13 of 1935). This section expressly confers upon any ten qualified electors and taxpayers of the county the right to contest the returns and certification of the vote cast, said contest to be brought in the Chancery Court within sixty (60) days.
Appellants’ petition charging serious defects and irregularities in appellees’ petition for the nomination of independent candidates appears on its face to have been filed in the proper court in compliance with the terms of Act 352 of 1955. Without further research we would have no choice but to agree with appellants’ contention that Chancery Court had jurisdiction to hear the challenge. However, upon further research we find that this Court had occasion to pass upon the applicability of the Act here in question in the case of Moorman v. Taylor, 227 Ark. 180, 297 S. W. 2d 103. There the Court said:
“. . . Any uncertainty that exists is completely dispelled when the legislative history of the 1955 act is examined. As originally introduced in the legislature, the bill which became Act 352 applied to city offices as well as to those of the State, a county, or district. Before its final passage the bill was amended to delete the word ‘city’ wherever it appeared. House Journal, 1955, p. 394. We certainly should not read into the act by implication a provision that the legislature itself expressly eliminated. Mayo v. American Agricultural Chem. Co., 101 Fla. 279, 133 So. 885; Grasso v. Cannon Ball Motor Freight Lines, 125 Tex. 154, 81 S. W. 2d 482.”
Our research further revealed that Act 352 of 1955 was amended by Act 205 of 1957. We are unable to find anything in this amendatory act that would indicate the legislature intended to include cities in the terms of the act. Therefore, since this Court has expressly held that Act 352 of 1955 does not apply to cities or town and since jurisdiction with respect to challenge or contest of municipal offices is not expressly or by implication placed elsewhere, the Circuit Court, under Art. 7, Sec. 11 of the Constitution has residuary jurisdiction. See: Whittaker v. Watson, 68 Ark. 555, 60 S. W. 652; State v. Tyson, 161 Ark. 42, 255 S. W. 289; and Wood v. Miller, 154 Ark. 318, 242 S. W. 573.
In the words of the Court in Purdy v. Glover, 199 Ark. 63, 132 S. W. 2d 821, we held that:
“Since the contest was not instituted in the Court having jurisdiction of the subject matter, the demurrer to the complaint was properly sustained.”
Affirmed. | [
85,
-20,
-28,
60,
10,
0,
114,
-114,
-64,
-93,
103,
115,
-81,
-54,
20,
121,
-21,
27,
117,
123,
-63,
-73,
87,
74,
34,
-13,
-102,
-43,
-9,
75,
-11,
-9,
76,
57,
-54,
-43,
70,
-18,
-115,
-100,
70,
1,
11,
77,
-47,
-61,
56,
99,
18,
15,
117,
-74,
-13,
-84,
56,
67,
-55,
44,
89,
5,
83,
-103,
-115,
-59,
127,
7,
49,
117,
27,
-127,
106,
62,
-104,
49,
8,
-8,
54,
-90,
-126,
116,
15,
57,
8,
126,
98,
2,
-88,
-49,
-68,
-88,
60,
58,
25,
-90,
-112,
41,
107,
10,
-106,
-97,
125,
16,
6,
-2,
-27,
-123,
31,
76,
-92,
-50,
-112,
-93,
5,
-88,
20,
3,
-29,
36,
80,
117,
-56,
114,
126,
71,
50,
27,
-50,
-80
] |
ROBERT L. BROWN, Justice.
|! Timothy Lamont Howard petitions this court to reinvest jurisdiction in the Little River County Circuit Court to consider his petition for a writ of error coram nobis. Howard was convicted by a jury of two counts of capital murder and one count of attempted capital murder in connection with the deaths of Brian and Shannon Day and the attack on their then seven-month-old child, Trevor Day, that occurred on or about December 12, 1997. He was sentenced to death plus thirty years and a $15,000 fíne on December 9,1999.
In 2002, this court affirmed his convictions and sentences on all counts. Howard v. State, 348 Ark. 471, 79 S.W.3d 273 (2002) (Howard I). Next, Howard filed a Rule 37 petition based on ineffective assistance of counsel, and in 2006, this court remanded the circuit court’s denial of Howard’s Rule 37 petition in order to permit him to file a properly verified petition. Howard v. State, 366 Ark. 453, 236 S.W.3d 508 (2006) (per curiam).(Howard II). We then denied Howard’s petition for Rule 37 relief, after it was properly verified. Howard v. State, 367 Ark. 18, 238 S.W.3d 24 (2006) (Howard III).
On March 9, 2007, Howard petitioned the federal district court for a writ of habeas corpus. Subsequently, that court granted Howard’s motion to hold his petition in abeyance and found that there was good cause to permit him to return to state court to seek relief. On August 10, 2009, Howard filed a second Rule 37 petition with the circuit court, which was dismissed. This court affirmed the dismissal of the second Rule 37 petition on the grounds that Howard failed to move first to recall the mandate. On May 27, 2010, Howard filed a petition to recall the mandate, which this court denied on September 9, 2010. The present petition to reinvest jurisdiction in the circuit court for purposes of error coram nobis relief was filed with this court on October 7, 2010.
In Howard I, we set out the facts resulting in Howard’s convictions and sentences. On Saturday, December 13, 1997, at 10:30 a.m., the Little River County Sheriffs Department discovered Brian Day’s body in the back of a U-Haul truck in Ogden. Brian Day had been beaten and had been shot once in the head with a .38 caliber bullet. Once Brian Day’s body was identified, Sheriff Danny Russell of the Department went to notify Shannon Day of her husband’s death. At the Day home, he found Shannon Day’s dead body under a mattress in a closet in a bedroom. Trevor Day, the Days’ seven-month-old child, was found in a zipped bag crying with a cord tied around his neck. The bag was underneath a pile of clothes in one of the bedrooms of the Day home. Howard I, 348 Ark. at 476, 79 S.W.3d at 276-77.
Howard was arrested on Wednesday, December 17, 1997, for the capital murders of Brian Day and Shannon Day and the attempted capital murder of Trevor Day. Id. at 477, 79 S.W.3d at 277. This court said in Howard I that “the most incriminating evidence against Howard was his inappropriate and unexplainable behavior both before and after the discovery of Brian, Shannon, and Trevor Day,” and that “[djuring a period of time before and after the bodies were located, Howard relied on three different girlfriends, their homes, and several vehicles interchangeably to plan and to attempt to conceal his crimes.” Id.
In addition to his “inappropriate and unexplainable behavior,” the State introduced a pair of work boots found two miles from the site where Brian Day’s body was found. The boots found were the same size and type that Howard’s ex-wife, Vicki Howard, said that she had bought for him. Id. at 480, 79 S.W.3d at 279. She thought that she had seen him wearing those boots the day before the murders. Id. Jennifer Qualls, a witness for the State, testified that after Howard read a newspaper article describing the boots, he told her his boots “were in the U-Haul and somebody was trying to set him up.” There were several Negroid hairs found inside the boots, blood on top of the left boot, and a Caucasian hair found on the outside of the boots. Testimony at trial from a DNA analyst named Charity Diefenbach connected Howard to the Negroid hairs recovered from the boots. An Arkansas State Crime Lab analyst, Kermit Channel, also testified that the blood on the boots came from Brian Day. The Caucasian hair has not been identified. In addition to the DNA evidence, fingerprints matching Howard’s fingerprints were found on a Mountain Dew bottle inside the Days’ home. Id. at 485, 79 S.W.3d at 281.
We first consider the burden of proof and our standard of review for error coram nobis proceedings. Such proceedings are attended by a strong presumption that the judgment of conviction is valid. Sanders v. State, 374 Ark. 70, 71, 285 S.W.3d 630, 632 (2008) (per curiam). A writ of error coram nobis is an extraordinarily rare remedy, more known for its denial than its approval. Id. at 72, 285 S.W.3d at 632. For the writ to issue following the affirmance of a conviction and sentence, the petitioner must show a fundamental error of fact extrinsic to the record. Id. The function of the writ is to secure relief from a judgment rendered while there existed some fact which would have prevented its rendition if it had been known to the trial court and which, through no negligence or fault of the defendant, was not brought forward before rendition of judgment. Id.
The -writ is issued only under compelling circumstances to achieve justice and to address errors of the most fundamental nature. Id. We have held that a writ of error coram nobis is available to address certain errors that are found in one of four categories: (1) insanity at the time of trial, (2) a coerced guilty plea, (3) material evidence withheld by the prosecutor, or (4) a third-party confession to the crime during the time between conviction and appeal. Id.
The proper standard of review for granting permission to reinvest jurisdiction in the circuit court to pursue a writ of error coram nobis is the one used by this court in Flanagan v. State:
| .This court will grant permission for a petitioner to proceed in the trial court with a petition for writ of error coram nobis only when it appears the proposed attack on the judgment is meritorious. In making such a determination, we look to the reasonableness of the allegations of the petition and to the existence of the probability of the truth thereof.
2010 Ark. 140, at 1, 2010 WL 987049 (per curiam). We turn then to the merits of Howard’s petition.
I. Brady Claim Based on DNA Report in Guilt Phase
In seeking to reinvest jurisdiction in the circuit court to consider his petition, Howard focuses on the failure of the State to produce a DNA report with Charity Dief-enbach’s handwritten notes regarding testing conducted on the Negroid hairs found on the work boots. Howard asserts that this failure to produce evidences an apparent violation of his rights under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and entitles him to a hearing in circuit court to decide the merit of his error coram nobis petition.
The DNA report with Diefenbach’s notes was created by Bode Technology Group (Bode), a private laboratory in Virginia hired by the State. At the time of Howard’s trial, the Arkansas State Crime Laboratory did not have the capability to conduct mitochondrial DNA (mtDNA) testing on the Negroid hairs recovered from the boots, and so that evidence was sent to Bode for analysis. The Arkansas Crime Lab, however, was able to test the blood that was on the work boots. Kermit Channel, then supervisor of the forensic biology section at |fithe Arkansas Crime Lab, testified that the blood sample taken from the boot was consistent with the blood sample taken from Brian Day.
Channel further testified that mtDNA had to be used to analyze the Negroid hairs instead of nuclear DNA testing, which was used at the Crime Lab to analyze the blood. Channel stated that nuclear DNA is found in the nucleus of white blood cells. He added that nuclear DNA testing can be performed on hairs, if there is sufficient root material attached. If there is not enough root material on the hairs for nuclear DNA testing, mtDNA testing can be performed. MtDNA testing analyzes the mitochondria, an organelle found inside the cells but outside the nu cleus. Channel told the jury that hair, bone material, and teeth are all items where mtDNA can be used if there is not enough nuclear material for nuclear DNA testing.
At trial, Diefenbach testified that Howard “could not be excluded” as the source of the Negroid hairs. She further testified that “using a published statistical calculation, you could say that 99.8 percent of the population would not match this mitochondrial DNA profile” of the hairs. On cross-examination, Diefenbach testified as follows:
AttoRney: Just for point of clarification. 99.8 percent of the people would be excluded from this sequence that were in these hairs, but the Defendant’s blood DNA was included and is a match? Diefenbach: That’s correct.
|7The State did not introduce a copy of Diefenbach’s report at trial detailing her mtDNA analysis and procedures. Nor did the State, according to Howard, make the full report, including Diefenbach’s handwritten notes, available to him during discovery.
The handwritten notes on the report, Howard maintains, describe several extensive errors made by Diefenbach during the mtDNA analysis at Bode. First, he states that the report notes read “cap flipped open while spinning, resulting in sample loss,” which, Howard contends, shows that the sample was contaminated and part of the sample was lost. He also points to a second handwritten note in Diefenbaeh’s report, which states that raw data from the first mtDNA sequencing run was lost, and so the entire sample had to be reprocessed. A third handwritten note in the report says that the “right side of the gel did not run properly,” and, therefore, the “samples will be re-run.” Another handwritten note on the report reads, “all negative controls gave a positive result. An experiment will be done to find the source of the problem.” A final handwritten note reads that “all negatives are clean, indicating the previous results were most likely a result of a random, spurious contaminants.”
Howard urges that the State’s failure to turn over Diefenbach’s report with all the handwritten notes during discovery is a clear Brady violation. He claims that proof that the mtDNA testing was marred by contamination and botched procedures would have undermined Diefenbach’s credibility and greatly reduced the impact of the work boots as evidence against him. Thus, he contends, this court should allow him to pursue a writ of error coram nobis as the appropriate remedy for the State’s withholding of this evidence.
1 sThere are three elements of a Brady violation: (1) the evidence at issue must be favorable to the accused, either because it is exculpatory, or because it is impeaching; (2) the evidence must have been suppressed by the State, either willfully or inadvertently; (3) prejudice must have ensued. Sanders, 374 Ark. at 72, 285 S.W.3d at 633 (per curiam) (citing State v. Larimore, 341 Ark. 397, 404,17 S.W.3d 87, 91 (2000)).
In Cloird v. State, this court considered a similar petition to reinvest jurisdiction to pursue error coram nobis relief involving DNA results that were not turned over to the defense prior to trial. 349 Ark. 33, 76 S.W.3d 813 (2002) (per curiam). In 1992, Gary Cloird had been convicted of rape and theft of property. Id. at 36, 76 S.W.3d at 815. As grounds for error coram nobis relief, Cloird contended that the State withheld results of a DNA comparison which excluded him as the contributor of samples taken from the victim. Id. at 37-38, 76 S.W.3d at 815-16. Cloird attached a laboratory report on forensic testing con ducted by the Federal Bureau of Investigation dated July 28,1992, which was a full month before his trial began. Id. at 38, 76 S.W.Sd at 816. According to the report, DNA comparisons showed that Cloird was excluded from having contributed to certain samples taken from the victim. Id.
While acknowledging that it is possible to commit rape without leaving evidence on which DNA comparisons can be conducted, this court found that the defense could have used the information in the FBI report to bolster its argument before the jury that there was no scientific evidence to support the rape charge. Id. As a result, we held that Cloird had stated a possible Brady violation, which warranted reinvesting jurisdiction in the circuit court |9so that he could file a petition for a writ of error coram nobis to determine: (1) whether the DNA test results were available to the State before trial; (2) whether the DNA evidence, if available to the State before trial, was indeed favorable to the defense; (3) whether prejudice ensued to the defense as a result of the State’s failure to disclose the DNA test results; (4) whether, if the DNA test results were withheld from the defense, the circuit court could find that there is a reasonable probability that, had the evidence been disclosed, the result of the proceeding would have been different; and (5) whether Cloird raised the possible Brady violation in a timely manner. Cloird, 349 Ark. at 38-39, 76 S.W.3d at 816. This court agreed that vesting jurisdiction in the circuit court was appropriate and instructed Cloird to file his error coram nobis petition within thirty days of the date of the opinion. Id.
In the case before us, the DNA tests showed that Howard was not excluded as the contributor of the DNA from the Negroid hairs recovered from the work boots. The handwritten notes in the report, however, indicated several potential errors in the testing. The DNA evidence from the work boots was all important in linking Howard to the murder of Brian Day, and so the possibility that the DNA testing was flawed would support his contention at trial that he did not commit the murders and that the work boots were an attempt to frame him. We conclude that the evidence could be categorized as favorable to Howard or impeaching for purposes of Diefenbach’s testimony. See Sanders, 374 Ark. at 72, 285 S.W.3d at 633 (per curiam). Accordingly, Howard has met the first requirement of showing an apparently meritorious Brady violation.
| ipThe second facet of a Brady violation requires that the evidence be suppressed by the State, either willfully or inadvertently. See Sanders, 374 Ark. at 72, 285 S.W.3d at 633 (per curiam). To comply with Brady, the individual prosecutor has a duty to learn of any favorable evidence known to the others acting on the government’s behalf. Cloird, 349 Ark. at 38, 76 S.W.3d at 816 (per curiam); see also Strickler v. Greene, 527 U.S. 263,119 S.Ct. 1936, 144 L.Ed.2d 286 (1999) and Larimore, 341 Ark. 397, 17 S.W.3d 87. The rule set out in Brady also encompasses evidence known only to police investigators and not to the prosecutor. Newman v. State, 2009 Ark. 539, 354 S.W.3d 61, 69 (per curiam) (citing Strickler, 527 U.S. 263, 119 S.Ct. 1936).
The report at issue was not introduced at trial, and no copy of it is in the trial record. Furthermore, there is nothing in the record to indicate that Howard ever received a copy of Diefenbach’s report with her handwritten notes, despite the fact that his counsel filed a pretrial motion for discovery requesting all records and reports of forensic or scientific examinations, investigations, and analysis undertaken in connection with the investigation or preparation of this case on August 27, 1998. On November 23, 1998, the circuit court ordered the Arkansas State Crime Laboratory and Medical Examiner’s Office to provide the “Arkansas Public Defender Commission with copies of any and all documentation and/or laboratory reports.” We conclude that Howard has met the second prong of a Brady claim and has shown, at least on the face of his petition, that there is apparent merit to the claim that the State suppressed the evidence either inadvertently or willfully.
The final facet of a Brady claim is prejudice. Howard must be able to show that he suffered prejudice as a result of the suppression. Sanders, 374 Ark. at 72, 285 S.W.3d at 633 |n(per curiam). Howard’s contention at trial was that he was actually innocent of the murders of Brian and Shannon Day and the attempted murder of Trevor Day. The State relied on the Negroid hairs and blood from the work boots, along with the testimony of Vicki Howard and Jennifer Qualls, to connect Howard to Brian Day’s murder. Because Diefenbach’s testimony was the only testimony concerning the DNA analysis of the Negroid hairs, her testimony was vital to establishing that DNA link. Howard could have used the handwritten notes to attack Diefenbach’s findings that he was not excluded as the source of the hair. See Cloird, 349 Ark. 33, 76 S.W.3d 813 (per curiam). Thus, Howard has made an apparently meritorious claim that he suffered prejudice as a result of the suppression.
There remains the question raised by the State of whether a petitioner seeking to reinvest jurisdiction in the trial court to consider a writ of error coram nobis must show this court more than the fact that an apparent Brady violation occurred. The State contends that this court will not grant a petition to proceed with error co-ram nobis relief if the claims presented lack apparent merit. That is correct, but the State goes further. According to the State, to merit relief in this court, a petitioner must demonstrate before reinvestment in the circuit court, and this court must find, that there is a reasonable probability that the judgment of conviction would not have been rendered, or would have been prevented, had the information been disclosed at trial. >
The reasonable-probability standard proposed by the State applies to the circuit court’s evaluation of the merits of the error coram nobis petition and not to this court’s decision to grant or deny permission to proceed with filing the petition in circuit court. See, e.g., Newman, 2009 Ark. 539, at 19, 354 S.W.3d 61, 71 (“With respect to the claim of Brady violations, the circuit court must determine ... whether there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.”). Again, this court will grant permission for a petitioner to proceed in the circuit court with a petition for writ of error coram nobis when it appears the proposed attack on the judgment is meritorious. Flanagan, 2010 Ark. 140, 2010 WL 987049; Fudge v. State, 2010 Ark. 426, at 2, 2010 WL 4354240 (per curiam). In making such a determination, the court looks to the reasonableness of the allegations of the petition and to the existence of the probability of the truth thereof. Id.
In the instant case, an evidentiary hearing is required in circuit court to determine if the writ should be granted. In Buckley v. State, the petitioner, Gyronne Buckley, filed to reinvest jurisdiction in the circuit court to consider a writ of error coram nobis based on an alleged Brady violation. 2010 Ark. 154, at 1, 2010 WL 1255763 (per curiam). Although the petition had previously been denied, this court granted Buckley’s second petition to proceed with an error coram nobis petition. This court stated that we will grant permission to proceed with an error coram nobis petition only when the proposed attack on the judgment is meritorious. Id. at 2. In determining whether the proposed attack is meritorious, this court looked to the reasonableness of the allegations of the petition and the existence of the probability of the truth thereof. Id. We then rejected the State’s contention that Buckley had failed to establish that there is a reasonable probability that the judgment would not have been rendered had the withheld evidence been known to the defense at the time of trial. Id. Instead, this court determined that “it cannot be determined without an evidentiary hearing that 11sthe allegations of a Brady violation are without merit.” Id. (emphasis added). As a result, this court reinvested jurisdiction in the circuit court to consider the merits of Buckley’s petition. Similarly, in the case before us, we will reinvest jurisdiction in the circuit court to proceed with an evidentiary hearing, assuming Howard has been diligent in bringing his petition, as discussed below.
We turn then to the issue of the timeliness of Howard’s petition. While there is no specific time limit for seeking a petition for a writ of error coram nobis, due diligence is required in filing a petition for relief, and in the absence of a valid excuse for delay, the petition will be denied. Webb v. State, 2009 Ark. 550, at 4, 2009 WL 3681656 (per curiam). Due diligence requires that (1) the defendant be unaware of the fact at the time of trial; (2) the defendant could not have, in the exercise of due diligence, presented the fact at trial; and (3) upon discovering the fact, the defendant did not delay bringing the petition. Id.
In the past, this court has determined, on occasion, whether a claim was brought diligently as a matter of law. See, e.g., Flanagan v. State, 2010 Ark. 140, 2010 WL 987049 (per curiam); see also Echols v. State, 354 Ark. 414, 125 S.W.3d 153 (2003). In Flanagan, we held that the petitioner was not diligent in bringing her claims of mental illness because the grounds for the writ were known or could have been known at the time of trial. Likewise, in Echols, this court held that the petitioner was not diligent in pursuing claims that he was incompetent to stand trial. The medical records the petitioner relied on in Echols were not only available at the time of trial but were also introduced at trial and were considered by the jury. In these cases, the diligence issue could be decided as a matter of law. Thus, these cases are | ^distinguishable from the cases where petitioners present apparently meritorious Brady claims based on information that was not disclosed prior to trial.
Where an error coram nobis claim has apparent merit, this court has often left it to the circuit court to determine the factual issue of diligence. See Cloird, 349 Ark. at 38, 76 S.W.3d at 816 (per curiam) (“[F]inally, coram nobis proceedings require the petitioner to show that he proceeded with due diligence in making application for relief. Accordingly, the trial court should consider whether petitioner raised the possible Brady violation in a timely manner.”) (internal citations omitted); see also Larimore v. State, 327 Ark. 271, 281-82, 938 S.W.2d 818, 823 (1997) (“As the trial court considers whether to grant the writ, the following guidelines are applicable ... (4) Due diligence is required in making an application for relief, and, in the absence of a valid excuse for delay, the petition will be denied.”).
Because this court concludes that the Brady claim based on the DNA report with the handwritten notes appears to have merit and because we cannot say that the diligence issue can be decided as a matter of law, we reinvest jurisdiction in the circuit court and instruct that court to determine the timeliness of the petition. The diligence decision by the circuit court should be based on what information was available, when it was made available, and what information was concealed or suppressed. These are factual determinations that are essential in deciding whether diligence was employed in filing the petition for the writ. Larimore, 327 Ark. at 282, 938 S.W.2d at 823.
In sum, Howard’s claim of a possible Brady violation has apparent merit that warrants reinvesting jurisdiction in the circuit court so that he may pursue a petition for writ of error | lficoram nobis. Although the State claims that Howard has not diligently pursued his Brady claim, that issue is fraught with factual questions that must first be evaluated and then decided by the circuit court upon reinvestiture. See Cloird, 349 Ark. at 39, 76 S.W.3d at 816 (per curiam).
II. Additional Claims in Guilt Phase
Howard presents seven additional claims relating to the guilt phase of his trial, which he contends separately as well as collectively warrant reinvesting jurisdiction in the circuit court to pursue error coram nobis relief.' We will address the claims seriatim.
A. Report of Lisa Sakevicius
Howard first contends that the State failed to disclose the existence of a report made by Lisa Sakevicius, a crimi-nalist for the Arkansas State Crime Laboratory, analyzing wood particles found on the same work boots. According to Howard, the report concluded that the wood particles did not match the door of the Days’ home. Howard maintains that the State introduced photographs which made it appear that the door had been kicked in before Shannon Day was murdered. Howard has attached a copy of the Sakevicius report to his petition.
Howard is raising a second Brady violation based on the failure to disclose the Sakevicius report. The Sakevicius report is dated May 7, 1998, which was more than one year before Howard’s trial. Under “Results of the Analysis,” the report states “[e]xamination of the slides [from the work boots] revealed no wood fibers similar to those used in | ^construction of the [Days’] door.” This report, like the Bode DNA report with the handwritten notes, does not appear to be part of the trial record.
The State maintains that Howard’s contention that the Crime Lab report was illegally withheld is barred by the doctrine of res judicata because the circuit already denied Howard’s Brady claim based on this same allegation during the Rule 37 proceedings. The State, moreover, contends that the possibility that the door to the Days’ home was kicked in was not part of the State’s case and, therefore, the wood-particle evidence had “no exculpatory value.”
The State’s res judicata argument is unpersuasive. If an issue was previously litigated at trial, then it is not a proper basis for error coram nobis relief. O’Neal v. State, 2010 Ark. 425, at 2, 2010 WL 4366898 (per curiam) (holding that a writ of error coram nobis is only appropriate when an issue was not addressed or could not have been addressed at trial because it was somehow hidden or unknown). But the State contends, in addition, that a Brady claim raised in a later Rule 37 petition and ruled on during postconviction proceedings has a res judicata effect if the same claim is asserted in a subsequent petition for error coram nobis relief. That is not correct. This court has held that error eoram nobis proceedings are not interchangeable with proceedings under Rule 37, and issues that could have been raised in postconviction proceedings cannot be the basis for applying the doctrine of res judicata to an error coram nobis petition. See Mills v. State, 2009 Ark. 428, at 2, 2009 WL 3162293 (per curiam); see also Williams v. State, 289 Ark. 385, 387, 711 S.W.2d 479, 481 (1986) (per curiam). Moreover, as the State acknowledges, Brady violations are not cognizable under Rule 37. Moss v. State, 2010 Ark. 284, 2010 WL 2210933 (2010), cert. denied, — U.S.-, 131 S.Ct. 425, 178 L.Ed.2d 332 (2010) (holding that prosecutorial misconduct is not a claim cognizable in a Rule 37 petition).
It makes no sense to this court that a Brady violation for prosecutorial misconduct would be barred by a Rule 37 petition since such a Brady claim is not cognizable under Rule 37. Moreover, this court has repeatedly stated that material evidence withheld by the prosecutor is one of the fundamental errors in a trial that warrants error coram nobis relief. Larimore, 341 Ark. 397, 406, 17 S.W.3d 87, 92. It would be a complete about face for this court now to hold that a claim of material evidence withheld by the prosecutor, which is not cognizable under Rule 37, could not be the basis for error coram nobis relief.
The State’s second argument is that the wood-particle analysis has “no exculpatory value” to Howard. We disagree. A Brady violation occurs if the evidence is favorable to the accused because it is either exculpatory or impeaching. Newman, 2009 Ark. 539, at 13, 354 S.W.3d 61, 68. Howard maintained at trial that he did not murder the Days. The fact that the wood particles — found on the work boots alleged by the State to be his— did not match the door of the Days’ home appears to support his claim. It is for the circuit court to determine the materiality of that evidence.
Both the Bode and Sakevicius reports concern the work boots, which were a significant part of the State’s case at trial. Howard’s claims that those reports were withheld have apparent merit and the circuit court could find that there is a reasonable probability that a judgment of conviction would not have been rendered had Howard been able to use them at trial. Kyles v. Whitley, 514 U.S. 419, 436, 115 S.Ct. 1555, 131 L.Ed.2d 490 (1995) (finding that the materiality of suppressed 1 ^evidence is considered collectively, not item by item). As a result, we grant the petition to reinvest jurisdiction in the trial court to consider the petition for a writ of error coram nobis on this issue.
B. Danny Merrell
Howard also contends that the State failed to disclose evidence that the police initially suspected a known drug dealer, Danny Merrell, of the murders. Howard concedes, though, that on the second day of trial, criminalist Robert Humphreys testified on behalf of the State that an investigator asked him to compare unknown prints recovered from one of the crime scenes to Danny Merrell. Because this information was known at trial, it is not a proper basis for error coram nobis relief. O’Neal, 2010 Ark. 425, at 2, 2010 WL 4366898 (per curiam).
C. Penny Granger
Howard’s next contention is that the State withheld evidence of Penny Granger’s longstanding history of mental illness and mental health treatment, pointing to Ms. Granger’s suicide in 2000. At trial in 1999, Granger testified that Shannon Day was pregnant by Howard, despite medical evidence that Shannon Day was not, in fact, pregnant at the time of her death.
When determining whether a Brady violation has occurred, it must first be determined that the evidence was available to the State prior to trial and the defense did not have it. Cloird, 357 Ark. at 452, 182 S.W.3d at 480. It is not enough to assert that the defense did not have the evidence. Id. Rather, the petitioner must also show that the evidence was available to the State prior to trial. In the present case, Howard offers no specific facts to |19support his claim that the State had access to evidence of Gran-ger’s mental-health history. Moreover, her suicide, which occurred in the year following Howard’s trial, could not be evidence that was available to the State prior to his trial. As a final point, an application for an error coram nobis petition must make a full disclosure of specific facts relied upon and not merely state conclusions as to the nature of such facts; a naked allegation that a constitutional right has been invaded will not suffice. Pitts v. State, 336 Ark. 580, 584, 986 S.W.2d 407, 409 (1999) (per curiam). Howard fails to point to any specific facts that he relies on to support his claim that the State withheld any evidence regarding Granger.
D.Brian Day’s Arrest
Howard also contends that the State suppressed “highly material” evidence that Brian Day was arrested two weeks before he was murdered. The record shows that Howard’s trial counsel was aware that Brian Day may have been arrested, although the circuit court refused to order the State to produce his criminal history. This issue does not qualify as a Brady violation because it was known by trial counsel at the time of trial. O’Neal, 2010 Ark. 425, at 2, 2010 WL 4366898 (per curiam).
E.Jennifer Qualls
Howard’s fifth contention is that the State withheld extensive impeachment evidence concerning Jennifer Qualls, a State witness who testified about Howard’s comings and goings ⅛⅛ the days surrounding the murders and who also stated that Howard told her he left his work boots in the U-Haul truck and someone was trying to frame him for the murders. The trial record shows that Howard did present impeachment evidence regarding Qualls at trial. The record further shows that Howard’s counsel was aware of Qualls’s extensive criminal record prior to trial. Because this information was known at trial, it is not a proper Brady violation. O’Neal, 2010 Ark. 425, at 2, 2010 WL 4366898 (per curiam).
F.Philip Bush
Howard’s penultimate guilt-phase contention is that the State failed to disclose material evidence that implicated Philip Bush in the murders. He maintains that on the morning of the murders, witnesses saw Bush leaving the scene at a high rate of speed, acting extremely suspiciously, and cleaning a handgun. Howard also alleges that after Caucasian hairs were found on the work boots, Bush shaved his head, “for the first time in his life and has kept this unusual haircut ever since.” He contends that evidence implicating Bush was known to members of the Little River County Sheriffs Department but was ignored because Bush was related to Sheriff Danny Russell.
Howard again fails to provide any support for his contention that this evidence was known to the State prior to trial and, as a result, this claim fails to meet the requirements for error coram nobis relief. See Cloird, 357 Ark. at 452, 182 S.W.3d at 480.
12iG. Shannon Day’s Pregnancy
Howard’s final contention regarding the guilt phase of his trial is that the prosecution failed to disclose information concerning Granger’s knowledge, or lack of knowledge, about Shannon Day’s home-pregnancy test. Howard claims that Granger could not have seen a positive home-pregnancy test at the Days’ home because “these tests have almost a 100 percent accuracy rate and because Shannon Day was not actually pregnant.” The State correctly points out that during closing argument, Howard’s counsel contended that Shannon Day was not pregnant. Moreover, as this court said in Howard III, evidence of prosecutorial misconduct regarding Shannon Day’s uncertain pregnancy could have been raised on direct appeal. Howard III, 367 Ark. at 27, 238 5.W.3d at 32. When an issue could have been raised at trial or is cognizable in some other legal proceeding, that issue is not cognizable in a later error coram nobis proceeding. Gardner v. State, 2011 Ark. 27, at 2, 2011 WL 291972 (per curiam).
III. Brady Violation in Sentencing Phase
Howard’s final argument is that the prosecution failed to disclose mitigating evidence which would have materially affected the sentencing phase of his trial. He claims that the State failed to disclose a Little River County Sheriffs Office report (report) detailing abuse that he suffered at the hands of his stepfather, Bruce Howard. According to Howard, when he was seventeen years old, he went to the Little River County Sheriffs Office and reported l^that his stepfather had beaten him several days earlier. He reported, in addition, that his stepfather pulled out a gun and said he was going to “rip his head off’ with it. Howard claims that the State’s failure to disclose this report violates Brady because it constitutes material evidence concerning his punishment. Howard asserts that he did not learn of the existence of the sheriffs report until November 2006, when the circuit court ordered release of his Juvenile and Social Services file. He further asserts that he has still not received a copy of the office report despite repeated requests. A copy of the report is not included with Howard’s petition or the State’s response. A copy of the Juvenile and Social Services file is attached to Howard’s petition.
Howard cites three cases from the Supreme Court of the United States to support his contention that the State had a duty under Brady to disclose the sheriffs report that he previously filed against his father. In none of the three cases cited, however, did the defendant have personal knowledge about the nature of the withheld evidence prior to trial. United States v. Bagley, 473 U.S. 667, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985) (Prosecution failed to disclose that a witness was a paid narcotics informant; this information was unknown to Bagley prior to trial.); Moore v. Illinois, 408 U.S. 786, 92 S.Ct. 2562, 33 L.Ed.2d 706 (1972) (Prosecution failed to disclose misidentifieation of the defendant by several witnesses and failed to disclose inconsistent witness statements given before trial, all of which was unknown to Moore prior to trial.); Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963) (The prosecutor failed to disclose an extrajudicial statement made by another defendant and which was discovered after the petitioner’s conviction was affirmed.).
IgjUnder Brady, the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution. Brady, 373 U.S. at 87, 83 S.Ct. 1194 (emphasis added). The Court has been clear that in evaluating the materiality of suppressed evidence under Brady, courts must distinguish between the materiality of the evidence with respect to guilt and the materiality of the evidence with respect to punishment. Cone v. Bell, 556 U.S. 449, 129 S.Ct. 1769, 173 L.Ed.2d 701 (2009). The suppression of mitigating evidence that is material to the jury’s assessment of the proper punishment is a Brady violation, despite the fact that the same evidence might not be exculpating. Id. at 475, 129 S.Ct. 1769.
In Cone, Gary Cone contended that the State of Tennessee violated his right to due process by suppressing witness statements and police reports that would have corroborated his trial defense and bolstered his case in mitigation of the death penalty. Id. at 451, 129 S.Ct. 1769. Cone was sentenced to death after being convicted of several charges relating to a multi-state crime spree, including two counts of first-degree murder. Id. at 453, 129 S.Ct. 1769. During his trial, Cone mounted an insanity defense and contended that he had killed two people while suffering from acute amphetamine psychosis caused by drug addiction. Id. at 451, 129 S.Ct. 1769. The prosecution repeatedly discredited that defense, calling Cone’s drug addiction “baloney.” Id.
As part of his postconviction process, Cone found evidence that the prosecutor had suppressed witness statements and police reports that supported his contention that he was a drug addict. Specifically, the prosecutor’s files contained witness statements describing Cone as “wild eyed,” or appearing to be “drunk or high,” police reports describing his I^Trenzied manner,” and police bulletins describing him as a “heavy drug user.” Id. at 459, 129 S.Ct. 1769. Cone then amended his postconviction petition to include a Brady violation based on the evidence from the prosecutor’s file. He alleged that the evidence was exculpatory to both the jury’s determination of his guilt and its consideration of a proper sentence. Id. at 459-60, 129 S.Ct. 1769. After his postconviction petition was denied by the state courts, Cone filed a petition for writ of habeas corpus in federal district court based on the same claims.
After determining that the evidence was not material to his guilt, the Court determined that the evidence may well have been material to the jury’s determination of the proper punishment. The Court, accordingly, remanded the case to federal district court with instructions to give full consideration to the merits of Cone’s Brady claim. Id. at 476, 129 S.Ct. 1769.
Similarly, though known to Howard, his father’s physical abuse was not made known to the jury; nor was the report from the sheriffs office. In the instant case, the sentencing forms listed several mitigating factors for the jury to consider when assessing punishment. One of the factors listed on Form 2 was that “Timothy Howard lived in an abusive household as a youth.” A review of the record shows that very little testimony was given regarding Howard’s home life as a youth. Howard’s aunt testified that there was abuse involving Bruce Howard and his wife, but she did not testify about any abuse to Howard by his stepfather. On the contrary, Howard’s aunt testified that Howard’s stepfather was “still a father to [Howard].”
The Juvenile and Social Services file that Howard has attached to his petition shows that on August 31, 1986, Howard reported to the Little River County Sheriffs Office that |2.⅛⅛ stepfather had threatened to kill him. As a result, Howard was placed in an emergency shelter. The file also shows that Bruce Howard was convicted of murder in 1963 and served fifteen years in the penitentiary before being pardoned by the Governor. At the time the file was made, Bruce Howard was on bond for another murder charge. Extensive handwritten notes from a social worker assigned to Howard’s case are attached to the file. In several places, these notes refer to the worker speaking with Little River County Sheriffs Office employees regarding Howard’s case. The handwritten notes read, “Worker went to the sheriffs department and spoke with the dispatcher ... [who] showed worker the official report ... the official report stated that [Howard] came to the sheriffs office and stated that he was afraid to go home ... stated that Bruce Howard showed him a gun in his pick-up truck and threatened to ‘rip his head off with the gun.”
The State contends that Howard’s penalty-phase claim does not warrant granting his application for several reasons. The State initially contends that the evidence was within Howard’s own peculiar knowledge before trial. Secondly, the State urges that Howard fails to show that there is a reasonable probability that the death sentence would not have been rendered had the jury been aware of Howard’s allegedly abusive childhood. The State also contends that Howard has not diligently pursued this claim.
Evidence of childhood abuse can be considered as a mitigating circumstance. See Ark.Code Ann. § 5-4-602(4)(B)(ii) (Repl.2006) (“Mitigating circumstance evidence shall be relevant to the issue of punishment, including, but not limited to, the nature and circumstances of the crime, and the defendant’s character, background, history, and mental and physical condition as set forth in § 5-4-605.”); see also Wiggins v. Smith, 539 U.S. 510, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003). In addition, the jury may consider in arriving at the appropriate sentence those mitigating and aggravating circumstances for which evidence, however slight, exists. Williams v. State, 347 Ark. 728, 754, 67 S.W.3d 548, 564 (2002).
Based on Cone, we also grant Howard’s petition to reinvest jurisdiction in the circuit court to pursue a petition for writ of error eoram nobis on the issue of the State’s failure to disclose the Little River County sheriffs report concerning Howard’s childhood abuse. We do so on the basis that the claim has apparent merit, which the circuit court should evaluate.
We acknowledge that Howard presents a unique set of circumstances where the report containing potentially mitigating evidence was in the possession of the same agency, the Little River County Sheriffs Office, that was investigating him for the murders of Brian and Shannon Day and the attempted murder of Trevor Day. When deciding whether to grant a petition to reinvest jurisdiction in the circuit court to pursue a writ of error coram nobis, this court looks to the reasonableness of the allegations and the existence of the probability of the truth thereof. Flanagan, 2010 Ark. 140, at 1, 2010 WL 987049 (per cu-riam). Howard’s allegation that the prosecution had access to the report because it was filed with the same law enforcement agency that was investigating the crimes appears, on its face, to be reasonable. In addition, the Juvenile and Social Services file adds weight to Howard’s assertion that the report he alleges was withheld exists and that his allegations may have merit. This unique conflux of circumstances supports this court’s decision to permit Howard to develop the facts surrounding this report further.
[wIn deciding as we do, we recognize that defendants have a duty to make reasonable investigations into the circumstances surrounding their own cases, see, e.g., Kemp v. State, 348 Ark. 750, 758, 74 S.W.3d 224, 227 (2002), and we are in no way abandoning that rule by our decision today. We are, further, in no way holding that defendants are relieved of their duty to investigate relevant matters for purposes of mounting their defense, or that all state agencies have a duty to scour their records for potentially mitigating evidence in every case. In light of Cone, however, it is clear that a Brady violation can occur under certain circumstances with respect to mitigating evidence, even if that evidence is within the peculiar knowledge of a defendant. Thus, we grant Howard’s petition to reinvest jurisdiction in the trial court to pursue a petition for writ of error coram nobis because the mitigating evidence at issue appears to have been within the knowledge of the same law enforcement agency that was investigating the crimes.
IV. Summary
We conclude that there are two claims regarding the guilt phase that are appropriate for reinvesting the circuit court with jurisdiction. Both are based on alleged Brady violations that have apparent merit. The claims are the State’s failure to disclose the DNA report with handwritten notes showing potential errors made by Bode during the DNA testing of the Negroid hairs and the State’s failure to disclose a report from the Arkansas Crime Lab indicating that wood particles found on the work boots did not match the door of the Days’ 1 ahorne. Accordingly, we reinvest jurisdiction in the circuit court to consider these two claims for purposes of error coram nobis relief, using the Cloird analysis:
(1) Whether the DNA test results or laboratory report were available to the State before trial;
(2) Whether either the DNA evidence or laboratory report, if available to the State before trial, was indeed favorable to the defense;
(3) Whether prejudice ensued to the defense as a result of the State’s failure to disclose the DNA test results or laboratory report;
(4) Whether there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different; and
(5) Whether petitioner raised the possible Brady violations in a timely manner.
See Cloird, 349 Ark. at 39, 76 S.W.3d at 816 (per curiam).
We further grant the petition and reinvest the circuit court with jurisdiction to determine the merits of Howard’s claim that mitigation evidence in the form of the sheriffs report was withheld from him pri- or to trial. The same Cloird analysis would be appropriate for the circuit court’s consideration of this claim.
Petition granted in part; denied in part.
Special Justice RONALD A. HOPE joins in this opinion.
CORBIN, J., not participating.
. Howard is African American.
. MtDNA was in its early stages of usage during Howard’s trial. At Howard’s trial in 1999, Charity Diefenbach, the Bode analyst, testified that only about fifty labs were doing mtDNA testing. Diefenbach tested three hairs that were sent from the Arkansas Crime Lab to Bode using mtDNA testing. She also performed mtDNA testing on a blood sample taken from Howard.
. Howard does not challenge the DNA findings of the Arkansas Crime Lab regarding the blood on the work boots. His challenge concerns only the handwritten notes on the Bode report analyzing the hairs found in the boots and comparing those hairs to his blood sample.
. During a hearing on pretrial motions, How- ■ ard’s counsel said, "Brian Day, the victim in this case, was either arrested or shook down or confronted in some manner at his residence on Kaylee Drive by members of some law enforcement agency ... or very possibly a drug task force agency."
. During the motion in limine hearing held on December 6, 1999, Howard’s counsel said, "This jury needs to know who this young lady [Jennifer Qualls] is, what she’s doing and what her motives are here.... [TJhere's about 43 charges here ranging from disorderly conduct to attempting to influence a public servant.”
. Howard’s counsel argued as follows, "And don’t you think the medical examiner would have testified that Shannon Day was pregnant when the autopsy was done? You didn’t hear that.” | [
112,
-18,
116,
28,
26,
-96,
26,
-72,
-37,
-77,
123,
-13,
-27,
-5,
0,
43,
59,
57,
97,
105,
-48,
-73,
21,
66,
48,
-69,
-39,
-121,
56,
75,
-66,
-76,
78,
112,
-22,
117,
66,
14,
-31,
88,
-98,
6,
-117,
113,
-47,
67,
58,
108,
20,
15,
37,
-98,
-1,
47,
86,
74,
-119,
110,
91,
-81,
72,
-47,
-72,
-105,
-35,
19,
-127,
-128,
-112,
7,
48,
62,
-44,
57,
9,
-20,
114,
-110,
-126,
116,
75,
-103,
12,
102,
38,
0,
21,
-41,
-88,
-87,
12,
-82,
25,
-89,
-104,
73,
99,
71,
-98,
-67,
126,
-108,
14,
122,
97,
-50,
25,
104,
-108,
-50,
-44,
-95,
-115,
104,
-108,
121,
-45,
13,
32,
101,
-63,
-26,
126,
69,
120,
-101,
78,
-9
] |
COURTNEY HUDSON GOODSON, Justice.
| Appellant Danny Ray Henington appeals an order of the Benton County Circuit Court denying his petition for postcon-viction relief pursuant to Rule 37 of the Arkansas Rules of Criminal Procedure (2011). For reversal, appellant argues that the circuit court erred in failing to conduct an evidentiary hearing and that the circuit court’s written findings constituted reversible error. We have jurisdiction pursuant to Rule 37 and Arkansas Supreme Court Rule 1 — 2(a)(8) (2011). We affirm.
In May 2009, appellant stood trial before a Benton County jury. K.J., appellant’s six-year-old stepgranddaughter, testified that appellant reached under her clothes and touched her private area. The State introduced the victim’s video-recorded interview with Karis Chastain of the Arkansas State Police Crimes Against Children Division. Chastain interviewed K.J., who described appellant “humping” her and digitally penetrating her vagina. Both appellant and his wife testified during the defense stage. Following a two-day jury trial, the jury |2convicted appellant of felony rape and sentenced him to thirty-six years’ imprisonment in the Arkansas Department of Correction. The court of appeals affirmed his conviction and sentence in Henington v. State, 2010 Ark. App. 619, 378 S.W.3d 196.
Appellant timely filed a Rule 37 petition. In his petition, appellant alleged that his trial counsel, Bruce J. Bennett, failed to file a rape-shield motion and a request for an in camera hearing, pursuant to Arkansas’s rape-shield statute, found at Arkansas Code Annotated section 16-42-101 (Repl.1999), and failed to investigate potential alternate sources of the victim’s sexual knowledge. According to appellant, a hearing on a rape-shield motion would have revealed prior sexual conduct between the victim, K.J., and her brother, J.J.; an explanation for what Natalie Jones, the victim’s mother, described as K.J.’s “raw” genital area; a motive for K.J. and J.J. “fabricating the story about [appellant] raping K.J. and ... a reasonable explanation for” K.J.’s raw genitalia; and explanations from J.J. and a neighborhood boy about K.J.’s prior sexual knowledge. The record demonstrates that appellant requested a hearing on his petition for postconviction relief.
The State responded that appellant failed to demonstrate how this evidence would have been admissible at trial, even if he had overcome the burden of proving it admissible under our rape-shield statutory provisions. The State contended that appellant did not show prejudice in counsel’s failure to request a rape-shield hearing. Further, the State asserted that appellant’s allegations in his Rule 37 petition were merely conclusory statements, and as a result, no hearing was required when appellant’s allegations had no merit.
Without a hearing, the circuit court denied appellant’s request for postconviction relief. |3On January 28, 2011, the circuit court entered its order, ruling that appellant’s petition contained conclusory allegations and was without merit. From this order, appellant timely brings his appeal.
On appeal, appellant argues that the circuit court erred in denying relief on his petition without holding an evidentiary hearing and in failing to make specific written findings. This court has held that it will reverse the circuit court’s decision granting or denying postconviction relief only when that decision is clearly erroneous. See Williams v. State, 369 Ark. 104, 251 S.W.3d 290 (2007); Howard v. State, 367 Ark. 18, 238 S.W.3d 24 (2006). This court has stated that “[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.” Williams, 369 Ark. at 107, 251 S.W.3d at 292 (quoting Howard, 367 Ark. at 26, 238 S.W.3d at 31).
When considering an appeal from a circuit court’s denial of a Rule 37 petition, the sole question presented is whether, based on a totality of the evidence under the standard set forth by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), the circuit court clearly erred in holding that counsel’s performance was not ineffective. Anderson v. State, 2011 Ark. 488, 385 S.W.3d 783; Sparkman v. State, 373 Ark. 45, 281 S.W.3d 277 (2008). In making a determination of ineffective assistance of counsel, the totality of the evidence must be considered. Howard, supra. The benchmark for judging a claim of ineffective assistance of counsel must be “whether counsel’s conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having |4produced a just result.” Strickland, 466 U.S. at 686, 104 S.Ct. 2052.
Pursuant to Strickland, we assess the effectiveness of counsel under a two-prong analysis. First, a claimant must show that counsel’s performance was deficient. Britt v. State, 2009 Ark. 569, 349 S.W.3d 290. Counsel is presumed effective, and allegations without factual substantiation are insufficient to overcome that presumption. Nelson v. State, 344 Ark. 407, 39 S.W.3d 791 (2001) (per curiam). A petitioner, in claiming deficiency, must show that “counsel’s representation fell below an objective standard of reasonableness.” Strickland, 466 U.S. at 688, 104 S.Ct. 2052. Petitioner has the burden of overcoming the presumption by identifying specific acts and omissions that, when viewed from counsel’s perspective at the time of trial, could not have been the result of reasonable professional judgment. Wainwright v. State, 807 Ark. 569, 823 S.W.2d 449 (1992). A court must indulge in a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance. Williams, supra.
Second, a claimant must also show that this deficient performance prejudiced his defense so as to deprive him of a fair trial. Britt, supra. Petitioner must show that, even if counsel’s conduct is shown to be professionally unreasonable, the judgment will stand unless petitioner can demonstrate that counsel’s error had an actual prejudicial effect on the outcome of the proceeding. Strickland, 466 U.S. at 691, 104 S.Ct. 2052. Petitioner must show there is a reasonable probability that, but for counsel’s errors, the fact-finder would have had a reasonable doubt respecting guilt, or in other words, that the decision reached would have been different absent the errors. Howard, supra. A reasonable probability is a probability sufficient to undermine confidence in the outcome of the trial. Id. The language, “the outcome of the trial,” refers | anot only to the finding of guilt or innocence, but also to possible prejudice in sentencing. Howard, 367 Ark. at 32, 238 S.W.3d at 36. Unless a petitioner makes both showings, it cannot be said that the conviction resulted from a breakdown in the adversarial process that renders the result unreliable. Howard, supra. “[T]here is no reason for a court deciding an ineffective assistance claim ... to address both components of the inquiry if the defendant makes an insufficient showing on one.” Strickland, 466 U.S. at 697, 104 S.Ct. 2052. With this Strickland standard in mind, we turn to the issues raised by appellant.
For the first point on appeal, appellant argues that the circuit court erred in summarily denying his petition without an evi-dentiary hearing. Specifically, appellant asserts that his Rule 37 petition alleged facts sufficient to obtain an evidentiary hearing and that those facts include allegations that his trial counsel was ineffective for failing to file a motion for an in camera hearing, pursuant to Arkansas’s rape-shield statute, and for failing to investigate other sources of the victim’s prior sexual knowledge. Appellant further contends that his trial counsel’s deficiency prejudiced him because it left the jury with no alternate explanation of the minor victim’s prior knowledge of sexual matters.
Pursuant to Arkansas Rule of Criminal Procedure 37.3(a) (2011), the circuit court has the discretion to deny relief without a hearing. We have previously interpreted Rule 37.3 to provide that an evidentiary hearing should be held in a postconviction proceeding unless the files and record of the case conclusively show that the prisoner is entitled to no relief. Sanders v. State, 352 Ark. 16, 98 S.W.3d 35 (2003) (holding that it is undisputed that the trial court has discretion pursuant to Rule 37.3(a) to decide whether the files or records are [ insufficient to sustain the court’s findings without a hearing). Pursuant to Rule 37.1, a petitioner has the burden of pleading “in concise, nonrepeti-tive, factually specific language” at least one cause of action that is cognizable under the rule, and he must plead facts that support his claim. See Ark. R.Crim. P. 37.1(b); Greene v. State, 356 Ark. 59, 146 S.W.3d 871 (2004); see generally Flowers v. State, 2010 Ark. 364, 370 S.W.3d 228 (per curiam) (citing Jamett v. State, 2010 Ark. 28, 358 S.W.3d 874 (per curiam)). In an evidentiary hearing, the petitioner faces the burden of supporting his allegations with evidence. See Ark. R.Crim. P. 37.3(c); Johnson v. State, 2009 Ark. 541, 2009 WL 3681861; Flaherty v. State, 297 Ark. 198, 761 S.W.2d 167 (1988). Conclu-sory allegations that are unsupported by facts do not provide a basis for either an evidentiary hearing or postconviction relief. Nance v. State, 339 Ark. 192, 4 S.W.3d 501(1999).
In the present case, we duly note the following allegations in appellant’s Rule 37 petition:
2. During the trial, the defense tried to bring out information about prior sexual conduct between the complaining witness, K.J., and her 'brother, J.J.; however, the court ruled that testimony inadmissible because a rape-shield motion was never filed by petitioner’s counsel to ask for a rape-shield hearing and present this evidence to the court prior to trial.
3. Had petitioner’s counsel filed a rape-shield motion and a hearing been held on that motion, petitioner’s wife, Patti Henington, who was the biological grandmother of K.J. and J.J., would have testified that the mother of K.J. and J.J. had told her to be sure the two children were separated at night and did not sleep in the same bed, because they had been caught doing “naughty” things with each other when they lived in another state, and those naughty things included “touching each other” and “experimenting with each other” sexually. Petitioner and his wife told petitioner’s trial counsel, Mr. Bennet, about these allegations and that they had heard them from KJ.’s mother, and that was why K.J. and J.J.’s older sister had to sleep in the same room with K.J. and J.J. when the children visited petitioner’s home.
|74. Furthermore, Pattie [sic] Hen-ington would have testified at a rape-shield hearing that KJ.’s mother told her that a neighbor boy who lived in K.J.’s trailer park had “humped” K.J., and that KJ.’s mother had even demonstrated for Ms. Henington with a pillow that the “humping,” as she called it, was sexual activity and included the neighbor boy moving up and down against KJ.’s body. Petitioner’s trial counsel was likewise aware of these allegations, yet did not file a rape-shield motion or even investigate these prior allegations of sexual activity with a neighbor boy.
5. Petitioner’s counsel had also been made aware by petitioner and his wife that this same neighbor boy mentioned in the previous paragraph had at one time tried to carry K.J. around the back of his trailer when K.J. was three or four years old (she was approximately four or five years old at the time of the allegation against petitioner), and petitioner had seen that and made the neighbor boy drop K.J. and prevented her from coming to harm.
6. All of these allegations were possible explanations as to how the child had knowledge of sexual matters and therefore were relevant and necessary to petitioner’s defense in this case.
7. When the allegations against petitioner first arose, both K.J. and J.J. made the allegations against petitioner, although J.J. did not testify at trial. Considering the statements by the mother of the previous sexual behavior of K.J. and J.J. together, this information could have given the jury a motive for K.J. and J.J. fabricating the story about petitioner raping K.J., and could have given a reasonable explanation for why KJ.’s genital area was “raw,” as was described by her mother in her testimony. This is because K.J. and J.J. had been sleeping at petitioner’s home, in the same room, and the allegations against petitioner were made when they went back home and KJ.’s mother discovered KJ.’s genital area was “raw.”
8. K.J. was the only witness to testify about the actual allegations against petitioner; there were no other witnesses presented that claimed to have seen petitioner raping K.J., and there was no medical evidence whatsoever to back up KJ.’s story that she had been raped by petitioner. Since K.J. was the sole witness, her credibility was crucial to the State’s case, and impeaching her credibility was necessary to petitioner’s defense.
9. Considering that this “rape shield” evidence would have given (1) another explanation of the child’s “raw” genital area, and (2) a motive for K.J. and J.J. to lie about how KJ.’s genital area became raw, and (3) two other explanations (via J.J. and the neighbor boy) of how K.J. came to know about sexual matters, to fail to file a rape-shield motion so these matters could be brought out at trial was deficient performance by Bruce Bennett, petitioner’s trial counsel. Moreover, this failure to present this testimony prejudiced petitioner because the jury was given no other explanation for how K.J. knew what she knew or how she could have been injured, so they were left with 1 «only KJ.’s testimony about the incident.
Here, the record reveals that appellant is not entitled to postconviction relief and that a hearing was not warranted. Bennett, appellant’s trial counsel, did attempt to develop this particular evidence at trial. The record reflects that Bennett attempted to elicit testimony from appellant’s wife, the victim’s grandmother, that the victim’s mother instructed her to prevent K.J. and J.J. from sleeping in the same room. Further, an excerpt of the trial transcript demonstrates that appellant received a ruling from the circuit court limiting the scope of this testimony. During a bench conference at trial, the following colloquy occurred:
MR. Bennett: The idea and the only response she [the victim’s grandmother and appellant’s wife] will give to this question is that she had instructed my client not to let [J.J. and K.J.] sleep together because they were doing naughty things. That’s it. That is all she’d testified.
Mr. Cearley [prosecutor]: You’re— absolutely cannot go there. That’s covered under rape shield.
Mr. Bennett: Well, Your Honor, that came up during the mother’s testimony.
The Court: All right.
Mr. Bennett: Well, I can still file a written [rape-shield] motion anytime before I close my case.
The Court: Listen, I’ll let you make your record. I will let you ask her if she was instructed by the — Natalie not to have them sleeping together. That’s as far as I’ll let you go. It’s a rape shield violation.
Mr. CeaRley: I want to make sure that you are going to ask it’s a yes or no answer.
Mr. Bennett: I’ll lead her right to that. I won’t ask why.
The Court: All right.
The circuit court ruled this evidence as inadmissible under the rape-shield statute. Bennett responded, “[S]hould I want to go there, I think I prepared a written motion to that effect, so, I mean, I’ll make that determination before my case in chief is closed.” Based on this colloquy, we conclude that Bennett understood that he could file a rape-shield motion 19before the defense rested, but he elected not to do so. Where a decision by counsel was a matter of trial tactics or strategy, and that deci sion is supported by reasonable professional judgment, then counsel’s decision is not a basis for relief under Rule 37.1. Sykes v. State, 2011 Ark. 412, 2011 WL 4635021 (per curiam). Moreover, with regard to appellant’s allegations that the victim had prior sexual knowledge, particularly her knowledge of the term “humping,” Bennett developed this evidence at trial during the cross-examination of the victim’s mother and during the direct examination of the victim’s grandmother. Thus, we conclude that the record demonstrates that Bennett did not perform deficiently. Absent a showing of Bennett’s deficient performance, we decline to address the prejudice component when appellant made “an insufficient showing on one.” Strickland, 466 U.S. at 697, 104 S.Ct. 2052. Therefore, we hold that the circuit court did not err in denying an evidentiary hearing on appellant’s Rule 37 claims.
For his second point on appeal, appellant argues that the circuit court erred in failing to make sufficient written findings in its order. Specifically, appellant contends that the circuit court’s order did not specify the portions of the record that the court relied on in denying his Rule 37 hearing as required by Arkansas Rule of Criminal Procedure 37.3(a) (2011).
When a petition for postconviction relief is denied without a hearing, Rule 37.3(a) requires that the circuit court “shall make written findings to that effect, specifying any part of the files, or records that are relied upon to sustain the court’s findings.” Wooten v. State, 338 Ark. 691,1 S.W.3d 8 (1999). Without such specific findings, there can be no meaningful review because, on review, this court determines whether the findings are supported by a preponderance of evidence. Reed v. State, 375 Ark. 277, 289 S.W.3d 921 (2008). If the trial |incourt fails to make such findings, it is reversible error, except in cases where it can be determined from the record that the petition is wholly without merit or where the allegations in the petition are such that it is conclusive on the face of the petition that no relief is warranted. See Rodriguez v. State, 2010 Ark. 78, 2010 WL 569750; see also Sanders v. State, 352 Ark. 16, 98 S.W.3d 35 (2003).
In the present case, the circuit court’s order denying appellant’s Rule 37 petition provides as follows:
5. Petitioner alleged ineffective assistance of counsel because [trial counsel] failed to request a rape-shield hearing to suggest third-party culpability and an alternative basis for knowledge of sexual matters.
6. Petitioner did not state a claim upon which relief can be granted.
7. Petitioner did not show prejudice in counsel failing to request a rape-shield hearing. A claim that prejudice was suffered without any factual explanation about what form the prejudice took or how serious it was is not enough to prove ineffective assistance of counsel. Spivey v. State, 299 Ark. 412, 417, 773 S.W.2d 446, 449 (1989).
8. Petitioner’s allegation is a conclu-sory statement. Petitioner does not state how any of the desired evidence would have been admissible.
9. Allegations without factual substantiation are insufficient to overcome the presumption that counsel was effective. Conclusory statements cannot be the basis of postconviction relief. Jackson v. State, 352 Ark. 359, 371, 105 S.W.3d 352, 360 (2003); Nance v. State, 339 Ark. 192, 4 S.W.3d 501 (1999); Bryant v. State, 323 Ark. 130, 132, 913 S.W.2d 257, 258 (1996).
10. Petitioner’s petition and the file conclusively show that petitioner is not entitled to relief because petitioner’s al legations are entirely conclusory in nature and/or have no merit.
11. The court denies petitioner’s petition without a hearing.
Here, the circuit court’s findings are sufficient to specify the basis for its ruling. Appellant himself submitted a portion of the record with his Rule 37 petition, specifically pages 419 through 423 of the record. Further, in its order, the circuit court stated that it reviewed the pleadings and transcripts in denying appellant’s petition for postconviction relief, fyln doing so, the circuit court outlined appellant’s claims and the reasons for its denial of those claims. Thus, we conclude that the circuit court’s written findings complied with Rule 37.3. Accordingly, we affirm the circuit court’s denial of appellant’s request for postconviction relief.
Affirmed.
DANIELSON, J., concurs. | [
112,
-20,
-19,
-84,
11,
65,
96,
-88,
83,
-125,
-13,
-13,
-81,
-34,
8,
127,
-85,
43,
84,
121,
-46,
-73,
3,
-31,
-78,
-5,
-109,
87,
-77,
-53,
-84,
-76,
92,
80,
-54,
-47,
66,
-54,
-83,
92,
-122,
-125,
-117,
-64,
80,
67,
36,
99,
54,
15,
113,
-98,
-77,
111,
52,
-61,
-83,
108,
91,
-67,
88,
19,
-8,
23,
-113,
20,
-93,
36,
-99,
1,
122,
58,
-40,
57,
9,
-68,
-13,
-106,
-126,
116,
73,
27,
-87,
104,
98,
3,
-104,
-57,
-67,
-87,
63,
127,
-99,
-90,
-104,
41,
75,
45,
-121,
-75,
126,
20,
12,
124,
123,
-51,
124,
108,
-127,
-49,
16,
-127,
-115,
32,
20,
59,
-61,
49,
16,
117,
-57,
-32,
84,
87,
51,
-37,
-114,
-77
] |
ROBERT L. BROWN, Justice.
|Appellant Darleen Tripcony appeals a decision of the Pulaski County Circuit Court dismissing her complaint against ap-pellees Arkansas School for the Deaf (School); Beth Gray, in her individual and official capacity; Andrew Tolbert, in his individual and official capacity; and Dr. Doug Watson, in his individual and official capacity, for lack of subject-matter jurisdiction. Because the circuit court did lack subject-matter jurisdiction to conduct a judicial review of the termination of a state employee, we dismiss the appeal.
|2On June 4, 2010, Tripcony filed a complaint against the School, Gray, Tolbert, and Dr. Watson in which she requested judicial review and declaratory and injunc-tive relief after she was terminated from her employment with the School as part of a Reduction in Force (RIF). Tripcony was serving as the Special Projects Coordinator, which included production of a newsletter, preparation of grant applications, and otherwise dealing with the press, at the time of her termination. According to her complaint, the Arkansas General Assembly had approved a budget for fiscal year 2009 that included funding for this position. On July 21, 2009, the interim Superintendent for the School recommended that Tripcony’s employment be terminated as part of a RIF. That same date, the School’s Board of Trustees voted to approve that recommendation and terminate Tripcony’s employment.
Tripcony sought review of that decision from the Arkansas State Employee Grievance Appeal Panel (SEGAP). On April 23, 2010, that panel unanimously upheld the Board’s RIF of Tripcony’s position. SE-GAP found that when a RIF is necessary, an agency is required to adhere to the Statewide Workforce Reduction Policy (Reduction Policy). SEGAP found in its decision that under that policy, an agency is required to consider other options like hiring freezes, job attrition, reduction in work hours, and a pay cut before conducting a RIF. Because of the urgent necessity of adequate staffing in other areas of the School, SEGAP | ..¡concluded that a hiring freeze or other alternatives were not viable. The School, according to SEGAP, faced a need for “hands-on employees” to staff “critical” positions to “insure that the needs of the emotionally and mentally challenged were properly serviced.” SE-GAP found that Tripcony’s position was classified as “non-critical” because her job functions did not include direct contact with students. SEGAP further found that the RIF was “not unreasonable or in viola tion of policy” and that “[the School] substantially complied with the [Reduction Policy.].”
On June 4, 2010, Tripcony filed a complaint in circuit court requesting judicial review of the affirmance by the School’s Board of Trustees of the School’s termination of her employment as well as the decision by SEGAP upholding the denial of her appeal. She further sought declaratory and injunctive relief against the School. In her complaint, Tripcony alleged that SEGAP, contrary to the evidence, testimony, and exhibits presented, failed to require adherence to the Reduction Policy; failed to assess the requirements of the Reduction Policy properly; and found compliance with the Reduction Policy for a RIF that was not required. She also prayed that the circuit court enjoin the School from terminating her employment and restore her to her former position as though the RIF had never occurred by declaring her termination to be void.
On August 16, 2010, the School, Gray, Tolbert, and Dr. Watson moved to dismiss Tripcony’s complaint for failure to state a claim under Rule 12(b)(6) of the Arkansas Rules of Civil Procedure, lack of subject-matter jurisdiction, and sovereign and statutory immunity. | ¿Tripcony responded, and a hearing was held on the motion, at which time both parties appeared and made arguments to the court. After the hearing, the circuit court dismissed the complaint on the basis that it lacked subject-matter jurisdiction and that Tripcony’s claim against the School’s Board of Trustees was barred by the doctrine of sovereign immunity. The circuit court also dismissed her claims against Gray, Tolbert, and Dr. Watson in their individual capacities based on the doctrine of qualified immunity.
On appeal, Tripcony initially contends that the circuit court erred because it did have subject-matter jurisdiction to review the SEGAP decision. The first issue, then, that this court must resolve is whether the circuit court had subject-matter jurisdiction over Tripcony’s claims. When the circuit court lacks subject-matter jurisdiction, the appellate court also lacks subject-matter jurisdiction on appeal. Koonee v. Mitchell, 841 Ark. 716, 719, 19 S.W.3d 608, 605 (2000).
We determine whether a court has subject-matter jurisdiction based on the pleadings. Union Pac. R.R. Co. v. State ex rel. Faulkner County, 316 Ark. 609, 612, 873 S.W.2d 805, 806 (1994). It is well settled that subject-matter jurisdiction is a court’s authority to hear and decide a particular type of case. Edwards v. Edwards, 2009 Ark. 580, at 3-4, 357 S.W.3d 445, 448 (2009). A court lacks subject-matter jurisdiction if it cannot hear a matter under any circumstances and is wholly incompetent to grant the relief sought. Id. A court obtains subject-matter jurisdiction under the Arkansas Constitution or by means of constitutionally authorized statutes or court rules. Id. Where the issue of subject-matter jurisdiction requires | ¡Interpretation of a statute or constitutional provision, this court’s review is de novo. Ark. Annual Conference of AME Church, Inc. v. New Direction Praise & Worship Ctr., 375 Ark. 428, 291 S.W.3d 562 (2009).
The circuit court determined that it did not have subject-matter jurisdiction to review Tripcony’s claims based on this court’s opinion in Arkansas Livestock & Poultry Commission v. House, 276 Ark. 326, 634 S.W.2d 388 (1982). In House, this court was asked to decide whether the discharge of an employee by the Arkansas Livestock and Poultry Commission was subject to review under Arkansas’s Administrative Procedure Act (APA). The appellee, Dennis House, had been employed as a livestock inspector and was discharged on the ground that his use of alcohol was interfering with his job performance. He was reinstated on probationary status after a grievance proceeding, but he was subject to immediate discharge for drinking on the job, while in uniform, in State-owned vehicles, or for failing to attend Alcoholics Anonymous meetings. During his probationary period he continued to drink alcoholic beverages and did not regularly attend AA meetings. As a result, he was terminated. He then filed suit in circuit court under the APA, challenging the recommendation of a fact-finding panel that he not be rehired until he demonstrated voluntary rehabilitation.
The Livestock and Poultry Commission moved to dismiss the complaint on the basis that termination of an employee is not an adjudication within the meaning of the APA. The circuit court did not grant that motion but found that there was substantial evidence to support House’s termination. On appeal, this court addressed the jurisdictional question:
lfi[W]hen and under what circumstances an agency employee should be terminated is not a judicial function but a basic and perfunctory part of the administrative routine of an agency in its discharge of public business and nothing would be more inimical to the separation of powers than for the judicial branch to claim the power to monitor such decisions.
Id. at 329, 634 S.W.2d at 389.
Tripcony disagrees that the House decision applies to the facts of the instant case because (1) her position was created and funded by the General Assembly and the elimination of that position by the School, as part of the executive branch, does not constitute an administrative function; (2) review of a RIF by SEGAP is quasi-judicial in nature; and (3) judicial review is proper when an executive agency like the School acts in derogation of state law.
Neither SEGAP nor the circuit' court made a finding that Tripcony’s position was funded by the General Assembly. Yet, her complaint states that her position was funded by the General Assembly for fiscal year 2009-2010. In reviewing a court’s decision on a motion to dismiss, this court treats the facts alleged in the complaint as true and views them in the light most favorable to the plaintiff. Dukes v. Norris, 369 Ark. 511, 514, 256 S.W.3d 483, 485 (2007). As a result, this court treats as true the allegation in Tripcon/s complaint that her position was funded by the General Assembly.
The question, though, is to what extent the fact of legislative funding impacts whether the School’s decision to terminate Tripcony was administrative or adjudicatory. The distinction is important because only adjudications are subject to review under the APA, and |7they are defined as any “agency process for the formulation of an order,” not to include prisoner disciplinary proceedings. Ark.Code Ann. §§ 25-15-202(1) (Repl.2002), 25-15-212(a) (Repl. 2002). This court has held that it is only with respect to its judicial functions, which are basically adjudicatory or quasi-judicial in nature, that the APA purports to subject agency decisions to judicial review. House, 276 Ark. at 329, 634 S.W.2d at 389. Otherwise, courts lack subject-matter jurisdiction to examine administrative decisions of state agencies. Id.
To support her contention that the termination was judicial in nature, Tripcony cites this court to Prentis v. Atlantic Coast Line Co., 211 U.S. 210, 29 S.Ct. 67, 53 L.Ed. 150 (1908). In that case, the Supreme Court of the United States discussed the distinction between judicial inquiries and legislative actions:
A judicial inquiry investigates, declares, and enforces liabilities as they stand on present or past facts and under laws supposed already to exist_ Legislation, on the other hand, looks to the future and changes existing conditions by making a new rule, to be applied thereafter to all or some part of those subject to its power.
Id. at 226, 29 S.Ct. 67. Tripcony maintains that the decision by the School’s Board of Trustees and SEGAP’s decision to uphold the RIF were adjudicatory in nature, under the definition in Prentis, because those decisions declared and enforced liabilities based on past facts regarding whether the School had complied with RIF procedures under the Reduction Policy.
Despite this contention, Tripcony fails to show how Prentis, a case decided before the federal Administrative Procedure Act was adopted, has any bearing on cases that were filed Runder the APA in Arkansas. The discussion in Prentis centered on whether a rate-setting for an entire industry by the State Corporation Commission in Virginia was legislative or judicial in nature. The Court determined that it was legislative because the state commission was adopting a new rule for the future. Although Prentis discusses the differences between legislative and judicial acts, it does not do so within the context of the APA or within the context of whether an agency’s decision to terminate an employee is administrative or adjudicatory. Prentis simply does not provide an analysis that is helpful to resolve the issue at hand.
This court has remained firm that discharge of an employee is not an adjudication but an administrative decision, and the circuit court is without jurisdiction to review such actions. See, e.g., Viswanathan v. Mississippi Cnty. Cmty. Coll. Bd. of Trustees, 318 Ark. 810, 812, 887 S.W.2d 531, 532 (1994); House, 276 Ark. 326, 634 S.W.2d 388. We agree that the termination of employees in state agencies is a day-to-day function of the executive branch, and the APA was never designed or intended to create supervisory authority by the judicial branch over such actions. House, 276 Ark. at 329, 634 S.W.2d at 389. The circuit court correctly determined that it lacked subject-matter jurisdiction to review the termination or RIF of an executive branch employee.
Tripcony next raises the specter that if the circuit court cannot review employee terminations or a RIF by a state agency, then the state is free to violate Arkansas laws designed to protect employees. She contends that her termination was wrongful because it was in|9violation of the Reduction Policy and, thus, was in violation of a clearly adopted public policy.
This court has repeatedly held that when an employee’s contract of employment is for an indefinite term, either party may terminate the relationship without cause or at will. See Sterling Drug, Inc. v. Oxford, 294 Ark. 239, 245, 743 S.W.2d 380, 383 (1988). Where an at-will employee (one employed for an indefinite term) relies on a personnel manual or an employment agreement that expressly states that he or she cannot be discharged except for cause, the employee may not be arbitrarily discharged in violation of such a provision. Id. An at-will employee, in addition, 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. Id. at 249, 743 S.W.2d at 385.
The public-policy exception, however, is a limited exception to the employment-at-will doctrine and is not meant to protect merely private or proprietary interests. Id. Indeed, we have said that public policy has been controverted when the reason alleged to be the basis for a discharge is so repugnant to the general good as to deserve the label “against public policy.” Robinson v. Langdon, 338 Ark. 662, 672, 970 S.W.2d 292, 297 (1998). Tripcony acknowledges that it is generally recognized that the public policy of a state is found in the state’s constitution and its statutes. See, e.g., Sterling Dnig, 294 Ark. at 249, 743 S.W.2d at 385. She further acknowledges that the Reduction Policy on which she relies is not found in the constitution or statutes of this state. Nevertheless, she maintains that the Reduction | inPolicy is a state public policy that entails the exercise of delegated authority from the General Assembly to the executive branch subject to a statutory scheme relating to budget procedures. This policy, she asserts, was violated by the RIF.
Tripcony is wrong in this regard. The Reduction Policy itself belies her assertion that it provides an exception to the employment-at-will doctrine. Section I.B. of the Reduction Policy states that “[t]he policy does not constitute any employment contract or agreement, either express or implied, between the state agency and its employees.... This policy is subject to change without notice, wholly or in part.” Statewide Workforce Reduction Policy, Arkansas Dep’t of Finance & Admin. Office of Personnel Management, search “Statewide Workforce Reduction Policy.” Hence, the fact that the Reduction Policy is subject to change without notice undercuts any contention by Tripcony that she could rely on its provisions in terms of her employment status or the procedures that would necessarily be followed in the event of her termination.
This court is convinced that the Reduction Policy does not constitute the same type of public policy that this court has recognized in previous wrongful-termination cases. This is so because it is a procedural policy and is not designed to protect the public or to protect employees from termination in violation of their civil rights. Examples of public-policy contraventions are when an employer discharges an employee for reporting a violation of state or federal law. Northport Health Servs., Inc. v. Owens, 356 Ark. 630, 645, 158 S.W.3d 164, 174 (2004) (citing Sterling Drug, 294 Ark. 239, 743 S.W.2d 380). Along the same line, this court Inhas recognized that public policy was violated when an employee was forced to resign after reporting to the General Services Administration (GSA) that the employer had submitted false information during contract negotiations with the GSA. Sterling Drug, 294 Ark. at 249, 743 S.W.2d at 385. This court has also recognized that the public-policy exception applied when an employee was terminated after reporting the abuse and neglect of nursing-home residents to the employer and to the Office of Long Term Care. Northport Health Servs., 356 Ark. at 645, 158 S.W.3d at 174. Likewise, a claim for wrongful termination in violation of a public policy will stand where an employee is terminated for rejecting solicitations to engage in sex in exchange for compensation. Island v. Buena Vista Resort, 352 Ark. 548, 563, 103 S.W.3d 671, 679 (2003).
These cited cases that recognize violations of public policy sufficient to support a cause of action for wrongful termination are not based on procedural violations. Instead, they are premised on violations of “whistleblower” statutes, criminal statutes, and statutes designed to protect the public from harm. Tripcony’s allegation that her discharge was in violation of the Reduction Policy procedures simply does not rise to level of repugnancy that this court has previously recognized as violating public policy. See Robinson, 333 Ark. 662, 970 S.W.2d 292.
In short, Tripcony’s allegations simply do not state a public-policy exception sufficient to warrant a deviation from our holding in House that there is no judicial review of termination of state employees. To reiterate in part, employee termination is “a basic and | ^perfunctory part of the administrative routine of an agency in the discharge of public business.” House, 276 Ark. at 329, 634 S.W.2d at 389. For the judiciary to monitor those decisions would be “inimical to separation of powers.” Id. We decline the invitation to adopt a new exception to the House holding when the instant facts as set forth in Tripcony’s complaint for judicial review and declaratory and injunctive relief fail to state a claim for wrongful termination based on violations of the Reduction Policy.
Because the circuit court lacked subject-matter jurisdiction over this matter, this court similarly has no jurisdiction to entertain an appeal regarding it. Koonce v. Mitchell, 341 Ark. at 719, 19 S.W.3d at 605. It necessarily follows that we also lack jurisdiction to decide the appeal relating to the immunity issues.
Appeal dismissed.
. Gray was named in her official capacity as the Chair of the Board of Trustees for the School. Tolbert was named in his official capacity as the Vice Chair of the Board of Trustees. Dr. Watson was named in his official capacity as the Secretary of the Board of Trustees.
. The Statewide Workforce Reduction Policy is issued and administered by the State Office of Personnel Management of the Division of Management Services of the Arkansas Department of Finance and Administration. | [
20,
-18,
-44,
-84,
-85,
-29,
18,
-74,
83,
-95,
107,
-45,
-83,
49,
20,
123,
-13,
79,
84,
73,
-47,
52,
118,
104,
-62,
-13,
-8,
71,
-69,
79,
-28,
-34,
74,
81,
42,
-44,
70,
66,
-51,
-48,
-114,
3,
-117,
111,
121,
-122,
56,
107,
18,
15,
53,
-49,
-13,
-84,
24,
-61,
-56,
46,
121,
-83,
115,
-15,
90,
5,
127,
4,
49,
53,
-102,
7,
-40,
46,
-112,
49,
9,
-8,
122,
-74,
-118,
84,
3,
-103,
8,
104,
96,
3,
-72,
-75,
-60,
-120,
30,
127,
29,
-89,
-103,
41,
67,
13,
-105,
-100,
-36,
20,
1,
126,
98,
-123,
83,
108,
-116,
-50,
-122,
-93,
-114,
41,
-106,
35,
-21,
70,
48,
101,
-99,
-22,
93,
-121,
51,
31,
-18,
-106
] |
Paul Ward, Associate Justice.
Becently the City of Batesville voted overwhelmingly to issue $1,000,000.00 in Bevenue Bonds under the provisions of Act No. 9 of the General Assembly, approved January 21, 1960, and Independence County (the county in which Batesville is located) voted to issue $500,000.00 in General Obligation Bonds under the provisions of Amendment No. 49 to the Constitution of Arkansas (adopted at the General Election on November 4, 1958). The overall purpose of the City and Connty in authorizing said bond issues was to secure and develop new industries and thereby relieve unemployment. The manner in which this objective was to be achieved will he set out more fully later.
This litigation tests the legality of the above proposed bond issues and the proposed development program based thereon. A Complaint was filed by Paul T. Wayland (appellant herein), a citizen and taxpayer of Batesville and Independence County, against the County Judge of Independence County and also against the May- or, Clerk and Aldermen of the City of Batesville, all of whom constitute the appellees herein. To said Complaint appellees filed a Demurrer on the ground that it did not state facts sufficient to constitute a cause of action. The trial court sustained appellees’ Demurrer, whereupon appellant declined to plead further, and on March 3, 1960, appellant’s Complaint was dismissed. From such action of the trial court this appeal is being prosecuted.
Complaint. After identifying all of the parties heretofore mentioned, and after setting out portions of said Amendment No. 49 and said Act No. 9, the Complaint, in substance alleges:
1. Some time ago negotiations were undertaken with Seiberling Rubber Company, Inc., a corporation with headquarters in Barberton, Ohio, and sometimes called “Seiberling” for the location of a substantial manufacturing plant within Independence County, the purpose being to alleviate unemployment, to increase employment opportunities and to make available increased payrolls in the City of Batesville and Independence County — all for the best interest of said City and and County; it was agreed that Seiberling would locate and operate an industrial plant near the City of Batesville provided the City and the County acquired the necessary land and constructed the necessary manufacturing facilities thereon; it was determined by said City and County that to obtain such objective it would be necessary for the City to issue Revenue Bonds in the amount of $1,000,000.00 and for the County to issue General Obligation Bonds in the amount of $500,000.00; the City of Batesville proposes to lease said building and premises after the completion to Seiberling and the rentals therefrom are to be applied first to the payment of principal and interest on the Revenue Bonds issued by the City and thereafter redeem, prior to maturity, the bonds issued by the County under Amendment No. 49; with the proceeds derived from the bonds the City proposes to acquire the necessary land and to construct the necessary manufacturing facilities thereon and then to lease the same to Seiberling with the base period of the lease to cover the life of the proposed issue and the County will levy and collect a tax of five mills on each dollar of assessed valuation to retire the General Obligation Bonds issued pursuant to-Amendment No. 49. To carry out the above project the City of Batesville has adopted an Ordinance calling for a special election in regard to the Revenue Bonds, and Independence County (through the County Court) has entered an order calling for an election with reference to said General Obligation Bonds, attaching copies of said Ordinance and said Order.
2. The issue and maturity dates of said bonds are-set out and it was then alleged that the annual rental to be paid by Seiberling under said lease would not be sufficient to meet the annual principal, interest and agent’s-fee requirements of both the Revenue and the General Obligation Bonds referred to above.
3. As security for the Revenue Bonds the City will mortgage the land and manufacturing facilities constructed thereon, the mortgage giving the bondholders the right of foreclosure in event of a default; in addition, the City will grant to a trustee for the bondholders the right to have a receiver appointed for said land and facilities with the right of lease, rent and operation of the same during the duration of any default; and also, as provided in said Act No. 9 the City will pledge all of its surplus utility revenue for the payment of the principal of and the interest on the said Revenue Bonds.
4. There is widespread unemployment in Independence County which would be alleviated by the subject project, however, the actions of the defendants in calling an election for the purposes above stated, the issuance of said bonds and the levying and collection of taxes for the payment of the same and entering into a long time lease with Seiberling, are all in violation of the Constitution and laws of the State of Arkansas in the following respects :
(The Complaint here sets ont several specific Constitutional and legal objections. These are not copied for the reason that included therein are the points relied on by appellant for a reversal of this case. These points will be discussed later in the opinion.)
5. In the prayer of the Complaint the trial court is asked to declare that the actions heretofore taken by appellees and actions proposed to be taken by them are unauthorized by and are contrary to the laws and Constitution of the State of Arkansas.
For a reversal appellant relies upon the following points: (1) The proposed issuance of bonds by appellees constitutes a violation of Article 12, Section 5, and Article 16, Section 1, as amended by Amendment No. 13, of the Arkansas Constitution; (2) Act No. 9 authorizes municipalities and counties to engage in activity and issue bonds for purposes which are not public, and, thus, is contrary to the Arkansas Constitution; (3) The proposed action of Independence County in making available proceeds of bonds issued under Amendment No. 49 for the construction of facilities to be owned by the City of Batesville is unauthorized by and contrary to said Amendment No. 49; (4) Since Act No. 2 requires that counties and municipalities engaging in cooperative efforts to secure industry form compacts, the failure to do so in this case causes the proposed method of financing to be invalid. (5) The contemplated pledge of surplus municipal utility revenues is contrary to Amendment No. 10 to the Arkansas Constitution; (6) The proposed granting of a forecloseable mortgage lien and the right to appointment of a receiver contrary to the laws of the State of Arkansas; (7) The representation that the manufacturing facilities in question will be exempt from ad valorem taxation and the proposed action of the City and County to implement the representation are contrary to Article 16, Sections 5 and 6, of the Arkansas Constitution; and (8) The proposed method of financing, constructing, leasing, taxing and applying funds and lease rentals is unauthorized and contrary to the Constitution and laws of the State of Arkansas.
We have given careful consideration to the exhaustive and well-presented arguments and authorities contained in the brief of appellant and the brief of appellees, but find ourselves in disagreement with appellant’s conclusions on each and every point. There being no issue of fact involved, we proceed now to examine separately each of the points relied upon by appellant for a reversal :
(1)
The proposed issuance of bonds by appellees constitutes a violation of Article 12, Section 5, and Article 16, Section 1, as amended by Amendment No. 13 of the Arkansas Constitution. Although appellant, in the above statement, uses the plural in referring to appellees we will assume that his main contention relates to the City and not to the County. We say this because it is hard to understand how it could be logically contended that Amendment No. 49 conflicts with or in any way violates the sections of the Constitution referred to. It is understood by all, of course, that the General Obligation Bonds which the County proposes to issue are being issued under the authority granted in Amendment No. 49.
As it relates to the Revenue Bonds to be issued by the City of Batesville, Article 12, Section 5 of the Constitution, in all parts material here, reads: “No county, city, . . . shall become a stockholder in any company, association, or corporation; or obtain or appropriate money for, or loan its credit to, any corporation, association, institution or individual.” Article 16, Section 1 of the Constitution, in all parts material here, reads: “Neither the State nor any city . . . in this State, shall ever lend its credit for any purpose . . .” For the purpose of this opinion Amendment No. 13 to the Constitution reads the same as Article 16, Section 1.
The Revenue Bonds to be issued by the City of Bates-ville in this instance are not, of course, a general obligation of the City. That is, the bonds will not be retired by levying any kind of tax upon the people of Batesville, but they will be retired from revenues derived from lands, buildings, and facilities as well as from surplus revenues derived from certain utilities owned by the City (as described in Section 6 of said Act No. 9). Revenue Bonds, as distinguished from General Obligation Bonds, have been approved many times by this Court for public financing. Among other cases see Jernigam v. Harris, 187 Ark. 705, 62 S. W. 2d 5; McGehee v. Williams, 191 Ark. 643, 87 S. W. 2d 46; Robinson v. The Incorporated Town of DeValls Bluff, 197 Ark. 391, 122 S. W. 2d 552; Austin v. Manning, Mayor, 217 Ark. 538, 231 S. W. 2d 101; and McCutchen v. Siloam Springs, 185 Ark. 846, 49 S. W. 2d 1037. Likewise, this Court has repeatedly held that the issuance of revenue bonds, being special bonds as distinguished from general obligation bonds, does not violate any of the Constitutional provisions contained in the sections relied on here by appellant. See: Snodgrass v. Pocahontas, 189 Ark. 819, 75 S. W. 2d 223, wherein the Court stated at Page 824 of the Arkansas Reports: “It was manifestly the intention of the framers of Amendment No. 13 to prohibit cities and towns from issuing interest-bearing evidences of indebtedness, to pay which the people would be taxed, or their property appropriated to pay the indebtedness, or any indebtedness that placed any burden on the taxpayers. It was not the intention to prohibit cities and towns from making improvements and pledging the revenue from the improvements so made alone to the payment of the indebtedness.” (Emphasis supplied.) It is clear in the case under consideration that the Revenue Bonds to be issued by the City of Batesville can never be a burden on the taxpayers, but that they must be paid alone from the revenue derived from the building and from the surplus revenue above mentioned. The legality of the pledging of the latter mentioned revenue will be discussed later.
The issuance of revenue bonds under statutes similar to Act No. 9 of 1960 have been upheld in other jurisdictions. See In Re Opinion of the Justices, 254 Ala. 506, 49 So. 2d 175; In Re Opinion of the Justices, 256 Ala. 162, 53 So. 2d 840; and Newberry v. City of Andalusia, 257 Ala. 49, 57 So. 2d 629.
Nor do we agree with appellant’s assertion that the Revenue Bonds issued by the City of Batesville are for the benefit of a private corporation. Even though Seiberling may reap some benefit, yet such benefit is merely incidental and the main benefits are those to be derived by the people of Batesville and Independence County under the provisions of Act No. 9 and Amendment No. 49.
(2)
Act No. 9 authorises municipalities and counties to engage in activity and issue bonds for purposes which are not public, and, thus, is contrary to the Arkansas Constitution. Again we assume that appellant has reference to the Revenue Bonds since the bonds issued by the County could not be in violation of the Constitution since they are being issued in accordance with part of the Constitution, that is, Amendment No. 49. Section 2 of said Act No. 9 reads as follows: “Any municipality and any county is hereby authorized to own, acquire, construct, reconstruct, extend, equip, improve, operate, maintain, sell, lease, contract concerning, or otherwise, deal in or dispose of any land, buildings, or facilities of any and every nature whatever that can be used in securing or developing industry within or near the municipality or county.” We take appellant’s argument to mean that the act of “securing or developing industry” is not a public purpose. There are several reasons why we cannot agree with this contention. In the first place, Section 1 of Amendment No. 49 makes such an activity a public purpose. Not only so but the courts seem to be in agreement that such activity constitutes a public purpose. In the case of Albritton v. Winona, 181 Miss. 75, 178 So. 799, 115 A. L. R. 1436, the Court said:
“The care of the poor, the relief of unemployment, and the promotion of agriculture and industry are undoubtedly proper governmental purposes and are so recognized everywhere and by all.” (Emphasis supplied.)
For similar holdings see Newberry v. City of Andalusia, supra; Dyche v. City of London, (Ky.), 288 S. W. 2d 648; Miller v. Police Jury of Washington Parish, 226 La. 8, 74 So. 2d 397; and Steward Machine Company v. Davis, 301 U. S. 548, 57 S. Ct. 883, 81 L. Ed. 1279.
(3)
It is appellant’s contention that the proposed bond issue under Amendment No. 49 by the County is illegal because the County will not hold title to the building to be erected and also because the County will not reap the benefits. We are cited no authority to support this contention and we see no merit in it. This Court had occasion to consider the purpose of Amendment No. 49 in the case of Myhand v. Erwin, 231 Ark. 444, 330 S. W. 2d 68, decided December 21, 1959. In that case there was an undertaking to sell bonds under Amendment No. 49 to build a road to a site where Potlatch Forests, Inc. proposed to build a factory. The first objection raised on appeal was ‘ ‘ that benefits from the proposed road will not be confined to Potlatch Forests, Inc., but will likewise benefit members of the traveling public.” In reply the Court said: “We do not agree with appellant’s contention. It is true that some members of the public may use the road, but the fact that benefits cannot be isolated, is no reason to preclude such benefits for those who properly come within the scope of the amendment, as envisioned by the people in adopting same. This Court has been liberal in its construction of constitutional amendments, so as to carry out the obvious purpose of the people in adopting the amendments. ’ ’ Following the above the Court announced the principle that there was an implied authority to employ reasonable means to carry out the purpose of the amendment.
It must be admitted too that the prime objective to be achieved by the people of Independence County, in this entire undertaking, was not just to erect a building but it was to alleviate unemployment. If this objective is achieved it is obvious that the County, including the City of Batesville, will reap the benefits. It is well es tablislied, of course, that the City has a right to own property and to hold the title to same in any situation unless it is prohibited from doing so by statute or the Constitution. We know of no such prohibition in this case.
(4)
We are not convinced by appellant’s argument that the methods here proposed to issue bonds are illegal because the provisions of Act No. 2 of the First Extraordinary Session of 1960 were not followed. Said Act No. 2, among other things, provides in effect that two counties, two cities (whether or not in the same county) and a city and a county are “authorized and empowered” to join together in a compact to secure industries, etc. It is apparent, of course, that Act No. 2 did not compel the City of Batesville and Independence County to form a compact but merely authorized them to do so if they so desired. The ultimate implication of appellant’s argument is that Amendment No. 49 cannot stand alone but must be implemented, in this instance, by Act No. 2. Such argument is not sound because this Court has already decided in the Myhand case, supra, that Amendment No. 49 is self-executing. In that case it was also decided that it was proper to proceed under the provisions of Amendment No. 49 independently of Act No. 121 of 1959. The same process of reasoning leads us to conclude that, likewise, appellees can here proceed under Amendment No. 49 independently of said Act No. 2. Act No. 9 of the First Extraordinary Session of 1960, under which the City proposes here to issue revenue bonds is likewise independent of Act No. 2. Consequently, we see no valid objection to the City operating under Act No. 9 and the County operating under Amendment No. 49, both independently of Act No. 2.
(5)
One of the most troublesome questions presented to us on this appeal is the one that grows out of the attempt by the City of Batesville to pledge the surplus revenues of municipally owned utilities to secure the pay ment of the proposed Revenue Bonds. It is the earnest contention of appellant that this attempt by the City of Batesville violates Amendment No. 10 to the Arkansas Constitution, and particularly as that amendment has been construed by this Court in the case of Williams v. Harris, Mayor, 215 Ark. 928, 224 S. W. 2d 9. The parts of Amendment No. 10 which are pertinent here are the following:
“The fiscal affairs of counties, cities and incorporated towns shall be conducted on a sound financial basis . . . nor shall any city . . . enter into any contract or make any allowance for any purpose whatsoever or authorize the issuance of any contract ... or other evidences of indebtedness in excess of the revenue for such city or town for the current fiscal year . . .”
It is readily conceded by appellees that for the year 1960 the proposed bond issue in the amount of $1,000,000.00 (together with other necessary city expenses) will exceed the total revenues of the City for said year. In the Williams case, supra, this Court gave a rather strict interpretation of Amendment No. 10 which, according to appellant’s contention, invalidates the proposed bond issue in this case. In the cited case the City of Clarksville attempted to pledge the net revenues of its electric light and power plant to the payment of bonds issued for the purpose of securing a new manufacturing enterprise for the city. The attempted pledge was held unconstitutional by this Court in an opinion, which, in part, used this language:
“Self-supporting municipal activities may in a sense borrow on their own credit, independently of the city’s credit. They may even lend their credit for the benefit of other municipal activities when the constitutional debt limit will not thereby be exceeded and the benefited activity is one for which the city has constitutional authority to issue bonds. The present case would go further, however, and free municipal borrowing altogether from the fetters fixed by these amendments in any case where the debt was to be paid from particular income-producing municipal property rather than from taxation. If this were permitted, a city would by indirection be enabled to saddle upon legitimate municipal enterprises the burden of interest-bearing certificates of indebtedness in amounts forbidden by the Constitution, for purposes not authorized by the Constitution.” (Emphasis supplied.)
It was pointed out in the Williams case, supra, that the prohibition against pledging surpluses in excess of the constitutional prohibition (contained in Amendment No. 10) did not apply where the pledged revenue was for the purpose of repairing, improving or extending the subject utility or where there was a close similarity between that utility and the one receiving the benefits of the revenue. It must, of course, be admitted that in the case under consideration there was no such close resemblance and it must be conceded that, if this case had followed immediately after the decision in the Williams case, supra, that decision would be fatal to appellees’ contentions in this case.
In our opinion, however, the case under consideration is distinguishable from the Williams case, supra, in at least two respects:
(1) We think the words italicized in that portion of the opinion copied above were used advisedly and are important to consider in connection with this case. The City of Clarksville was proceeding under statutory authority (Act No. 463 of 1949) while in the case under consideration the City of Batesville is proceeding under Constitutional authority (Amendment No. 49). Amendment No. 49, of course, was not in existence when the Williams decision was rendered.
(2) The people of Arkansas have for the third time decided that the provisions of Amendment No. 10 were too stringent and that the affairs of cities and counties cannot be successfully conducted within the limitations contained therein. In 1926 the Constitution was amended (Amendment No. 13) to provide for the development, improvement of public parks, flying fields, etc. None of these things could have been accomplished under Amendment No. 10. Again in 1928, by Amendment No. 17, provision was made by which the county could construct and reconstruct a courthouse, a jail or a county hospital. The opinion in the Williams case noted: Amendment No. 13, among other things, limits the purposes for which cities of the first and second class may incur bonded indebtedness. The permissible purposes are set out in the third paragraph of the Amendment and do not include the erection of factory buildings . . (Emphasis supplied.) The implication, of course, is that if Amendment No. 13 had included those things then the bond issue in that case would have been legal and Constitutional. In this case it is our conviction that Amendment No. 49 also broadens the scope of Amendment No. 10 and authorizes the issuance of revenue bonds for the express purpose of alleviating unemployment. The first section of Amendment No. 49 reads in part: “Any city . . . may issue bonds . . . for the purpose of securing and developing industry . . .” Thus we find direct, positive authorization for the City of Batesville to issue revenue bonds. It is argued by appellant, however, that Section 1 of Amendment No. 49 must be read in connection with Section 3 and that when so read the Amendment only authorizes the issuance of bonds where they are to be retired from the levy of a special tax. In this we think appellant is in error as a casual reading of Section 3 discloses. While Section 1 of the Amendment authorizes the issuance of such bonds, Section 3 merely provides a permissible way for the retirement of the bonds. The pertinent portion of Section 3 reads as follows: “To provide for the payment of such bonds . . . the municipality or county may levy a special tax . . .” (Emphasis Supplied). Section 3 does not say that a tax must be levied in every instance where bonds are issued. We feel that this conclusion can be justified without resorting to a liberal interpretation of Amendment No. 49 which, as we have pointed out previously, is permissible. If the people of Arkansas were willing (as they were) to burden themselves with a tax (as they did in Amendment No. 49) then it is reasonable to think they intended, and were ■willing, to pledge surplus revenues all in order to try to alleviate unemployment.
(6)
In appellant’s brief this statement is made: “It is appellant’s position that Act No. 9 does not (a) authorize the granting of a foreclosable mortgage and that if it does (b) it is contrary to Amendments No. 10 and No. 13 to the Arkansas Constitution.”
(a) It seems that Section 8 of Act No. 9 refutes the first argument. In that section we find this language:
“There shall be created a statutory mortgage lien upon the land, buildings and/or facilities acquired or constructed with the proceeds of said revenue bonds which shall exist in favor of the holders of said bonds, and in favor of the holders of the coupons attached to said bonds. The land, buildings and/or facilities shall remain subject to such statutory mortgage lien until payment in full of the principal and interest of said revenue bonds.” Insofar as enforceable rights are given to the bondholders we can see no substantial difference between the legal effect of the language copied above from Act No. 9 and the language used in appellant’s complaint with reference to the mortgage that is to be given, where it is stated: “As security for the revenue bonds to be issued by it, the City of Batesville will mortgage the land and manufacturing facilities constructed thereon, which mortgage will grant to the Trustee for the City’s said bondholders and to said bondholders the right of foreclosure in the event of a default . . . ” Thus, there is, we think, ample authority in Act No. 9 for the City to execute the mortgage when the time comes to do so.
(b) The objection by appellant that the right to foreclose could result in the violation of Amendments No. 10 and No. 13 of the Constitution has been answered under Point 5 above and no further comment is necessary.
Appellant further contends that if the right of foreclosure is granted, any attempt by the bondholders to foreclose would amount to a suit against the State contrary to Article 5, Section 20 of the Constitution of Arkansas.
We cannot concur in appellant’s contentions. The general rule seems to he that the Legislature has the power to authorize a suit against a municipality. In Rhyne’s book on “Municipal Law”, published in 1957, this rule is repeatedly announced and sustained by a host of authorities. At Page 382, Section 16-12, Mr. Rhyne, after stating the general rule that property held by a municipality in its governmental capacity is immune from execution and sale for non-payment of debts, makes this statement: ‘ ‘ On the other hand, it has been held that if a municipality has the power to mortgage its property it is subject to foreclosure on the breach of the condition.” Mr. Rhyne further stated (Page 806) that a city, when acting in its governmental capacity is immune to being sued EXCEPT when and if authorized by statute. Although our research has not disclosed any decision of this Court directly in point we are led to conclude from a statement made in Watson v. Dodge, 187 Ark. 1055, 63 S. W. 2d 993, that we will follow the principle above announced. In that case the Court, after affirming the well established rule that the State cannot be sued, made this statement: “Any departure from this rule, except for reasons most cogent (of which the Legislature, and not the courts, is the judge) . . .” (Emphasis supplied.) Confirming the above, see St. Paul-Mercury Indemnity Company v. City of Hughes, 231 Ark. 530, 331 S. W. 2d 106.
(7)
In his Complaint appellant alleges that: ‘ ‘ The City of Batesville has respresented to Seiberling that the land and manufacturing facilities to be leased to Seiberling by the City will be exempt from ad valorem taxes” in violation of Article 16, Sections 5 and 6 of the Arkansas Constitution. Said Section 5, in all pertinent parts, reads as follows: “All property subject to taxation shall be taxed according to its value . . . provided further that the following property shall be exempt from taxation: Public property used exclusively for public purposes.” Section 6 states that: “All laws exempting property from taxation other than as provided in the Constitution shall be void. ” It is then stated that neither Act No. 9 or Amendment No. 49 makes any references to tax exemption. In this statement appellant is correct, however, those facts appear to us to be beside the point. As we understand the above provisions of the Constitution, for property to be exempted from taxation two elements must be present: (a) the subject property must be “public property”, that is, it must be owned (in this instance) by the City of Batesville; (b) it must be used exclusively for public purposes. In our opinion both of these elements are present in the case under consideration as we shall attempt to show.
(a) It must be admitted here that the grounds, the building and facilities will be owned by the City of Bates-ville and will, therefore, be public property.
(b) Likewise, we think it is clear that the property will be used exclusively for a public purpose. If it is, it will be exempt from taxation under the Constitution and if it is not it must be taxed. After careful thought and consideration we cannot escape the conclusion that the whole purpose, and the only purpose, for the adoption by the people of Amendment No. 49, the passage by the Legislature of Act No. 9, and the efforts of the people of Batesville and Independence County (in attempting to implement said Amendment and said Act) was for the public welfare — obviously and undoubtedly a “public purpose”. This result would follow only where the title to property is acquired and the property itself is used by a city or county (or by both) pursuant to Act No. 9 and/or Amendment No. 49.
It cannot be said that any part of the entire program was meant for any other purpose, and certainly not for the purpose of benefiting Seiberling. Any benefit Seiberling may receive from this entire undertaking will be entirely incidental it seems to us.
As to the second objection, obviously, Section 6 of Article 16 has not and will not be violated if, as we have held above, Section 5 has not been violated.
(8)
Finally, appellant makes a general objection to the method he conceives will be used in regard to the financing, constructing, leasing, taxing and applying funds and lease rentals. It is stated that there is no authorization in the Constitution or the statutes for the employment of these methods. Appellant does not indicate in just what way these activities will be unlawful or unconstitutional and we know of none. We believe that all of the objections raised under this point have been disposed of in our discussion of the previous points and that no further commentary is necessary or will be useful.
It is our conclusion, therefore, that the decree of the trial court in dismissing appellant’s Complaint should be, and it is hereby, affirmed.
Affirmed.
McFaddin and George Rose Smith, JJ., dissent. | [
116,
109,
-8,
126,
10,
-96,
26,
-86,
19,
-96,
-27,
83,
-87,
-51,
84,
49,
-13,
-1,
117,
73,
-59,
-73,
81,
107,
-46,
-77,
-54,
-27,
-79,
91,
-12,
-97,
92,
4,
-38,
-43,
-122,
108,
-59,
92,
-34,
0,
-117,
-24,
89,
81,
50,
63,
82,
15,
97,
46,
-29,
-84,
52,
-21,
73,
40,
89,
-81,
-47,
-6,
-104,
-59,
-3,
21,
-127,
-25,
-100,
37,
-8,
126,
-104,
48,
-124,
-8,
123,
-90,
-122,
-12,
9,
-103,
8,
102,
35,
-125,
-91,
-17,
-72,
-120,
22,
-5,
13,
-122,
-110,
25,
67,
3,
-65,
20,
93,
16,
-125,
-6,
-11,
69,
29,
124,
-121,
-18,
-74,
-93,
13,
-16,
23,
19,
-29,
77,
48,
117,
-58,
-26,
125,
69,
25,
27,
-121,
-104
] |
Ed. F. McFaddin, Associate Justice.
This litigation is for the proceeds of insurance money, and arises because a fire damaged the mortgaged premises. Green and wife, as mortgagors, were plaintiffs; and Coley and wife, as mortgagees, were defendants. The Trial Court rendered a decree in favor of the Greens and the Coleys prosecute this appeal.
O. T. Coley and wife owned a combination restaurant, truck stop, filling station, and motel, called “Twin City Diner”, and located near Dermott. In March 1958 Coley sold the entire property and all furnishings to Green. The unpaid balance of the purchase price was $63,000.00, payable monthly for a number of years, and secured by a first mortgage on the real estate. Green was required to maintain fire insurance policies on the buildings, with loss payable clause in favor of Coley; and this requirement was performed by having policies in four insurance companies, being United States Fidelity & Guaranty Company, Federal Insurance Company, Hartford Fire Insurance Company, and Great American Insurance Company.
In September 1958 a fire materially damaged the two-story building called the “diner”. The four insurance companies agreed that the total amount to be paid for the fire damage was $12,600.00. Coley then agreed with Green that the entire insurance money “. . . would be paid over to Mr. Green in the event the property was restored to as good a condition as it was prior to the fire”. The four insurance companies issued and delivered drafts totalling $12,600.00 payable to Coley. Green undertook the repair work and after he had completed it to his own satisfaction he asked Coley to endorse and deliver the four insurance drafts. Coley refused, claiming that such repair work as Green had done did not restore the building as to as good a condition as it was before the fire.
Thereupon Green and wife instituted this suit against Coley and wife and the four insurance companies. The complaint was entitled, “Petition for Declaratory Judgment”. The four insurance companies claimed that they were mere stake-holders and paid the $12,600.00 into the registry of the Court by interpleader (% 27-816 Ark. Stats.) and they were discharged with attorneys’ fees and costs. Trial in the Chancery Court resulted in a finding that Green was entitled to all of the $12,600.00 insurance money; and from that decree Mr. and Mrs. Coley prosecute this appeal, presenting the issues here discussed.
I. Venue. Appellants raise two points on venue. First, they claim that the Chancery Court did not have venue because of the provisions of Section 301 of Act 148 of 1959 (as now found in § 66-3234 Ark. Stats.). This case was filed in April 1959 and the decree from which comes this appeal was entered on October 26, 1959. Section 697 of Act 148 of 1959 provides that in certain situations, as here, the said Act did not go into effect until January 1, 1960. So there is no merit to this contention of the appellant.
The other phase of the venue claim of the appellants is an attempt to invoke § 27-615 Ark. Stats., which provides that when a defendant is summoned to appear in an action outside his own county and the action is dismissed against co-defendants resident of the county in which the action is pending, then, upon proper objection, no judgment can be rendered against the defendant non-resident of the county. The appellants state that the action was filed in Pulaski County; that the Coleys were residents of White County; that when the insurance companies paid the money into the Court they ceased to be parties defendant; and, therefore, the action should have been dismissed as to the Coleys. But the answer to the appellants’ contention rests on two facts: (a) the insurance companies were not real defendants but were mere stake holders and any objection as to venue should have been made before answering; and (b) the answer did not raise the question of venue so the appellants have waived it. The complaint was filed on April 7,1959. On April 30,1959 Mr. and Mrs. Coley filed an answer denying all allegations in the complaint and praying, “. . . that the Court order the proceeds herein paid as prescribed in Paragraph 8 of the complaint filed herein . . . and for all other relief to which the proof may show defendants to be entitled”. There was no objection as to venue in the said answer. It was not until May 26, 1959 — nearly a month later — that the Coleys first raised any question of venue. The case of Murdock Acceptance Corp. v. Spear, 225 Ark. 948, 286 S. W. 2d 485, is ruling here. In a long line of cases this Court has held that a general appearance will subject the defendant to the Court’s jurisdiction, even though the suit is in the wrong venue.
II. The Merits Of The Case. Coley agreed that Green could have all of the insurance money of $12,600.00 if Green restored the building to as good condition as it was before the fire. Whether the repair work done by Green reached such prescribed requirement is the real issue in this case. To state in detail the testimony of each witness would unduly prolong this opinion. The contractor making the repairs used only a small portion of the timbers and rafters that he had listed as necessary when he made the estimate for the insurance companies. He never removed the charred timbers between the first and second floors. Pictures made shortly before the trial clearly indicate that after the repair work was made, there remained holes and visible cracks in many places; and no claim is made that these defects existed before the fire. A careful review of the record convinces us that, while Green made some repairs to the premises, he spent not in excess of $8,000.00 toward making the prescribed repairs, and that he is entitled to only that amount of the insurance money.
We come then to the difficult question as to the power of this Court to apportion the insurance proceeds on the basis of the repairs made. The older cases hold that, when a special contract had been performed only in part, then there could be no recovery on a quantum meruit basis. Simpson v. McDonald, 2 Ark. 370; Manuel v. Campbell, 3 Ark. 324. But over the years there has been a constant tendency to find a way to prevent the working party from losing his entire outlay. In Selig v. Botts, 128 Ark. 167, 193 S. W. 534, the Court in effect, divided the contract, and allowed recovery for the part that was performed; and in Mitchell v. Caplinger, 97 Ark. 278, 133 S. W. 1032, a contractor was allowed part recovery even though the owner had to make further expenditures to complete the building. The present litigation is in equity, and on appeal we try the case de novo on the record. The rules regarding restitution and unjust enrichment apply to the situation here. In 12 Am. Jur. 916 et seq., “Contracts” § 352 et seq., the text, in discussing acceptance of performance as basis for implied promise, reads:
“Under some circumstances, a quasi contract arises independent of the intention of the parties where a special contract has been partly performed, and such quasi contract is founded upon the doctrine of unjust enrichment. The basis of liability under a quasi contract resulting from part performance of a special contract is the benefit conferred upon a defendant by the part performance of a special contract, and not the detriment incurred by the plaintiff ... In some cases language may be found to the effect that even though the contract has not been completed or has not been completed in accordance with its terms, the law implies a promise by the opposite party to pay if he has been benefited by such partial or insufficient performance . . . Under the strict common-law rule where a party failed to comply with an unapportionable agreement, he could not recover for what had been done. This rule has been so far modified that where anything has been done from which the other party has received a substantial benefit which he has appropriated, a recovery may be had based upon such benefit. The basis of this recovery is not the original contract, but a new implied agreement deducible from the delivery and acceptance of some valuable service or thing.”
Coley allowed Green to undertake the restoration or repair, and has accepted the benefits of such as Green made. Green expended up to $8,000.00 in restoration or repairs and has accomplished that much benefit to the mortgaged premises. But Green’s other expenditures were for matters such as pavement, additional bathroom, or other items which were not matters of repair or restoration. Green certainly could not use Coley’s insurance money to make these other improvements; but, under the rules regarding restitution and unjust enrichment, Green is entitled to $8,000.00 of the insurance money, less all costs and expenses of this proceeding in both courts, and this includes the attorneys ’ fees paid for the interpleading by the insurance companies.
When Green makes proof that all labor and material items used in repairing the premises have been paid, so that there is no lien possible on the mortgaged premises, then Green will be entitled to the amount of money previously stated. The remaining $4,600.00 of the insurance money should be paid to Coley and applied on the mortgage indebtedness. This $4,600.00 is to be applied now on the final amount due, and Green’s regular payments will be made each month until the balance of the indebtedness is fully discharged. The Chancery decree is reversed and the cause remanded, with directions to enter a decree and have further proceedings, as indicated in this opinion. | [
-76,
124,
-64,
-20,
-40,
-92,
122,
-6,
86,
-96,
-91,
83,
-23,
-64,
20,
45,
-58,
73,
85,
120,
-76,
-77,
22,
34,
-38,
-69,
-15,
-59,
-79,
79,
-12,
-41,
72,
36,
-118,
93,
-94,
-62,
-63,
60,
74,
-116,
58,
97,
-7,
82,
48,
-5,
0,
7,
113,
-81,
-13,
44,
-111,
-53,
77,
44,
-39,
-87,
81,
-72,
-127,
5,
127,
17,
1,
6,
-104,
7,
-8,
10,
-112,
-75,
16,
-88,
115,
-90,
-121,
116,
67,
-115,
1,
38,
99,
50,
-123,
-19,
-56,
12,
38,
-18,
-115,
-89,
-90,
48,
11,
105,
-65,
-99,
116,
12,
-105,
114,
125,
21,
93,
108,
5,
-82,
-108,
-29,
-113,
126,
-100,
-125,
-17,
19,
-90,
81,
-49,
-96,
92,
70,
125,
-5,
30,
-123
] |
Jim Johnson, Associate Justice.
Tbe appellant, Virginia Rand, was charged with the crime of second degree murder for the killing o f Harry V. (Buddy) Clark. Following trial in the Benton Circuit Court, the jury found appellant guilty and fixed her punishment at 8 years in the state penitentiary. From such verdict comes this appeal.
It appears from the record that on the evening of August 8, 1959, the deceased, Clark, and his wife entertained Mr. and Mrs. Sam Davis in their home. At about 1:15 a.m. on August 9, Mr. and Mrs. Davis left the Clark home and at the same time Clark left in his car to check the receipts at the Horseshoe Grill, a cafe which he owned located some 8 blocks from the Clark home in Rogers. Although the evidence is somewhat uncertain, it is clear that Clark finished his work at the cafe and at 1:30 a.m. the night police radio operator received a call from a woman identifying herself as appellant who said: “Send someone out here, I have had some trouble.” After the radio operator sent a patrolman to the Rand home, the appellant called again and said: “I have shot a man. I shot Buddy Clark. ” Upon arrival at the Rand home, the patrolman was told by appellant that she shot Clark in her bedroom. The patrolman immediately went to the hospital where he found Clark on the floor in the hall. Nurses at the hospital testified that Clark came in the front door and fell to the floor. The records show he was admitted at 1:45 a.m. He expired at 4:17 a.m. that same morning.
The patrolman testified he found tracks in the heavy dew going in and out of the Rand house and found a gun about 4 to 6 feet from these tracks. There were two bullet holes in the bedroom walls and 5 empty cartridges were found in the bedroom. The deceased was shot 4 times — 3 times in the chest and one time in the right arm. No trace of blood was found in or around the Rand house but there was blood on the steering wheel and door of Clark’s automobile.
The motion for a new trial contained 66 assignments of error which we have examined in detail. The evidence related above, standing uncontradicted and unexplained, was sufficient to justify a conviction. Ark. Stats. § 41-2246. The killing was admitted by defendant, and the use of a deadly weapon, capable of producing death was admitted. We have repeatedly held that malice, and intent to kill, may be implied from the use of weapons capable of producing death. Specific intent to take a life is not an essential element of the crime of murder in the second degree. See: Wooten v. State, 220 Ark. 750, 249 S. W. 2d 964, and cases cited therein.
A great deal of testimony was introduced by the State tending to show that there had existed for several years an extramarital relationship between appellant and deceased. The admissibility of this testimony is drawn in question. Without detailing the testimony of each particular witness, let it suffice to say that the evidence wherein witnesses testified about seeing appellant and Clark together, including testimony of one following the other in automobiles, and the testimony establishing that Mrs. Band called or contacted Clark, was entirely admissible.
On the other hand, the testimony of anonymous telephone calls was entirely inadmissible, as was certain evidence that strongly implied, though entirely speculative, that the two were having rendezvous. For instance, Eldon Maxey, a resident of Springdale, testified that he did not know Mrs. Band or Clark, but that he had seen a man driving an old car and a woman driving an Oldsmobile, park in the parking lot in Springdale. Maxey stated that he rather thought the old car was a Ford, though he was unacquainted with the model. From his testimony:
“Q. It just come down like Fords do?
A. Yes. . . .
Q. Do you know whether or not that’s the type, the model from 1941 to ’48?
A. Yeah, it was a later car than a ’48, a ’38.
Q. I said a ’48?
A. You said a ’48?
Q. Was it between a ’41 and a ’48, or do you know?
A. No, I don’t ... I don’t remember. . . .”
# * #
“Q. A black car? How many such occasions did you observe that?
A. Just one time I reported.”
The witness testified that he saw this couple get in the old car and drive west to the Legion Hut. “They was putting something up over the glasses so I reported to the police, to Herman McCullough.” Herman McCullough testified that he was acquainted with Mrs. Band, and following Maxey’s report, investigated, and saw Mrs. Rand in the Ford with some man. Neither of the witnesses identified Clark as being present at any time.
The court admitted into evidence two unsigned letters directed to Mrs. Clark, and three unsigned cards directed to acquaintances of Mrs. Clark. No proof was offered that these communications were sent by the defendant, though the contents of each clearly implied that they had been written by one having an affair with Mr. Clark. Mrs. Clark testified that after receiving these letters she almost had a nervous breakdown and went to Barnes Hospital to “find out what was wrong with me.” This evidence relating to the letters was entirely inadmissible but further discussion of the contents is not required because the court subsequently withdrew these letters and cards from the consideration of the jury. One of the letters was very critical of personal items in the house, including the bedroom, and advised Mrs. Clark that “. . . I left a lipstick for you under the west end of the settee cushion.” Mrs. Clark subsequently testified that she found a lipstick in that location, and this lipstick was offered in evidence at the trial. Yelda Hudspeth, a close friend of Mrs. Clark, testified that the latter showed her the lipstick, and that on an occasion when appellant had visited in the witness ’ home, she observed Mrs. Rand’s lipstick, and there was some similarity. From the evidence:
“Q. What was the similarity?
A. The lipstick was worn in the center.
Q. The one that she had?”
# # #
“Q. Now, you’re testifying to this jury that Mrs. Rand had a lipstick and it was worn somewhat like that; is that correct?
A. Yes.
Q. Did you ever see any other lipsticks worn like that?
A. I never, noticed another woman wearing it like that.
Q. You never noticed another woman wearing it like that? And that’s what you go on in your testimony here; what you base your testimony on here is that you saw lipstick similarly worn like that?
A. Yes.”
# * *
“Q. Do women have a particular manner in which they apply lipstick which leaves a particular impression on — wears it a certain way on the stick?
A. I think so.
Q. How many lipsticks have you examined, Mrs. Hudspeth?
A. At the time, since I was interested, I watched other people’s lipsticks to see if they were worn differently.
Q. I’m asking you at that time how many lipsticks had you examined?
A. I didn’t examine any.
Q. You hadn’t examined any at that time, had you?
A. I’d looked at them. I looked at them when I saw other women take them out. I was interested.”
This is a remarkable hit of evidence. With the thousands of women in this state who use lipsticks, it would certainly appear that more than one would have a lipstick “worn in the center.” Be that as it may, the witness was not testifying about an examination of a lipstick in the possession of Mrs. Rand; rather she was testifying about a lipstick which Mrs. Clark said she found in a location suggested to her by an anonymous letter (which, in itself, was inadmissible). All of this evidence relating to the lipstick was incompetent for the reasons herein mentioned.
In addition to this testimony, a large volume of evidence was introduced by the State tending to show animosity between appellant and the wife of deceased. Mrs. Clark testified that she kept her golf equipment in a locker at the Twin City Golf Club house, and that, about a year before, she had found two pairs of golf shoes, golf bag, and a golf club slit, apparently by a razor blade or knife. She stated that she left her key to the locker hanging on a board where anyone could have picked it up. Paul Watkins stated that he saw Mrs. Rand in the club house on the occasion when the equipment was damaged, though he could not say what time of day the incident occurred, nor could he say that no one was there except Mrs. Rand. This evidence was inadmissible since it did not relate to animosity or ill feeling toward the deceased, nor was the defendant connected with the act of damaging the property. In this respect, such evidence is distinguished from that deemed admissible under the ruling set forth in Avey v. State, 149 Ark. 642, 233 S. W. 765; and Stokes v. State, 71 Ark. 112, 71 S. W. 248, relied on by appellee.
Probably the most damaging inadmissible testimony which was permitted to go to the jury related to evidence concerning the kicking of Mrs. Clark by Mrs. Rand when the former was seven months pregnant. Mrs. Pete Elders testified that she attended a party in 1959 which was also attended by Mrs. Clark and the defendant. She stated that she was talking with the former, who was standing in front of her, and Mrs. Rand was seated on a high stool just to the right of the witness. From her testimony:
“Well, I was talking to Mrs. Clark when I felt something hit me on my right side, and I glanced down, because it was a blow and I seen this foot hit Mrs. Clark.
“Q. Do you know . . .?
Mr. Duty: Object to the testimony and ask it be stricken. Irrelevant, incompetent and immaterial.
“The Court: It will be overruled.
“Mr. Duty: Save our exceptions to the ruling.
“Mr. Coxey:
Q. Do you know whether that blow struck Mrs. Clark?
A. She had on a smock.
“Q. I say, do you know whether or not it struck her?
A. Well, I couldn’t feel for her, but the foot disappeared under the smock.
“Q. Under her smock?
A. Yes.”
Further:
“Now, you didn’t see Mrs. Band kick Mrs. Clark, did you?
A. I saw her foot.
“Q. I say, you didn’t see Mrs. Band actually in the act of kicking Mrs. Clark, did you?
A. Well, she had to be on the other end of the foot. ’ ’ The kicking was also testified to by Laney Clark. We can think of nothing that would tend to more inflame the mind of a juror than to hear evidence that a woman that far along in pregnancy was kicked in the stomach. Such an act by the defendant would be considered inexcusable, and we deem this testimony not only inadmissible, but also highly prejudicial; so much so that a reversal would be required though the other testimony herein cited was not included in the record. This evidence all tended to show that Mrs. Band was a woman of “bad character”, and Mrs. Band’s character had not been placed in issue. As stated in Wharton Criminal Evidence, Vol. 1, 11th Edition, p. 487, § 345:
“Evidence of other crimes, when offered in chief, violates both the rule of policy which forbids the state to initially attack the character of the accused and the rule of policy that bad character may not be proved by particular acts.”
There can be no donbt that all this evidence was prejudicial to appellant. By its very nature, it creates in the eyes of the jury a damaging image. As we said in Lentz v. State, 169 Ark. 31, 272 S. W. 847.
“It is the well settled doctrine of this Court that the prosecution cannot resort to the accused’s bad character as a circumstance from which to infer guilt, the reason being that ‘if such testimony be admitted the defendant might be overwhelmed by prejudice, instead of being tried upon evidence affirmatively showing his guilt of the specific offense with which he is charged.’ ”
Beversed.
McFaddin, J., concurs. | [
113,
-21,
-12,
95,
56,
-94,
10,
-104,
114,
-24,
-78,
114,
-21,
-49,
73,
105,
42,
47,
117,
105,
-96,
-105,
19,
75,
18,
-13,
105,
-41,
51,
123,
-4,
-33,
76,
112,
-114,
93,
34,
72,
-59,
94,
-50,
-128,
-37,
-16,
90,
82,
48,
47,
100,
-114,
-75,
-114,
-5,
43,
-106,
67,
105,
42,
90,
-82,
64,
49,
-62,
-107,
-20,
18,
-77,
35,
-66,
-127,
-16,
59,
-40,
53,
32,
-4,
115,
-122,
-128,
84,
111,
-104,
4,
98,
99,
34,
-35,
-55,
32,
-119,
47,
-17,
-115,
-89,
24,
0,
73,
36,
-98,
-99,
107,
-12,
46,
112,
-3,
-49,
25,
100,
36,
-34,
-76,
-79,
-83,
40,
-106,
-102,
-21,
37,
102,
117,
-51,
-30,
76,
100,
114,
-101,
-113,
-75
] |
J. Seaborn Holt, Associate Justice.
This is a suit in replevin for a diamond ring, a diamond stud pin, certain other diamonds, a wrist watch, and a number of items of household furniture and other personal property.' The relevant facts on this appeal show that L. Ñ. Pettit was an elderly traveling salesman whose principal line of goods was selling caskets and as a sideline he dealt in diamonds. During February of 1957, Mr. Pettit employed Flossie Thurman to care for his invalid and mentally incompetent wife, Marie I. Pettit. In November of 1957, his wife was removed from the home to a hospital in Bentonville; however, Flossie Thurman continued to reside in the home of L. N. Pettit. On January 16, 1958, L. N. Pettit, under the name of Lewis Pettit, giving his address as Springfield, Missouri, and the appellant, Flossie Thurman, giving her address as Fayetteville, Arkansas, were married at Enid, Oklahoma. Shortly thereafter, while on a trip to Tulsa, Oklahoma, Mr. Pettit was stricken with a heart attack and taken to a Tulsa hospital where he died on November 23, 1958.
In certain litigation in the Probate Court of Benton County, Arkansas, it was adjudged that Marie I. Pettit was the lawful wife and widow of L. N. Pettit, deceased. An adopted daughter of that union, Roberta Pettit Kilby, was appointed-administratrix of the estate. The admin istratrix filed the present suit to replevin certain diamonds and other named articles which were in her father’s possession at the time of death and which are now in the possession of Flossie Thurman Pettit and which she refused to deliver [upon demand] to the administratrix. A trial was had in the cause and a judgment returned by the jury for the administratrix, Roberta Pettit Kilby. Flossie Thurman Pettit has appealed.
The first three points urged for reversal by the appellant deal with whether there was evidence to sustain the value of certain property. This argument overlooks the fact that the administratrix desires the return of the property itself and not its value. The recovery of possession is the primary object of a suit in replevin and the owner cannot be required to accept its dollar value. Ark. Stats. (1947) § 34-2116; Schwantz v. Pillow, 50 Ark. 300, 7 S. W. 167. We point out also that there was competent evidence as to the value of the jewelry. The administratrix of the estate, and as sole heir of her father, is the present owner. The testimony of an owner or former owner concerning the value of an object is competent evidence as to its worth. Phillips v. Graves, 219 Ark. 806, 245 S. W. 2d 394. The appellant does not question the competency of the witness’ testimony, but merely complains of the quality of it. A verdict will not be overturned if there is any substantial evidence to support it. Elkins v. Nelson, 196 Ark. 209, 118 S. W. 2d 287. Here the jury had before it two witnesses as to the value; one a local jeweler and the other the administratrix. Weighing the testimony of these two witnesses was for the jury.
The appellant also complains of certain remarks of the trial judge during the trial of the cause about the introduction and identification of certain exhibits. We have examined these remarks and fail to find they went beyond the bounds of the trial court’s discretion, nor do we think they sustain appellant’s charge that the trial judge was helping the appellee try her suit.
The appellant also contends that the court erred in refusing to consider and allow a counterclaim of $2,012.63 against the appellee, administratrix, for funeral expenses which the appellant had assertedly paid. In the course of the trial it was stated without contradiction, if indeed it was not actually stipulated, that the appellant’s claim for these funeral expenses had been filed in the probate court. The appellant insists, however, that she was also required to assert the claim in the circuit court, since the statute requires that the defendant “must” set out in his answer any grounds of counterclaim or set-off that he may have. Ark. Stats. (1947) § 27-1121.
The court’s ruling was correct. The probate court is ordinarily the proper forum for the assertion of a claim for reasonable funeral expenses paid on behalf of the estate. Ark. Stats., § 62-2606. The probate court therefore had jurisdiction to act upon the claim filed therein by the appellant. In these circumstances it was not mandatory that the appellant also assert the claim as a set-off in the circuit court case, and the circuit court properly avoided a conflict of jurisdiction with the probate court. Askew v. Murdock Acceptance Corp., 225 Ark. 68, 279 S. W. 2d 557. It is quite apparent, of course, that the circuit court’s refusal to consider the claim is without prejudice to the appellant’s right to proceed in the probate court.
Finally, it is urged that the court erred in refusing to allow the appellant to inquire about certain conversations with the decedent. Again we do not agree. The attorney for the appellee did not waive the dead man’s statute, Schedule to the Constitution of Arkansas § 2, which provides: “In civil actions no witness shall be excluded because he is a party to the suit or interested in the issue to be tried. Provided, that in actions by or against executors, administrators, or guardians in which judgment may be rendered for or against them, neither party shall be allowed to testify against the other as to any transactions with or statements of the testator, intestate or ward, unless called to testify thereto by the opposite party. * * *” At no time did appellee’s attorney inquire about conversations and transactions with the deceased. However, the witness did volunteer conversations and the lower court sustained objections to them as not being responsive to the questions asked. In the words of the lower cou;rt, “There is a difference in injecting them when a question is asked, and being responsive to the question.”
Finding no error, the judgment is affirmed. | [
-16,
109,
-12,
62,
24,
38,
62,
-70,
99,
-31,
-27,
19,
101,
-17,
65,
45,
122,
-83,
-11,
120,
-102,
-77,
6,
34,
-46,
-101,
89,
-49,
-79,
93,
-92,
-41,
73,
112,
-62,
-41,
70,
-121,
-59,
92,
-50,
8,
11,
-19,
91,
82,
48,
41,
70,
11,
113,
-50,
-13,
46,
29,
-57,
72,
46,
123,
58,
80,
-95,
-69,
69,
125,
22,
-79,
52,
-112,
-95,
-40,
15,
-104,
48,
0,
-23,
114,
-76,
-62,
84,
97,
-39,
12,
98,
98,
34,
9,
-25,
-96,
-104,
15,
-6,
-121,
-89,
-110,
89,
-55,
101,
-68,
-97,
118,
-112,
3,
-4,
-10,
-51,
20,
108,
7,
-82,
-106,
-77,
7,
58,
-116,
11,
-13,
-125,
20,
81,
-53,
-30,
84,
22,
59,
-69,
-114,
-77
] |
Ed. F. McFaddin, Associate Justice.
Tbe appellee sought to recover judgment against the appellant for $224.97 and interest; the defense was accord and satisfaction. The cause was submitted to the Court without a jury (§ 27-1743, Ark. Stats.) on an agreed statement of facts. The judgment was for the appellee; and this appeal resulted.
On August 8, 1957, appellee sold and shipped to appellant certain materials. The invoice (# 8-578-4) was for $7,499.00 and the invoice recited that there could be 2% discount for cash after freight was deducted. The invoice also stated: “Applicable sale, use, local, state and Federal taxes not included and to be paid by buyer.” On August 19, 1957, the appellant sent its check to the appellee for $7,183.18. There was deducted:
The freight of $158.20
The 2% discount and exchange 157.62 315.82
TOTAL $7,499.00
Thus, appellant did not pay the sales tax. On August 20th the appellee sent a bill to the appellant: “To bill you 3% State Sales Tax on invoice No. 8-578-4 dated Aug. 8, 1957, not included in Sight Draft. $224.97.” Appellant refused to pay the $224.97, and claimed that the payment of the original invoice discharged the sales tax by accord and satisfaction.
We conclude that the judgment must be affirmed. The appellant, having pleaded accord and satisfaction, had the burden of sustaining such plea. Shinn v. Kitchens, 208 Ark. 321, 186 S. W. 2d 168. All the appellant established was the payment of $7,499.00; and we have held that part payment, standing alone, does not, as a matter of law, establish accord and satisfaction of the entire account. Sharp v. Sonenblick, 213 Ark. 649, 212 S. W. 2d 18. There still remained an issue for the trier of the facts; and we have repeatedly held that when a case is tried by the Circuit Court without a jury, the Court’s findings have the force and effect of a jury verdict. Woodruff v. McDonald, 33 Ark. 97; and Norvell v. James, 217 Ark. 932, 234 S. W. 2d 378, and eases there cited.
Affirmed. | [
-46,
-20,
-31,
60,
106,
-64,
42,
-118,
70,
-95,
53,
83,
-19,
6,
20,
111,
119,
63,
117,
104,
102,
-93,
39,
67,
-54,
-77,
-55,
-43,
61,
-53,
-92,
-43,
76,
-96,
-54,
-107,
102,
-62,
-59,
92,
78,
-96,
43,
76,
-7,
70,
52,
9,
24,
11,
113,
-90,
-29,
44,
29,
75,
109,
44,
91,
50,
-63,
-72,
-86,
-113,
127,
20,
-111,
52,
-102,
7,
-8,
46,
-104,
49,
1,
72,
123,
-124,
-126,
116,
73,
-67,
12,
100,
102,
48,
5,
-51,
-68,
-56,
34,
95,
-99,
-89,
-48,
89,
67,
77,
-66,
-99,
108,
82,
-116,
-2,
-16,
-115,
89,
108,
15,
-114,
-66,
-79,
-81,
126,
28,
3,
-17,
51,
18,
113,
-49,
-32,
92,
71,
24,
-125,
-49,
-48
] |
Carleton Harris, Chief Justice.
Appellees Fullerton and Brooks purchased respectively 5,000 and 2,500 shares of stock, at one dollar per share, in Arkansas Warehouse Corporation from John Yancey, agent for Arkansas Real Estate Company, Inc. Subsequently, appellees instituted suit in the Pulaski County Circuit' Court alleging that the stock had been. sold to them under fraudulent representations by Yancey; further, that the stock was sold in violation of the Arkansas Securities Act, offered to surrender their stock certificates (which they had previously endeavored to do), and sought a - refund of the money paid for such stock. On trial, the jury returned a verdict for appellees in the amounts sought on the basis of fraudulent misrepresentation, and the court entered its judgment accordingly, finding that the stock certificates sold to appellees had been filed with the clerk of the court, and directing that upon satisfaction of the judgments, such certificates be delivered to Arkansas Real Estate Company. From such judgment, appellants bring this appeal; appellees cross-appeal, contending that the court should have granted their motion for a directed verdict because the stock was sold in violation of the Arkansas Securities Act.
As shown by the evidence, the Arkansas Warehouse Corporation was formed for the purpose of building-warehouses to be leased, and the corporation had acquired 320 acres of land south of Roosevelt Road and east of the right-of-way for the proposed freeway through Little Rock. According to Brooks, Yancey told him that the corporation had received title to the land by issuing 1,500,000 shares of stock to the Arkansas Real Estate Company. Fullerton stated that Yancey assured him that the land was “already paid for, and it was free and clear, or anyway, there wasn’t anything- against it; they owned the land.” The stock was purchased by appellees in Warren, their home town, Brooks making his purchase on January 23, 1959, and Fullerton making his purchase on February 15th. In March or April, Brooks decided “it would be wise to cheek” on the title, and following a title examination, appellees endeavored to obtain a return of their money.
Yancey admitted on the stand that the land was not clear of encumbrances. The record reflects that about twenty acres was subject to a lien of $40,000 under a first mortgage to Bankers Insurance Company, a tax lien against the lands amounted to $3,540, and there was an indebtedness to D. W. Jones of approximately $20,000; in fact, according to Yancey, there was a total indebtedness of about $90,000 at the time the stock was sold to appellees. The witness testified that the indebtedness had subsequently been reduced by about $40,000. Admittedly, the money obtained from Brooks and Fullerton was used for that purpose. Yancey also admitted that a part of the most valuable acreage (6 acres) was not owned by the corporation, but was leased from E. L. Faucett, and that this fact was not told to appellees, Yancey explaining, “We have a lease for 99 years. If that is not owning it, I’m not going to worry about it. I will not be here, and my kids will not be here.” The rental on the lease amounted to $100 per month. The record reflects approximately thirty-four transactions involving the transfer of stock, of which sixteen or seventeen were admitted by Yancey to have been outright sales. The others were classified by him as loans, i. e., stock was given as collateral on notes executed by the real estate corporation to such individuals.
Appellant sets out three grounds for reversal, contending that there is no evidence that appellees relied on the representations by Yancey in making their purchases; that the court erred in one of the instructions given; and that testimony should have been allowed wherein appellant sought to establish the value of the land in question. Under the view we take, a discussion of these alleged errors is unnecessary, though it might be stated that all contentions have been thoroughly examined, and found to be without merit. We are of the opinion that the point urged by appellees/crossappellants in the cross-appeal is at once decisive and determinative of the litigation.
The pertinent portions of Act 397 of 1947, cited as the Arkansas Securities Act (§ 67-1201, Ark. Stats., 1957 Replacement), provide as follows :
§ 67-1206 — "No securities, except of a class exempt under Section 5 [§ 67-1205] hereof or unless sold in a transaction exempt under Section 4 [§ 67-1204], shall he sold within this State unless such securities shall have been registered by notification or by qualification as hereinafter defined. * * *”
§ 67-1214 — "It shall be unlawful for any issuer or dealer or representative thereof, either directly or indirectly, to sell or cause to be sold, offer for sale, take subscriptions for, or negotiate for the sale in any manner in this State, any contracts, stocks, bonds, or other securities (except as expressly exempt herein) unless and until said Commissioner has approved and issued his certificate therefor in accordance with the provisions of this Act. . . .”
The term "issuer” is defined by § 67-1202, subsection (e), as one
“. . . who proposes to issue or who issues or has issued or shall hereafter issue any security. Any person who acts as a promoter for and on behalf of a corporation, trust or unincorporated association or partnership of any kind to be formed shall be deemed to be an issuer.”
Subsection (g) provides:
“Any person, firm, copartnership, corporation or association, whether domestic or foreign, not the issuer, who shall in this State sell or offer for sale any of the stocks, bonds, or other securities of any issuer, or who shall, by advertisement or otherwise, profess or engage in the business of selling or offering for sale such securities, shall be deemed to be a ‘dealer’ within the meaning of this Act [§§ 67-1201 — 67-1234,] and no such dealer shall sell or offer for sale any securities, except securities qualified or exempt under the provisions of this Act or except in transactions exempted under the provisions of this Act, or profess the business of selling or offering for sale such securities unless and until he shall have qualified the same in the office of the commissioner as in this Act provided. The term ‘dealer’ shall not include an owner of such securities who shall acquire and sell same for his own account in the usual and ordinary course of business, and not for the direct or indirect promotion of any speculative enterprise; provided that such ownership is in good faith. Repeated or successive sales of any such securities shall be prima facie evidence that the claim of ownership is not bona fide. ’ ’
Section 67-1228 provides:
“Every sale or contract for sale of any security made in violation of any of the provisions of this Act [§§ 67-1201 — 67-1234] shall be voidable at the election of the purchaser and the person making such sale or contract for sale and every director or officer of the issuer whose securities are being offered for sale who shall have participated in making such sale shall be jointly and severally liable to such purchaser for the refund of all moneys or property received in payment therefor with interest at the rate of six per centum (6%) from the date of payment until date of refund and all costs and reasonable attorney’s fee incurred therein.”
The question in determining whether the motion for directed verdict should have been granted is whether the record places in issue any question of fact relative to the violation of these statutes, or, to state it differently, do the exhibits and testimony reflect, as a matter of law, the violation of the Securities Act.
The only suggestion of any dealings with the Banking Department concerning stock is found in a single line of testimony by Yancey, when he stated, “I believe there was a stock option when we got permission to issue that from the State Banking Department. We could issue stock in lieu of cash and they also had the option of taking the six per cent.” However, scrutiny of the transcript reveals that this statement referred entirely to loans. Yancey had testified at length regarding loan transactions, and in fact, the quoted statement was in reply to a question, “Now on these loan transactions, was there any agreement that they could turn these notes into common stock of Arkansas Warehouse if they so desired?” There is no doubt of non-compliance with the registration section of the Securities Act, for the parties entered into the following stipulation:
“Neither Arkansas Warehouse Corporation or Arkansas Real Estate Company, Inc., filed a registration statement with the Bank Department of Arkansas for the stock of Arkansas Warehouse Corporation; the State Banking Department has not issued a certificate authorizing the sale of this stock pursuant to the Arkansas Securities Law. That is a stipulation, your Honor.”
The first question is whether the sales made by appellants were a violation of the Securities Act. An owner of securities is permitted to make isolated sales (subsection (g), § 67-1204), or sales for his own account in the ordinary course of business. Section 67-1202, subsection (g), heretofore quoted, states in part, “the term ‘dealer’ shall not include an owner of such securities who shall acquire and sell same for his own account in the usual and ordinary course of business, and not for the direct or indirect promotion of any speculative enterprise; provided that such ownership is in good faith”. Certainly, we do not consider that appellants can come under the category “owner”, for the evidence clearly reflects that the stocks were sold as a means of directly promoting the enterprise of building warehouses. Sales were made in widely scattered localities over the state, such as Fordyce, Danville, Warren, Russellville, Pine Bluff, and Coy. Furthermore, the aforementioned section provides: “Repeated or successive sales of any such securities shall be prima facie evidence that the claim of ownership is not bona fide. Webster’s New International Dictionary defines the word “repeated” as “happening again and again”. The record shows at least sixteen or seventeen direct sales, and these were admitted by Yancey. This number of sales cannot be considered “isolated”; in fact, it amounts to one-half of the total transactions prior to the trial.
It makes little difference whether appellants be classified as dealers, promoters, or representatives. The evident fact is that they were engaged in selling stock without first registering same, or obtaining a certificate of approval, and neither the stock nor the transactions were exempt. In other words, under the undisputed facts, appellants, as a matter of law, clearly violated the Securities Act.
At the conclusion of appellees’ evidence, they moved the court for a directed verdict on the grounds that the stock was sold in violation of the Arkansas Securities Act. This was denied by the court. Appellants also moved for a directed verdict, which was granted as to Arkansas Warehouse Corporation, and Bobert Traylor, officer of Arkansas Beal Estate Company and one of the incorporators of Arkansas Warehouse Corporation, but the motion was denied as to appellants herein. At the conclusion of all the evidence, appellants again moved for a directed verdict, which was denied, and counsel for appellees again moved for a directed verdict for Brooks and Fullerton on the same ground as the first motion. The court ruled that it had concluded to let the matter go to the jury on the ground of misrepresentation only; thereafter, appellees requested the court to submit the issue relative to violation of the Securities Act to the jury specially, but the court stated: “I am overruling the plaintiffs’ motion for an instructed verdict which would, in effect, rule out the question of the Securities Act”. Both sides then offered instructions on the question of misrepresentation, and the case was submitted to the jury on that phase only. The fact that each side moved for a directed verdict is of no significance in this case; had a fact question been involved, and no instructions to the jury requested, this action could have had the effect of waiving a jury trial, and submitting the issues to the court. However, as set out in this Opinion, there was no question of fact left for the court to decide. In 53 Corpus Juris Secundum, § 77, p. 792, we find:
“A transaction involving securities will ordinarily be presumed to comply with the applicable Blue Sky Laws, and the burden of proving a violation is on the party asserting it. Thus, in an action to recover the consideration paid as the purchase price of a security on the ground that the transaction was in violation of the Blue Sky Law, the burden is on plaintiff to prove such violation and the presence of all the elements necessary to warrant recovery under the act. Defendant, on the other hand, has the burden of proving defensive matters. Thus, if defendant relies on ratification as a defense, he has the burden of proving it. Also defendant has the burden of proving that stock sold in violation of the statute was within statutory exemptions.”
The testimony of appellants did not establish a defense; nor is any defense to violation of the Securities Act argued in the briefs. As stated in Plunkett v. Winchester, 98 Ark. 160, 135 S. W. 860:
“The admitted facts showing plaintiffs entitled to relief sought, there was no question for the jury, and the verdict was properly directed.”
Also in 5B, Corpus Juris Secundum, § 1929, p. 440:
“Where plaintiff has made out a prima facie case, the facts are practically undisputed and the amount of recovery certain, and defendant, although having full opportunity to do so, has established no defense sufficient to prevent or bar the right of recovery, the appellate court, on reversing a judgment in defendant’s favor, will sometimes render the proper judgment for plaintiff, or direct the court below to do so.”
Here, appellees, not once, but twice, requested the court to direct a verdict in their favor on the point herein discussed. While no exception was saved to the court’s ruling in refusing to do so, this was unnecessary under the provisions of Act 555 of the General Assembly of 1953 (§ 27-1762, Supplement, Ark. Stats. Anno.), which provides:
“. . . but for all purposes for which an exception has heretofore been necessary, it is sufficient that a party, at the time the ruling or order of the court is made or sought, makes known to the court the action which he desires the court to take. * * *”*
Appellees made known the action which they desired the trial court to take, and their reason therefor, and the court erred in not granting the motion.
Accordingly, the judgment, insofar as it relates to these appellees, is reversed, and the cause remanded to the circuit court with directions to enter judgment for appellee Fullerton in the sum of $5,000, and appellee Brooks in the sum of $2,500, together with interest at the rate of 6% per annum, costs, and a reasonable attorney’s fee.
Yancey was an officer of both Arkansas Real Estate Company, Inc., and Arkansas Warehouse Corporation.
This Act was repealed by Act 254 of 1959, which is also known as the Arkansas Securities Act; the latter act became effective on July 1, 1959, but Act 397 controls this litigation, since the stock was sold to appellees prior to that date.
Emphasis supplied.
No question is raised about the sufficiency of the motion. | [
112,
110,
-16,
92,
24,
-32,
122,
-70,
98,
-96,
101,
-45,
-23,
-60,
21,
121,
-29,
77,
-12,
120,
-74,
-77,
3,
120,
-62,
-109,
-37,
-51,
52,
89,
-28,
-42,
77,
48,
-54,
21,
-58,
-64,
-59,
-100,
14,
1,
11,
64,
-39,
68,
48,
-85,
16,
71,
81,
-98,
-30,
32,
23,
75,
73,
44,
123,
60,
80,
-6,
42,
23,
-1,
22,
1,
36,
-101,
1,
88,
110,
-48,
49,
8,
-24,
114,
-90,
-58,
116,
41,
-101,
12,
32,
99,
1,
5,
-89,
-72,
-120,
38,
-1,
-115,
-90,
-78,
9,
11,
65,
-66,
-100,
-20,
16,
20,
-10,
-6,
-43,
92,
108,
7,
-114,
-42,
-95,
29,
111,
-100,
3,
-53,
-121,
48,
112,
-49,
-90,
93,
95,
26,
27,
-114,
-48
] |
Ed. F. McFaddin, Associate Justice.
The Chancery Court awarded appellee (husband) a divorce from appellant (wife); and this appeal challenges the correctness of that decree.
At the outset, we have a procedural question to decide. The case was heard on oral testimony, and the Chancellor delivered an opinion which is twenty-two transcribed pages. The decree was filed on April 27, 1959; notice of appeal on May 15th; designation of entire record on May 15th; extension granted on July 24th; and on October 22nd additional extension granted “until seven months from April 27, 1959”. On October 22, 1959 appellant filed a “petition and affidavit”, stating that she had no money with which to pay for the transcription of testimony and that the entire record should be furnished her without charge, under the provisions of Section 8 of Act No. 244 of 1957. This petition was denied at a hearing on October 30, 1959. It was shown that the Court Reporter had taken the testimony by the use of a recording machine; and the Court suggested that' appellant might make a condensed statement in narrative form from the recordings which the Court Reporter was directed to furnish her.
In accordance with the Court’s suggestion about a condensed statement in narrative form, the appellant filed with the Clerk of the Chancery Court on November 17, 1959, an unverified, uncertified, unagreed-to 46 page instrument purporting to be a condensed statement in narrative form of the testimony of all the witnesses in the case; but neither the appellee nor his attorney was ever notified of such filing, and no copy was ever furnished appellee or his counsel. On November 18, 1959 the appeal was filed in this Court; and the record contained only the pleadings, the Court orders, and the said narrative statement. Upon learning of the appeal, the appellee filed in this Court a motion to strike said condensed statement in narrative form, and such motion was passed until consideration of the case on its merits. "We gave either party permission to file a duly certified copy of the Chancellor’s opinion, as previously mentioned; and the appellee has filed the same with us.
The motion to strike the narrative statement must be sustained. Our statute allowing testimony to be supplied in narrative form is Section 10 of Act. No. 555 of 1953, as now found in § 27-2127.4, Ark. Stats., and reads:
“A party may prepare and file with his designation a condensed statement in narrative form of all or part of the testimony, and any other party to the appeal, if dissatisfied with the narrative statement, may require testimony in question and answer form to be submitted for all or part thereof.”
It is instantly apparent that if the appellant had wanted to file a “condensed statement in narrative form”, such should have been prepared and filed when the record was designated on May 15, 1959, and not on November 17, 1959. Tbe purpose of tbe condensed statement in narrative form is to afford tbe parties a possibility of saving tbe additional expense of tbe questions and answers of various witnesses. But, even so, when such statement is served on tbe opposite party, be may, if dissatisfied, “require testimony in question and answer form”. In tbe ease at bar, even if we bypass tbe fact that tbe condensed statement in narrative form was not filed with tbe appellant’s designation of tbe record, still we cannot overlook tbe point, made by tbe appellee, that tbe condensed statement in narrative form was never served on tbe appellee or bis counsel, so that be could require tbe testimony to be furnished in question and answer form — as be states be would have done. So tbe narrative statement must be stricken as filed out of time and filed without ample notice to appellee.
With tbe narrative statement stricken, there is no showing of error, and tbe decree must be affirmed. However, it is fair to all parties to say that we have carefully read and studied tbe said narrative statement, and also tbe Chancellor’s opinion; and, even after considering tbe narrative statement, we would have affirmed tbe decree of tbe Chancery Court awarding a divorce to appellee. Since this is a divorce case, we adjudge that tbe husband shall pay tbe costs of this appeal.
Affirmed.
This petition by appellant, filed on October 22,1959, was the first suggestion that the appellant was without funds. She never asked the Court to require appellee, as her former husband, to bear any part of the cost of the furnishing of the record.
This comes to tts from Rule 75 (e) of the Federal Rules.
Appellant made no effort to prepare the kind of statement referred to under Section 19 of Act No. 555 of 1953, which may be found in § 27-2127.11 Ark. Stats. | [
48,
-23,
-91,
95,
-86,
32,
10,
-114,
64,
3,
37,
83,
-11,
66,
4,
107,
123,
43,
85,
121,
86,
-77,
118,
65,
114,
-13,
114,
-43,
-79,
95,
-20,
-112,
77,
58,
-93,
-43,
98,
-128,
-113,
92,
-114,
-121,
-87,
-52,
89,
68,
52,
33,
90,
15,
49,
-10,
-9,
44,
21,
-50,
41,
44,
-49,
104,
96,
48,
-117,
29,
95,
20,
-111,
100,
-106,
4,
88,
46,
-104,
57,
1,
-20,
51,
-90,
-122,
116,
106,
59,
40,
102,
98,
1,
-115,
-17,
-72,
-120,
78,
122,
28,
-89,
-46,
105,
75,
109,
-66,
-103,
125,
16,
15,
126,
96,
-123,
93,
100,
10,
-117,
-106,
-79,
15,
124,
-100,
9,
-21,
-93,
16,
113,
-51,
-94,
92,
70,
57,
-101,
-58,
-110
] |
Ed. F. McFaddin, Associate Justice.
On December 19, 1960 we sustained appellee’s motion to dismiss the appeal; and appellant has filed a petition for rehearing. Because there seems to be some confusion about the point here involved, we believe it is proper to deliver a written opinion for future guidance.
The judgment of the Trial Court was entered on February 25, 1960. Notice of appeal was filed by appel lant the same day; and contemporaneously the Trial Court granted the maximum of seven months for filing the appeal and record in this Court. Such time expired in September, 1960. Entirely disregarding such matters as (a) appellee’s right to file “amended designation” for partial record after first designating the entire record, (b) appellant’s failure to designate the points as regards the partial record and (c) appellee’s power to waive the statutory requirements as to the time for filing the designation, we come to the vital point of the case.
The appellant filed designation for only a part of the record. The appellee within ten days thereafter (Section 8 of Act 555 of 1953, Ark. Stats., § 27-2127.2) filed his designation for additional record, specifying: “All of the pleadings, the testimony and exhibits of all of the witnesses, and the instructions given and refused by the Lower Court, the verdict of the jury on the complaint and the judgment on the complaint.” On September 21, 1960 appellant filed in this Court a record consisting of nineteen pages of pleadings and court orders, and a transcript of twenty pages of testimony and exhibits, certified by the official stenographer as, “. . . the evidence taken of all of the witnesses testifying on behalf of the plaintiff in the case of Arkansas Farmers Association, Inc. v. Homer Towns, all exhibits introduced in evidence and offered in evidence and refused and all objections made by counsel for both sides, said evidence being in plaintiff’s case in chief.” (Emphasis our own.)
No additional record was ever filed; and on December 1, 1960 appellee filed motion to dismiss the appeal because the appellant had failed to file the complete designated record. "We granted the motion to dismiss in a per curiam; but appellant vigorously seeks a rehearing, claiming that it filed a pleading praying the Court, “. . . that any additional testimony and record designated by appellee be paid for by appellee until the determination of this case, since no additional record is necessary or desirable in determining the questions to be presented by appellant on appeal.” The appellant, by making such quoted claim, cannot avoid its obliga tion to file in this Court the record as designated by both appellant and appellee. Section 9 of Act 555 of 1953 (§ 27-2127.3, Ark. Stats.) says:
“If there be designated for inclusion any evidence or proceeding at the trial or hearing which was steno-graphically reported, the appellant shall file ... a copy of the reporter’s transcript of the evidence or proceedings. ... If the designation includes only part of the reporter’s transcript, the appellant shall file a copy of such additional parts thereof as the appellee may need. . . .”
The appellant, as the party seeking a reversal of the judgment of the Trial Court, had the duty to file in this Court, within the prescribed time, the record as designated by the appellee, just the same as to file the record designated by appellant. When the appellant attempts to appeal he may designate the portion of the record he desires, but if the appellee insists on additional portions then the appellant must also furnish what the appellee designates; and when the case is decided by us the appellant may ask that the cost of the unnecessary record be taxed against the appellee. Spikes v. Hibbard, 226 Ark. 93, 288 S. W. 2d 38. In Manila School Dist. v. Sanders, 226 Ark. 270, 289 S. W. 2d 529, we said: “If appellee, Sanders, had desired any additional portion of the record to be brought up, he had only to follow the provisions of Act 555.” See also Drewry v. Sykes, 226 Ark. 539, 291 S. W. 2d 258. In short, we hold that, in the absence of a court order to the contrary, the appellant must file in this Court the record designated by both parties or suffer the appeal to be dismissed for failure to file the designated record and appellant cannot, on his own determination, cast on appellee the burden of paying for the additional record designated. This has been our consistent holding under Act 555. Heretofore we have merely made per curiam orders showing the result. In order to avoid misunderstanding, we now render this opinion; and the appellant’s petition for rehearing is denied. | [
48,
-21,
-19,
12,
10,
-31,
50,
-82,
66,
-125,
38,
83,
109,
66,
28,
121,
-13,
45,
85,
105,
-58,
-73,
118,
65,
70,
-14,
74,
85,
117,
124,
-28,
-14,
76,
48,
-53,
-43,
70,
32,
-123,
94,
78,
1,
-103,
-52,
121,
-56,
48,
33,
88,
15,
53,
86,
-29,
-83,
26,
-61,
41,
44,
-49,
61,
120,
-72,
-118,
13,
61,
4,
49,
36,
-98,
5,
88,
62,
-104,
48,
0,
-20,
50,
38,
-122,
20,
107,
-103,
8,
98,
98,
35,
-111,
-17,
-72,
40,
14,
62,
29,
-89,
-80,
41,
75,
97,
-74,
-103,
125,
-112,
7,
-2,
-27,
-59,
88,
44,
15,
-50,
-108,
-79,
79,
78,
-98,
11,
-21,
-125,
16,
53,
-51,
-26,
92,
71,
51,
-101,
-58,
-112
] |
KAREN R. BAKER, Justice.
hThe present case stems from one count of capital murder, two counts of attempted capital murder, seven counts of terroristic acts, and one count of possession of a firearm by certain persons filed against the petitioner, Robert Friar, in Jackson County Circuit Court, Arkansas, on April 17, 2013. The incident that gives rise to the charges occurred on. February 27, 2013. If found guilty, the State intends to seek the death penalty. On March 5, 2014, pursuant to Ark.Code Ann. § 5-2-305, the State filed a motion for an order for a mental-health evaluation of Friar. On March 10, 2014, Friar responded to the motion objecting to the request asserting that Friar was not raising “mental disease or defect as a defense, nor will [Friar] claim a lack of fitness to proceed,” but would seek “to bar the State from seeking theJjjdeath penalty due to his mental retardation.” On April 17, 2014, the circuit court, the Respondent here, held a hearing on the motion and orally ruled that the circuit court would grant the State’s motion and would enter orders for the examinations. On April 23, 2014, Friar filed a motion to reconsider the orders for mental-health evaluations of Friar. On April 25, 2014, the circuit court entered two separate orders, an “Order for Fitness-To-Proceed Examination of Defendant” and an “Order for Criminal Responsibility Examination of Defendant.” From those orders, on April 29, 2014, Friar filed a petition for writ of mandamus and emergency petition for stay or, in the alternative, for expedited consideration with this court. On May 1, 2014, the circuit court responded. On May 2, 2014, we granted the stay and took the petition for writ of mandamus as a case. On June 13, 2014, Friar filed a petition of writ of mandamus or in the alternative a writ of certiorari directing the circuit court to rescind its orders for fitness-to-proceed and criminal-responsibility evaluations of Friar. On July 30, 2014, the circuit court responded, and Friar replied on August 13, 2014. This court has jurisdiction pursuant to Ark. Sup.Ct. R. 6-l(a) (2014) as Friar requests this court to grant ain extraordinary writ.
Friar presents three points in his petition for extraordinary writ: (1) the circuit court | Jailed and refused to follow the plain mandatory language of Ark.Code Ann. § 5-2-305 (Repl.2013) in ordering simultaneous fitness-to-proceed and criminal-responsibility examinations of Friar; (2) the circuit court failed and refused to follow the plain mandatory language of Ark.Code Ann. § 5-2-305 in ordering a fitness-to-proceed examination of Friar; and (3) the circuit court failed and refused to follow the plain mandatory language of Ark.Code Ann. § 5-2-305 in ordering a criminal-responsibility examination of Friar.
Friar has requested that this court issue a writ of mandamus directing the circuit court to rescind the orders. In State ex rel. Purcell v. Nelson, we explained the function of the writ of mandamus:
The primary function of the writ of mandamus is to require an inferior court or tribunal to act when it has improperly failed or declined to do so. It is never applied to control the discretion of a trial court or tribunal. Nor can it be used to correct an erroneous exercise of discretion.
246 Ark. 210, 215-16, 438 S.W.2d 33, 37-38 (1969) (internal citations omitted).
Alternatively, Friar has requested that this court issue a writ of certiorari directing the circuit court to rescind the orders. A writ of certiorari is also extraordinary relief. “In determining its application, we will not look beyond the face of the record to ascertain the actual merits of a controversy, or to review a circuit court’s discretionary authority.” S. Farm Bureau Cas. Ins. Co. v. Parsons, 2013 Ark. 322, at 5, 429 S.W.3d 215, 218. A writ of certiorari lies to correct proceedings erroneous on the face of the record when there is no other adequate remedy; it is available to the appellate court in its exercise of superintending control over a lower court that is proceeding illegally where no other mode of review has been provided. Casement v. State, 318 Ark. 225, 884 S.W.2d 593 (1994) (citing Lupo v. Lineberger, 313 Ark. 315, 316-17, 855 S.W.2d 293, 293-94 (1993)).
There are two requirements that must be satisfied in order for the court to grant a writ of certiorari. First, there can be no other adequate remedy but for the writ of certiorari. No other adequate remedy exists where the issuing court has no legal authority to support its order. Ark. Game & Fish Comm’n v. Herndon, 365 Ark. 180, 183, 226 S.W.3d 776, 779 (2006). Second, the writ of certiorari lies only where (1) it is apparent on the face of the record that there has been a plain, manifest, clear, and gross abuse of discretion, or (2) there is a lack of jurisdiction, an act in excess of jurisdiction on the face of the record, or the proceedings are erroneous on the face of the record. Id. Accordingly, a writ lies when the judge has acted in excess of his or her authority. See Conner v. Simes, 355 Ark. 422, 139 S.W.3d 476 (2003).
Additionally, as the parties have noted, Friar’s petition for extraordinary writ involves our interpretation of Ark. Code Ann. § 5-2-305. We note that the question of the correct application and interpretation of an Arkansas statute is a question of law, which this court decides de novo. Broussard v. St. Edward Mercy Health Sys., Inc., 2012 Ark. 14, 386 S.W.3d 385. ‘When reviewing issues of statutory interpretation, we are mindful 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.” Voltage Vehicles v. Ark. Motor Vehicle Comm’n, 2012 Ark. 386, at 7, 424 S.W.3d 281, 286. We construe the statute so that no word is left void, superfluous, or insignificant, and meaning and effect are given to every word in the statute if possible. Id. “When a statute is clear, we give it its plain meaning, and this court |fiwill not search for legislative intent; rather, that intent will be gleaned from the plain meaning of the language used.” Id. at 7-8, 424 S.W.3d at 286. It is for this court to decide what a statute means. Chase Bank USA, N.A. v. Regions Bank, 2013 Ark. 129, 2013 WL 1279089.
Fitness-To-Proceed Examination
With these standards in mind, we turn to the merits of Friar’s petition. First, we address Friar’s assertion that the circuit court erred in ordering the fitness-to-proceed examination because the circuit court was required to make a finding of reasonable suspicion. Friar contends that facts were not presented upon which the circuit court could make a reasonable-suspicion finding prior to ordering the examination.
The circuit court’s order provides in pertinent part:
Pursuant to Ark.Code Ann. § 5-2-305, this Court finds reasonable suspicion to believe that the defendant may not be fit to proceed and therefore ORDERS [an examination.]
The applicable statute, Ark Code Ann. § 5-2-305, provides in pertinent part:
(a)(1) Subject to the provisions of §§ 5-2-304 and 5-2-311, the court shall immediately suspend any further proceedings in a prosecution if:
(B)(i) Any party or the court raises the issue of the defendant’s fitness to proceed.
(ii) The court shall order a fitness-to-proceed examination if it finds, there is a reasonable suspicion that a defendant is not fit to proceed.
The circuit court contends that it did not err because the plain language of the statute authorizes the circuit court to make the reasonable suspicion finding and requires the circuit court to order the examination once a finding is made. Specifically, the circuit court asserts that the language in subsection (a)(l)(B)(i), “[a]ny party or the court raises the issue of the | f,defendant’s fitness to proceed,” plainly authorizes the circuit court to raise the issue. The circuit court further responds that the following subsection, (a)(l)(B)(ii), which states, “The court shall order a fitness-to-proceed examination if it finds there is a reasonable suspicion that a defendant is not fit to proceed,” means that once the court finds such suspicion, the circuit court must order the examination.
With our rules of statutory construction in mind, in reviewing Ark.Code Ann. § 5-2-305, we agree with the circuit court. The plain language of subsection (a)(l)(B)(i) authorizes the circuit court to raise the issue of Friar’s fitness to proceed and requires the circuit court to order the examination once a finding of reasonable suspicion has been made. Here, the record demonstrates that the State and the circuit court both raised the issue of fitness to proceed and the circuit court’s order clearly stated that “this Court finds reasonable suspicion to believe that the defendant may not be fit to proceed.” Ac-, cordingly, the reasonable-suspicion finding was made, and the examination ordered. Therefore, we deny Friar’s request for this court to rescind that order on this basis.
Criminal-Responsibility Examination
We now turn to Friar’s next basis for extraordinary relief. Friar asserts that the circuit court erred in ordering a criminal-responsibility examination of Friar. The circuit court’s “Order for Criminal Responsibility Examination of Defendant” states in pertinent part,
The Defendant filed a Motion to Bar the State from Seeking the Death Penalty due to the Defendant’s Mental Retardation on January 22, 2014.
The definition of “mental retardation” in A.C.A. § 5-4-618(a)(l)(A) is set out as follows:
|7“Significantly subaverage general intellectual functioning accompanied by a significant deficit or impairment in adaptive functioning manifest in the development period, but no later than age eighteen(18) years of age.”
This is essentially the same as the definition of “mental disease or defect” contained in A.C.A § 5 — 2—801 (6)(A)(ii):
“A state of significantly subaverage general intellectual functioning existing concurrently with a defect of adaptive behavior that developed during the developmental period.”
Therefore the issue of Mental Disease or Defect has been raised by the Defendant’s Motion to Bar the State from Seeking the Death Penalty due to the Defendant’s Mental Retardation.
Pursuant to Ark.Code Ann. § 5-2-305, the State of Arkansas has petitioned the Court for a criminal responsibility examination and opinion.
It is therefore ORDERED[.]
Two statutes are applicable to the criminal-responsibility order at issue, Ark.Code Ann. §§ 5-2-304 and 5-2-305. First, Ark. Code Ann. § 5-2-304, “Notice of defense,” provides in pertinent part,
(a) When a defendant intends to raise mental disease or defect as a defense in a prosecution or put in issue his or her fitness to proceed, the defendant shall notify the prosecutor and the court at the earliest practicable time.
Next, Ark.Code Ann. § 5-2-305, “Mental health examination of defendant,” provides in pertinent part:
(a)(1) Subject to the provisions of §§ 5-2-304 and 5-2-311, the court shall immediately suspend any further proceedings in a prosecution if:
(A)(i) A defendant charged in circuit court files notice that he or she intends to rely upon the defense of mental disease or defect.
(ii) After the notice of intent to raise the defense of not guilty for reason of mental diseaseJj¡or defect is filed, any party may petition the court for a criminal responsibility examination and opinion.
Id. (emphasis added).
Relying on the plain language of Ark. Code Ann. § 5-2-305(a)(l)(A)(ii), Friar as serts that the circuit court is without authority to order the criminal-responsibility examination because Friar must give notice of the intent to raise the defense of not guilty for reason of mental disease or defect. Once notice is filed, then and only then can an examination be ordered. Friar further contends that the circuit court does not have authority to raise the issue of criminal responsibility on its own nor can any party raise the issue.
The circuit court responds that it was justified in its decision to order the criminal responsibility examination because the notice of mental-retardation defense in Ark.Code Ann. § 5-4-618 necessarily includes notice of a mental disease or defect defense for purposes of the required notice. Friar replies that notice that Friar intends to claim that he is ineligible for the death penalty due to his low IQ and adaptive skills under Ark.Code Ann. § 5-4-618 does not effectively invoke a not guilty plea due to mental disease or defect under Ark.Code Ann. § 5-2-305.
The plain language of Ark.Code Ann. § 5-2-305 provides that (1) after a defendant is charged in circuit court, (2) if the defendant files notice of intent to raise the defense of not guilty for reason of mental disease or defect, then (3) any party may petition the court for the defendant to submit to a criminal-responsibility examination and opinion. Ark.Code Ann. § 5-2-305 plainly and unambiguously states that “[ajfber the notice of intent to raise the defense of not guilty for reason of mental disease or defect is filed, any party may petition the court for a | criminal responsibility examination and opinion.”
Here, the record demonstrates that, at this juncture, Friar has not filed a “notice of intent to raise the defense of not guilty for reason of mental disease or defect.” Therefore, the circuit court has acted without jurisdiction in ordering Friar to submit to a criminal responsibility examination. Having found that the circuit court erred, we move to Friar’s request to issue a writ of mandamus or in the alternative a writ of certiorari. First, a writ of mandamus is not warranted as the circuit court has not improperly failed or declined to act when required. Satterfield v. Fewell, 202 Ark. 67, 149 S.W.2d 949 (1941); Thompson v. Foote, 199 Ark. 474, 134 S.W.2d 11 (1939); Hammond v. Kirby, 233 Ark. 560, 345 S.W.2d 910 (1961). However, Friar has met the elements for this court to issue a writ of certiorari. First, Friar has no other adequate remedy. No other adequate remedy exists where the issuing court has no legal authority to support its order. Ark. Game & Fish Comm’n v. Herndon, 365 Ark. 180, 183, 226 S.W.3d 776, 779 (2006). Second, as discussed above, the circuit court has acted in excess of its authority in issuing the criminal-responsibility-examination order. Therefore, we agree that an extraordinary writ is appropriate under these circumstances and grant the writ of certiorari and rescind the circuit court’s criminal-responsibility-examination order. Finally, as we have granted the writ on the criminal responsibility order, we need not reach Friar’s argument regarding simultaneous examinations because the issue is moot.
Writ of mandamus denied; writ of cer-tiorari granted in part; denied in part.
HANNAH, C.J., not participating.
. On January 14, 2014, Friar filed a motion to bar the State from seeking the death penalty due to Friar’s mental retardation.
. In his original petition, Friar only requested we issue a writ of mandamus. However, we have treated petitions for mandamus as petitions for writs of certiorari. Ark. DemocratGazette v. Zimmerman, 341 Ark. 771, 20 S.W.3d 301 (2000) (we treat the petition for mandamus as one for certiorari); see Childress v. Humphrey, 329 Ark. 504, 950 S.W.2d 220 (1997) (per curiam)(petition for mandamus treated as petition for certiorari). | [
48,
-22,
-12,
-66,
26,
-63,
58,
-66,
81,
-58,
101,
-77,
-27,
-53,
17,
41,
104,
127,
100,
-7,
-60,
-74,
103,
-56,
114,
-13,
121,
-41,
50,
-53,
-4,
-16,
88,
104,
-38,
85,
66,
8,
-83,
88,
-122,
1,
-103,
96,
83,
-46,
32,
42,
30,
3,
33,
-98,
-29,
6,
94,
-53,
73,
108,
89,
-82,
73,
-7,
-102,
13,
-53,
20,
-93,
-92,
-98,
7,
80,
62,
-104,
49,
8,
-24,
115,
-106,
-118,
116,
107,
25,
12,
98,
98,
1,
81,
-57,
-72,
-120,
60,
47,
41,
-89,
-102,
73,
105,
69,
-106,
-3,
126,
52,
12,
124,
125,
84,
116,
108,
1,
-50,
-12,
-93,
-59,
108,
-34,
35,
-21,
37,
96,
117,
-115,
-30,
84,
71,
50,
27,
-98,
-12
] |
RITA W. GRUBER, Judge.
1 ]For the second time, Eric and Tama Anderson appeal from an order of the Pulaski County Circuit Court granting summary judgment and dismissing their claims against appellee CitiMortgage, Inc. We dismissed their first appeal for lack of a final, appealable order. Anderson v. Citimortgage, Inc., 2013 Ark. App. 545, 2013 WL 5496781 (Anderson I). Following remand, the circuit court entered a final order. We now consider the merits of the appeal and affirm the grant of summary judgment.
In Anderson I, we set forth the following background:
In 2001, the Andersons purchased a home on which Citimortgage’s predecessor in interest, First Nationwide Mortgage Corporation, held a mortgage. The face amount of the mortgage and the note it secured was $186,200. In March 2003, First Nationwide merged ■with Citimortgage, and Citimortgage began accepting payments on the Andersons’ mortgage.
The Andersons filed a Chapter 13 bankruptcy in February 2004 in order to retain possession of their home. Citi-mortgage was listed as a secured creditor. In 2008, Citimortgage notified the Andersons that it had not received payment from the | ^bankruptcy trustee.
In May 2009, the bankruptcy trustee filed a motion to dismiss the Andersons’ bankruptcy case, asserting that based on the claim filed and allowed, payments made into the plan to date, and currently scheduled plan payments, the plan would not be completed within sixty months from the effective date of the plan; and that the Andersons were in material default with respect to the terms of the plan. An order dismissing the bankruptcy case was entered on August 7, 2009.
In October 2009, Citimortgage, after reviewing information provided for that purpose, determined that the Andersons did not qualify for a loan modification. Further discussions resulted in the approval of a December 2009 trial payment plan with monthly trial payments of $1,400 from January 1 through March 1, 2010. At the conclusion of the December 2009 plan,, the loan was reviewed for a potential modification, but denied as not meeting the requisite criteria.
In October 2010, a statutory foreclosure was commenced, and. the Andersons received a Notice of Default and Intent to Sell from Wilson & Associates. The notice stated that Wilson & Associates would conduct the sale on November 30, 2010.
On November 24, 2010, the Andersons filed the present action against Citimort-gage, Wilson & Associates, PLLC, and Bank of America. The complaint asserted that Citimortgage persuaded Tama Anderson to dismiss her bankruptcy, promising to modify her loan and accept $13,000 to reinstate the mortgage; that Anderson dismissed her bankruptcy and tendered the above sum; and that Citi-mortgage then informed Anderson of additional fees and costs and did not modify the loan. The Andersons sought a temporary restraining order to enjoin any sale of the house; an accounting for all charges and payments; and damages for breach of contract, breach of fiduciary duty, fraud, and violation of the Arkansas Deceptive Trade Practices Act. They sought further relief in the form of having the security interest, mortgage, debt, and/or note voided, reinstatement of their mortgage, and punitive damages.
On November 29, 2010, an ex parte temporary restraining order was granted that prohibited the defendants from conducting, instituting, or maintaining any foreclosure action against the Andersons. The parties later agreed to the entry of an order extending the temporary restraining order. The Andersons were to remit their monthly mortgage payment into the registry of the court.
Citimortgage filed an answer stating that it was seeking to proceed under the statutory foreclosure act. After setting forth its version of events, Citimortgage also asserted that the Andersons were not entitled to have the security interest, mortgage, Isdebt, and/or note voided. The answer also asserted certain affirmative defenses and requested the complaint be dismissed.
Citimortgage later filed its motion for summary judgment and accompanying brief, to which the Andersons responded. Included with the response was a ten-page affidavit from Tama Anderson outlining her version of the events and her conversations with various Citimort-gage employees.
Following a hearing, the circuit court ruled from the bench and granted the motion for summary judgment. The order memorializing that ruling was entered on August 14, 2012, and dismissed the Andersons’ complaint in its entirety, with prejudice.
On August 23, 2012, the Andersons filed a motion for amendment of findings. The motion sought to have the circuit court set forth its reasoning for concluding that there were no issues of material fact as to any of the Andersons’ causes of action.... The circuit court took no action on the Andersons’ motion for amended findings, and it was deemed denied[.]
Anderson I, 2013 Ark. App. 545, at 2-4, 2013 WL 5496781.
On appeal, the Andersons raise two points: that the circuit court erred in determining that no genuine issue of material fact existed and in failing to set out its conclusions of law with specificity.
The Andersons first argue in several subpoints that there are genuine issues of material fact that preclude summary judgment. We disagree. Our supreme court has set forth the following standard of review with regard to motions for summary judgment:
Our standard of review for summary judgment cases is well established. Summary judgment should only be granted when it is clear that there are no genuine issues of material fact to be litigated, and the moving party is entitled to judgment as a matter of law. The purpose of summary judgment is not to try the issues, but to determine whether there are any issues to be tried. We no longer refer to summary judgment as a drastic remedy and now simply regard it as one of the tools in a trial court’s efficiency arsenal. Once the moving party has established a prima facie entitlement to summary judgment, the opposing party must meet proof with proof and demonstrate the existence of a material issue of fact. On appellate review, we ^determine if summary judgment was appropriate based on whether the evidentiary items presented by the moving party in support of the motion leave a material fact unanswered. We view the evidence in a light most favorable to the party against whom the motion was filed, resolving all doubts and inferences against the moving party. Our review focuses not only on the pleadings, but also on the affidavits and other documents filed by the parties. Moreover, if a moving party fails to offer proof on a controverted issue, summary judgment is not appropriate, regardless of whether the nonmoving party presents the court with any countervailing evidence.
Harvest Rice, Inc. v. Fritz & Mertice Lehman Elevator & Dryer, Inc., 365 Ark. 573, 575-76, 231 S.W.3d 720, 723 (2006) (citations omitted). The standard is whether the evidence is sufficient to raise a fact issue, not whether the evidence is sufficient to compel a conclusion. Wagner v. Gen. Motors Corp., 370 Ark. 268, 258 S.W.3d 749 (2007). A fact issue exists, even if the facts are not in dispute, if the facts may result in differing conclusions as to whether the moving party is entitled to judgment as a matter- of law. Id. In such an instance, summary judgment is inappropriate. Id.
The Andersons’ first subpoint is a “show-me-the-note” argument, that Citi-Mortgage cannot foreclose on their home because it did not produce the original note. They also argue that the public records do not show that CitiMortgage has an interest in either the note or the mortgage. These arguments are based on case law relating to judicial-foreclosure actions that require production of the note. See McKay v. Capital Res. Co., 327 Ark. 737, 940 S.W.2d 869 (1997); Corn Ins. Agency, Inc. v. First Fed. Bank, 88 Ark.App. 8, 194 S.W.3d 230 (2004). They have no application to the present case.
The right to foreclose a mortgage at a private sale is derived from the power conferred by the mortgage and does not exist independent of it. Stallings v. Thomas, 55 Ark. 326, 327, 18 S.W. 184, 184 (1892). The instrument creating such a power determines its extent, as well |5as the manner and conditions of its exercise, and those relying upon such a sale must show that it was made in obedience to the power. Id. The Arkansas statutes govern ing foreclosure of property through a private sale do not specifically require that the foreclosing party produce a physical copy of the original promissory note. Most courts that have recently considered the matter have held that production of the original note is not required before commencing a statutory-foreclosure proceeding. E.g., Hogan v. Wash. Mut. Bank, N.A., 230 Ariz. 584, 277 P.3d 781 (2012); Debrunner v. Deutsche Bank Nat’l Trust Co., 204 Cal.App.4th 433, 138 Cal.Rptr.3d 830 (2012); Jackson v. Mortg. Elec. Registration Sys., Inc., 770 N.W.2d 487 (Minn.2009); In re Adams, 204 N.C.App. 318, 693 S.E.2d 705 (2010).
Apart from there being no requirement that it produce the original note, CitiMort-gage submitted the affidavit of John Lin-nenbrink, its business-operations analyst and custodian of records, stating that the original note was in CitiMortgage’s possession. In response, the Andersons submitted the affidavit of one of their attorneys stating that he had researched the records concerning the Andersons’ property and had attached copies of all records filed as of January 13, 2011.
To the extent that the Andersons argue that CitiMortgage had a duty to record any assignment of the note or mortgage, there is no such duty. As recently stated by a federal court in Arkansas,
[Arkansas’s statutes “do not require assignments to be recorded.” Bryan v. Easton Tire Co., 262 Ark. 731, 733, 561 S.W.2d 79, 80 (1978). The rationale is easily understood. In Arkansas, a recorded mortgage provides constructive notice to subsequent purchasers that the subject property is encumbered by the mortgage. Ark.Code Ann. § 14-15-404(a) (West 2012). “But an unrecorded mortgage is good between the parties thereto, and constitutes a lien which may be enforced as against the mortgagor.” Judkins v. State, 123 Ark. 28, [33,] 184 S.W. 407, 408 (1916). In other words, a mortgage’s legal efficacy as to the original parties is not diminished if the mortgage goes unrecorded. The purpose of recording is simply to give constructive notice to subsequent purchasers. See Ark.Code Ann. § 14-15-404(a); Neas v. Whitener-London Realty Co., 119 Ark. 301, 178 S.W. 390, 391 (1915).
Brown v. Mortg. Elec. Registration System, Inc., 903 F.Supp.2d 723, 727 (W.D.Ark.2012), aff'd, 738 F.3d 926 (8th Cir.2013). Because CitiMortgage presented evidence in the form of the Linnenbrink affidavit that it was in possession of the note, it was incumbent on the Andersons to meet proof with proof in order to create a genuine issue of material fact. See Campbell v. Asbury Auto., Inc., 2011 Ark. 157, 381 S.W.3d 21. They did not do so. Therefore, the circuit court correctly granted summary judgment in favor of CitiMortgage on the Andersons’ claim to void any interest CitiMortgage might have in the mortgage and note.
We address the Andersons’ sub-points on their fraud and Arkansas Deceptive Trade Practices Act claims together because they rely on the same basic allegations. The factual predicates for these arguments fail. One claim was that Citi-Mortgage continued to assess late charges and other fees despite the existence of the December 2009 repayment plan. Howev er, the documents the Andersons rely on expressly state that late charges and other fees would continue to accrue until the account was brought current.
The Andersons argue that CitiMortgage induced them to leave the protection of the 17bankruptcy court in return for a promised modification of their mortgage loan and then failed to grant a loan modification. However, the Andersons did not voluntarily leave their bankruptcy case; instead, it was dismissed upon motion of the bankruptcy trustee. That motion explained that the Andersons were in material default with respect to the terms of the confirmed plan, which limited the duration of the plan to a total of sixty months, because they were not making sufficient payments for the plan to be paid within that time. After the Andersons failed to appear at the hearing on the trustee’s motion, the bankruptcy court entered its order dismissing the bankruptcy case. It was the Andersons’ failure to comply with the terms of the bankruptcy plan, not any alleged misrepresentations by CitiMort-gage, that resulted in the dismissal of their bankruptcy case. Moreover, the Andersons admitted during discovery that they did not tender the $13,000 allegedly required in order to obtain a modification of their loan.
If a plaintiff responding to a motion for summary judgment cannot present proof of an essential element of the claim, the moving party is entitled to summary judgment as a matter of law. Quattlebaum v. McCarver, 2013 Ark. App. 376, 2013 WL 2457277; Lancaster v. Red Robin Int’l, Inc., 2011 Ark. App. 706, 386 S.W.3d 662. Here, the circuit court correctly granted summary judgment on the fraud and Arkansas Deceptive Trade Practices Act claims.
The Andersons’ fourth subpoint is that the circuit court erred in granting summary judgment on their breach-of-contract claim. The basis for this claim is the Andersons’ contention that they and Citi-Mortgage entered into the December 2009 repayment plan in order to reinstate their mortgage and pay off the balance. They alleged that they complied 18with the terms of this agreement by making timely payments in January, February, and March 2010. They further alleged that CitiMort-gage refused to accept continued payments in April and May 2010.
The repayment-plan document creates no such obligation on the part of CitiMort-gage to modify the Andersons’ loan. At the time of the repayment plan, the Andersons were approximately $40,000 in arrears on their mortgage. The plan itself shows that it was only for the January to March period, with payments of $1,400 per month. The document also provides that, during the plan, the terms of the note and mortgage “shall remain in full force and effect.” The plan does not alter the fact that the Andersons were not entitled to have the mortgage reinstated until they cured the default by paying the entire amount of the past-due payments, late fees, and costs and expenses, including attorney’s fees. See ArkCode Ann. § 18-50-114(a) (Repl.2003); Lambert v. Firstar Bank, N.A., 83 Ark.App. 259, 127 S.W.3d 523 (2003). Moreover, the Andersons acknowledged in their response to the motion for summary judgment that the December 2009 plan was actually a temporary measure while CitiMortgage considered whether to modify the loan.
The Andersons also assert that the circuit court erred in granting summary judgment on their breach-of-fiduciary-duty claim. The Eighth Circuit Court of Ap peals has recently held that a similar claim was nothing more than a variation of the show-me-the-iiote argument. Kraus v. CitiMortgage, Inc., 513 Fed.Appx. 624, 625-26 (8th Cir.2013). As such, |9there is no reversible error for the reasons discussed above under the Andersons’ first subpoint.
As their final subpoint, the Andersons argue that an issue of fact exists as to whether they are entitled to an equitable accounting. It appears that CitiMortgage gave the Andersons exactly what they wanted. John Linnenbrink’s affidavit in support of CitiMortgage’s motion for summary judgment stated that, as of January 2011, all payments that had been received were reflected in the attached accounting. The Andersons did not dispute Linnen-brink’s affidavit but asserted that “these are not current accountings of Plaintiffs’ mortgage and do not provide explanations for several of the fees. It is impossible for Plaintiffs to determine what CitiMortgage claims they owe on their mortgage absent a detailed accounting.” Although the Andersons requested more time to obtain discovery at the summary-judgment hearing, they did not comply with Ark. R. Civ. P. 56(f) by filing an affidavit stating that they were unable to present evidence in opposition to the motion for summary judgment. See Killian v. Gibson, 2012 Ark. App. 299, 423 S.W.3d 98. There is no basis for reversal on this issue.
For their second point on appeal, the Andersons contend that the circuit court erred in denying their request for specific findings of fact and conclusions of law. After the court’s order granting summary judgment was entered, the Andersons filed a motion pursuant to Rule 52 of the Arkansas Rules of Civil Procedure requesting the court to amend the finding that it made and to make specific findings of fact and conclusions of law on eleven issues constituting the grounds of its decision. They requested that the court answer their questions |10so that they could have guidance in knowing what potential claims they may have against Citi-Mortgage. The circuit court failed to act on the motion, and it was deemed denied.
This court has recently rejected such an argument, stating:
First, the court’s ruling dismissing this case was made pursuant to Ark. R. Civ. P. 56 (2011). A court grants a motion for summary judgment when it determines that there are no genuine issues of material fact to be litigated and, therefore, that the party is entitled to judgment as a matter of law. By definition, the action was never “tried upon the facts” to either a jury or the court. The object of a summary judgment proceeding is not to try the issues, but to determine if there are any issues to be tried. Thus, Rule 52 is inapplicable to a court’s decision pursuant to Rule 56. Furthermore, Rule 52 specifically provides that “[fjindings of fact and conclusions of law are unnecessary on decisions of motions under these rules.” Appellant argues that, notwithstanding this language, the better practice would be for the court to explain its decisions. Perháps. But this court has no authority to rewrite Rule 52; accordingly, we affirm the court’s denial of his motion.
Summers v. Byrd, 2012 Ark. App. 171, at 9, 392 S.W.3d 374, 378-79 (alteration in original) (citations omitted). Moreover, a party is not entitled to a direct answer on every specific requested finding if the circuit court’s findings adequately address the issues. Lawson v. Sipple, 319 Ark. 543, 893 S.W.2d 757 (1995).
Affirmed.
WYNNE and BROWN, JJ., agree.
. Ark.Code Ann. §§ 18-50-101 to -117 (Repl. 2003 & Supp.2013).
. Other cases are collected in William Howard, Annotation, Necessity of Production of Original Note Involved in Mortgage Foreclosure-Twenty-First Century Cases, 86 A.L.R.6th 411, § 5 (2013).
. This contradicts the statements in Tama Anderson's affidavit that the letter she received contained no such statement. However, the document was attached as an exhibit to the Andersons’ complaint. | [
-16,
108,
-3,
-20,
-84,
-16,
56,
-104,
-40,
96,
39,
83,
127,
-62,
21,
45,
-28,
125,
-23,
121,
69,
-77,
55,
-120,
-45,
-77,
-13,
-43,
-80,
111,
-28,
22,
76,
32,
-62,
-43,
-58,
-128,
-57,
28,
14,
3,
-103,
101,
-39,
66,
49,
-17,
84,
13,
37,
14,
-13,
45,
57,
66,
104,
40,
-5,
-87,
-112,
-72,
-117,
5,
111,
23,
-95,
-91,
-104,
-121,
88,
44,
-108,
49,
1,
-23,
50,
-74,
-122,
84,
74,
27,
13,
116,
102,
-128,
69,
-51,
-40,
-104,
6,
-34,
-97,
-125,
-110,
121,
18,
103,
-73,
-97,
124,
7,
7,
-4,
110,
-107,
57,
108,
5,
-50,
-42,
-109,
47,
85,
24,
-117,
-10,
19,
-80,
117,
-52,
-16,
94,
-106,
59,
59,
-54,
-14
] |
George Rose Smith, J.
This is a suit by the appellants for partition of a 77-acre tract which they assertedly own as tenants in common with the appellee Ernest Harris. Harris defended upon the ground that he had acquired title to the land by adverse possession, and the chancellor so found. The correctness of that ruling is the principal issue on appeal.
The land in question was owned by the parties’ ancestor, E. W. Wheeler, at his death in 1935. By the terms of Wheeler’s will the property was left to his only surviving child, Alberta Johnson, for life, with remainder in eleven equal parts to the testator’s ten grandchildren and to Dess Hampton, the husband of one of the granddaughters. The life tenant had possession of the property until her death in 1942. During her lifetime she purchased an outstanding drainage district tax title to the land, but of course this amounted only to a redemption, as it was her duty to pay the taxes and special assessments. Ark. Stats. 1947, § 84-925; Williams v. Anthony, 182 Ark. 810, 32 S. W. 2d 817; Higginbotham v. Harper, 206 Ark. 210, 174 S. W. 2d 668.
Upon the death of the life tenant in 1942 the right of possession passed to the eleven remaindermen, as tenants in common. As a matter of fact only one of the tenants in common, Ella Hampton, who was the life tenant’s only child, took possession of the property. Without objection from her cousins Ella Hampton held the land until her death, either farming it herself or renting it to others. In 1947 she conveyed twenty acres to her son, the appellee Ernest Harris, who thereafter received the rents from those twenty acres. It is not shown that any of the other cotenants had knowledge of Ella’s deed to the appellee nor of a later deed by which Ella and her son conveyed two acres to a church. Ella died in 1952, and the appellee had been in possession for slightly less than seven years when this suit was filed by the appellants, who are the other nine grandchildren or their successors in title. The other tenant in common, Dess Hampton, was joined as a defendant but made no defense.
In claiming title by adverse possession the appellee must rely upon his own possession and that of his mother, both of whom were tenants in common with the appellants. It is a familiar rule that mere possession by a tenant in common is insufficient to show the necessary element of hostility, for each cotenant has an equal right to occupy the property. For the possession of a tenant in common to be adverse it is necessary that knowledge of his hostile claim be brought home to his cotenants, either directly or by notorious acts of such an unequivocal character that notice may be presumed. Smith v. Kappler, 220 Ark. 10, 245 S. W. 2d 809; Woolfolk v. Davis, 225 Ark. 722, 285 S. W. 2d 321. Even stronger evidence is required where, as here, a family relationship exists. Staggs v. Story, 220 Ark. 823, 250 S. W. 2d 125.
We consider the proof quite insufficient to establish the claim of title by adverse possession. There is no showing that either the appellee or his mother ever notified the other cotenants, or any of them, that a hostile claim of ownership was being asserted. Nor were there notorious acts of such an unequivocal character that notice must be presumed. Possession alone carries no implication of hostility to the cotenants. Harris and his mother paid the taxes, hut such payments were to be expected in view of their enjoyment of possession and their collection of the rents. The execution of the deeds that we have mentioned added nothing to their claim, as the appellants did not have knowledge of these conveyances and were not required to take notice of instru ments outside their own chain of title. Etchison v. Dail, 182 Ark. 350, 31 S. W. 2d 426.
We do not regard as controlling the cases cited by the chancellor and relied upon by the appellee: Jones v. Morgan, 196 Ark. 1153, 121 S. W. 2d 96; Toomer v. Murphy, 198 Ark. 610, 129 S. W. 2d 937; and Hildreth v. Hildreth, 210 Ark. 342, 196 S. W. 2d 353. In those cases the cotenant’s assertion of a hostile claim was strongly supported by proof of positive acts of ownership, such as the making of costly improvements. Here the bare possession of the appellee and his mother stands almost alone, unsupported by affirmative acts that might be considered to be a tacit repudiation of the tenancy in common.
Reversed and remanded for further proceedings. | [
-12,
78,
-36,
76,
56,
-32,
42,
-70,
82,
-62,
-91,
83,
107,
0,
69,
45,
-29,
61,
113,
105,
-25,
-73,
7,
-128,
-48,
-13,
-21,
-59,
-65,
77,
117,
-57,
76,
32,
74,
81,
-62,
-94,
-55,
24,
-114,
-120,
-120,
109,
-39,
-112,
56,
107,
20,
15,
85,
-97,
-13,
-84,
53,
103,
73,
47,
-55,
-87,
80,
-72,
-114,
-116,
127,
19,
49,
6,
-112,
-127,
72,
8,
-112,
49,
8,
-24,
51,
36,
-122,
84,
6,
-103,
44,
36,
102,
1,
109,
-1,
-96,
26,
14,
-14,
-67,
-90,
-106,
72,
115,
65,
-65,
-107,
124,
64,
-25,
124,
-26,
-107,
92,
41,
21,
-49,
-42,
-95,
15,
-72,
-104,
3,
-45,
7,
48,
113,
-53,
-86,
92,
71,
126,
-101,
-122,
-80
] |
J. Seaborn Holt, Associate Justice.
Appellant, Ernest Newsom, a man of mature years and a lifelong resident of Logan County, Arkansas, was sentenced to a term of three years in the State Penitentiary for the crime of unlawfully fondling a child under Ark. Stats. §§ 41-1128 — 29. For reversal of the judgment appellant contends: “(I) The verdict is contrary to the evidence and not supported by the evidence, and is not sufficient to overcome the presumption of innocence. (II) The verdict is so excessive as to amount to cruel and unusual punishment.”
"We do not agree with either of these contentions. (I) The record reflects that a child, age 10, daughter of Mr. and Mrs. Roy Stallings, was left at Newsom’s home by her father. This was not unusual for this little girl had often spent some time with the Newsoms. About 9 o’clock on the evening in question Newsom walked the little girl home and her mother testified that when she arrived she was nervous and looked as if she wanted to cry. The mother found blood on the child’s clothing. Her sexual organs were red. The child was taken to Dr. Charles Smith who examined her and his findings were, in effect, that there was evidence of trauma and slight physical damage and bruising. Also there were two small areas that were raw as though mucous membrane or the skin had been scratched off. He further noted there was no evidence of any entrance into the vaginal cavity.
The little girl testified, in substance: I don’t know what happened, Mr. Newsom touched me. He touched me with his hand, it was underneath my clothing, he just bothered me, he put his hand under my dress, just had on my dress and underclothing. He put his hands inside my panties, this was around four or five minutes. He said not to tell anybody or I couldn’t visit him any more. He kissed me on the mouth, don’t know how many times he had his hands on me when he kissed me. Don’t recall whether he had shaved or not. He just messed around.
The above evidence was ample to support a conviction. Here the testimony of this little girl alone, if believed by the jury and it evidently was, was sufficient to convict when viewed in the light most favorable to the State as we must view it, Higgins v. State, 204 Ark. 233, 161 S. W. 2d 400: “It is a well-settled rule that the evidence admitted at the trial will, on appeal, be viewed in the light most favorable to the appellee, and if there is any substantial evidence to support the verdict of the jury, it will be sustained.”
(II) As pointed out, we cannot say the verdict was excessive in the circumstances. Section 41-1129, Ark. Stats., supra provides that the punishment for one guilty of the revolting crime here involved shall be not less than one year or more than five years in the State Peni tentiary and the trial court correctly so instructed the jury.
The jury returned the following verdict: “We, The Jury, find Defendant Guilty as Charged. The Court to Assess the Penalty.” Whereupon the court fixed his punishment at a term of three years in the State Penitentiary. It thus appears that the jury, by its verdict, directed the court to fix the punishment and this the jury had the right to do under provisions of Ark. Stats. § 43-2306 which provides: “When a jury find a verdict of guilty, and fail to agree on the punishment to be inflicted, or do not declare such punishment in their verdict, or if they assess a punishment not authorized by law, and in all cases of a judgment on confession, the court shall assess and declare the punishment, and render judgment accordingly.”
Finding no error in the trial of this case the judgment is affirmed. | [
112,
-20,
-123,
-4,
42,
96,
10,
-104,
-46,
-109,
115,
-13,
-87,
-11,
4,
121,
-101,
45,
-44,
113,
-43,
-105,
23,
67,
-14,
-5,
-72,
-59,
-73,
-51,
38,
-43,
75,
112,
74,
-15,
-30,
-54,
-15,
90,
-114,
-121,
-53,
-16,
-46,
-124,
102,
127,
68,
7,
49,
30,
-21,
42,
30,
-34,
41,
60,
91,
63,
72,
51,
-54,
-107,
-33,
16,
-93,
38,
-103,
-113,
-40,
34,
-40,
-79,
0,
-4,
51,
-74,
-126,
116,
77,
-119,
12,
98,
99,
49,
-115,
-89,
-96,
-55,
63,
-65,
-123,
-89,
-103,
104,
96,
13,
-105,
-107,
66,
22,
-114,
122,
-9,
-51,
87,
100,
-87,
-113,
52,
-71,
79,
42,
20,
58,
-13,
37,
17,
117,
-49,
-30,
84,
-59,
123,
-77,
-114,
-10
] |
George Rose Smith, J.
This is a will contest in which the appellants seek to set aside the will of Mattie Syme, who died October 18, 1959, at the age of 78. The appellants challenge the will on the ground of undue influence and testamentary incapacity. The proponent of the will is its principal beneficiary, the appellee Bob Bradley, a minister who was 31 years old when Mrs. Syme executed the will on November 7, 1958. The probate court upheld the will.
A narrative of the facts may conveniently begin in November of 1955, when young Bradley left Joplin, Missouri, to assume the pastorate of Christ’s Church, a nondenominational church at Rogers, Arkansas. In the following year the young people in the congregation advertised a lawn-mowing service as a means of raising money for the church. Mrs. Syme, who belonged to a different church, met the young minister in the course of making arrangements to have her grass cut.
A widow of moderate means, Mrs. Syme was then living in a home which she owned in Rogers. Three of her four children, all by her first husband, were still living, but none of them resided with their mother at Rogers. One daughter, the appellant Mary Gingrich, lived within the county, at Bentonville. The second daughter, Ruth Earp, who has since died, was then living in Ohio. The appellant Glenn Daniels, a son, lived in Texas, and Mrs. Syme’s grandson, the appellant William V. Daniels, lived in Ohio. There is an abundance of testimony, given by witnesses on both sides of the case, to show that the testatrix considered her children and her grandson to be culpably inattentive to her in her old age. She often complained about the infrequency of their visits; it cannot be doubted that she was lonely.
In 1957 Bradley and Mrs. Syme again met one another as in the preceding year. Bradley says that upon this or a later occasion he inquired about Mrs. Syme’s church affiliation. She expressed a desire to attend church if transportation could be arranged, and Bradley offered to come for her whenever she wished. Mrs. Syme eventually accepted this offer, and by the spring of 1958 she was attending Bradley’s church with some regularity, usually riding with Bradley or with his wife.
In about March of 1958 Mrs. Syme’s doctor suggested that she give up living by herself. She accordingly sold her house at Rogers and moved into the home of her daughter, Mrs. Gingrich, at Bentonville. At that time Mrs. Syme gave her daughter a check for $6,000, dated April 2, 1958. Why this money was paid is a disputed issue of fact, but the evidence preponderates in favor of the view that in return for the money Mrs. Gingrich was to take care of Mrs. Syme for the rest of her life.
At about this time Mrs. Syme executed what proved to be the next to the last of several wills made by her. This will, dated March 28, 1958, was prepared by her regular attorney, Wesley Sampier; its validity is not questioned. By this will the testatrix left Mrs. Gingrich five dollars, thereby disinheriting this daughter without explanation. After a bequest of $500 to the testatrix’s grandson the rest of the estate was left equally to her son Glenn and her other daughter, Ruth.
After staying with Mrs. Gingrich for less than three months Mrs. Syme became dissatisfied and moved into a hotel at Bentonville, where she remained until the last few weeks of her life. During the months between Mrs. Syme’s departure from Rogers in March and the execution of the contested will in November Bradley continued to visit her and to take her to church on Sunday at least part of the time. In August Mrs. Syme joined Bradley’s church.
The only description of the events immediately preceding the execution of the disputed will comes from Bradley himself. He says that in October or November Mrs. Syme brought up the subject and expressed her intention of leaving all her property to him, saying, among other things, that he had made it possible for her to go to church and to other places after she had been pretty well confined. Bradley discouraged tbe suggestion, telling Mrs. Syme that it would not be right for her to leave everything to him. In a few days, however, Mrs. Syme renewed her suggestion and seemed determined to carry it out. Bradley jotted down notes about her wishes and later took them to an attorney, Eugene Coffelt. Bradley says, and we find it natural to believe, that Coffelt thought it necessary to consult Mrs. Syme before actually preparing the will.
The will was executed under Coffelt’s supervision in the office of Coffelt’s uncle, which was on the ground floor of the hotel where the testatrix lived. One of the attesting witnesses thought, without being sure, that Bradley was present; but we think the weight of the evidence supports the trial judge’s belief that Bradley was not present at the execution of the will.
The will is rather long, but its provisions may be summarized as follows: (a) There is a bequest of $100 to the testatrix’s grandson, (b) The testatrix declares that she has advanced or loaned at least $7,300.00 to Mary Gingrich. She gives $3,325.00 of this money to Mrs. Gingrich and directs that her administrator collect the remaining $3,975.00 and divide it equally among Ruth Earp, Glenn Daniels, and Bob Bradley, (c) The three beneficiaries just named are to receive the proceeds from the sale of the real estate in Bentonville, after the payment of medical and funeral expenses and the costs of administration. (d) All the rest of the estate is given to Bob Bradley, who is named as executor, (e) There is a forfeiture clause by which anyone who contests the will is precluded from receiving any benefits under it.
About a month after the execution of the will Mrs. Syme apparently learned (and, if so, the information was correct) that her daughter Ruth was afflicted with cancer. A codicil, prepared by Coffelt and duly executed on December 5, provided that Bob Bradley should receive Ruth’s share if Ruth predeceased her mother, the testatrix.
During the remaining eleven months of Mrs. Syme’s life Bradley and his wife continued their kindnesses toward the elderly woman. On two occasions Bradley drove Mrs. Syme to Ohio for overnight visits with her daughter Ruth, who died in April of 1959. The present contest was instituted by the appellants after the death of Mrs. Syme on October 18, 1959.
We have no hesitancy in saying that the contestants’ proof falls short of establishing the charge of testamentary incapacity. Although Mrs. Syme suffered from arteriosclerosis it is not contended that she was mentally incompetent in the latter part of March, 1958, when she executed the will drafted by Mr. Sampier, entered into a contract for the sale of her house, and a few days later gave her daughter a check for $6,000. There is proof that the testatrix’s condition became progressively worse, but the weight of the evidence supports the trial court’s finding that she did not lack testamentary capacity on November 7, 1958.
The issue of undue influence presents a more difficult question. There is no direct proof of improper conduct on the part of the appellee, but the appellants insist that two circumstances strongly indicate the existence of undue influence: First, the testamentary scheme is unnatural in that the testatrix’s own descendants do not receive a fair share of the estate. Secondly, the appellee, as the testatrix’s spiritual adviser, occupied a confidential relationship toward her, had both the motive and the opportunity to exert a sinister influence, and in fact acted at least as the intermediary in communicating her wishes to the attorney who prepared the will. These arguments are forcefully presented, but they do not persuade us that the probate judge was wrong in his decision.
As to the first point, the testatrix had the privilege of dividing her estate any way she chose, and it is shown by the will' executed in March that she had no hesitancy about completely disinheriting at least one of her children. There is, as we have indicated, ample evidence to support the view that Mrs. Syme resented what she regarded as a want of affection on the part of her children.
Furthermore, we are not convinced that the testamentary scheme, if viewed through Mrs. Syme’s eyes, is quite as unnatural as the appellants consider it to he. The estate consists of three principal assets: (a) The Bentonville real estate, inventoried at a value of $6,500; (b) the balance due on the contract for the sale of the Bogers house, inventoried at a value of $8,916.77; and (e) the indebtedness of $7,300.00 that is mentioned in the will as being owed to the testatrix by Mary Gingrich. (The appellants insist that this debt was not really owed, but we are firmly of the view that the probate judge was right in rejecting Mrs. Gingrich’s testimony on this disputed point.)
When the will was executed Mrs. Syme was living in a hotel at a monthly expense of $100, plus her other living costs. Presumably she expected to pay those expenses from the income accruing from the sale of the house in Bogers, as it does not appear that she had any other liquid asset. If the testatrix believed, as nearly every human being does, that she would continue to live for the indefinite future, she might well have concluded that by the time of her death the balance payable upon the sale of the Bogers house would have been entirely consumed. In that event her division of the estate is not especially unnatural. If the sale of the Bentonville real estate should produce $6,000 after the payment of the expenses charged against it by the will (and the inventory indicates that this figure is not unreasonable), then it will be found that the testatrix’s method of dividing this money and the sum owed by Mrs. Gingrich will result in exactly equal payments of $3,325.00, to the penny, to each of the four principal beneficiaries of the will. We do not know, of course, if this distribution is what Mrs. Syme had in mind, but there is no other ready explanation for her method of dividing the amount assertedly owed to her by her daughter.
Upon the second point urged by the appellants we recognize the fact that the circumstances surrounding the execution of this will call for the closest scrutiny and may even give rise to a rebuttable presumption that undue influence was exercised. McDaniel v. Crosby, 19 Ark. 533; McCulloch v. Campbell, 49 Ark. 367, 5 S. W. 590; Orr v. Love, 225 Ark. 505, 283 S. W. 2d 667. But, after considering the record as a whole, we do not find that the weight of the evidence requires the will to be set aside.
There is no proof whatever tending to reflect upon the character of Bradley or his wife. There is no real reason to read a mercenary or sordid motive into conduct that is certainly not unusual or extraordinary in the circumstances of this case. Indeed, the testimony indicates clearly enough that the Bradleys’ thoughtfulness was not confined to this testatrix; similar kindnesses were extended to other members of the congregation. The actions that might be considered really unusual, such as Bradley’s two trips to Ohio, took place after the will had already been signed. Evidence of such conduct is admissible for its bearing upon the proponent’s actions as a whole, but influence exercised after the execution of the will does not affect the validity of the instrument. Page on Wills (1960 Ed.), § 15.10; Thompson on Wills (3d Ed.), § 146. We are inclined to conclude our opinion with the same thought that we expressed in Shipley v. Campbell, 226 Ark. 786, 294 S. W. 2d 59: “There is proof that Mrs. Mann, [the testatrix] preferred living with the Thomases to living with her cousin. There is proof that she was happy while in their care. Theirs was perhaps the only real kindness that Mrs. Mann received from anyone after the death of her husband. The fact that her recognition of that kindness may seem to have been unduly liberal is not a sufficient reason for declaring her will to be invalid.”
Affirmed. | [
119,
108,
-120,
14,
10,
-16,
40,
26,
98,
-30,
-27,
83,
-19,
76,
69,
45,
115,
45,
81,
121,
-61,
-77,
23,
112,
114,
-5,
101,
-44,
-93,
-51,
-76,
85,
77,
40,
74,
93,
66,
-118,
77,
24,
-116,
-64,
-23,
97,
-39,
-38,
50,
99,
84,
15,
21,
-98,
-105,
-84,
61,
98,
41,
108,
89,
-88,
72,
-71,
-94,
4,
125,
7,
1,
70,
-108,
-93,
72,
42,
-112,
20,
-128,
-8,
113,
-74,
-118,
116,
109,
-56,
12,
116,
102,
50,
-19,
-17,
-104,
-120,
79,
54,
-99,
-25,
-10,
25,
-64,
109,
-68,
-111,
112,
16,
26,
-12,
-28,
69,
28,
-88,
40,
-114,
-42,
-79,
37,
56,
-98,
3,
-29,
61,
34,
113,
-55,
-62,
124,
71,
113,
-109,
-121,
-96
] |
Ed. F. McFaddin, Associate Justice.
The appellant, Geominerals Corporation, seeks relief against appellees; Grace, one of its stockholders, and Potashnick, one of its directors. The claimed relief arises because of dealings the appellees had with the Corporation. Geominerals is a Delaware corporation, undertaking to make money through mineral leases and developments. Its principal place of business is in Louisiana, but it is duly domesticated in Arkansas. At all times herein, appellees Grace and Potashnick were stockholders in Geominerals Corporation; and from October 1957 to October 1958 Potash-nick was a director of Geominerals.
In February 1957 Geominerals paid Grace $175,000 for 250,100 shares of stock in U. S. Manganese Corporation, which is an Arkansas corporation organized, inter alia, to engage in manganese development. This sale by Grace to Geominerals is not under attack in this case. In order to pay Grace the $175,000 Geominerals borrowed $109,000 from appellee Potashnick, who was then a stockholder, but not a director, of Geominerals. The debt was evidenced by a note due in thirty days, bearing 5 % interest, and secured by a pledge of tbe 250,100 shares of stock in U. S. Manganese Corporation. As aforesaid, in October 1957, Potashnick was elected a director of Geominerals, and was such director until October 1958.
At the request of Geominerals, Potashnick several times extended the due date of the note, but in the fall of 1957 he began to press Geominerals for payment. In early December 1957 he set a date for the sale of the collateral (the 250,100 shares of U. S. Manganese stock); and appellee Grace was prepared to make a bid on this stock for the amount of the note and interest, and then proposed to sell one-half of the 250,100 shares of stock to Potashnick for one-half of the amount that Grace had paid. Because he was importuned by some of his fellow directors of Geominerals, Potashnick postponed the scheduled December sale of the collateral, but set a final date in January, 1958, when, if not paid, he would foreclose his collateral, and also proceed against the directors who had endorsed the note.
When Geominerals learned of Grace’s interest in the stock he was requested to make a loan to Geominerals for sufficient to retire the Potashnick note and interest; and Geominerals offered Grace 50,100 shares of the stock as a bonus if he would make Geominerals such a loan. Grace advised that he was not interested in making any loan, but was interested in buying all or a part of the 250,100 shares of the U. S. Manganese stock. Since the stock had cost Geominerals $175,000 it wanted some opportunity to try to sell the stock either for a profit or for enough to pay the cost; and the President of Geominerals (Mr. Tschirn) and Grace had telephone conversations about the matter. On January 17, 1958 there was a meeting of the directors of Geominerals held in Louisiana — at which Potashnick was absent — and the following Resolution was adopted:
“RESOLVED, that Charles W. Tschirn be given the authority to execute a sales contract in behalf of the Corporation to sell 250,100 shares of presently held U. S. Manganese Corporation stock under the following terms and conditions:
“(1) Geominerals will sell 250,100 shares of TJ. S. Manganese Corporation stock to R. B. Potashniek and Preston W. Grace in exchange for a note being held by R. B. Potashniek in the amount of $109,000 plus accumulated interest.
“ (2) Geominerals will receive an option from R. B. Potashniek and Preston W. Grace to purchase 200,000 shares of U. S. Manganese Corporation stock for the sum of $125,000. Said option shall become effective on August 2, 1958 and shall become null and void on October 1, 1958 . . .”
Clothed with the authority stated in the resolution, Mr. Tsehirn acting for Geominerals, entered into the following contract with Potashniek and Grace:
“THIS CONTRACT, Made and entered into this 29th day of Jan. 1958, by and between GEOMINERALS CORPORATION, a Delaware Corporation hereinafter referred to as ‘ Seller’, and R. B. POTASHNICK, of Cape Girardeau, Missouri, and PRESTON W. GRACE, of Batesville, Arkansas, hereinafter referred to as ‘Buyers’, WITNESSETH:
“ (1) Seller agrees to sell and Buyers agree to buy 250,100 shares of stock in U. S. Manganese Corporation for the sum of $113,798.99, and Seller agrees to deliver the said stock certificate with stock power duly executed attached, and Buyers agree, upon receipt of said stock certificate on this date, to pay the purchase price to Seller.
“(2) Buyers hereby grant to Seller an option to purchase from them on or after August 2, 1958, for a period extending to and ending on October 1, 1958, all or any part of 200,000 shares of U. S. Manganese Corporation stock at a price of 62%^ per share. If Seller herein elects to exercise said option, it shall give written notice thereof to Buyers, specifying the number of shares to be purchased. If such notice is given, Buyers agree to deliver stock certificate, with properly executed stock power attached, to Seller upon receipt of the purchase price therefor. This option to purchase shall expire October 1, 1958.
‘ ‘ IN WITNESS WHEREOF, the parties hereto have executed this instrument, Seller executing it by and through its President, Charles W. Tschirn, and Buyers executing this instrument by having the same executed on behalf of them by R. B. Potashnick. ’ ’
These copied instruments are hereinafter referred to as the “Resolution” and th.e “Contract”. Grace and Potashnick had the 250,100 shares of U. S. Manganese stock transferred on the books of U. S. Manganese Corporation and reissued: 125,000 shares to Grace and 125,100 shares to Potashnick. On September 30,1958, Geominerals notified Grace and Potashnick that Geominerals would exercise its full option to purchase, but never made any tender of money. On October 14, 1958 Grace and Potash-nick filed the present suit in the Independence Chancery Court against Geominerals, praying: “. . . that a declaratory Judgment be entered herein construing the terms and provisions of the written contract executed by the plaintiffs and defendants on January 29, 1958, and determining the rights of the plaintiffs and defendant under the terms of said contract and declaring specifically that defendant, Geominerals Corporation, has no right, title or interest in and to all or any part of the 250,100 shares of U. S. Manganese Corporation stock . . .” By answer and cross complaint Geominerals claimed, inter alia-. (1) that the contract of January 29, 1958 involving the stock was not a sale of the stock with an option to repurchase, but was, in fact, a loan and a cloak for usury; and (2) that Grace, as a stockholder, and Potashnick as a director of Geominerals, did not deal fairly with the Corporation. Trial in the Chancery Court resulted in a decree in favor of Grace and Potashnick on all points; and from that decree Geominerals brings this appeal, presenting the issues now to be discussed.
I. The Contract Of January 1958. Geominerals most vigorously urges that the contract of January 1958 (as previously copied) was a loan, and not a sale of the stock with an option to repurchase. Of course, if Geominerals should prevail on this point it would recover the entire 250,100 shares of stock and the debt would be cancelled because it is practically conceded that there would be usury in the transaction. So the first question is, whether the transaction of January 29, 1958 was in fact a loan. The rule is, that one who seeks to convert an absolute conveyance into a defeasanced instrument has the burden of proving the defeasance by evidence that is clear, unequivocal, and convincing. Newport v. Chandler, 206 Ark. 974, 178 S. W. 2d 240, 155 A.L.R. 1096; and Marshall v. Marshall, 227 Ark. 582, 300 S. W. 2d 933.
Tested by the rule of these cases, we cannot say that the Chancery Court was in error in holding that Geo-minerals failed to discharge such burden. It is true that the President of Geominerals, Mr. Tschirn, and three of the Directors testified that they intended all the time for the transaction to be a loan. But there are many circumstances which negative the effect of such testimony. Grace was approached to make a loan and he said he was not interested in a loan but that he was interested in buying the 250,100 shares because at that time' it was believed that U. S. Manganese would be involved in a merger which would increase the value of its stock. Furthermore, the Potashniek note had on it the personal endorsement of some of the Directors of Geominerals, and by the sales contract of January 1958 these Directors escaped all personal responsibility. If the transaction were to be a loan, certainly Potashniek would not have released the personal endorsements on the obligation. Again, after executing the contract on January 29,1958, the President of Geominerals advised all the stockholders that by paying the note of $109,000 the financial position of Geominerals had been considerably improved, and that Geominerals still had the option to reacquire the stock. The same directors, who testified that they intended the transaction to be a loan, admitted on cross examination that they voiced no objection when they saw the financial reports to the stockholders which stated that the transaction was a sale.
Finally, on September 26, 1958, Geominerals, while still unable to obtain funds to reacquire the stock, nevertheless wrote a letter to Potashnick and Grace as follows:
“Please accept this letter as notice that Geominerals will exercise a certain option dated January 29, 1958 by and between Preston W. Grace, R. B. Potashnick, and Geominerals Corporation.
‘ ‘ Geominerals will exercise the full option to purchase 100,000 shares of U. S. Manganese stock from Preston W. Grace at 62%^ per share, and 100,000 shares of IT. S. Manganese stock from R. B. Potashnick at 62% (i per share.
“Please make the stock available on October 1, 1958 at which time Geominerals will deliver the full purchase price.”
If Geominerals had thought on September 26th that the transaction was a loan, then it would not have been writing about exercising the option to purchase. Potash-nick and Grace waited all of October 1st for Geominerals to pay the money to exercise the option to repurchase, but no money was ever paid and no money has ever been tendered. Instead, sometime in October 1958 Geominerals entered into a contract with a Mr. Hess, who agreed to finance the litigation to try to recover some part of the 250,100 shares of stock.
Without further discussion of the evidence, we conclude that Geominerals failed to offer the quantum of proof required to sustain its contention of a loan; and such holding disposes of all question of usury since the transaction was not shown to be a loan.
II. Geominerals’ Claim Against Grace. Geominerals urges that even though we should hold — as we have — that the transaction of January 1958 was in fact a sale and option, nevertheless we should set the sale aside because appellee Grace was a stockholder of Geominerals and could not lawfully exercise, as lie did, the duress and business compulsion on Geominerals which culminated in the contract of January, 1958.
As heretofore recited, Grace was only a minority stockholder in Geominerals and was never an officer or employee of the corporation. In 13 Am. Jur. p. 468, ‘ ‘ Corporations ’ ’ § 415, the holdings are summarized: ‘ ‘ Shareholders, it is said, have as much right to contract with a corporation as if they were strangers, provided the contract is bo na fide, . . . Stockholders of a corporation have the same right that strangers have to purchase its property, . . .” In Fletcher’s “Cyclopedia of Corporations”, Permanent Ed., Vol. 13, § 5737, many cases are cited to sustain the text: “As stated in a preceding chapter, there is nothing in the relation between a corporation and its stockholders which per se prevents dealings between them. A stockholder may deal with the corporation through its duly authorized officers and agents, making any contract with it which a stranger might make, and the transaction is just as valid as if it were between the corporation and a stranger, . . .” See also 18 C.J.S. p. 1163 ‘ ‘ Corporations ’ ’ § 489, et seq.; and see also annotation in 31 A.L.R. 2d p. 663. Tested by these rules, and bearing in mind that Grace was only a minority stockholder, we fail to see wherein Geominerals can now complain against Grace. That he drove a hard bargain is quite apparent, but he dealt with the corporation at arm’s length and the Board of Directors of Geominerals understood the bargain that Grace was driving when it adopted the resolution (previously copied) authorizing the execution of the contract. Thus, insofar as Grace is concerned, the Chancery decree is affirmed.
III. Geominerals’ Claim Against Potashniclc. This is the point in the case that has given us the most concern. In February 1957, when Potashnick loaned Geominerals the $109,000, he was only a stockholder; and what we have said about Grace would apply to Potashnick if he had remained as only a stockholder. But in October 1957 Potashnick became a director in Geominerals and so continued until the annual stockholders’ meeting in 1958. It was during the time when he was a director that he pressed Geominerals for the repayment of the loan and finally took the contract of sale in January 1958. A stockholder may deal with a corporation as Grace dealt in this instance; but a director owes the corporation a higher duty than does a mere stockholder. In Ward v. McPherson, 87 Ark. 521, 113 S. W. 42, we said:
“. . . contracts between corporations and their directors, dealing with the corporate assets, are not void but voidable. Where they are held voidable, however, all agree that they are more closely scrutinized than ordinary contracts; and the burden is upon those claiming under them to prove that they are made in good faith and fair to the corporation. 2 Thompson on Corporations, §§ 4040-4049, 4060-4064; 3 Clark & Marshall on Corporations, p. 2302-2307, § 761; Helliwell’s Supp. to Clark & Marshall, § 76; Jones, McDowell & Co. v. Ark. Mech., etc. Co., 38 Ark. 17; Searcy v. Yarnell, 47 Ark. 269, 1 S. W. 319. The burden was upon Ward to show the fairness to the corporation of this lease, and this he has wholly failed to do.”
To the same effect see also Walker-Lucas v. Hudson Oil Co., 168 Ark. 1098, 272 S. W. 836; Oliver v. Henry Quellmalz Co., 170 Ark. 1029, 282 S. W. 355; Harris v. United Service Co., 182 Ark. 779, 32 S. W. 2d 618; and Oil Fields Corp. v. Hess, 186 Ark. 241, 53 S. W. 2d 444. The Arkansas rule is the rule generally. In Fletcher’s ‘ ‘ Cyclopedia on Corporations”, Permanent Ed., Vol. 3, § 921, the above quoted Arkansas cases and cases from many other jurisdictions are cited to sustain this statement; ‘ ‘. . . the burden is on the director seeking to uphold the transaction not only to prove the good faith of the transaction, but also to show its inherent fairness from the viewpoint of the corporation and those interested therein.” In 31 A.L.R. 2d 663 there is an annotation on dealings between a director and the corporation, and in regard to loans by a director the holdings are summarized in this language: “. . . a director or an officer of a corporation will not be permitted to make a profit of Ms official position. He must give to tbe corporation the benefit of any advantage which he has obtained thereby . . .”
Tested by the holdings just summarized, we conclude that Potashnick did not offer sufficient proof to satisfy the burden resting on him to establish that the contract of January 1958 between him and the corporation was fair to the corporation. In January 1958 Geominerals owed Potashnick a debt and interest which amounted to $113,-798.99 and tMs debt was secured by 250,100 shares of stock in U. S. Manganese Company. Potashnick knew, or had notice, that Geominerals had paid $175,000 for this stock. The burden was on Potashnick to show that in January 1958 the 250,100 shares of U. S. Manganese stock had no greater value than the $113,798.99 which was the debt and interest then due Potashnick. If the stock had a greater value than $113,798.99 it was Potashnick’s duty, as a director of Geominerals, to attempt the sale of the stock for the greater value and, after liquidation of his debt and interest, render the remaining balance to the corporation. He could not reap a windfall profit by pressing the corporation into delivering to him the stock at anything less than its full value.
Furthermore, in dealing with the corporation Potash-nick accepted the benefits under a contract (i.e., of January 1958) whereby if Geominerals should ever exercise its option it could never recover the entire 250,100 shares of U. 8. Manganese stock but could only recover 200,000 shares; and that at a price in excess of what the Potashnick note and interest would have been at the time the option was exercised. We cannot say that this contract between Potashnick and Geominerals was fair to the corporation. It was a hard bargain to drive with a financially weak corporation that was struggling for its very existence. That tMs was known, or should have been known, to Potashnick is shown by the recitals in the minutes of the January 1958 meeting, which was the same meeting that authorized the Potashnick-Grace contract. These minutes read:
“Mr. Tschirn submitted an up-to-date financial statement to the Directors which showed the critical financial position of the Company at the present time. He stated that the Company had to secure $15,000 financing immediately, or the Company was in danger of Bankruptcy . . .”
Without further reviewing the evidence we conclude that Potashnick has not discharged the duty imposed on him of proving that his contract with Geominerals of January 1958 was fair to the corporation. The result is, that Geominerals must still have the right to pay Potashnick one-half of the original debt and interest and recover of him the 125,100 shares of U. S. Manganese stock (which he received by virtue of his contract with the corporation in January, 1958), together with any dividends received by Potashnick on the stock since January 28, 1958. Geo-minerals should have sixty days from the date of this opinion in which to make said tender, but upon failure to make such tender, all rights of Geominerals to the said stock will be terminated. Only insofar as concerns Potashnick is the decree reversed. In all other respects the decree of the Chancery Court is affirmed, and the cause is remanded to the Chancery Court for further proceedings in accordance with this opinion. The costs of this Court are taxed, one-fourth against Potashnick and three-fourths against Geominerals.
Robinson, J. dissents on the first point. He is of the opinion that the sale was a loan and was usurious.
This is true because the debt on January 18,1958 was $113,798.99, whereas the option figure for repurchase was $125,000; and in addition 50,100 shares of stock would be retained by Grace and Potashniek.
Of course, Geominerals urges the same arguments against Potash-nick as a stockholder that are urged against Grace; hut we reserve the claim against Potashnick for Topic III of this opinion because he was also a director of Geominerals, and we are considering in this topic only the stockholder phase of the case.
Appellant cites ns to the annotation in 79 A.L.R. 855 entitled: “Doctrine of business compulsion”; but the facts in this case show no application for such a doctrine, even if permissible under our cases.
As we calculate this figure, it would be $56,899.50 (one-half of the $113,798.99 for which amount Potashnick receipted Geominerals on January 29,1958), together with interest thereon at the rate of 5% per annum (the rate of interest stated in the original note) from January 29, 1958 until paid. | [
116,
-24,
-72,
12,
10,
112,
56,
-118,
65,
35,
-75,
-41,
-3,
110,
20,
33,
-91,
45,
-28,
106,
-73,
-96,
7,
-56,
82,
-109,
121,
-51,
48,
127,
-92,
-43,
77,
48,
-54,
85,
-50,
-110,
-51,
94,
14,
1,
58,
-51,
-7,
0,
48,
95,
80,
79,
113,
-122,
115,
41,
28,
79,
77,
46,
-1,
61,
-64,
-24,
-85,
4,
127,
20,
-127,
4,
-112,
-25,
-40,
14,
-104,
-80,
8,
-24,
114,
-74,
70,
-12,
11,
-7,
8,
32,
98,
5,
-127,
-25,
-8,
-120,
62,
-34,
-115,
-89,
-28,
8,
65,
77,
-66,
-68,
60,
86,
6,
124,
-14,
-123,
-35,
77,
3,
-38,
-10,
-95,
13,
-3,
-35,
3,
-17,
-105,
54,
112,
-56,
-94,
92,
86,
58,
23,
-122,
-79
] |
Paul Ward, Associate Justice.
One of the principal questions presented on this appeal is whether there was a novation which discharged the maker of a note. The other question involved is whether certain transactions created a constructive trust. The trial court held that there was a novation but that there was no constructive trust. Appellant seeks a reversal on both questions.
The factual background out of which these questions arise is substantially as presently set forth.
On December 21, 1956 Ulysses G. Dalton, III, and his wife, Helen, (hereafter sometimes referred to merely as Dalton) purchased a 1957 Model Ford car from N. F. Trotter, executing to Trotter a conditional sales contract and also a note payable in monthly installments of $70.24 — the last payment falling due August 5, 1959. The contract and note were purchased by appellant, The Simmons National Bank of Pine Bluff. On December 19, 1957 Dalton’s car was involved in a collision with another car near Beebe, Arkansas, resulting in considerable damage to Dalton’s car. The record discloses that the insurance carrier on the other car involved paid $750.00 for the damage done to Dalton’s car. A few days after the collision Dalton traded his wrecked 1957 Ford for a new 1958 Ford (sales price of the new Ford being $3,180,000) with Guy Thompson who was at the time a Ford dealer at Beebe. In accordance with the trade agreement between Dalton and Thompson the latter received the $750.00 insurance payment heretofore mentioned, the wrecked 1957 Ford (valued at $2,180.00) and a note (with the conditional sales contract executed by Dalton to Thompson) in the amount of $2,400.00 payable in equal monthly installments. In addition, and as a part of said trade agreement, Thompson agreed with Dalton that he would pay the balance (amounting to approximately $1,400.00) due appellant by Dalton on the note and conditional sales contract heretofore mentioned. Thompson transferred, with recourse, to the Universal C.I.T. Credit Corporation (hereafter referred to as “C.I.T.”) the $2,400.00 note and conditional sales contract and received from C.I.T. a check for the full amount of $2,400.00.
Early in January 1958 Thompson mailed appellant a check for the balance due on the said Dalton note but about a month later appellant returned the check to Thompson (uncashed) because Thompson had asked to have the title to the 1957 Ford attached to the check and appellant did not have the title in its possession. It appears from the record that Dalton had not paid the sales tax on the 1957 Ford and consequently the Revenue Department of this State had not issued to him the said title. While appellant was holding Thompson’s check it notified Dalton about the absence of the title to the 1957 Ford and asked him to obtain same. Dalton made an effort to obtain a title certificate from the Revenue Department but for some reason failed to do so — and that was when appellant returned the $1,400 check to Thompson.
Following’ the above Thompson made three or more payments to appellant on the Dalton note but he did not make sufficient payment to keep the monthly payments current. Appellant in an effort to get Thompson to make regular payments on the note wrote him some nine or ten letters beginning on January 6, 1958 and ending on October 22, 1958. On or about the last mentioned date, when it became fully apparent to appellant that Thompson was insolvent and that he was not going to continue making payments on the note, it so informed Dalton, and it also told Dalton at that time that it was looking to him to pay the balance due on the note. Dalton, however, informed the Bank that he did not consider himself bound on the note for the reason that Thompson had agreed to pay it and thereupon appellant instituted this litigation.
In its Complaint in the Circuit Court appellant sought judgment not only against Dalton and his wife in the sum of $1,109.36, with interest, (the balance due on said note), but also asked that Dalton and the Credit Corporation “be made trustees to the extent of the aforesaid judgment of the 1958 four door Ford sedan” then in the possession of Dalton. Dalton filed a Cross Complaint, making Thompson a party defendant, and asked for judgment against him and C.I.T. C.I.T. entered a general denial and stated that it was a bona fide purchaser of the note and conditional sales contract executed for the purchase of the 1958 Ford. The cause was transferred to the Chancery Court.
After a hearing the Chancellor decree that there was a novation and relieved Dalton of all liability on the note, but refused to hold C.I.T. and Dalton, or either of them, liable to appellant as trustees. The Chancellor also dismissed Dalton’s Cross Complaint against Thompson and C.I.T. On appeal appellant contends (a) that the trial court erred in failing to hold C.I.T. and Dalton as constructive trustees, and (b) that it was error to release Dalton from the indebtedness.
Constructive Trust. In our opinion the Chancellor correctly refused to hold Dalton and C.I.T. liable to appellant as trustees. Apparently appellant concedes, as well it may, that neither of the above named parties was guilty of participating in any fraudulent transaction even though they both knew at the time the 1958 Ford was purchased that Dalton owed a balance on the 1957 Ford to the Bank. This is true because Dalton had a legal right to sell and Thompson had a legal right to buy or trade for the 1957 Ford without the knowledge or consent of appellant. See Dedman v. Earle, 52 Ark. 164, 12 S. W. 330, and Fairbanks, Morse & Company v. Parker, 167 Ark. 654, 269 S. W. 42. However, appellant says, citing authorities, that fraud is not always a necessary basis out of which a constructive trust relationship may arise. Even so, the cited authorities are of no avail to appellant under the facts of this case. Appellant relies on 89 C. J. S., Trust, Section 142, Page 1027, and also Restatement of the Law of Restitution, Section 160, Page 640, for authority that Dalton and C.I.T. hold funds ■which in equity and good conscience belong to it — the appellant — and that C.I.T. will be unjustly enriched if it is not held to be a trustee. We fail to see how this result would follow. Neither Dalton or C.I.T. has in any way impaired appellant’s security or imperiled its position — it still had Dalton on the note and it had a right to repossess the 1957 Ford. See Olson v. Moody, Knight & Lewis, Inc., 156 Ark. 319, 246 S. W. 3, and the cases cited therein. It is not denied that C.I.T. paid $2,-400.00 for the note and conditional sales contract given by Dalton to Guy Thompson and we know of no theory, under the facts of this case, that would constitute it a constructive trustee in favor of appellant. The same thing can be said in behalf of Dalton who legally purchased, for value, the 1958 Ford which he now has possession of. Nor do we agree with appellant that C.I.T. became a trustee in favor of appellant because it had knowledge that the $750.00 (paid by the insurance company for damage to Dalton’s 1957 Ford) was paid to Thompson as part of the purchase price for the new 1958 Ford. Even if it be conceded, as we do not here concede, that notice of the above facts would constitute C.I.T. as a trustee, we fail to find anything in the record to show that C.I.T. had such knowledge. No one testified to that fact and it was not shown on the conditional sales contract which C.I.T. purchased.
Novation. After careful consideration we have concluded that the trial court erred in holding that there was a novation, thereby relieving Dalton (and his wife) from the obligation to pay the note held by appellant. The learned Chancellor held, and it seems to be conceded by everyone, that there was no such novation at the time Dalton purchased the new 1958 Ford. It is undisputed that Thompson did agree to assume the debt to ■ appellant but it is not conceded by anyone that appellant knew of this agreement much less that it consented to release Dalton when the trade was made. Therefore, it must be assumed that if any novation occurred it took place later during the year 1958. The record fails to show, and Dalton does not even contend, that appellant at any time expressly agreed with Dalton that it would release him from the debt and look solely to Thompson for payment.
The learned Chancellor, however, took the view, and correctly so, that it was not necessary for appellant to expressly agree with Dalton that he wonld be relieved of liability and that he would look solely to Thompson, but that such agreement and intent on the part of appellant could be inferred from appellant’s actions. We do not agree, however, that such an inference is tenable under the facts of this case.
Let us take a look, therefore, at the record to see what appellant did and what transpired with reference to its dealings with Thompson and Dalton. Appellee Dalton lays much stress on the fact that appellant made an effort to collect from Thompson and it must be conceded that appellant did just that. Early in January 1958 (only a few days after Dalton traded cars with Thompson) Thompson mailed the $1,400.00 check to appellant with instructions to cash it only if the title to the 1957 Ford was attached. Appellant did not have said title, but it contacted Dalton and advised him of the situation. Appellant also, on January 10, 1958, wrote Thompson about the absence of the title, stating that they were informed that the sales tax had never been paid. In the letter appellant also stated that it had talked with Dalton about the matter and that Dalton was going to Little Rock to see about it. Again on January 23, 1958 appellant wrote Thompson that it had talked with Dalton that day and that Dalton was going to take the necessary papers to Little Rock the next day and that Dalton would let it know the outcome of his visit. On February 14, 1958 appellant wrote Thompson, returning his check, and stated that it was unable to secure the said title and also stated that there was a balance of $1,318.15 due on the Dalton note. The letter also advised Thompson that it was unwilling to continue carrying the account under the conditions without further payment. On March 5, 1958 appellant wrote Thompson another letter to the same effect. On March 28, 1958 appellant again wrote Thompson that “we will expect you. to pay U. Gr. Dalton’s car in full as soon as possible”. On May 2, 1958 appellant wrote Thompson to “please send another remittance on the account of Dalton”. On May 19, on August 5, and October 22, 1958 appellant wrote Thompson urging him to make payment.
The only two witnesses who were in position to testify relative to whether appellant Bank released Dalton from his obligation were W. E. Ayers, Assistant Cashier of appellant Bank, and Dalton himself. The relative portions of their testimony not heretofore mentioned are substantially as set out below.
Ayers was asked if there was any contact whatever with Dalton in regard to the delinquency of his account. He replied:
A. “Yes, on several occasions. I talked with him by ’phone and later he came to our office.”
Q. “"What was the nature of these conversations?”
A. “Briefly, it was to determine if he knew the reason for the delay in the title reaching our office, and if he knew any reason why it was being held up and also informed him that it was his responsibility to see that the account was paid in full.” (Emphasis supplied.)
Q. “Did he try to assist you in collecting this account.”
A. “Yes, it is our policy to assist our customers in any way we can, and naturally we followed that pattern in this case, agreeing to assist him in any way we could, at the same time indicating that so far as our records were concerned, the obligation was his.” (Emphasis supplied.)
Q. “Did you ever indicate to Ulysses Gr. Dalton he was no longer liable on this account?”
A. “No.”
■On Cross Examination:
Q. “Ik reply to your attorney’s question whether or not you had any understanding with defendant Dalton regarding this unpaid balance, you stated it was the policy of the Bank to assist the customers. Did you have any other understandings? What was the discussion had between you and Dalton regarding this account and payment of it?”
A. “Briefly, the discussion boiled down to this: So far as our records were concerned the obligation was U. G. Dalton’s.” (Emphasis supplied.)
Dalton’s testimony:
Q. “Did you receive any oral demands from The Simmons National Bank regarding the balance due?”
A. “I don’t think in the form of a demand. I did talk to them and they referred to the balance, but not in the form of a demand.”
Q. “Did they specifically ask you to make this payment at this time?”
A. “They didn’t specifically ask me to make the payment, but asked if anything could possibly be worked out, and I told them I assumed Mr. Thompson would take care of it.”
Q. “When was the last time they checked with you by ‘phone regarding this matter?”
A. “I think it was the month of May or June, by ’phone.”
Q. “Did you have any arrangements with the Bank to the effect they would collect it for you?”
A. “Not for me. I assumed it was his (Thompson’s) obligation to pay it; I was relieved of it.”
Q. “Were you not advised at that time the balance would have to be paid by someone primarily liable?”
A. “I was told it would have to be paid in order to clear your books, and you said you held me responsible, and I did mention to you that I did not feel I was obligated.”
Q. “Did you ever state to me (the Bank’s attorney) you didn’t feel you were obligated?”
A. “I stated that Mr. Thompson assumed the obligation to pay it off, at which time you mentioned I might consult a lawyer.”
Referring to the time when the automobile trade was made the witness was asked:
Q. “At that time you knew you were indebted to The Simmons National Bank?”
A. “Yes, sir.”
Q. “You knew they were holding retaining title on the vehicle?”
A. “Yes, sir.”
Q. “Did you notify the Bank of the collision?”
A. “I didn’t.”
Under the above factual situation we can see nothing, even in Dalton’s testimony, from which it can be legally inferred that appellant Bank agreed to or intended to release Dalton from his obligation on the note. Neither is there anything in Ayers ’ testimony, or in the numerous letters referred to above, from which it could be presumed that the Bank would in fact release Dalton. It appears conclusively to us, as it was stated by appellant’s employee, that what the Bank did amounted to nothing more than an effort to accommodate Dalton in its efforts to have Thompson pay Dalton’s debt. In this the Bank’s actions were in no way inconsistent with its intention to have Dalton remain liable on the note. In the case of Elkins v. Henry Vogt Machine Company, 125 Ark. 6, 187 S. W. 663, where the facts were somewhat similar to the facts here, the appellee company brought suit on three promissory notes signed by Elkins and others. The notes were given for machinery to be used in the erection of an ice plant owned by Elkins, et al. Elkins alleged that they had sold their interest in the machinery to C. C. Edwards, et al, with the understanding that they (Elkins, et al) were to be relieved from the pay ment of the note and that for a valuable consideration, consisting of the execution of a mortgage, to secure the payment of the indebtedness, and that the appellee Company released them from all liability. In that case this Court quoted with approval from 29 Cyc. 1130: “It is not essential that the assent to and acceptance of the terms of the novation be shown by express words to that effect, but the same may be implied from the facts and circumstances attending the transaction, and in the conduct of the parties thereafter. Such consent is not to be implied merely from the performance of the contract by the substitute, for that might well consist with the continued liability of the original parly . . .” (Emphasis supplied.)
In a ease of this kind the burden was on Dalton to show that he had been released by appellant Bank. In Brewer & Son v. Winston, Ad., 46 Ark. 163, it was so held. Brewer & Son brought an action against appellee Winston on a promissory note and recovered judgment before a Justice of the Peace. Winston appealed to the Circuit Court where he filed an answer stating that he had sold his equity of redemption in the mortgaged premises to a person by the name of Elliott who had assumed the debt as part of the purchase price, and that Brewer & Son had consented to accept Elliott as their debtor and to release the defendant Winston. The cause was tried in equity and a decree entered in favor of Winston. On appeal the Court stated the facts to be substantially as follows: The mortgaged premises had a grist mill on them valued at $325.00. Elliott was willing to purchase at the price, provided he was not pressed by the mortgage creditor whose debt was already past due; Brewer & Son assented to this arrangement — they were willing to receive payments from Elliott and give credit to Winston therefor but refused to give up Winston’s note and take Elliott’s note in lieu thereof; Winston swore that Brewer & Son consented to accept Elliott as their debtor and to release the original debtor, but Brewer and Elliott contradicted him. This Court in reversing the judgment of the trial court said: “But the judgment was wrong upon the merits. The burden was upon the defendant to prove that he had been discharged by a novation of the contract. ’ ’ This statement relative to the burden of proof has been approved in many other decisions of this Court.
Our decisions and the text-writers appear to be uniform in holding that it is necessary to show an intent on the part of the creditor to release an old debtor and substitute therefor a new debtor. In Home Life Insurance Company v. Arnold, 196 Ark. 1046, 120 S. W. 2d 1012, this Court, in dealing with this same question, said: “. . . the effect of the novation is the intention of the parties.” (Emphasis supplied.) Likewise, at Pages 266 and 267 of Volume 39 Am. Jur., it is stated, among other things, that: “In order to effect a novation there must be a clear and definite intention on the part of all concerned that such is the purpose of the agreement.” (Emphasis supplied.) In Williston on Contracts, Volume 6, Revised Edition, at Page 5254, Section 1870, under the sub-title “Necessity for the assent of all parties to a simple novation” it is stated: “It is undoubtedly a commonplace in the discussion of novations that the assent of all parties is necessary; and certainly . . . no old debtor can be discharged without the creditor’s consent, . . .” (Emphasis supplied.) Numerous cases therein are cited sustaining the above announcement.
In this case we are driven to the conclusion that Dalton did not, by his testimony, or the testimony of anyone else, discharge the burden which the law places upon him, and further that there is insufficient testimony to establish a clear and definite intention, or for that matter any intention at all, on the part of the appellant Bank to discharge Dalton from his obligation on the note. This conclusion is further substantiated by the concession of both parties and by the judgment of the Chancellor that there was not any novation at the time Thompson agreed to pay Dalton’s debt to this Bank, and by the undisputed proof that appellant did not know at the time of the arrangements made between Dalton and Thompson. If there was not any novation at that time then it would be interesting to speculate as to when the novation occurred. It is impossible it seems to us to fix such time under the record in this case. It follows, therefore, that the Chancellor erred in dismissing appellant’s Complaint against Dalton and to that extent the decree must be reversed.
Since the trial court held that Dalton was not liable, it then consistently held that Dalton had no right of action against Thompson and thereupon dismissed Dalton’s Cross Complaint. Since we are holding Dalton liable the cause must be remanded with directions that Dalton’s Cross Complaint against Thompson be reinstated.
The decree of the Chancellor is affirmed in part and reversed in part as heretofore indicated, and the cause is remanded with directions to enter a decree in accordance with this opinion.
Affirmed in part, reversed in part and remanded with directions.
Harris, C. J., not participating. | [
112,
-2,
112,
44,
26,
-96,
58,
-102,
-42,
36,
55,
83,
-19,
-57,
20,
101,
-26,
31,
117,
104,
-11,
-77,
7,
49,
-46,
-77,
-39,
-99,
-75,
-53,
-74,
87,
76,
32,
-118,
-35,
102,
10,
-123,
92,
-50,
-124,
58,
109,
88,
80,
48,
-18,
84,
13,
81,
-113,
-29,
46,
31,
74,
105,
42,
107,
56,
-48,
-79,
-118,
-123,
127,
20,
49,
5,
-100,
37,
-8,
14,
-108,
49,
0,
-24,
114,
-90,
-122,
-12,
111,
-119,
8,
34,
98,
0,
113,
-49,
-68,
-120,
6,
-18,
63,
-121,
-46,
89,
33,
33,
-97,
-99,
122,
18,
15,
-4,
-38,
13,
29,
100,
1,
-49,
-106,
-125,
-51,
120,
30,
9,
-1,
-93,
34,
113,
-49,
-26,
93,
21,
122,
-101,
6,
-6
] |
Sam Robinson, Associate Justice.
This appeal arises out of a suit in chancery court brought by appellee, Pearl Barringer by Izóla Ferguson, her next friend, against appellant, John T. Mason, asking that deeds to certain lands in Pulaski County be set aside. The chancellor found that at the time appellee executed same she was incompetent and therefore the deeds should be can-celled. From this ruling appellant has appealed.
In October, 1958, and April, 1959, appellee, an aged Negro woman, executed three warranty deeds conveying eight lots to appellant. She also revoked a power of attorney previously given to a daughter, Frances Smith. Each of the deeds was properly acknowledged and valid on its face.
The chancellor heard the testimony of a number of witnesses, some of whom were relatives and close friends of appellee and had known her for many years. It appears from the record that in 1955 appellee had deeded two of the lots to a third party and appellant had assisted in having that transaction set aside. A great number of incidents were related which support the allegation that at the time the deeds were executed appellee was incompetent. It would serve no useful purpose to recite this testimony here. We cannot say that the finding of the chancery court that the deeds should be can-celled because of appellee’s incompetency at the time they were executed is not supported by a preponderance of the evidence. Fikes v. Lee, 225 Ark. 192, 280 S. W. 2d 230; Oliphant v. Oliphant, 217 Ark. 446, 230 S. W. 2d 653.
Appellant urges, also, that the chancery court should have ordered the return of the consideration paid for the deeds. The chancellor found that this consideration, if any, was either returned to appellant or dissipated by appellee during her incompetency. We cannot say he erred in this finding. First National Bank v. Tribble, 155 Ark. 264, 244 S. W. 2d 33; Reaves v. Davidson, 129 Ark. 88, 195 S. W. 19.
Affirmed. | [
48,
108,
-16,
124,
-102,
-32,
24,
-104,
67,
-95,
-75,
83,
-81,
-50,
64,
109,
117,
121,
117,
121,
-61,
-77,
54,
32,
18,
-77,
89,
-36,
-75,
89,
-12,
87,
76,
96,
74,
-43,
70,
-62,
-51,
88,
-116,
39,
74,
101,
-39,
-16,
50,
111,
16,
79,
17,
-98,
-13,
46,
25,
-62,
104,
44,
91,
61,
88,
-70,
-114,
5,
127,
4,
-111,
5,
-98,
7,
-40,
46,
-112,
48,
0,
-8,
115,
-90,
2,
116,
75,
-103,
44,
102,
98,
16,
-99,
-33,
-40,
-71,
14,
126,
-115,
-121,
-110,
8,
67,
97,
-73,
-99,
125,
20,
7,
-12,
-2,
-123,
92,
40,
13,
-49,
-44,
-127,
13,
-8,
-112,
3,
-21,
-113,
112,
113,
-51,
-30,
93,
99,
113,
-101,
-114,
-14
] |
KAREN R. BAKER, Justice.
| ,This case arose from an order of the St. Francis County Circuit Court denying appellant Cleo McKenzie’s motion to quash several subpoenas duces tecum issued to his health-care providers for his medical records and for Rule 11 sanctions. Because resolution of the issues presented involve an extraordinary writ, our jurisdiction is proper pursuant to Arkansas Supreme Court Rule 1 — 2(a)(3) (2011). Because appellant has no other adequate remedy and because the proceedings are erroneous on the face of the record, we treat the appeal as a petition for a writ of certiorari and grant the writ.
Kayla Pierce and appellee Joshua Pierce were divorced on August 2, 2007, and Kayla was awarded custody of their minor child. On September 30, 2010, appellee filed a motion for a change of custody. Kayla Pierce McKenzie, now married to appellant, responded requesting that the motion be denied. Appellee asserted several grounds in support of his |2motion, including Kayla’s unstable marriage to appellant, appellant’s depression, and appellant’s lack of stability.
On June 13 and 14, 2011, appellee’s attorney caused subpoenas duces tecum to be served on the custodians of the records of two medical facilities requesting that the “medical/mental health records for Cleo McKenzie” be produced on June 23, 2011. On June 21, 2011, appellant filed a motion to quash, asserting that he was not a party to the custody dispute and that issuing the subpoenas violated his rights protected under Arkansas and federal law. He also sought sanctions pursuant to Arkansas Rule of Civil Procedure 11. At a hearing held on June 23, 2011, the circuit court ordered that the subpoenaed medical records be submitted to the court under seal but stated that they would not be reviewed by the circuit court at that time. The circuit court entered an order on June 23, 2011, denying the motion to quash and for Rule 11 sanctions. Appellant filed a notice of appeal from this order on June 24, 2011. On February 20, 2012, appellant filed with this court a motion to stay the lower court’s proceedings. On March 8, 2012, this court granted the motion in part and stayed the release of his medical and psychological records.
Both parties on appeal discuss other orders of the circuit court entered following the June 23, 2011 order denying the motion to quash. However, the notice of appeal states only that appellant “appeals from [that] order of the court denying his motion to quash, and his motion for Rule 11 sanctions.” Rule 3 of the Arkansas Rules of Appellate Procedure-Civil provides that a notice of appeal shall designate the judgment, decree, order, or part thereof from which the case is appealed. Orders not mentioned in the notice of appeal are not | ?,properly before the appellate court. Ark. R.App. P.Civ. 3(e); see also Racine v. Nelson, 2011 Ark. 50, 378 S.W.3d 93. Thus, we limit our review to the June 23, 2011 order.
A discovery order is interlocutory and generally not appealable. See Ford Motor Co. v. Harper, 353 Ark. 328, 107 S.W.3d 168 (2003). Specifically, an order denying a motion to quash a subpoena is not a final order for appeal purposes. In re Badami, 309 Ark. 511, 831 S.W.2d 905 (1992). It also is not an order that determines an action under Arkansas Rule of Appellate Procedure-Civil 2(a)(2). Id.; see also Ark. R.App. P.-Civ. 2(a)(2) (An appeal may be taken from an order which in effect determines the action and prevents a judgment from which an appeal might be taken, or discontinues an action.). Where no final or otherwise appealable order is entered, an appellate court lacks jurisdiction to hear the appeal. Ark Ins. Dep’t v. Baker, 358 Ark. 289, 188 S.W.3d 897 (2004). Because the order denying the motion to quash and for Rule 11 sanctions is not a final order, this court lacks jurisdiction to hear this case as an appeal. However, we may consider appellant’s appeal as a petition for extraordinary relief under the original jurisdiction of this court. See White v. Palo, 2011 Ark. 126, 380 S.W.3d 405.
There are two requirements that must be satisfied before this court will grant a writ of certiorari. Jordan v. Cir. Ct of Lee Cnty., 366 Ark. 326, 235 S.W.3d 487 (2006). The first | requirement is that there can be no other remedy but the writ of certiorari. Ark. Dep’t of Human Servs. v. Collier, 351 Ark. 506, 95 S.W.3d 772 (2003). Second, a writ lies where it is apparent on the face of the record that there has been a plain, manifest, clear, and gross abuse of discretion, or there is a lack of jurisdiction, an act in excess of jurisdiction on the face of the record, or the proceedings are erroneous on the face of the record. Jordan, supra. These principles apply when a petitioner claims that the lower court did not have jurisdiction to hear a claim or to issue a particular type of remedy. Hanley v. Ark. State Claims Comm’n, 333 Ark. 159, 970 S.W.2d 198 (1998).
As noted above, appellant does not have a right of appeal from the circuit court’s order denying the motion to quash as it is not a final order. Also, even when a final, appealable order is entered, he still will not have a right to appeal as he is not a party to the custody dispute. An appellate court cannot act upon an appeal taken by one not a party to the action before the trial court except under two circumstances. Swindle v. Benton Cnty. Cir. Ct., 363 Ark. 118, 211 S.W.3d 522 (2005). First, appellate review may be had where a nonparty seeks relief under Arkansas Rule of Civil Procedure 60(k), which provides that an independent action may be filed to relieve a person from judgment who was not actually served with process. Id. The second exception arises where any appellant, though not a party, has a pecuniary interest affected by the court’s disposition of the matter below. Id. Neither exception applies here, and appellant has no other remedy except for the writ of certiorari.
15 Ordinarily, a writ of certiorari will not lie regarding discovery matters. Monticello Healthcare Ctr., LLC v. Goodman, 2010 Ark. 339, 373 S.W.3d 256. A discovery ruling is a matter well within the circuit court’s jurisdiction and discretion, and a writ of certiorari will not lie to correct any perceived error in the circuit court’s ruling. Chiodini v. Lock, 373 Ark. 88, 281 S.W.3d 728 (2008). However, there are exceptions to the general rule. See, e.g., Ark. Democrat-Gazette, Inc. v. Brantley, 359 Ark. 75, 194 S.W.3d 748 (2004) (certiorari appropriate when the issue is not merely one of discovery).
We recognized an exception in Kraemer v. Patterson, 342 Ark. 481, 29 S.W.3d 684 (2000), that is dispositive of whether the writ should lie in this case. In Kraemer, the plaintiffs sought a writ of certiorari to preclude enforcement of an order permitting the defendants in a medical-malpractice action from calling as an expert witness one of the plaintiffs treating physicians. The plaintiffs argued that the circuit court’s order violated Arkansas Rule of Evidence 503, which prohibits any informal, ex parte contact or communication with the patient’s physician. We rejected the contention that the issue could be addressed on appeal if the plaintiffs did not prevail in the suit:
| cWe hold, therefore, that Rule 503(d)(3)(B) by its plain language forbids ex parte communication with the patient’s physician in the absence of the patient’s consent. Further, because the Rule also denies the court the authority to compel the patient’s consent, we also hold that the trial court erred in authorizing ex parte communication between Dr. Cloud and defense counsel without the plaintiffs consent. A writ of certio-rari lies only where it is apparent on the face of the record that there has been a plain, manifest, clear, and gross abuse of discretion, and there is no other adequate remedy. Here, it is apparent from the pleadings and the court’s order that the court’s order was inconsistent with the express language of the rule. Moreover, we are persuaded that an appeal of an adverse decision would not be an adequate remedy under the circumstances.
Id. at 492, 29 S.W.3d at 690-91. (Internal citation and footnote omitted.)
As in Kraemer, at the heart of this case is the physician-patient privilege, a privilege recognized in this State since 1838. See Revised Statutes of Arkansas (1838), Chapter 158, Section 22. The privilege is protected under Arkansas Rule of Civil Procedure 35, which permits discovery of medical records. Specifically, Rule 35(c)(1) provides that a party who relies upon his or her “physical, mental, or emotional condition as an element of his or her claim or defense shall, within 30 days after the request of any other party, execute an authorization to allow such other party to obtain copies of his or her medical records.” Ark. R. Civ. P. 35(c)(1) (2011). Again, appellant is not a party in the custody case.
The privilege also is protected in Arkansas Rule of Evidence 503. Rule 503 provides that “[a] patient has a privilege to refuse to disclose and to prevent any other person from disclosing his medical records or confidential communications made for the purpose of diagnosis or treatment of his physical, mental or emotional condition, including alcohol or drug addiction, among himself, physician or psychotherapist.” Ark. R. Evid. 503(b) (2011). However, “[tjhere is no privilege under this rule as to medical records or communications [ 7relevant to an issue of the physical, mental, or emotional condition of the patient in any proceeding in which he or she relies upon the condition as an element of his or her claim or defense.” Ark. R. Evid. 503(d)(3)(A) (2011).
Appellee argues that the subpoenas were issued to the medical providers “so that the court could determine if appellant had health, medication, or suicidal issues that should be addressed by the court.” The essence of this argument is that there is an exception to the physician-patient privilege for a court, as opposed to the litigants, to access a witness’s medical records. We reject this contention outright. Rule 503 gives the patient the privilege, not the courts. Ark. R. Evid. 503(b); see also Kraemer, supra. Moreover, an exception to the privilege exists only when a patient relies on his medical condition as part of his claim or defense in a proceed ing. Ark. R. Evid. 503(d)(3)(A); see also Ark. R. Civ. P. 35. Appellant is not a party to the underlying custody dispute, and thus, he has presented no claim or defense in that matter.
Access to a nonparty witness’s medical information was addressed in Johnson v. State, 342 Ark. 186, 27 S.W.3d 405 (2000). There, Ashley Heath, the child eyewitness to a capital murder, waived the psychologist-patient privilege, permitting the defense access to her medical records. The defendant’s conviction was reversed, and on retrial, after Heath had obtained a new psychologist, she asserted the psychologist-patient privilege with regards to the new physician. The defendant sought access to the medical records but was denied, and on appeal, we held, that “Rule 503(d)(3)(A) clearly anticipates that the privilege is inapplicable only as to a party to a proceeding who brings his or her own physical, mental, or emotional | ^condition into issue.” Johnson v. State, 342 Ark. 186, 195, 27 S.W.3d 405, 411 (2000) (emphasis in original). We denounced the attempt to circumvent Rule 503 by calling into question a witness’s mental or emotional condition and held “that because Ashley Heath was not a party to the proceedings and did nothing to bring her own emotional condition into issue, she properly asserted her psychotherapist/patient privilege.” Id. Likewise, here, appellant did nothing to bring his medical condition into issue.
Appellee contends that there is no privilege for the fact that treatment was sought and received and cites to Cavin v. State, 313 Ark. 238, 855 S.W.2d 285 (1993), and State v. Sypult, 304 Ark. 5, 800 S.W.2d 402 (1990). These cases are distinguishable. In Cavin, the defendant admitted to two medical personnel that he had killed someone, and we found that the statements were not confidential communications because there was no proof that the defendant was seeking treatment. Moreover, we said that the testimony of the medical personnel was admissible under the Rule 503(d) exception because the defendant’s defense of involuntary intoxication placed his medical condition in issue.
In Sypult, the circuit court ruled that the State could admit evidence that the defendant sought treatment, the type of treatment sought, and that the VA Hospital made a report in accordance with Arkansas law concerning the reporting of suspected child abuse to the proper authorities; however, any confidential statements between the defendant and his health-care providers were inadmissible. In an interlocutory appeal, the State contended that the confidential statements were admissible. This court disagreed and in dicta stated that there was no privilege with regard to the fact that Sypult sought and received treatment. Neither 19Cavin nor Sypult involved the admissibility of medical records.
Next, appellee asserts that appellant’s in loco parentis relationship to the minor child and his marriage to Kayla essentially make him a party to this action. We disagree. Party status is generally obtained by initiating an action through filing a complaint or responding to a complaint by answer. In re $3,166,199, 337 Ark. 74, 987 S.W.2d 663 (1999). It is also possible to become a party by intervention under Arkansas Rule of Civil Procedure 24 or by joinder under Rule 19. Id. Neither rule applies here. Moreover, this argument is not well developed and not supported by citations to authority. We do not consider arguments without convincing argument or citations to authority. Seth v. St. Edward Mercy Med. Ctr., 375 Ark. 413, 291 S.W.3d 179 (2009).
Appellant’s mental health may be relevant to the underlying custody case; how ever, that analysis, as in any ease, must be based on admissible evidence. See Ark. R. Evid. 402 (2011) (All relevant evidence is admissible, except as otherwise provided by statute or by these rules.). The record reveals that appellant’s mental health was examined through other admissible evidence. A nonparty’s medical records cannot be subpoenaed under the circumstances presented in this case, and it is apparent from the pleadings and the June 23, 2011 order that a direct appeal would not be an adequate remedy. Accordingly, a writ of certiorari will lie. Appellant also seeks review of the denial of his motion for Rule 11 sanctions. In light of our holding that the motion to quash should have been granted, we remand for consideration the issue of whether Rule 11 sanctions are appropriate in this case.
Writ of certiorari granted.
hnHANNAH, C.J., and GOODSON, J., concur.
CORBIN, GUNTER, and DANIELSON, JJ., dissent.
. On September 20, 2011, the circuit court denied the petition for change of custody and stated that appellant could retrieve his sealed medical records from the circuit clerk's office. On November 23, 2011, the circuit voided and vacated that portion of the September order which denied the petition for change of custody. Again, appellant’s medical records were subpoenaed, whereupon a stay of their release was obtained from this court. Because there remains an existing controversy as to whether the subpoenas must be quashed, the issue before us is not moot.
. The dissent would hold that appellant has an adequate remedy because he can seek a protective order pursuant to Arkansas Rule of Civil Procedure 26(c). Rule 26 provides in relevant part that "parties may obtain discovery regarding any matter, not privileged, which is relevant to the issues in the pending actions.” Ark. R. Civ. P. 26(b)(1) (2011). Appellant’s medical records are privileged pursuant to Arkansas Rule of Evidence 503. Additionally, Rule 26(c) provides that a protective order may be sought "upon motion by a party or by persons from whom discovery is sought.” Here, appellant is neither a party, nor a person from whom discovery is sought. The subpoenas duces tecum in this case were issued to appellant’s medical care providers. Thus, the dissent is incorrect that appellant has a remedy pursuant to Rule 26(c). | [
81,
-20,
-11,
76,
10,
97,
115,
34,
82,
-125,
103,
115,
-25,
-24,
28,
107,
-53,
107,
97,
-15,
-61,
-75,
71,
65,
114,
-13,
-15,
87,
-77,
123,
-20,
-42,
88,
56,
-22,
-47,
70,
-54,
-81,
-40,
-122,
1,
-104,
-28,
80,
2,
56,
-29,
90,
7,
49,
-33,
-31,
44,
29,
-53,
-84,
108,
89,
-67,
81,
24,
-101,
5,
95,
2,
-111,
36,
-104,
6,
-64,
10,
-104,
56,
1,
-24,
114,
-106,
-126,
116,
79,
25,
9,
116,
98,
33,
12,
-25,
-72,
-116,
38,
62,
-99,
6,
-102,
105,
73,
15,
-106,
-75,
116,
22,
13,
-2,
41,
-51,
62,
108,
-120,
-50,
-44,
-111,
31,
113,
-100,
35,
-21,
-23,
16,
53,
-49,
-30,
116,
-58,
59,
-101,
-50,
-77
] |
OPINION. OF
THE COURT.
The only ground relied on for the reversal of the judgment In this action of trover is that the court erred in instructions to the jury. Upon the trial, on the motion of the defendant, the court instructed the jury that “the plaintiff had not sustained his action by proving a demand and refusal before the commencement of the suit, the defendant having become lawfully possessed of the property.” There are cases where the plaintiff cannot recover unless he proves a demand and refusal, and it is equally clear that there are cases where a demand and refusal are unnecessary, although the defendant may have come lawfully into possession; as where A. lends his horse to B., and B. sells him. This would be as strong evidence of conversion as could be adduced, and no demand would be necessary to enable the plaintiff to recover. 1 Chit. PI. 177, 178; 5 East, 407; 6 East, 538; 1 Johns. Cas. 407. But, in the case before the court, the evidence of the plaintiff, if he adduced any, is not contained in the bill of exceptions, nor spread upon the' record in any other manner; and, as the court might have been justified in giving the instruction, we are bound to presume in favor of the court in that respect. If, indeed, the plaintiff on the trial adduced evidence of a conversion other than that of a demand and refusal, the 'court no doubt committed an error in giving the opinion contained in the bill of exceptions; but, as no such evidence is shown to have been introduced, we cannot presume it, and consequently the judgment must be affirmed. Affirmed. | [
-78,
-4,
-112,
-84,
90,
96,
32,
-102,
65,
-93,
55,
-109,
109,
-46,
16,
51,
-28,
109,
85,
99,
94,
-93,
22,
-63,
-9,
-45,
-47,
87,
53,
109,
102,
87,
77,
48,
-62,
-11,
102,
-53,
-63,
80,
-122,
-122,
-70,
78,
-7,
8,
48,
57,
86,
11,
97,
-113,
-29,
46,
25,
-61,
-21,
40,
75,
57,
84,
120,
-101,
-51,
75,
4,
-79,
52,
-100,
71,
-38,
110,
0,
49,
1,
-40,
123,
-74,
-125,
84,
73,
-103,
8,
98,
102,
33,
93,
-17,
-8,
-103,
46,
108,
-113,
-90,
-48,
88,
11,
97,
-74,
-67,
100,
16,
7,
-18,
-32,
-99,
92,
108,
19,
-49,
-106,
-79,
-97,
36,
-102,
3,
-61,
17,
17,
113,
-51,
-14,
92,
23,
95,
-101,
-98,
-66
] |
OPINION OF
THE COURT.
The judgment in this case must be reversed ujion two grounds: (1) The court erred in not allowing the appellant, the defendant in the court below, until the next term to plead, after a substantial amendment of the declaration had been made. (2) The court erred in permitting any evidence to go to the jury in relation to a ferry, as a disturbance of or injury done thereto would constitute the ground of a separate action. Reversed. | [
-126,
-2,
-108,
-68,
66,
96,
106,
-102,
69,
-111,
-25,
115,
-65,
-37,
20,
123,
-82,
-17,
117,
-5,
-45,
-93,
55,
-29,
-13,
-45,
-15,
85,
-75,
108,
126,
-1,
76,
-16,
-54,
-43,
102,
-117,
-47,
84,
-50,
-105,
24,
97,
-47,
74,
32,
88,
66,
3,
49,
-116,
-29,
46,
25,
67,
-23,
44,
-55,
61,
67,
-71,
-113,
-115,
101,
4,
-95,
52,
-98,
78,
-38,
36,
-112,
49,
0,
-8,
115,
-106,
-125,
116,
67,
-69,
12,
66,
96,
1,
69,
111,
-67,
-87,
55,
110,
-81,
-89,
-100,
120,
75,
112,
-74,
-33,
103,
20,
38,
126,
-22,
-100,
-107,
36,
3,
-54,
-16,
-13,
-33,
44,
-70,
98,
-53,
51,
48,
113,
-24,
-24,
92,
4,
19,
-13,
-99,
-100
] |
Jim Johnson, Associate Justice.
This case arises out of a judgment for damages resulting from an automobile collision. The damages were rendered against the appellant because of the negligent acts of an individual who was driving appellant’s motor vehicle and who was at the time of the collision appellant’s employee. There are two principal issues on appeal: (1) Was appellant’s employee acting within the scope of his employment when the collision in question occurred? and (2) Was the jury properly instructed?
I.
It was undisputed that at the time of the collision an employee of appellant, driving a vehicle owned by appellant, collided with the vehicle owned and occupied by plaintiffs. Upon this showing, an inference or presumption of fact arose that at the time of the collision the employee was acting within the scope of his employment and in the furtherance of his master’s business, which presumption might be overcome by evidence to the contrary. See: Ford & Son Sanitary Co. v. Ranson, 213 Ark. 390, 210 S. W. 2d 508, and cases there cited. The point in issue on this appeal is whether this presumption was overcome as a matter of law or whether it was an issue of fact for the jury. The distinction between presumptions of law and fact is clearly drawn in Mullins v. Ritchie Grocer Co., 183 Ark. 218, 35 S. W. 2d 1010, where we said:
“We adhere to our ruling that the defendant’s ownership of the ear, coupled with proof that the driver at the time of the accident was in the regular employment of the defendant as salesman and had general charge of the car, raises a presumption that he was acting within the scope of his authority. In this connection it may he stated that there is a distinction between presumptions of law and presumptions of fact which is clearly and fully stated in Wigmore on Evidence, vol. 5, (2d Ed.) § 2491. To illustrate, we have a statute making railroads responsible for all damages to persons and property done or caused by the running of trains, and proof of the injury under the statute makes a prima facie case for the plaintiff. It is a presumption of law based upon public policy as declared by the Legislature. The presumption thus raised by law does not of itself possess probative weight. Hence, when evidence is introduced rebutting the presumption, it may be overcome, and, where the evidence of the basic facts is undisputed, the legal presumption will disappear and no longer exist.
‘ ‘ The presumption with which we are dealing in the present case is not a legal presumption, but is an inference or presumption of fact. Its existence is called into being by proof introduced on the subject and not by any statute dealing with the question. This being so, the opposing evidence must be weighed by the jury, for the reason that under Article 7, § 23, of our Constitution, the jury is the judge of the facts proved, . .”
In arguing that this presumption of fact in the case at bar was rebutted as a matter of law and that there was no question for the jury on this issue, the appellant relies, primarily, on the testimony of Marion B. Burk-halter, who was a party defendant, and the testimony of Martha Elmore, who was a passenger in appellant’s car at the time of the collision. Burkhalter’s testimony may not be taken as uncontradicted. He was a party and his testimony was contradicted as a matter of law. Cousins v. Cooper, 232 Ark. 605, 339 S. W. 2d 316. Mrs. Elmore was extremely vague about many things that occurred in a three day period when she was with the employee constantly and during which the collision occurred. In fact, she stated “That I don’t remember too much about,” when asked to detail what happened on the trip from Hot Springs to Malvern during which the collision occurred. She further stated that after the collision they went to Jones Mill but that she did not know where they went thereafter. The record shows that the employee was a married man with a family who was on a drunken spree with Mrs. Elmore as his companion. This relationship was obviously illicit and immoral. The fact that she could not remember much about occurrences on the night in question gives rise to the inference that she was also drinking. Therefore, even though she said that the employee transacted no business on behalf of the employer on the trip which resulted in the collision, such testimony did not require a finding that, as a matter of law, the employee was not acting within the scope of his employment. We have repeatedly held that a jury does not have to blindly accept everything that a witness may say. As we said in Reserve Loan Life Ins. Co. v. Compton, 190 Ark. 1039, 83 S. W. 2d 537:
“. . . It has long been the established rule in this state that the weight of the evidence and the credibility of the witnesses is solely within the province of the triers of fact. They may believe such part of the testimony or the testimony of any witness which they believe to be true and they may disregard such part of the testimony or such part of any witnesses’ testimony which they believe to be false, or they may disregard any part of the testimony of any witness about which the witness might be mistaken. See Gibson Oil Co. v. Bush, 175 Ark. 944, 1 S. W. 2d 88, and Warren & Saline River Railroad Co. v. Wilson, 185 Ark. 1063, 50 S. W. 2d 976.”
II.
For reversal, appellant contends that the following instruction was error:
“The test of a master’s liability for wrongful acts of a servant is whether the act was done while on a mission or carrying out the purpose and object of the mater’s business and if you find in this case, from a preponderance of the evidence, that William C. Brown was so acting at the time of the collision in question, then you may return a verdict in favor of the plaintiffs in such sum or sums as you may determine to be due them under the other instructions given you herein.”
Appellant complains that this instruction was a “binding instruction” and was erroneous because it required a finding for plaintiff without a finding that the employee was negligent, which issue was omitted from the instruction. We cannot agree that this is a binding instruction. It should be noted that the instruction says that the jury “may” return a verdict for the plaintiffs. It does not say that the jury “shall”, “must”, or “will”, return such a verdict. Appellant cites Des Arc Oil Mill v. McLeod, 137 Ark. 615, 206 S. W. 655, as holding that a similar instruction was erroneous. Upon reexamination of the cited case we find that the case does not hold that the instruction is “binding”. The case does show that the trial court did not give a proper instruction on the defense of assumed risk and therefore the omission of this defense in the instruction quoted in the case did amount to error. However, the case does not hold that the error could not have been cured by a separate instruction properly stating the defense of assumed risk and the consequences of a finding that the risk was assumed. In the case now before us, we find that the defendant’s requested Instruction No. 4, which was given, and defendant’s requested Instruction No. 8, as amended and given, adequately advises the jury as to negligence and necessity of first finding that the employee was negligent before finding for the plaintiffs. In Roland v. Terryland, 221 Ark. 837, 256 S. W. 2d 315, we quoted 53 Am. Jur. Sec. 547, as follows:
“The . . . 4instructions given to the jury should be complete, and should cover all material issues supported by the evidence adopted . . . However, it is not necessary that the ihw applicable to all questions in a case be stated in each instruction in a series, it being sufficient if all, when considered as a whole, state the law correctly’.”
While we do not believe that the giving of plaintiff’s requested Instruction No. 2, as set out herein, necessitates a reversal, we do not wish to be understood as approving its form. Upon a retrial it should be revised to include the missing elements.
III.
Appellant complains of the giving of plaintiff’s requested Instruction No. 1, which reads:
“You are told that if the servant, at the time of inflicting the injury, was acting within the scope of employment, or apparent scope thereof, and such injury was proximately the result of some wrongful or negligent act, the improper conduct is attributable to the master. This is time, although the servant acted in wilful disobedience of orders or prescribed rules of conduct; but, if on the other hand, in disregard of the duties of his employment, he leaves his employer’s business, though momentarily, and engages in enterprises that are wholly his own, and while so engaged in accomplishing such individual desires or objectives, he wrongs another, he alone is responsible.”
The complaint is that the part of the instruction which reads: “or apparent scope thereof ’’ was abstract. In this, we agree. There was no evidence showing anything from which any inference as to “apparent scope of authority” could be drawn. Further, the doctrine of “apparent scope of authority” has no application in tort cases unless there has been a reliance upon apparent authority which caused the injury complained of. See: Restatement of Agency 2d, Sec. 265, Subsection 2, p. 575, and comment on same at page 576. For the error indicated, the case is reversed and remanded for a new trial.
Justice Robinson is of the opinion that the instruction discussed under point 2 herein is binding and the case should also be reversed for that reason.
Robinson, J., concurs. | [
-16,
-7,
-24,
-114,
26,
96,
2,
58,
101,
-29,
-91,
-45,
-17,
-37,
13,
49,
-9,
29,
-47,
43,
-11,
-93,
3,
-126,
-14,
-73,
-7,
-49,
-107,
74,
-29,
126,
77,
48,
14,
-43,
-89,
66,
-59,
94,
-50,
36,
42,
-24,
-103,
-16,
-80,
58,
-44,
79,
65,
-113,
-5,
42,
24,
-58,
105,
46,
107,
-71,
-64,
-16,
-114,
-123,
79,
16,
-77,
100,
-102,
39,
-8,
15,
8,
57,
33,
88,
115,
-90,
-46,
-44,
105,
-103,
8,
98,
98,
16,
49,
99,
-84,
-40,
15,
-70,
15,
-89,
20,
80,
73,
11,
-73,
-97,
113,
18,
4,
110,
-2,
13,
31,
60,
-125,
-113,
-74,
-80,
-115,
52,
22,
7,
-21,
-123,
18,
101,
-49,
106,
93,
69,
90,
-101,
-33,
-108
] |
Subsets and Splits
No community queries yet
The top public SQL queries from the community will appear here once available.